HomeMy WebLinkAbout2003-3979
CATHERINE J. BABNER,
: IN THE COURT OF COMMON PLEAS OF
Plaintiff,
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
DAVID L. BABNER,
:
Defendant
: NO. 03-3979 CIVIL
IN RE: PETITION TO ENFORCE MARRIAGE SETTLEMENT AGREEMENT
BEFORE HESS, P.J.
OPINION and ORDER
Before the Court is Plaintiff’s petition to enforce a marriage settlement agreement entered
into by the parties in connection with the entry of a divorce decree. (Plaintiff’s Petition to
Enforce Marriage Settlement Agreement, filed Mar. 6, 2012). The issue is what, if any, sums of
money are due and owed to Plaintiff under the settlement agreement. Plaintiff requests the entry
of judgment against Defendant for unpaid child support, un-provided medical insurance, and
counsel fees. For the reasons that follow, Plaintiff will be entitled to enforcement of the
agreement to the extent that Defendant will be directed to pay to Plaintiff the amount of
$2,305.00.
The facts of this case, relevant to the instant petition, may be summarized as follows.
Plaintiff Catherine J. Babner and Defendant David L. Babner were married on November 9,
1991 and later separated. A subsequent marriage settlement agreement provided for the support
of their four children, Sarah, Joseph, Aaron, and Brian. Specifically, an agreement, reached on
September 16, 2003, provided, in pertinent part, as follows:
12. SUPPORT
(A)Child Support
Husband shall pay child support in the amount of $150.00 dollars per week for
the period of 2003 thru to the end of 2004.
Husband shall pay child support in the amount of $175.00 dollars per week for
the periods of 2005 to the end of 2006.
Husband shall pay child support in the amount of $200.00 dollars per week for
the periods of 2007 to the end of 2008.
Husband shall pay child support in the amount of $225.00 dollars per week for
the periods of 2009 to the end of 2010.
Husband shall pay child support in the amount of $125.00 dollars per week for
the periods of 2011 until Sara graduates from high school in 2012.
(B) Medical Insurance for Children
Father shall provide full medical health insurance coverage for the children
until they graduate from high school, reach the age of eighteen (18), obtain a
Bachelor’s degree whichever of these conditions is the last to occur.
18. BREACH AND ENFORCEMENT
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, or seek
other such remedies or relief as may be available to him or her, and the party
breaching this Agreement should be responsible for payment of legal fees and
costs incurred by the other in enforcing his or her rights under this agreement.
. . .
C. Each party further hereby agrees to pay and to save and hold harmless the other
party from any and all attorney’s fees and costs of litigation that either may
sustain, or incur or become liable for, in any way whatsoever, or shall pay upon,
or in consequence of any default or breach by the other of any of the terms or
provisions of this agreement by reason of which either party shall be obliged to
retain or engage counsel to initiate or maintain or defend proceedings against the
other at law or equity or both in any way whatsoever; provided that the party
seeks to recover such attorney’s fees, and costs of litigation must first be
successful in whole or in part, before there would be any liability for attorney’s
fees and costs of litigation. It is the specific agreement and intent of the parties
that a breaching or wrongdoing party shall bear the burden and obligation of any
and all costs and expenses and counsel fees incurred by himself or herself as well
as the other party in endeavoring to protect or enforce his or her rights under this
Agreement.
(Petitioner’s Ex. 2, admitted at Hearing, May 17, 2012).
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A final divorce decree was entered on December 16, 2003, which decree recited that
th
“[t]he Marital Settlement Agreement executed on the 16 day of September 2003 shall be
Incorporated into the Divorce Decree and shall not merge.” (Petitioner’s Ex. 1, admitted at
Hearing, May 17, 2012).
In April of 2006, Defendant was incarcerated in a state prison and remained imprisoned
until August of 2010, when he was released on parole. Immediately prior to Defendant’s
incarceration, on March 21, 2006, Plaintiff filed a complaint for child support in the Cumberland
County Court of Common Pleas. In June, 2006, Defendant was ordered by the Court to pay to
the Pennsylvania State Collection and Disbursement Unit as support for the four children the
sum of $318.00 per month, as well as the additional sum of $82.00 per month in retroactively
applied arrearages. (Interim Order of Court, Jun. 5, 2006). Over the course of the succeeding
several years, Defendant’s support obligation under the order was increased to $350.00 per
month, beginning in September, 2010, and again in August, 2011 when Defendant was ordered
to pay $737.00 per month, which included retroactive arrearage payments of $67.00 per month
for the following 5 months. Thus, in January of 2012 Defendant’s support order obligation
returned to $670.00 per month.
At our hearing, testimony was adduced from both parties concerning the amount of child
support paid by Defendant under the settlement agreement. The parties agreed that Defendant
met his support obligation under the support order for the entire period of his incarceration,
paying $318.00 per month from April of 2006 through August of 2010. (See Petitioner’s Ex. 3,
admitted at Hearing, May 17, 2012; Respondent’s Ex. 2, admitted at Hearing, May 17, 2012).
Following his release from prison, Defendant obtained employment and continued to remain
current on his support obligations under the support order, paying $350.00 per month from
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September, 2010 to July, 2011; $737.00 per month from August, 2011 to December, 2011; and
$670.00 per month from January, 2012 through June, 2012. (See Petitioner’s Ex. 3, admitted at
Hearing, May 17, 2012; Respondent’s Ex. 2, admitted at Hearing, May 17, 2012). Thus, as far
as is discernible from the record, Defendant has remained current with his support obligation as
outlined in the support order.
On March 6, 2012, Plaintiff filed a petition to enforce the marriage settlement agreement,
alleging that, although her former husband had remained current under the support order, the
settlement agreement required him to pay over and above the support order amount. In his
answer and new matter, Defendant raised certain affirmative defenses, asserting that, initially,
Plaintiff’s claim was either barred in its entirety by the applicable statute of limitations, or, in the
alternative, that Plaintiff’s claim must be limited to the four years immediately preceding the
filing of the petition. Moreover, Defendant requested that we modify the support provision of
the marriage settlement agreement, nunc pro tunc, pursuant to 23 Pa.C.S.A. § 3105(b) for
reasons of justifiable reliance on the support order and an unforeseen inability to pay the
increased amount as a result of his incarceration. Lastly, Defendant requested, and Plaintiff did
not oppose, that the support payments made pursuant to the court order be deducted from the
amount owed under the support agreement.
Marriage settlement agreements, which have been incorporated but not merged into a
divorce decree, are governed by the law of contracts and are to be construed in accordance with
the well-established principles of contract law. Sorace v. Sorace, 440 Pa.Super. 75, 78-79, 655
A.2d 125, 127 (1995). It is well established that the law governing marital settlement
agreements, as well as contracts, provides a four-year statute of limitations within which one
must bring an action. 42 Pa.C.S.A. § 5525(a)(8); see also Crispo v. Crispo, 2006 PA Super 267,
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¶ 18, 909 A.2d 308, 312-13. Furthermore, a fundamental tenet of contract law requires a court to
ascertain and give effect to the intent of the contracting parties when construing the terms of a
contract. Mace v. Atlantic Refining Mktg. Corp., 567 Pa. 71, 80, 785 A.2d 491, 496 (2001). “To
that end we must look to the terms of the contract when called upon to construe rights pursuant
thereto. The contract must be construed only as written. If [a marital settlement] agreement
contains clear and unambiguous terms, a court may not modify the plain meaning of the word
under the guise of interpretation.” Frank v. Frank, 402 Pa.Super. 458, 462, 587 A.2d. 340, 342
(1991).
Despite this broad grant of deference to those who contract to privately determine matters
relating to their divorce, Pennsylvania courts have consistently held that “parties’ agreements
pertaining to matters of child support or child custody are always subject to court intervention.”
Deasy v. Deasy, 730 A.2d 500, 502 (Pa.Super.Ct.1999). Moreover, the Pennsylvania legislature
codified this equitable authority at 23 Pa.C.S.A. § 3105(b), which provides as follows: “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.” Indeed, the Pennsylvania
Supreme Court has found that, while “[p]arties to a divorce action may bargain between
themselves and structure their agreement as best serves their interests. . .[t]hey have no power,
however, to bargain away the rights of their children.” Knorr v. Knorr, 527 Pa. 83, 86, 588 A.2d
503, 505 (1991) (internal citations omitted).
In Nicholson v. Combs, 550 Pa. 23, 703 A.2d 407 (1997), the Pennsylvania Supreme
Court addressed the issue of whether a child support provision contained in a property settlement
agreement that was incorporated, but not merged, into a divorce decree prior to the effective date
of 23 Pa.C.S. § 3105 may be subject to a reduction by the trial court. In holding that such a
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provision was not subject to modification, the Supreme Court reasoned that, in 1987, when the
parties executed their property settlement agreement, support provisions of an incorporated but
unmerged agreement were clearly not subject to downward modification by a court by reason of
long-standing precedent to the contrary. Nicholson, 550 Pa. at 31, 703 A.2d at 411 (citing Brown
v. Hall, 495 Pa. 635, 435 A.2d 859 (1981)). Thus, the Court in Nicholson decided that case
pursuant to the law in effect prior to the 1988 amendments to the Divorce code. In contrast to
the state of the law that formed the basis for the Nicholson decision, the instant case must be
decided pursuant to current law.
Section 3105(b) of the Divorce Code addresses the modification of marital settlement
agreements between parties and provides, in pertinent part, as follows:
(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.
23 Pa.C.S.A. § 3105(b).
As is clear, the statute on modification of a child support provision contained within a
marital settlement agreement is silent with respect to the issue of retroactive application. We
have found no appellate case addressing the specific issue before us; that is, whether § 3105(b)
may be applied retroactively, not to agreements executed before the effective date of the statute,
as was the issue in Nicholson, supra, but rather to marital settlement agreements which are
clearly governed by the current Divorce Code. Notwithstanding, we are satisfied that the broad
and equitable powers of the court in dealing with matters of child support are sufficient to permit
retroactive modification of the obligations of a party to a marital settlement agreement where the
obligation relates to the support of a child. It is simply “‘inconceivable’ that [agreements which
provide for both property and support matters] would be irreversible when the interest of justice
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and the best interests of the child require otherwise.” Thompson v. Rose, 698 A.2d 1321, 1323
(1997) (internal citations omitted).
Pennsylvania Rule of Civil Procedure 1910.19(f) provides that a court may retroactively
modify or terminate a support order or arrearages thereunder when it appears that the obligor is
unable to pay, has no income or assets, and there is no reasonable prospect that the obligor will
obtain the ability to pay in the foreseeable future. Pa.R.Civ.P. 1910.19(f). The explanatory
comment accompanying paragraph (f) provides that “. . .an obligor with no verifiable income or
assets whose institutionalization, incarceration or long-term disability precludes the payment of
support renders the support order unenforceable and uncollectible, diminishing the perception of
the court as a source of redress and relief.” Pa.R.Civ.P. 1910.19, Expl.Cmt. 2006. “Therefore,
the law of this Commonwealth now affords an incarcerated parent the ability to petition to
modify or terminate their support obligation where they are able to prove that the order is no
longer able to be enforced under state law or that the incarcerated obligor parent is without the
ability to pay their child support obligation and there is no reasonable prospect that they will do
so for the foreseeable future.” Plunkard v. McConnell, 2008 PA Super 282, ¶ 9, 962 A.2d 1227,
1230-31. Thus, in the realm of support orders, an incarcerated parent is afforded the opportunity
to petition the court for the retroactive modification of arrearages based on a showing of changed
circumstances which resulted from the incarceration itself. We understand that the law with
regard to support orders and marital settlement agreements is different. Nonetheless, we see no
reason why the opportunity to modify should not be afforded to an incarcerated parent who is
obligated to pay support under a marital settlement agreement.
We find, also, that the four year statute of limitations applicable to actions sounding in
breach of contract limits Plaintiff’s recovery to the four years immediately preceding the filing of
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the instant petition. The marriage settlement agreement obligated Defendant to pay over to
Plaintiff various specified amounts each month in support of their children. Thus, a breach
occurred each time Defendant made a payment in an amount less than was required under the
agreement. As a result, Plaintiff’s claim is limited to a period of four years prior to the filing of
her petition, or the payments from March, 2008 to March, 2012.
At the hearing, Defendant testified that, once he received the support order, he assumed
that his paying of the support obligation under the court order satisfied his support obligation
entirely. In addition to this quite reasonable, yet erroneous, understanding of the Divorce Code,
Defendant also experienced a significant change in circumstances; specifically, Defendant
became incarcerated for a four year period during which he had no income, whatsoever.
Remarkably, he remained current under his support order obligation by depleting his savings
account and obtaining help from relatives. In consideration of the foregoing, we find it wholly
reasonable that Defendant’s significant change in circumstances and justifiable reliance on the
support order warrant the retroactive modification of any arrearages under the settlement
agreement which may have resulted from his payments pursuant to the support order. Thus,
Defendant’s settlement agreement support obligation will be modified to $318.00 per month
from March, 2006, through August, 2010, the term of his incarceration, in accordance with the
support order obligation.
Turning to the issue of the amount of support due and owing to Plaintiff under the
marriage settlement agreement, we find that Plaintiff is entitled to enforcement of that agreement
in the amount of $1,555.00. The parties agreed that Defendant remained current on his support
obligation throughout his incarceration, paying, for the relevant times herein, $318.00 per month
from March, 2008 through August, 2010. In August, 2010, Defendant was released from prison;
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as a result, for the last four months of 2010, Defendant owed the difference between the agreed
payment of $900.00 per month ($225 per week) and the actual monthly payment made of
$350.00, which resulted in a deficiency of $2,200.00. For the first seven months of 2011,
Defendant made monthly payments of $350.00; as a result, Defendant owed the difference
between the agreed payment of $500.00 per month ($125.00 per week) and the $350.00 payment,
resulting in an additional deficiency of $1,050.00. For the last five months of 2011, beginning in
August, 2011, Defendant made payments of $737.00 per month; these payments were greater
than the agreed to payment of $500.00 per month, resulting in an overpayment of $1,185.00.
Beginning in January, 2012, and continuing through March, 2012, the time of the filing of the
petition, Defendant made payments of $670.00 per month; these payments were greater than the
agreed upon payment of $500.00 per month, resulting in an overpayment of $510.00. As a
result, Defendant has a total deficiency under the marriage settlement agreement of $1,555.00.
The foregoing is illustrated by the following computational chart:
Paid Agreed Deficiency
2008
March $318 $318 (modified) $0.00
through
2010
August $318 $318 (modified) $0.00
September $350 $900 $550
October $350 $900 $550
November $350 $900 $550
December $350 $900 $550
2010 total deficiency: $2,200
2011
January $350 $500 $150
February $350 $500 $150
March $350 $500 $150
April $350 $500 $150
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May $350 $500 $150
June $350 $500 $150
July $350 $500 $150
Jan. through July, 2011 total deficiency: $1,050
August $737 $500 -$237
September $737 $500 -$237
October $737 $500 -$237
November $737 $500 -$237
December $737 $500 -$237
Aug. through Dec., 2011 total overpayment: -$1,185
2012
January $670 $500 -$170
February $670 $500 -$170
March $670 $500 -$170
Jan. through Mar., 2012 total overpayment: -$510
Total deficiency: $1,555.00
Turning to the matter of counsel fees, the well-settled “general rule within this
Commonwealth is that each side is responsible for the payment of its own costs and counsel fees
absent bad faith or vexatious conduct. This so-called ‘American Rule’ holds true ‘unless there is
express statutory authorization, a clear agreement of the parties or some other established
exception.’” McMullen v. Kutz, 603 Pa. 602, 612-13, 985 A.2d 769, 775 (2009) (internal
citations omitted). Here, the parties’ marriage settlement agreement clearly expressed their
stated intent to hold a breaching party liable over to the other for the counsel fees of the innocent
party. (See Marital Settlement Agreement, § 18) (“It is the specific agreement and intent of the
parties that a breaching or wrongdoing party shall bear the burden and obligation of any and all
costs and expenses and counsel fees incurred by himself or herself as well as the other party in
endeavoring to protect or enforce his or her rights under this Agreement.”). Based upon the
forgoing discussion of deficient payments, Defendant has unquestionably breached the marriage
settlement agreement, thus triggering the assessment of Plaintiff’s counsel fees against
Defendant.
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At the hearing, Plaintiff offered into the record a statement bill from her attorney, which
calculated her counsel fees for the filing of the underlying petition at a rate of $200.00 per hour
with a stated bill time of 3.75 hours, thereby resulting in $750.00 of legal fees. (Petitioner’s Ex.
4, admitted at Hearing, May 17, 2012). We find the award of $750.00 to be reasonable under the
circumstances and facts of this case. As a result, Plaintiff will be awarded the additional sum of
$750.00 in accordance with the terms of the settlement agreement.
Turning lastly to the matter of medical insurance, after review of the testimony and
evidence adduced at the hearing, we are satisfied that Plaintiff is not entitled to an award of
damages for Defendant’s alleged failure to provide medical insurance to the parties’ four
children. Plaintiff testified that her current husband maintains a family health insurance plan
through his federal employment which covered eleven individuals between 2008 and 2009,
including the four children the subject of the instant litigation, and eight individuals from 2010
through the time of the filing of the underlying petition, also including the four children. (N.T.
20-21). Additionally, Plaintiff testified that the family health insurance plan currently in effect
carries the same cost regardless of the number of children covered. (N.T. 21). Plaintiff has
therefore incurred no additional cost in providing coverage for the four children. Moreover,
Plaintiff has failed to supplement the record with any evidence by which we would be able to
calculate damages which she may have suffered as a result of Defendant’s failure to provide
medical health insurance to the children. It is axiomatic that a breach of contract claim requires
resultant damages as a prerequisite to recovery. Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053,
1058 (Pa.Super.Ct.1999).
For the foregoing reasons, the following order will be entered:
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ORDER
AND NOW, this day of July, 2012, upon consideration of Plaintiff’s Petition to
Enforce Marriage Settlement Agreement, Defendant’s Answer and New Matter, and following a
hearing, held May 17, 2012, Plaintiff’s Petition is GRANTED to the extent that it is hereby
ordered and directed that Defendant is to pay to Plaintiff the amount of $2,305.00.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Jane Adams, Esquire
For the Plaintiff
Jennifer P. Wilson, Esquire
For the Defendant
:rlm
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CATHERINE J. BABNER,
: IN THE COURT OF COMMON PLEAS OF
Plaintiff,
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
:
DAVID L. BABNER,
:
Defendant.
: No. 03-3979 CIVIL
IN RE: PETITION TO ENFORCE MARRIAGE SETTLEMENT AGREEMENT
BEFORE HESS, P.J.
ORDER
AND NOW, this day of July, 2012, upon consideration of Plaintiff’s Petition to
Enforce Marriage Settlement Agreement, Defendant’s Answer and New Matter, and following a
hearing, held May 17, 2012, Plaintiff’s Petition is GRANTED to the extent that it is hereby
ordered and directed that Defendant is to pay to Plaintiff the amount of $2,305.00.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Jane Adams, Esquire
For the Plaintiff
Jennifer P. Wilson, Esquire
For the Defendant
:rlm