Foster, K. v. Foster, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KRISTA TROY FOSTER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD ALDEN FOSTER :
:
Appellant : No. 1888 WDA 2019
Appeal from the Order Entered December 2, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. FD02-000833-005
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: MAY 13, 2021
Todd Allen Foster (“Husband”) appeals from the order finding that he
breached the terms of a Marital Settlement Agreement (“MSA”) and requiring
him to reinstate a life insurance policy for the benefit of his children, reimburse
his children for payments made on their student loans, remove their names
from their student loans, and pay the attorneys’ fees of Krista Troy Foster
(“Wife”). Husband also challenges the court’s finding him in contempt and
determining that he is unable to recoup his overpayment of child support. We
affirm.
Husband and Wife were married in 1988. Wife filed for divorce in 2003,
and the court entered a divorce decree in November 2005. At the time of their
divorce, the parties’ four children — S.F., C.F., B.F., and M.F. — were minors.
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Prior to the entry of the divorce decree, on September 17, 2005, the
parties executed an MSA. In relevant part, the MSA contained the following
provisions:
9. Life Insurance. . . . Husband agrees that he shall, within two
(2) years from the date of the execution of this Agreement,
purchase additional life insurance on his life at his expense for the
benefit of the parties’ children having a death benefit of One
Million Five Hundred Thousand dollars ($1,500,000.00). The
beneficiary of said policy or policies shall be a trust for the benefit
of the parties’ children.
9.1 Payment of Premiums. . . . With respect to all life
insurance policies provided by this Agreement, Husband
agrees to promptly pay all such premiums on time and in
full. . . .
...
15. Alimony and child support. Commencing on October 1, 2005,
and continuing on the first day of each month thereafter until
August 31, 2018 unless terminated sooner as provided by
paragraph 15.2 of this Agreement, Husband shall pay child
support and alimony to Wife in such amount as provided by
Column 4 of the chart provided in paragraph 15.3 of this
Agreement. . . . A PACSES order shall be prepared by Wife’s
counsel and processed through Family Division to effectuate the
terms of this Agreement. . . .
15.3 Modification. . . .
[Chart showing amount of child support due based on
Husband’s gross annual income]*
*reduced by 25% as each child reaches age 19
...
The child support portion of the combined obligation shall
be reduced by 25% for each child who has reached age 19.
...
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16. Educational Support. Husband agrees to pay 100% of the
post-secondary educational expenses for each of the parties’ four
(4) minor children, provided that (1) such child demonstrates
sufficient academic ability, willingness, and desire to pursue and
complete a course of study; (2) each of the parents is consulted
with respect to the choice of educational institution and course of
study; and (3) the child makes reasonable efforts to obtain grants
and scholarships. The children shall not be required to apply for
loans. Husband shall not unreasonably object to the choices
proposed by each of the parties’ children with respect to the
educational institutions and courses of study. For the purposes of
this paragraph, the term “post-secondary educational expenses”
shall mean tuition, room and board, books, activity fees, personal
allowances, and transportation incident to the children’s college
studies or vocational training through the completion of their
undergraduate degrees or training certificates.
...
18. Counsel fees, Costs and Expenses. Except as otherwise
provided by this Agreement, each agrees to pay his or her own
counsel fees, costs and expenses without claim against the other.
It is expressly stipulated that if either party fails in the timely
performance of any of his or her material obligations under this
Agreement, the other party shall have the right, as his or her
election, to sue for damages for breach thereof, to sue for specific
performance, or to seek any other legal remedies as may be
available, and the defaulting party shall pay all reasonable legal
fees and expenses for any services rendered by the aggrieved
party’s attorney in any action or proceeding to compel
performance hereunder.
MSA, executed 9/17/05, at ¶¶ 3, 9, 15, 16, and 18.
In 2019, Wife filed a Motion for Contempt and to Enforce Settlement
Agreement. Relevant here are Wife’s allegations that Husband had failed to
maintain life insurance for the benefit of the parties’ children, in violation of
Paragraph 9 of the MSA, and that he failed to comply with Paragraph 16 by
taking out school loans in the older two children’s names.
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The court held a hearing, at which Wife was represented by counsel,
and Husband proceeded pro se. Both Husband and Wife testified, as did Wife’s
father. Husband argued that he had not been able to afford the premiums for
the life insurance policy, and stated he was considering bankruptcy. He also
claimed he had allowed the policy to lapse because he believed he was not
obligated to pay the premiums once his child support obligation had ended.
He further argued that he was not responsible for payment of educational
costs for S.F. and B.F., as he claimed he had not been consulted regarding
their choice of schools. He also objected to the school choice of B.F. on the
ground that she had received a scholarship at another school that Husband
thought preferable due to its undergraduate and master’s programs in B.F.’s
subject of interest. In addition, Husband asserted that he had not decreased
the amount of child support when the children had turned 19 years old, despite
a provision of the MSA allowing him to do so, and that he should be
compensated for his overpayment.
Several months later, in December 2019, the court issued Findings of
Fact and Conclusions of Law finding that Husband had breached the MSA and
that his breach “was volitional.” Findings of Fact and Conclusions of Law,
12/2/19,1 at 2. The court adopted Wife’s proposed factual findings, with minor
modifications. Id. The court found:
____________________________________________
1Although the court’s Findings of Fact/Conclusions of Law and corresponding
Order are both dated November 27, 2019, they were not entered on the
docket until December 2, 2019. We have amended the caption accordingly.
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 Husband had failed to comply with the MSA provision requiring
him to maintain a life insurance policy for the benefit of the
children;
 Each child had consulted Husband on their school choice;
 Husband consented to the school choices of S.F., C.F., and M.F.;
 Husband’s objection to B.F.’s school choice was unreasonable;
 S.F. has paid some of her student loans without reimbursement
by Husband; and
 Husband voluntarily made any overpayment of child support.
Adopted Findings of Fact, 12/2/19, at ¶¶ 9, 32, 33, 35, 40, 52.
The court also adopted Wife’s conclusions of law, including:
 The terms of the MSA are clear and unambiguous;
 Husband failed to prove that he does not have the ability to
comply with the MSA; and
 Husband is liable for Wife’s attorneys’ fees both pursuant to
Paragraph 18 of the MSA and under 23 Pa.C.S.A. § 3502(e)(7).
Adopted Conclusions of Law, 12/2/19, at ¶¶ 13, 47, 56, 57.
It also found that Husband had “demonstrated wrongful intent by
unreasonably withholding consent to college choices based on cost and/or
loans, in contravention of the provisions and intent of the MSA.” Findings of
Fact and Conclusions of Law at 2. The court concluded that Husband “has the
present ability to pay the obligations [Wife] is seeking to enforce, and/or that
any actual inability to pay would not act to discharge [Husband’s] obligation
to pay as required by the MSA as enforced hereby.” Id. It further found
Husband’s overpayment claim was barred by laches. Id.
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In addition, the court stated that it did not appear “that the parties’ adult
children whose tuition has not been covered or reimbursed have provided
written consent for [Wife] to recover educational costs on their behalf as
required by 23 Pa.C.S.A. § 4327(b).” Id. at 3. The court stated it would
therefore “condition payment of such tuition expenses upon receipt by
[Husband] of evidence of such written consent.” Id.
The court issued an order holding Husband in contempt and requiring
him to: (1) maintain a life insurance policy for the benefit of the children, and
provide proof to Wife’s counsel within 30 days; (2) reimburse the children for
any and all amounts they have paid on their school loans; (3) remove the
children’s names from their school loans within 30 days “of receipt by
[Husband’s] counsel of written acknowledgment from such adult children,
respectively, that they consent to [Wife] recovering educational costs on their
behalf”; and (4) pay Wife’s counsel fees in the amount of $9,261.00 within 30
days. Order, 12/2/19, at 1-2. The order also stated that Husband “did not
overpay for any support obligations. Any modifications of support shall occur
through a modification petition.” Id. at 2.2
Husband appealed, and raises the following issues:
A. Did the lower court err as a matter of law and/or abuse its
discretion in finding [Husband] in contempt of court, insofar as he
allegedly breached the parties’ Marital Settlement Agreement
dated September 27, 2005 by failing to maintain two (2) life
____________________________________________
2 The court also ordered Husband to reimburse Wife $435.00 for an insurance
premium payment she made on a policy required by the MSA for which she is
the beneficiary. Husband did not appeal this portion of the court’s order.
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insurance policies even though he did not have the present ability
to comply with said obligation, and his ability to comply was
neither volitional nor committed with wrongful intent?
B. Did the lower court err as a matter of law and/or abuse its
discretion in unilaterally permitting all four (4) adult children, after
the record was closed, to provide their prospective written
consents to [Wife] to recover educational costs on their behalf
pursuant to 23 Pa.C.S.A. § 4327(b)?
C. Did the lower court err as a matter of law and/or abuse its
discretion in finding [Husband] in contempt of court, insofar as he
allegedly breached the parties’ Marital Settlement Agreement
dated September 27, 2005 by failing to pay the college expenses
of all four (4) children, even though [Husband] was not consulted
about the choices of the educational institutions chosen by each
child as required by the Marital Settlement Agreement?
D. Did the lower court err as a matter of law and/or abuse its
discretion in failing to provide [Husband] with a child support
overpayment credit in the amount of $162,750, or in any amount
whatsoever, despite Record evidence of [Husband]’s entitlement
to same?
Husband’s Br. at 5-6 (emphasis in original).
“When interpreting a marital settlement agreement, the trial court is the
sole determiner of facts and absent an abuse of discretion, we will not usurp
the trial court’s fact-finding function.” Stamerro v. Stamerro, 889 A.2d
1251, 1257 (Pa.Super. 2005) (quotation marks and citation omitted). We are
thus bound by the court’s credibility determinations. Id. at 1257-58. Marital
settlement agreements are subject to contract principles, and to the extent
the issues present questions of law, our standard of review is de novo, and
our scope of review is plenary. Id. at 1257; see also Kraisinger v.
Kraisinger, 928 A.2d 333, 339 (Pa.Super. 2007).
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We review a finding of contempt for an abuse of discretion. Habjan v.
Habjan, 73 A.3d 630, 637 (Pa.Super. 2013). Contempt is appropriate where
the complaining party has shown that the (1) the contemnor had notice of the
order, (2) the contemnor purposefully violated the order, and (3) the
contemnor acted with wrongful intent. Id. (citing Stahl v. Redcay, 897 A.2d
478, 489 (Pa.Super. 2006)). A marital settlement agreement is enforceable
through contempt. See 23 Pa.C.S.A. § 3105(a); 23 Pa.C.S.A. § 3502(e)(9).
I. Life Insurance Policies
Husband first argues that the court erred in ordering him to comply with
the provision of the MSA requiring him to maintain a life insurance policy for
the benefit of the children. Husband argues that impossibility of performance
is a valid defense to breach of contract, and that he had stopped paying
premiums on the life insurance policy because he could not afford to pay them.
Husband points to his testimony that he had overpaid in child support and was
considering bankruptcy, and argues the court erred in considering that he had
not yet filed for bankruptcy by the time of the court’s decision. Husband also
argues the court erred in faulting him for retaining counsel following the
hearing when he could not afford counsel at the hearing.
Husband further argues that he stopped paying premiums on the life
insurance policy because he believed he was not required to maintain the
policy once child support had ended. Husband argues that because the MSA
did not include a provision regarding when his obligation would terminate, the
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court should adopt a reasonable interpretation of the contract and hold that
this obligation ended when his child support obligation ended.
In addition, Husband argues that the court erred in finding him in
contempt due to his failure to maintain the policy. He claims Wife did not prove
he had the ability to pay or that his failure to comply was volitional or
committed with wrongful intent.
“When construing agreements involving clear and unambiguous terms,
this Court need only examine the writing itself to give effect to the parties[’]
understanding.” Habjan, 73 A.3d at 640 (quoting Lang v. Meske, 850 A.2d
737, 739-40 (Pa.Super. 2004)); see also Stamerro, 889 A.2d at 1258. Here,
the court properly found that the terms of the MSA are clear and
unambiguous. Husband’s contention that the MSA is unclear because it does
not state a date on which his duty to pay the life insurance premiums ends is
meritless. To the contrary, the MSA is perfectly clear in this regard. Paragraph
9 of the MSA requires Husband to maintain a life insurance policy for the
benefit of the children, and there is no termination date for this requirement.
In the context of an MSA, the parties can reasonably agree that such an
obligation would continue without end, as part of their negotiated settlement
of all financial issues in the divorce. As Husband does not dispute that no
policy is currently in effect, the court properly found him in breach.
Regarding Husband’s assertions of penury, a party’s mere financial
inability to comply with contract terms does not qualify as impossibility of
performance. Luber v. Luber, 614 A.2d 771, 774 (Pa.Super. 1992). In any
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event, the court was free to disregard Husband’s self-serving testimony that
he was unable to pay the premiums. Husband failed to corroborate his bald
testimony with other evidence of his financial hardship or establish the cost of
the premiums in relation to his financial status. We are bound by the trial
court’s credibility determination and find no abuse of discretion in the court’s
disbelief of Husband’s defense. In sum, the court’s findings on this issue are
supported by the evidence of record, and do not constitute an abuse of
discretion or error of law.
Regarding the court’s finding of contempt, the court did not specify
whether it found contempt on the basis that Husband had violated the
provision regarding the insurance policy, or the provision regarding the
payment of educational expenses, or both. However, the court specifically
found that Husband had acted with wrongful intent—an element of a contempt
finding—for unreasonably objecting to the children’s’ school choice. The court
made no such finding of wrongful intent in relation to Husband’s failure to
maintain the insurance policy for the benefit of the children. Therefore, the
record does not reflect the trial court found Husband in contempt for failing to
comply with Paragraph 9.
Moreover, even if the court had found Husband in contempt based on
his failure to maintain the insurance policy, this would have caused no
prejudice to Husband, as the court did not sanction Husband for contempt.
While the court ordered Husband to pay Wife’s attorneys’ fees, the court found
Husband liable for Wife’s attorney fees both pursuant to Paragraph 18 of the
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MSA and under 23 Pa.C.S.A. § 3502(e)(7), neither of which are based upon a
finding of contempt. This issue merits no relief.
II. 23 Pa.C.S.A. § 4327(b)
Husband next argues that the court erred in allowing Wife to pursue an
action for recovery of educational expenses without the children’s written
consents, as required by 23 Pa.C.S.A. § 4327(b). Although the court ordered
the children to submit the consents to Husband, as a condition to Husband’s
obligation to remove the children’s names from their student loans, Husband
argues this was a clear abuse of discretion, as at that point, the action had
already been decided and the record was closed.
Section 4327(b) provides in relevant part:
(b) Action to recover educational expenses.--An action to
recover educational costs may be commenced:
(1) by the student if over 18 years of age; or
(2) by either parent on behalf of a child under 18 years of
age, but, if the student is over 18 years of age, the student's
written consent to the action must be secured.
23 Pa.C.S.A. § 4327(b).
In Curtis v. Kline, 666 A.2d 265, 267 (Pa. 1995), the Pennsylvania
Supreme Court invalidated on equal protection grounds subsection (a) of
Section 4327, which created the substantive right to have parents “who are
separated, divorced, unmarried or otherwise subject to an existing support
obligation” pay for postsecondary educational costs. As that statutory right is
no longer enforceable, it is questionable that the procedural elements set forth
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in subsection (b) to enforce such a right continue to have any effect. Moreover,
where the parties enter into a private agreement regarding their
responsibility, the contract terms are controlling. See 23 Pa.C.S.A. 4327(i)(2)
(stating Section 4327 “shall not supersede or modify the express terms of a
voluntary written marital settlement agreement . . .”); W.A.M. v. S.P.C., 95
A.3d 349, 352 (Pa.Super. 2014); In re Est. of Johnson, 970 A.2d 433, 439
(Pa.Super. 2009). Here, the MSA does not condition Husband’s responsibility
on the written consents of the children.
Even assuming arguendo that Section 4327(b) applied here, Husband’s
claim does not merit relief, as Husband does not claim that he was
meaningfully prejudiced in any way. Husband has not at any time disputed
the authenticity of the consents or claimed that his children objected to their
mother seeking to enforce the educational expenses provision of the MSA.
Although the court directed Husband to remove the children’s names from
their student loans only after he received the written consents, we fail to see
how Husband was prejudiced. If anything, it afforded him extra protection, if
one or more of the children refused to give the consent. No relief is due.
III. Consultation on School Choice
Husband argues that the court erred in finding he breached the MSA by
failing to pay for the children’s postsecondary education, because S.F. and
B.F. did not consult him on their school choice as required by Paragraph 16.
Husband contends he was not consulted on S.F.’s school choice because he
was only “informed” what school S.F. would be attending and he “did not have
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any choice in the matter per se at all.” Husband’s Br. at 21 (quoting N.T. at
56). He also argues B.F. did not tell him her decision until the final day before
the decision deadline, and that he did not “have a real voice.” Id. at 23
(quoting N.T. at 63-64).
Husband also argues that he should not be held liable for the children’s
educational costs because his objections to the children’s school choices were
reasonable. He asserts he objected to the school choices of S.F. and C.F. on
the basis that they had received scholarships at other schools, and to B.F.’s
choice of schools because she had received a scholarship at another school
which Husband thought preferable due to its undergraduate and master’s
program in B.F.’s subject of interest. Husband also argues he should not be
responsible for C.F.’s educational costs, as she gave him a written statement
that she is responsible for all of her student loans.
Paragraph 16 of the MSA conditioned Husband’s obligation to pay for
the children’s education on the requirement that “each of the parents is
consulted with respect to the choice of educational institution and course of
study[.]” MSA at ¶ 16. Paragraph 16 also provides that each parent “shall not
unreasonably object to” the children’s choices in this regard. Id.
The trial court did not abuse its discretion in finding against Husband on
this issue. As the MSA does not define “consult,” we turn to the ordinary
meaning of the term and examine dictionary definitions. Profit Wize Mktg.
v. Wiest, 812 A.2d 1270, 1274 (Pa.Super. 2002). “Consultation” is “1. The
act of asking the advice or opinion of someone . . . 2. A meeting in which
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parties consult or confer . . . .” CONSULTATION, Black’s Law Dictionary (11th
ed.1999). Merriam-Webster defines “consult” as “to have regard to consider .
. . to ask the advice or opinion of . . . to refer to . . . to deliberate together . .
. .” “Consult.” Merriam-Webster.com Dictionary, merriam-
webster.com/dictionary/consult, last accessed Mar. 19, 2021.
Here, Husband testified that S.F. and B.F. informed him of their choice
of schools, and because they did so at the last minute, he was deprived of any
“real voice” in the matter. However, Husband does not assert that he had no
opportunity before the deadline to have conversations and give them his
advice and opinions on the matter. In fact, Husband testified that he had
“ongoing discussions” with B.F. about the school he preferred for her. N.T. at
63. The fact that he feels he had no “real voice” – the plight of many a parent
– does not mean he was not “consulted.” The record supports the trial court’s
conclusion that the MSA’s requirement of consultation was fulfilled.
We further find no merit to Husband’s contention that the court erred in
requiring him to pay for the educational costs of S.F., C.F., and B.F. even
though he objected. The trial court found that Husband consented to the
school choices of S.F. and C.F. The record supports these findings. While
Husband testified regarding the school choice for each child, he did not testify
that he objected to their choices, except for that of B.F. See N.T. 55-64. As
for B.F., the court found that Husband’s objection, on the basis of cost, to
B.F.’s school choice was unreasonable. This was not an abuse of discretion, as
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Husband failed to prove the expenses associated with the schools, or his
inability to pay for B.F.’s school of choice.
Finally, we find no merit to Husband’s contention that the court erred in
ordering him to pay the cost of C.F.’s postsecondary education. Although
Husband alleges that C.F. provided him with a written waiver of his
responsibility, the trial court sustained Wife’s objection to Husband’s
testimony on this point, as inadmissible hearsay. N.T. at 58-60. There was no
other evidence of any such alleged waiver. Husband’s argument on this point
was therefore neither properly preserved nor supported by the evidence of
record.
IV. Credit for Overpayment of Child Support
Husband argues that according to the MSA, his court-ordered child
support should have been reduced by 25% as each child reached the age of
19, but that on “three separate occasions” he did not make the downward
adjustment, and in total overpaid by $162,750. Husband’s Br. at 25. Husband
testified that he continued making the full payments so that Wife could stay
in her home following the divorce from her second husband, and as payment
towards a loan involving Wife’s father. Husband argues he should be able to
recoup the overpayment, and that the court erred in finding otherwise.
Husband’s argument fails as a matter of law. An obligor is not entitled
to credit for voluntary overpayment not intended as support. Spahr v. Spahr,
869 A.2d 548, 555 (Pa.Super. 2005); see also Rich v. Rich, 967 A.2d 400,
409 (Pa.Super. 2009) (noting caselaw centers on “whether the overpayment
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was intended to provide future support or whether it was intended to be a
gift”). Here, Husband admits he knowingly and voluntarily overpaid in child
support, to assist Wife. See N.T. at 73 (“I decided that I would help her and
pay the higher child support amount throughout. That is on me”). Thus, the
court did not err in finding that Husband could not recoup his overpayment of
child support.
Moreover, as the trial court observed, the proper avenue for Husband
to pursue the downward adjustment contemplated by the MSA would be
through the filing of a petition for modification of child support, as the MSA
contemplated that Paragraph 15 would be enforced through corresponding
support orders. See Krebs v. Krebs, 944 A.2d 768 (Pa.Super. 2008)
(requiring the entry of a new order when support is modified). As Husband
has stated no valid grounds for relief, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2021
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