Charles, F. v. Charles, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FABIEN FORRESTER-CHARLES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOANNE FORRESTER-CHARLES : No. 3309 EDA 2019
Appeal from the Order Entered October 23, 2019
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): No. 2015-01300
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 16, 2021
Appellant, Fabien Forrester-Charles, appeals from the October 23, 2020
order of the Montgomery County Court of Common Pleas, denying his petition
to modify spousal support. Although we find there was some confusion in the
instant proceedings, we nevertheless find the trial court has not abused its
discretion and therefore affirm the order.
The parties were married in 1990. Appellant filed a complaint in divorce
on January 22, 2015 and reinstated it on June 25, 2015. On that later date,
the parties entered into a marital settlement agreement1 (MSA) which divided
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1 We note that throughout the record this agreement is interchangeably
referred to as a “Property Settlement Agreement” and a “Marital Settlement
Agreement.” For consistency, we will refer to the agreement as a Marital
Settlement Agreement throughout this memorandum.
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their marital assets and set forth terms for alimony. The MSA dictated that
Appellant would pay his wife, Appellee, $2,400 per month in alimony until
April 30, 2034. See MSA, 6/25/15, at 15. The MSA also states that it shall be
deemed an order of the court and enforced as such but precludes modification
or waiver of any of its terms unless in writing and signed by both parties. See
id. at 4, 17, and 21.
Of relevance to the current appeal, the MSA provided for modification of
alimony in order to “protect [against] a loss of job or a significant decrease in
[Appellant’s] base salary”. See id. at 16. Specifically, the MSA provided that
alimony shall be modified upon a decrease in Appellant’s income of at least
twenty-five percent of his base annual salary. See id.
A divorce decree was entered on October 19, 2015. The MSA was
incorporated, but not merged, into the decree.
On December 15, 2016, Appellant filed a petition to reduce and modify
alimony, alleging he was terminated from his employment and receiving
unemployment.
Prior to the hearing scheduled on that petition in front of the trial court,
a hearing was held in front of a support master on a separate petition filed by
Appellant to modify child support.2
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2The petition to modify child support does not appear in the certified record,
however Appellant asserts it was filed on June 16, 2016 in his brief. See
Appellant’s Brief, at 4.
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As a result of the master’s hearing, an agreed order was entered on
January 19, 2017. The agreed order purported to address all issues, including
alimony. However, the order only modified Appellant’s child support
payments, and stated that the parties had agreed “for purposes of this
Agreement, alimony is not modified.” Agreed Order, 1/19/17. Therefore, the
original $2,400 alimony amount was simply carried over to calculate
Appellant’s full support amount.
The agreed order further stated that the agreement was based on
Appellant’s earning capacity of $100,000 and Appellee’s earning capacity of
$25,000. Due to the entry of this agreement, the hearing scheduled before
the trial court on Appellant’s petition to modify alimony was cancelled.
On May 26, 2017, Appellant filed a petition for special relief to reduce
and modify alimony. On October 16, 2017, the petition was dismissed after
Appellant failed to appear for a hearing scheduled on the matter. Appellant
filed a motion for reconsideration which was denied.
In July 2019, Appellant filed a petition for modification of child support
and a separate petition titled “Petition to Modify Spousal Support Order” on
the basis that his change in employment and earning capacity entitled him to
modification of his support payments.3 Appellant filed these documents pro
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3 Appellant and his counsel have stated on the record that separate petitions
were filed at the specific instruction of the court. See N.T., 10/8/19, at 5 (“My
client filed pro se, and he had to file two petitions; one with the master and
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se, and it is likely that his use of the term “spousal support” in the title of the
second petition contributed to the confused proceeding that ensued.
On August 27, 2019, a master’s hearing was held on the petition to
modify child support. While hearing from the parties on that petition, the
master specifically stated, “You understand that I can’t touch the alimony
portion of this order.” N.T., Master’s Hearing, 9/27/19, at 7 (re-paginated for
clarity). On September 3, 2019, the master found that Appellant’s earning
capacity was $2,837.40 per month and Appellee’s earning capacity was
$2,843.89 per month. See Master’s Findings of Fact, 9/3/19, at 1. The master
once again simply carried over the original alimony amount of $2,400 to
provide a total support amount. See id. at 2.
On September 16, 2019, after a short list conference, the trial court
entered an order scheduling a protracted hearing on the “Petition to Modify
Spousal Support Order” on October 8, 2019. The parties were further ordered
to mutually exchange financial discovery including income, bank accounts,
asset and liability information, and proof of employment of either party one
week prior to the hearing.
At the hearing, the trial court admitted to its confusion regarding the
procedural posture of the hearing. See N.T., 10/8/19, at 7-8. The court did
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one with the court, in two different places.”); Id. at 10 (“My client is saying
he was told at court administration, and in front of the Master that child
support and alimony were two different petitions to be filed separately, and
considered separately”).
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not have the benefit of the transcript from the child support hearing before
the master. See id. at 8. Under these circumstances, the court viewed the
master’s report as an adjudication on the issue of reduction of alimony, since
the master’s report included alimony in its calculations. See id. at 10.
After the hearing, the court took the matter under advisement. On
October 23, 2019, the trial court denied the “Petition to Modify Spousal
Support Order.” In denying the petition, the trial court noted that the parties
failed to comply with Montgomery County Local Rule of Civil Procedure
1910.10 and Pa.R.C.P. 1910.12. This timely appeal followed.
Appellant raises four interrelated issues on appeal:
1. Did the Trial Court commit reversible error by not honoring the
parties’ Marital Settlement Agreement that requires a reduction in
Alimony if Husband’s income decreases in excess of 25%?
2. Did the Trial Court err by finding the parties agreed “Alimony
was not to be modified?”
3. Did the Trial Court abuse its discretion and err in finding
Husband voluntarily reduced his income in an attempt to
circumvent his obligation to make monthly alimony payments to
Wife?
4. Did the Trial Court err finding Husband’s Petition to Modify
Alimony was procedurally flawed under Pa.R.C.P. 1910.12, and
Montgomery County Local Rule of Civil Procedure 1910.10.
Appellant’s Brief, at 3 (supplied answers omitted). He requests that this court
reverse the order denying modification and remand to the trial court for an
evidentiary hearing to determine an appropriate alimony award.
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Preliminarily, the trial court argues that we should dismiss Appellant’s
appeal and affirm the October 23, 2019 order as the court believes Appellant
failed to conform to the rules of local and state civil procedure. Specifically,
the trial court argues that Appellant voluntarily entered into the January 19,
2017 agreed support order and failed to file exceptions to or otherwise appeal
from that order. The trial court therefore found that Appellant and his counsel
“blatantly disregarded” Pa.R.C.P. 1910.12 and Montgomery County Local Rule
of Civil Procedure 1910.10, and instead “improperly file[d] his July 8, 2019
Petition to Modify Spousal Support Order”.
Here we harvest the fruit of Appellant’s pro se petition. The trial court
was focused on the law of spousal support, given the petition’s title, while
what Appellant was truly challenging was an alimony award. The trial court’s
logic makes sense if we construe the petition as a challenge to a spousal
support award. However, spousal support could not have been at issue, as a
divorce decree had previously been entered.4 Appellant’s petition should have
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4 The distinctions between spousal support, alimony pendente lite, and
alimony are based on the progress of divorce proceedings. Spousal support is
based upon the existence of the marriage, and can be instituted before divorce
proceedings have been initiated. Spousal support is terminated when a divorce
decree is entered. See Horn v. Horn, 564 A.2d 995, 996 (Pa. Super. 1989).
Alimony pendente lite is based on the existence of ongoing litigation. It
terminates when a divorce decree has been entered and all economic issues
of the divorce have been settled. See id. Alimony is based upon economic
justice between ex-spouses after the divorce decree has been entered. It
continues beyond the divorce decree even in the absence of ongoing litigation.
See McNulty v. McNulty, 500 A.2d 876, 880 (Pa. Super. 1989).
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been regarded as a prayer for modification of alimony rather than an attempt
to modify spousal support or the master’s order pursuant to Pa.R.C.P.
1910.12.
While we recognize the trial court’s confusion, we cannot elevate form
over any consideration of the substance of Appellant’s petition and Appellee’s
answer. Further, we cannot agree with any suggestion that Appellant is now
barred from ever modifying alimony due to the January 19, 2017 order.
Consequently, after review of the trial court’s opinion and the testimony
from the October 8, 2019 hearing, it seems that the trial court has misapplied
the rules. Pa.R.C.P. 1910.12, cited by the trial court, governs the procedure
of officer conferences and hearings for support matters. However, the
explanatory comment to Pa.R.C.P. 1910.1, which lays out the scope of this
chapter of rules, clarifies that alimony pendente lite must be distinguished
from permanent alimony for purposes of the rule, and that the rule only
applies to alimony pendente lite.
In contrast, alimony is governed by 23 Pa.C.S.A. § 3702 and Pa.R.C.P.
1920.1 et seq. Further, agreements for alimony approved by the court in
connection with actions for divorce under Section 3701 of the Divorce Code
are deemed to be court orders enforceable under Section 3703 of the Code.
See 23 Pa.C.S.A. § 3701(f).
However, where the parties agreed to an alimony amount through an
MSA and the MSA did not merge with the divorce decree, the ability to modify
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alimony must flow from the terms of the MSA and the intent of the parties in
negotiating the contract, not from the general provisions of the Divorce Code.
See Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa. Super. 2005).
Husband and Wife acknowledged this in the MSA, which states that they may
have different rights or obligations under the Divorce Code than those
negotiated in the MSA. See MSA, at 3-4.
Initially, we must address the trial court’s contention that since
Appellant did not enter the MSA as an exhibit at the hearing, any claim he has
related to the MSA is waived. We disagree. Appellant attached the MSA, as
part of the January 19, 2017 agreed order, to his petition. Appellee admitted
that Appellant’s attachment was the January 19, 2017 order of court.
Accordingly, there was no material dispute as to the terms of the MSA; the
only factual issues in dispute at the hearing concerned whether Appellant had
actually suffered a reduction of income greater than twenty-five percent.
We therefore turn to Appellant’s arguments that the trial court
misapplied the MSA. Because Appellant’s alimony obligation arose from the
MSA, our review is governed by the following principles:
Marital settlement agreements are private undertakings between
two parties, each having responded to the ‘give and take’ of
negotiations and bargained considerations. A marital support
agreement incorporated but not merged into the divorce decree
survives the decree and is enforceable at law or equity. A
settlement agreement between spouses is governed by the law of
contracts unless the agreement provides otherwise. The terms of
a marital settlement agreement cannot be modified by a court in
the absence of a specific provision in the agreement providing for
judicial modification.
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Stamerro, 889 A.2d at 1258 (citations and quotation marks omitted).
“The paramount goal of contract interpretation is to ascertain and give
effect to the parties’ intent. To accomplish this goal, each and every part of
the contract must be taken into consideration and given effect, if possible, and
the intention of the parties must be ascertained from the entire instrument.”
Tuthill v. Tuthill, 763 A.2d 417, 419 (Pa. Super. 2000) (en banc) (citation
omitted). To ascertain the intent of the parties, the court first looks to the
plain language of the contract. See Stamerro, 889 A.2d at 1258 (citation
omitted). If the language of the contract is clear and unambiguous, we need
not consider extrinsic evidence of the parties’ intent. Id. (citation omitted).
Therefore, we do not look to individual provisions of a contract in a vacuum
to interpret the agreement, but rather take into consideration all elements of
the contract that represent the full sum of the parties’ bargained-for
exchange. See Tuthill, 763 A.2d at 419. “Absent fraud, misrepresentation,
or duress, spouses should be bound by the terms of their agreements.”
Rosiecki v. Rosiecki, 231 A.3d 928, 933 (Pa. Super. 2020) (citation
omitted).
Here, the parties voluntarily entered into the MSA. The record before us
does not reveal any allegation of fraud or misrepresentation. The agreement
was incorporated but not merged into the divorce decree. Thus, principles of
contract law govern the agreement. Under the express terms of the alimony
provision, Appellant’s alimony payments can be modified if his annual base
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salary decreases by more than twenty-five percent. See MSA, at 16. Appellant
petitioned the court for a reduction in his alimony payment, alleging such a
decrease in his salary warranted a modification.
The trial court found that Appellant’s reduction in income was voluntary,
and therefore Appellant did not qualify for a reduction in alimony.
We note, the MSA does not on its face condition Appellant’s right to a
reduction in alimony on whether the reduction in his income is voluntary5. See
MSA, 6/25/15, at 16. Rather, the limits on his right to a reduction are simply
that: 1) his reduction in annual income must “be in excess of twenty-five
percent,” and (2) bonus income is not included in the calculation. See id.____________________________________________
5Though the trial court provides no citation for its analysis, it appears the idea
of voluntariness may come from an agreed order entered into by the parties
on July 22, 2015. Agreed Order for Support, 7/22/15, at 1. However, it is
important to note that the July 22, 2015 order was entered prior to the
October divorce decree and specifically requires that the order be read in
conjunction with the MSA. Further, the divorce decree incorporates the MSA,
not the July 22, 2015 order. Finally, the circumstances surrounding the July
22, 2015 order are not evident from the record. There is no indication what
process led to its creation or who drafted it.
Alimony may be awarded by the court only in conjunction with the entry of a
decree of divorce. See 23 Pa.C.S.A. § 3107(a). All unvested marital property
rights are terminated by the entree of the decree unless the decree expressly
provides otherwise. See 23 Pa.C.S.A. § 3503. As such, the July 22, 2015
agreed order, as a disposition of unvested marital property rights, did not
survive the entry of the divorce decree. In contrast, the MSA is expressly
incorporated (though not merged) into the divorce decree. It therefore
controls the disposition of unvested marital property rights after the entry of
the decree. If the parties had intended for the July 22, 2015 order to act as
an amendment or modification of the MSA, they were required to have the
decree expressly note that modification.
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Ordinarily, where alimony is granted through an MSA and not through
litigation pursuant to the Divorce Code, a trial court is not empowered to
modify the terms of the agreement. 23 Pa.C.S.A. § 3105. However, we are
mindful of the following:
[T]his Commonwealth has accepted the principle in Restatement
(Second) of Contracts § 205 that [e]very contract imposes upon
each party a duty of good faith and fair dealing in its performance
and its enforcement. The duty of good faith has been defined as
[h]onesty in fact in the conduct or transaction concerned.
The obligation to act in good faith in the performance of
contractual duties varies somewhat with the context, and a
complete catalogue of types of bad faith is impossible, but
it is possible to recognize certain strains of bad faith which
include: evasion of the spirit of the bargain, lack of diligence
and slacking off, willful rendering of imperfect performance,
abuse of a power to specify terms, and interference with or
failure to cooperate in the other party's performance.
Stamerro, 889 A.2d at 1259 (citations and internal quotation marks omitted).
Similarly, the common law “doctrine of necessary implication” states “[i]n the
absence of an express provision, the law will imply an agreement by the
parties to a contract to do and perform those things that according to reason
and justice they should do in order to carry out the purpose for which the
contract was made and to refrain from doing anything that would destroy or
injure the other party's right to receive the fruits of the contract.” See id.The modification provision of the alimony agreement does not expressly
condition modification of alimony on the voluntariness of the decrease in
Appellant’s income. However, the parties' contract imposed a duty of good
faith to perform contractual obligations diligently and honestly. See id. at
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1261. Further, the doctrine of necessary implication serves to prohibit
Appellant from voluntarily reducing his salary.
Appellant consented to pay Appellee $2,400.00 per month in alimony
until 2034 as long as his base salary did not decrease by at least twenty-five
percent. The trial court did not find Appellant’s reasons for his decrease in
salary credible. A party to an MSA should not be allowed to evade the spirit or
abuse the terms of the agreement by unilaterally and voluntarily reducing
their income, as to do so would destroy the other party’s right to receive the
fruits of the bargained-for agreement. See id. Although the agreement did
not expressly state that Appellant could seek a reduced alimony payment only
upon an involuntary salary reduction, to infer otherwise would give Appellant
the power to unilaterally defeat the purpose for which the alimony agreement
was made, and to destroy Appellee’s right to receive the benefit of the support
for which she bargained. See id. To prevent this injustice, the trial court
properly imputed this requirement into the contract.
Based upon the foregoing, we conclude the trial court did not abuse its
discretion in finding Appellant’s allegations of diminished financial
circumstances did not warrant modification of his alimony obligation under the
parties' MSA. We will not disturb the trial court’s judgment on the credibility
of Appellant’s explanations for his reduced income. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2021
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