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HomeMy WebLinkAbout93-910 civilJEFFREY E. JOHNSTON ROBIN L. McCANNA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 910 CIVIL 1993 OPINION AND ORDER OF COURT BAYLEY, J., March 18, 1999:-- Jeffrey E. Johnston and Robin L. McCanna were married on December 27, 1980. They have two children, Eric, age 13, born May 7, 1985 and Annie, age 10, born June 23, 1988. The parties separated on February 23, 1991. They entered into a comprehensive property settlement agreement on April 29, 1994, and were divorced on this docket on June 14, 1994. The decree in divorce provided that the property settlement agreement was "incorporated herein.''~ The property settlement agreement provided: The law would entitle Wife to more than half the marital property in equitable distribution, but the law would not require Husband to pay as much as $655.00 every two weeks for support of the children. A fundamental consideration in Wife's accepting what is essentially equal distribution of marital property, is Husband's agreement to pay $655.00 every two weeks for support of the children. Husband does hereby agree to pay Wife directly utilizing a direct deposit, $655.00 every two weeks for the support of the children of the parties and to maintain health insurance coverage on the children as available through his employer. Only if there are problems with Husband's paying will Wife utilize the Domestic Relations Office as a conduit for payment of child support .... The agreed amount of child support may be modified by either party in accordance with the current or amended support guidelines based 'upon a substantial change in circumstances. In addition, Wife's gross income up to $15,000 per year, exclusive of child support, shall not be considered as a basis for a reduction in 1. The decree did not address merger. 910 CIVIL 1993 child support. In the event of Husband's seeking a reduction in support for a non-voluntary loss of income, then, to the extent that the reduction is allowed by Wife or Ordered by Court, there shall be an equal reduction in the share of the proceeds from the distribution of the equity after the home is sold or purchased by Wife, provided Wife continued to make the mortgage, tax and insurance payments. Likewise, should either party fail to meet his/her obligations in relation to the real estate, then necessary adjustments at settlement to reflect same, shall be made prior to equal division of the proceeds. In the event that Husband seeks and is granted a reduction in support, other than for circumstances involving the death of a child or a non-voluntary loss of income, he will be required to immediately convey to Wife his interest in the marital dwelling. So long as Husband continues to pay $655.00 every two weeks for child support with none of it allocated to Wife as spousal support or alimony, Husband shall be entitled to claim the children for federal income tax exemption purposes and shall be entitled to claim the mortgage interest and real estate tax deductions. (Emphasis added.) The property settlement agreement set forth that wife could remain in the marital residence at 1346 Zimmerman Road, Carlisle, Cumberland County, unless certain "option events" occurred, in which case the property would be sold and the net proceeds divided equally. Wife remarried on August 13, 1997, which was an "option event? The property was sold and each party received $33,000. The mother moved with Eric and Annie to a home in Carlisle with her new husband that is about two miles from the former marital residence. As of December 1, 1998, the father unilaterally reduced his bi-weekly $655 child support to $392.31. The mother filed a petition to enforce the child support at $655 bi-weekly and to hold the father in contempt. The father filed a counter petition to modify the child support to an amount 2. Husband remarried in May 1994, right after his divorce. -2- 910 CIVIL 1993 that he should be required to pay under the Pennsylvania Support Guidelines. The father is a personnel analyst for the Commonwealth of Pennsylvania. He earns $32.54 an hour for an annual gross income of $63,453. His bi-weekly net income is $1,753.42.3 The mother works as a teacher's aide for thirty-five hours a week during the school year. Her gross income is $8,100 a year. Her bi-weekly net income spread over a year is $250.4 The Pennsylvania Support Guideline computation for two children with no child care expense with the obligor having a bi- weekly net income of $1,753.42, and the obligee having a bi-weekly net income of $250, is $881.37 per month or $406.79 bi-weekly.5 The parties set an amount of child support in their property settlement agreement that was incorporated into their decree of divorce. The child support was not entered as a domestic relations order. A trial court may exercise the power of contempt in enforcing the terms of a property settlement agreement pursuant to the Divorce Code at 23 Pa.C.S. Section 3105. Sinaiko v. Sinaiko, 445 Pa. Super. 56 (1995). Section 3105, titled "Effect of agreement between parties," provides: (a) Enforcement.--A party to an agreement regarding matter within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the 3. Mandatory retirement of $122.03 is deducted from his gross bi-weekly income of $2,440.50. 4. As with the father, we have not included her mandatory annual retirement contribution of $507 into this calculation. 5. Pa. Rule of Civil Procedure 1910.16-1. -3- 910 CIVIL 1993 agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement. (b) Certain provisions subject to modification.--A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (Emphasis added.) (c) Certain provisions not subject to modification.--In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court. Because the mother is seeking to enforce a child support provision in a property settlement agreement by contempt pursuant to Section 3105 of the Divorce Code we must consider the father's petition for modification of the amount of support under Section 3105(b). Under that provision if there have been "changed circumstances" the amount of the child support is subject to modification. The test of whether there should be a modification in the amount of the child support is not the "substantial change in circumstances" as set forth in the parties' agreement.6 The father argues that the following are changed circumstances that warrant a modification of the amount of child support that he is obligated to pay under the parties' property settlement agreement: (1) the mother has remarried, (2) the marital home was sold with the mother and children moving to a new residence, (3) the 6. This is not a civil action for compensatory damages or for specific performance based on a breach of the child support provision in the property settlement agreement. Therefore, we need not determine whether in such an action the child support provision can be separately enforced by contract and be subject to modification only as provided for in the agreement. See D'Huy v. D'Huy, 390 Pa. Super. 509 (1990); Nicholson v. Combs, 703 A.2d 407 (Pa. 1997). -4- 910 CIVIL 1993 mother's expenses have decreased, and (4) he can no longer take a deduction on his federal taxes for the mortgage interest and real estate taxes that his wife was paying on the marital residence. Intertwined in the father's argument is his position that the purpose underlying the $655 bi-weekly child support that he agreed to pay in the April, 1994, property settlement agreement no longer exists because the mother and children have left the marital residence. That is simply wrong. The property settlement agreement set forth the reason for the father paying a higher amount of child support than he otherwise would have had to pay. It was that the mother accepted less property than she would have otherwise been entitled to had there been an equitable distribution of the marital property. There have been no changed circumstances that warrant modifying the child support order. The mother still has to maintain a home for her children and provide for their needs. That is not her new husband's obligation. The father's income has not decreased and the mother's income has not increased. Both parties have remarried, and their marital status has no bearing on their respective duty to support their children. The fact that the mother moved into a home that is about two miles from the former marital residence also has no bearing on the father's obligation to support the children. Before the marital home was sold the mother was paying the mortgage, insurance and taxes but the father, based on his paying $655 every two weeks for child support, was as allowed by the property settlement agreement deducting for -5- 910 CIVIL 1993 federal income tax purposes the mortgage interest and real estate taxes. This is not a change of circumstances that warrants a modification of his child support because, as the father conveniently forgets, it was the mother's remarriage that resulted in the marital home being sold and his receiving $33,000 of the net proceeds. The small benefit that he received in taking a federal tax deduction for the mortgage interest and taxes that the mother paid on the marital residence has been far offset by his good fortune in having already received $33,000 in equity from the residence far sooner than he might otherwise have. The mother further seeks an award of counsel fees pursuant to a provision in the property settlement agreement that provides: Breach. If either party breaches any provision of this Agreement, the other party shall have the right, at his or her election, to sue for damages for such breach, and seek any other remedy allowed in law or equity. The party breaching this contract shall be responsible for the payment of reasonable legal fees and costs incurred by the other in enforcing his or her rights under this Agreement, or seeking such other remedy or relief as may be available to him or her. Reasonable counsel fees hereunder shall be defined as reasonable hours expanded at the then hourly rate of counsel for the prevailing party. Such counsel fees shall extend to any independent proceedings necessary to collect counsel fees or to enforce any other judgment or decree in connection with this agreement .... (Emphasis added.) The father's unilateral reduction in the bi-weekly $655 child support as of December 1, 1998, is in breach of his obligation set forth in the property settlement agreement. Therefore, the mother is entitled to an award of attorney fees in enforcing that obligation. For the foregoing reason, the following order is entered. -6- 910 CIVIL 1993 AND NOW, this ORDER OF COURT day of March, 1999, IT IS ORDERED: (1) The petition of Robin L. McCanna to enforce a $655 bi-weekly child support obligation against Jeffrey E. Johnston as provided for in the parties' property settlement agreement dated April 29, 1994, IS GRANTED. (2) The petition of Jeffrey E. Johnston to modify the $655 bi-weekly child support obligation, IS DENIED. (3) The Rule entered against Jeffrey E. Johnston on January 22, 1999, to show cause why he should not be adjudged in contempt for failing to make the $655 bi- weekly child support payments required by the parties' property settlement agreement dated April 29, 1994, IS MADE ABSOLUTE. (4) A citation is issued against Jeffrey E. Johnston to adjudicate him in contempt for failing to make the $655 bi-weekly child support payments required by the parties' property settlement agreement dated April 29, 1994. (5) An adjudication shall be conducted in Courtroom Number 2, Cumberland County Courthouse, on Thursday, March 25, 1999, at 1:30 p.m. (6) Evidence shall be submitted at the adjudication of the counsel fees of Robin L. McCanna in enforcing the child support provision in the parties' property settlement agreement. -7- 910 CIVIL 1993 Joseph D. Buckley, Esquire For Jeffrey E. Johnston Samuel L. Andes, Esquire For Robin L. M¢Canna By.the Cou/,~/~ Edgar B. I~.y'[e'y~ ,~ :saa -8-