Potorski, L. v. Potorski, R. ( 2015 )

J. A26007/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LAURA M. POTORSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT D.J. POTORSKI, : No. 244 MDA 2015
:
Appellant :
Appeal from the Order Dated January 9, 2015,
in the Court of Common Pleas of Lackawanna County
Civil Division at No. 2006 FC 41640
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 09, 2015
Appellant, Robert D.J. Potorski (“Husband”), appeals from the order of
the trial court that dismissed his exceptions to the Master’s Report and
Recommendation in this divorce case. In this appeal, Husband challenges
the trial court’s denial of his request seeking a downward modification of
alimony due appellee, Laura M. Potorski (“Wife”). We affirm.
The relevant facts are as follows. The parties were married on
May 30, 1980, and separated in December of 2006. A complaint in divorce
was filed on January 3, 2007. Paul Sotak, Esq., was appointed Master in
Divorce in April of 2008. Four Master’s hearings were conducted in this case
on the following dates: February 27, 2009, May 29, 2009, April 20, 2011,
and April 20, 2012.
* Senior Judge assigned to the Superior Court.
J. A26007/15
The trial court described what occurred at the May 29, 2009 hearing as
follows:
During the Master’s hearing on May 29, 2009, the
parities [sic] agreed on the record as follows:
[Husband] agrees to pay to [Wife] the
current order of spousal support, entered
[] September 8, 2008, according to its
terms and conditions, for a period of one
year. In the event that a divorce decree
should enter, the spousal support award
would be converted to an award of
alimony . . . Upon the sale of the marital
home and [Wife’s] receipt of her
distributive share of the proceeds, as
provided, in both property settlement
agreements, the Court may enter an
award of alimony in [Wife’s] favor in the
amount of $7,000 per month until such
time as she reaches age 62, and
terminable upon her death, re-marriage
or cohabitation with a member of the
opposite sex, as prohibited by Section
2706 of the Divorce Code. The amount
and duration of the alimony shall not be
subject to any modification by [Wife];
however both the amount and duration
of the alimony shall be subject to a
downward modification by [Husband]
upon proof of a substantial and material
change in economic circumstances . . .
But there needs to be a substantial
change in his financial circumstances
that would lead to a right to attempt to
modify . . . And it could result as a result
of [sic] health or any other circumstance
not within his control. (H.T. 05/29/09,
pp. 5 -7).
Both parties stated under oath that they understood
the terms of the agreement. (H.T. 05/29/09, pp. 11,
14-5).
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J. A26007/15
At the time of hearing, the only income
information available to the Master as evidence was
Husband’s 2007 Tax Return, which showed an
adjusted gross income of four hundred eighty seven
thousand two hundred fifty dollars ($487,250.00).
(Master’s Report 07/24/12, pp. 3-4). Husband failed
to provide any information of his 2008 or 2009
income at any time during the above referenced
proceedings.
Trial court opinion, 3/31/15 at 2-3.
A divorce decree was entered on August 4, 2009. A third Master’s
hearing was held on April 20, 2011, where all economic issues were resolved
except for the division of some miscellaneous personal property. On
December 1, 2011, Husband filed a petition to modify alimony claiming that
his earnings and earnings capacity have significantly decreased. The fourth
Master’s hearing was scheduled for April 20, 2012, to address the division of
the remaining personal property and the modification of alimony. The
parties agreed that the Master would retain jurisdiction over the alimony
agreement.
Following the April 20, 2012 hearing, the Master issued his Report and
Recommendations on July 24, 2012. In his report, the Master found that
Husband did not demonstrate a change of circumstances warranting a
downward modification of the alimony agreement. Specifically, the Master
reviewed Husband’s income for the following years:
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J. A26007/15
2007 income - $487,250
2008 income - $739,990
2009 income - $644,122
2010 income - $623,756
2011 individual adjusted gross income - $548,290
As reflected above, Husband’s income has continued to exceed the
2007 figure. Husband filed exceptions to the Report and Recommendations
on August 8, 2012, and requested a hearing. In the meantime, Husband
filed an appeal with this court regarding a separate contempt issue. As a
result, a hearing could not be held until the record was returned to the trial
court. On January 9, 2015, the trial court heard argument and dismissed
Husband’s exceptions. This appeal followed.1
Husband raises the following issue for our consideration:
Where the parties agreed to a monthly alimony
amount on May 29, 2009 and that [Husband] could
later seek reduction if his income decreased, was it
error of law for the court to use his 2007 income as
the starting point for later calculation of any
decrease in income?
Husband’s brief at 4.
Because contract interpretation is a question of
law, this Court is not bound by the trial court’s
interpretation. Our standard of review over
questions of law is de novo and to the extent
necessary, the scope of our review is plenary as the
appellate court may review the entire record in
making its decision. However, we are bound by the
trial court’s credibility determinations.
1
The trial court did not order Husband to file a statement of errors
complained of on appeal pursuant to Rule 1925(b). The trial court’s opinion
addressed the issues raised in Husband’s exceptions.
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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. On
appeal from an order interpreting a marital
settlement agreement, we must decide whether the
trial court committed an error of law or abused its
discretion.
Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa.Super. 2007) (citations
and quotations omitted).
Husband argues the trial court erred when it used his 2007 income as
a starting point for the determination of whether his income decreased after
the May 29, 2009 alimony agreement. (Husband’s brief at 8.) In light of
the facts of record, the position taken by Husband has no merit.
According to the Master’s Report, on February 20, 2009, Husband
provided his 2007 individual tax return showing an adjusted gross income of
$487,250. Husband was also to provide his 2008 W-2 but did not.
(Master’s Report, 7/24/12 at 3-4.) As such, the only income figure available
to the parties at the May 29, 2009 Master’s hearing when they reached their
agreement of $7,000 per month in alimony was the 2007 income figure of
$487,250. Interestingly, as we have already set out, the income figures for
the years 2008 through 2011 are all greater than the year 2007.
By the very terms of the agreement Husband entered into, in order to
modify, Husband has to prove not only a change in his economic
circumstances but a “substantial and material change.” (See notes of
testimony, 5/29/09 at 6-7.) When Husband filed his petition to modify
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alimony in December of 2011, his income or economic circumstances
certainly appeared higher or better than any of the previous years in
question. Simply put, Husband is hard-pressed to make a plausible
argument that his alimony payments to Wife should be reduced.
Accordingly, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2015
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