Cherkas, J. v. Cherkas, D.

J-A14042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JILL WEIDLE TAYLOR CHERKAS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID L. CHERKAS,
Appellant No. 2249 EDA 2016
Appeal from the Order Entered June 14, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-08885
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.; FILED AUGUST 25, 2017
Appellant-Defendant, David L. Cherkas (“Husband”) appeals from the
June 14, 2016 order of the Montgomery County Court of Common Pleas. We
affirm.
The trial court summarized the facts and relevant procedural history of
the case as follows:
The parties in this matter were married in 2005, and
separated in 2011. They have one [daughter], . . . referred to in
this opinion as M.C.[] On March 22, 2011, the parties entered
into a property settlement agreement [(“PSA”)]. On June 24,
2013, the parties entered into a supplemental property
settlement agreement [(“SPSA”)]. On September [10], 2013,
the court issued a divorce decree in this matter which
incorporated by reference both the March 22, 2011 [PSA], and
the June 24, 2013 [SPSA].
On April 10, 2015, Plaintiff/Appellee (hereinafter “[Wife]”)
filed a Motion to Enforce Marital Settlement Agreement wherein,
inter alia, [Wife] alleged that [Husband] failed to make required
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support payments pursuant to paragraph 3 of the June 24, 2013
[SPSA]. On May 1, 2015, [Husband] filed an Answer and New
Matter to Motion to Enforce Marital Settlement Agreement
wherein, inter alia, [Husband] requested the court [to] modify
the monthly support provision of the March 22, 2011 [PSA].
On November 6, 2015, the court held the first of two
hearings on [Wife’s] Motion and [Husband’s] Answer and New
Matter.
Trial Court Opinion, 10/6/16, at 1–2. The court held a second hearing on
May 4, 2016. On June 14, 2016, the trial court granted Wife’s motion and
directed that Husband shall continue to pay monthly unallocated support of
$3,000. The trial court also granted Husband’s motion in part and concluded
that while the PSA does permit a downward modification of Husband’s
support obligation, a downward modification was not warranted. Order,
6/14/16, at 1–2.
On July 12, 2016, Husband filed a notice of appeal from the June 14,
2016 order. Both Husband and the trial court complied with Pa.R.A.P. 1925.
Wife has not filed a brief and did not participate in oral argument.
Husband presents the following issues on appeal:
I. Did the Trial Court abuse its discretion in considering the
Pennsylvania Support Guidelines to determine Husband’s
support obligation above the amount of his child support
obligation when the parties are already divorced and
alimony pendente lite is not applicable?
II. Did the Trial Court abuse its discretion when it failed to
find that Husband was entitled to a downward support
modification where the Agreement explicitly provides that
there will be a downward modification of his support
obligation if, among other things, Husband’s income
decreased below $500,000 a year?
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III. Did the Trial Court err in finding that Wife is not required
to demonstrate “need” to continue receiving her share of
the $3,000.00 unallocated monthly support amount?
Husband’s Brief at 6 (verbatim). We address issues I and II together.
“It is well-established that the law of contracts governs marital
settlement agreements.” Vaccarello v. Vaccarello, 757 A.2d 909, 914
(Pa. 2000) (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004));
Stamerro v. Stamerro, 889 A.2d 1251, 1259–1260 (Pa. Super. 2005).
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.
Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citation
omitted). Moreover, our courts observe the following principles in reviewing
a trial court’s interpretation of a marital settlement agreement:
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.
Id.We have also reiterated this Court’s limited role in interpreting
contracts between spouses such as property settlement agreements:
A court may construe or interpret a consent decree
as it would a contract, but it has neither the power
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nor the authority to modify or vary the decree unless
there has been fraud, accident or mistake.
* * *
It is well-established that the paramount goal of
contract interpretation is to ascertain and give effect
to the parties’ intent. When the trier of fact has
determined the intent of the parties to a contract, an
appellate court will defer to that determination if it is
supported by the evidence.
Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004) (internal
citations omitted) (quoting Osial v. Cook, 803 A.2d 209, 213–
214 (Pa. Super. 2002)). Further, where . . . the words of a
contract are clear and unambiguous, the intent of the parties is
to be ascertained from the express language of the agreement
itself. Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa.
Super. 2004).
Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).
At the November 6, 2015 hearing on Wife’s motion to enforce the PSA
and SPSA, Wife testified that she has primary physical custody of the parties’
eight-year-old daughter, M.C. N.T., 11/6/15, at 24. Wife averred that the
order for support, which is unallocated between M.C. and Wife, is set forth in
the PSA. Id. at 25. Wife, who did not work outside of the home during the
parties’ marriage, presently is employed as an assistant preschool teacher,
earning $13,000 per year at an hourly rate of $10.25. Id. at 31, 51. Wife
testified that Husband works at Coventry Corporate Services (“Coventry”) in
the area of business development for a secondary insurance market, earning
“a million” dollars per year. Id. at 40, 73. Stephanie Baillie, the Director of
Accounting and Employee Resources for Coventry, testified that Husband’s
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salary, excluding bonuses, was reduced to $300,000, down from $400,000.
Id. at 74–75. When asked why Husband’s income changed at the beginning
of 2015, Ms. Baillie responded, “I was told to process a payroll change for
that. I wasn’t given specific reasons.” Id. at 104. Wife presented
Husband’s W-2 statements from 2009 and 2010, which indicated gross
wages of $1,253,085.11 and $1,336,010.92, respectively. Id. at 115. Wife
also presented Husband’s W-2 statement for 2014, which indicated a gross
salary of $495,971.64. Id. at 122.
The hearing was continued to obtain Husband’s testimony and
ultimately was held on May 4, 2016. Husband testified that he had
remarried and changed employment just the day before, on May 3, 2016.
N.T., 5/4/16, at 4–5. Husband presented his W-2 for 2015, which showed
his gross income at Coventry to be $352,936.44. Id. at 11. Husband
testified his new salary at Miravast would be $250,000. Id. at 6, 12–13, 14.
Husband’s new job included the opportunity to earn commission income, but
Husband presented no documentation of the contract’s provisions. Id. at
26, 32. Husband admitted that he had not been paying Wife the monthly
support as provided in the PSA since February of 2015, paying her instead,
$1,800 per month. Id. at 33, 35.
Husband argues that the trial court erroneously considered the
Pennsylvania Support Guidelines in determining Husband’s support
obligation because the parties are divorced and alimony pendente lite no
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longer is applicable. Husband’s Brief at 10. He further asserts that the trial
court abused its discretion in failing to award him a downward modification
of support because it is required by the PSA. Id. at 15. These arguments
concern language set forth in the March 22, 2011 PSA and the June 14,
2016 order. The following language of the PSA is pertinent:
MONTHLY SUPPORT
[Husband] will pay [Wife] $3,000 on the first day of a
month or one half of the support payment bimonthly as
unallocated support for [Wife] and [M.C.]. All support
payments will be made until [M.C.] is either 18 years old or
graduated from high school and until [Wife] has remarried or
cohabitated.
* * *
[Husband’s] obligations of this agreement will be
modifiable in an amount downward, upon a substantial
change of circumstances relating to [Husband] or [Wife],
including, but not limited to changes in income,
(downward defined as below $500,000 in a year or upward
which is $2M in a year), employment or financial condition,
physical or emotional health, or other circumstances. If [Wife]
obtains an Order for child support, the monthly support provided
for in this agreement will [be] reduced dollar for dollar by the
Order for child support.
PSA, 3/22/11, at 6 (emphases added).
The June 14, 2016 appealed order provides, in pertinent part, as
follows:
AND NOW, this 14th day of June, 2016, upon consideration
of [Wife’s] April 10, 2015 Motion to Enforce Marital Settlement
Agreement, [Husband’s] May 1, 2015 Answer and New Matter to
Motion to Enforce Marital Settlement Agreement, following
hearings on November 6, 2015[,] and May 4, 2016, and upon
consideration of [Wife’s] May 13, 2016 letter brief, and
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[Husband’s] May 13, 2016 letter brief, it is hereby ORDERED and
DECREED as follows:
[Wife’s] April 1, 2015 Motion is GRANTED as follows:
1) [Husband] shall continue to pay the monthly
unallocated support amount of $3,000.00 for [Wife] and
the parties’ minor child pursuant to the terms of the March
22, 2011 Agreement and the June 24, 2013 Supplemental
Agreement.
2) [Husband] shall pay to [Wife] all overdue support within
thirty (30) days of the date of this order.
[Wife’s] request for counsel fees is DENIED.
[Husband’s] May 1, 2015 New Matter is GRANTED in part
as follows:
1) The [c]ourt finds that the March 22, 2011 Agreement
does allow for a downward modification of [Husband’s]
support obligations “upon a substantial change of
circumstances relating to [Wife] or [Husband].” See
Paragraph 3, page 6, March 22, 2011 Agreement.
However, based on [Husband’s] projected 2016 gross
annual income of $277,000.00, and [Wife’s] 2016
projected gross income of $13,089.00, (as [Husband]
states in his letter brief), the Pennsylvania Support
Guidelines indicate that if the Guidelines were applied,
[Husband] would be obligated to pay $1,769.00 in child
support, and $3,763.00 in alimony pendente lite, for a
combined total monthly support obligation of $5,532.00.
Because this amount is significantly higher than
[Husband’s] current agreed support obligation of
$3,000.00 per month, the [c]ourt finds that [Husband’s]
support obligation under the March 22, 2011 Agreement is
reasonable and does not require further downward
departure.
2) The Court does not find that [Wife] must now
demonstrate “need” to continue to receive her share of the
$3,000.00 unallocated monthly support amount since both
parties agreed in the March 22, 2011 Agreement that
[Husband] would continue to make support payments until
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the partiers [sic] child “…is either 18 years old or
graduated from high school and until [Wife] has remarried
or cohabitated.”
Order, 6/14/16, at 1–2 (emphasis added). The June 24, 2013 SPSA does
not modify the support amount nor does it allocate the monthly support
obligation. Thus, the monthly obligation of $3,000 remains as unallocated
support in the SPSA, as well.
Husband argues that the trial court should not have “utilized” the
Pennsylvania Support Guidelines in its opinion because the parties are
divorced. Once they divorced in 2013, Husband proffers that Wife had “no
remaining right to spousal support or alimony pendente lite . . . which
terminate, by definition, upon divorce.” Husband’s Brief at 12. Moreover,
Husband asserts a contradictory claim that the trial court abused its
discretion in failing to modify Husband’s support obligation because his
salary dipped below $500,000 per year. In support, he contends the PSA’s
language required the modification, yet he maintains that both parties were
“aware that this amount could be modified downward.” Husband’s Brief at
17, 18 (emphasis added).
Regarding its use of the Guidelines, the trial court referred to Pa.R.C.P.
1910.16-1(b), which mandates that the amount of child or spousal support
or alimony pendente lite to be awarded “pursuant to the procedures under
[Pa.R.C.P.] 1910.11 and 1910.12 shall be determined in accordance with the
support guidelines. . . .” Pa.R.C.P. 1910.16-1(b); see also Trial Court
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Opinion, 10/6/16, at 7. Further, the trial court noted that Pa.R.C.P.
1910.16-4(a) sets forth the formula that “shall be used” to calculate an
obligor’s share of spousal support and alimony pendente lite obligations.
Trial Court Opinion, 10/6/16, at 7. The court explained that Pa.R.C.P.
1910.16-4(a), Part IV, provides the specific formula for a calculation of
spousal support or alimony pendente lite. The trial court determined that
because neither party asserted that the PSA’s designation of $3,000 as
Husband’s support obligation was solely for child support, the court’s
consideration of the Guidelines to determine a spousal support obligation
was proper. Trial Court Opinion, 10/6/16, at 8.
Regarding Husband’s claim that the trial court abused its discretion
when it declined to award a downward support modification, the trial court
stated that the clause providing for modification in the PSA did not mandate
that a modification would occur; “it only states that [Husband’s] support
obligations ‘will be modifiable’ upon a substantial change in circumstances.”
Trial Court Opinion, 10/6/16, at 11. The trial court found that Husband’s
support obligation was modifiable but did not find a reduction in Husband’s
support obligation to be reasonable based on the evidence presented at the
hearings. Id.
We do not find an abuse of discretion by the trial court. We construe
words and phrases according to their common usage. Cf. 1 Pa.C.S.
§ 1903(a) (“[w]ords and phrases shall be construed according to rules of
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grammar and according to their common and approved usage . . . .”).
Moreover, the trial court was obligated to view the PSA as a whole.
Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 42 (Pa. Super. 1997).
The language of the PSA, specifically its use of the phrase, “[Husband’s]
obligations of this agreement will be modifiable” as opposed to shall be
modifiable, provides that a modification is permissible; it does not provide
that it is mandatory. PSA, 3/22/11, at 6 (emphasis added); see, e.g.,
Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007)
(stating “shall” evinces a mandatory obligation). Moreover, the PSA’s use of
the term “modifiable” rather than “modified” implies a less certain result,
i.e., that the support amount is merely “capable of being modified,” not that
such modification is mandatory. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY, (Philip Babcock Gove ed., G. & C. Merriam Co., 1976.).
Furthermore, Husband’s own argument is contradictory—while he asserts, on
one hand, that the court was required to modify support, he acknowledges
that the parties understood that it merely “could” be modified downward.
Husband’s Brief at 17, 18.
Significantly, the PSA is silent concerning how any modification of
monthly support would be determined. In fulfilling its role to determine
whether a substantial change of circumstances occurred such that the PSA
should be modified, and in the absence of guidance by the language of the
PSA itself, the trial court merely drew a comparison to the Pennsylvania
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Support Guidelines, it did not apply them. The trial court noted what
Husband’s obligation would be if the Guidelines were to be applied. Finding
that they compelled an amount nearly double what Husband had agreed to
pay under the PSA, the trial court did not abuse its discretion in declining a
modification of the agreement based upon the evidence presented at the
hearings. These issues lack merit.
In his final issue, Husband claims the trial court erred in determining
that Wife is compelled to demonstrate a “need” to continue receiving “her
share” of the $3,000 unallocated monthly support. Husband’s Brief at 21.
Initially, we note that Husband’s reasoning flies in the face of his argument
regarding the trial court’s reference to the Support Guidelines. While he
asserts that the court erred in referencing the guidelines in his first issue, he
now suggests, sub silencio, that the trial court should have conducted a
traditional support analysis of Wife’s income, including assigning her an
earning capacity. Husband’s Brief at 23; N.T., 11/6/15, at 51–57.
This issue also lacks merit. We rely on the trial court’s explanation, as
follows:
There was no evidence presented at the hearings that [Wife] had
to demonstrate her need for her unallocated share of the
$3,000.00 payment from [Husband] at any time. Nor is there
any language in either the March 22, 2011 [PSA] or the June 24,
2013 [SPSA] which requires [Wife] to demonstrate need to
continue to receive her share of the support payment, even
under the paragraph providing for downward modification upon a
substantial change of circumstances. March 22, 2011 [PSA],
page 6. [Wife] was not required at the time the parties entered
into the March 22, 2011 [PSA] and the June 24, 2013 [SPSA] to
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demonstrate the need for alimony pendente lite, spousal
support, or alimony. Nor do the agreement and the
supplemental agreement require her to do so in the event of a
modification of the support amount. Therefore, the court was
not required to analyze the issue of [Wife’s] entitlement to
support when reaching a decision in this matter.
* * *
[N]othing in the March 22, 2011 [PSA], nor the June 24, 2013
[SPSA], requires [Wife] to demonstrate need in order to continue
to receive her share of the $3,000.00 unallocated monthly
support. [Husband’s] obligation to pay monthly support to
[Wife] is one which the parties agreed to. There were no
contingencies to [Wife’s] continued receipt of the monthly
support, other than support ending upon the parties’ child either
turning eighteen years old or graduating from high school, and
until [Wife] has remarried or cohabitated.
Trial Court Opinion, 10/6/16, at 8–9, 11–12. Upon review, we find that
Husband’s issues lack merit. Having determined, therefore, that the trial
court properly analyzed this case, we conclude that the trial court did not
abuse its discretion or commit an error of law.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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