Porterfield, R. v. Porterfield, E.

J. S91012/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ROSE ANN PORTERFIELD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC JON PORTERFIELD, : No. 553 MDA 2016
:
Appellant :
Appeal from the Order Entered March 7, 2016,
in the Court of Common Pleas of Centre County
Civil Division at No. 05-0185
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 17, 2017
Eric Jon Porterfield (“Father”) appeals the March 7, 2016 order of the
Court of Common Pleas of Centre County that granted Rose Ann Porterfield’s
(“Mother”) petition to recover tuition and expenses and entered judgment in
favor of Mother and against Father in the amount of $51,965.58 which
represented 55% of the tuition and college expenses paid for the parties’
two older children.1 The trial court also entered judgment of $55,000 as an
initial contribution toward additional tuition and expenses anticipated for the
second child to attend college plus $55,000 as an initial contribution toward
* Former Justice specially assigned to the Superior Court.
1
This amount consisted of $15,161.49 for the oldest child’s tuition,
$29,710.23 for the oldest child’s expenses, $38,203.00 for the second child’s
tuition, and $11,408.15 for the second child’s expenses.
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the tuition and expenses anticipated by the third child to attend college. 2
The order also specified that all of the terms of the Divorce Decree and
Agreement between Rose Ann F. Porterfield and Eric J. Porterfield,
February 19, 2008 (“Agreement”) shall remain in full force and effect.
Father and Mother were married on October 7, 1989. The parties had
three children while married. Mother filed for divorce on January 18, 2005.
The parties acknowledged that the marriage was irretrievably broken, and
both issued affidavits of consent.
On February 19, 2008, the parties requested to incorporate the
Agreement into the final divorce decree. The Agreement distributed the
marital property and established Father’s child support obligation. Section
4.3 of the Agreement addressed the educational expenses of the parties’
children and provided:
[Mother] shall pay 45 percent and [Father]
shall pay 55 percent of the private school and college
expenses of the children that are not covered by
funds owned by the children or held on their behalf,
scholarships, awards and grants. The parties shall
make the payments required by this paragraph on or
before the date that the payment is due. Such
expenses are defined as all expenses billed by the
institution or service providers to the institutions
including without limitation, tuition, room and board,
cafeteria fees, books and bookstore fees, laboratory
fees, and activity fees. Neither party shall incur debt
that one of their children would be obligated to pay
as a means of funding the obligation by this
paragraph.
2
The third child was in tenth grade at the time the trial court issued the
order.
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Agreement, Section 4.3 at 16.
By order dated February 19, 2008, the trial court approved the
Agreement and entered it as an order of court in adjudication of claims
related to the divorce action. The trial court incorporated the Agreement
into the divorce decree.
On June 9, 2015, Mother petitioned for contempt and enforcement and
asserted that Father had violated Section 4.3 of the Agreement:
8. [Mother] has paid tuition costs for the parties’
[oldest child] totaling more than $30,000.
9. [Mother] has also paid for room and board,
text books, insurance, utilities, parking and
other necessities for [the oldest child].
10. [Mother] has paid tuition costs for the parties’
[second child], totaling approximately
$30,000.
11. [Mother] has also paid additional costs
associated with overseas studies, text books,
and other necessities for the parties’ [second
child].
12. Despite the request for reimbursement from
[Father], [Father] has refused to reimburse
[Mother] or otherwise pay his 55% share of
tuition and other costs.
13. [Mother] has paid and continues to pay for
computers, text books and related college
expenses on behalf of the children.
14. The parties’ third child . . . is expected to enter
college in approximately two (2) years. It is
estimated that college tuition for [the third
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child’s] post-secondary education may amount
to $100,000.
15. [Father] has refused [Mother’s] request to
save, invest or otherwise provide $55,000 to
[Mother as an initial contribution to [the third
child’s] college tuition.
16. [Father] is in contempt of Section 4.3 of the
parties’ Agreement for his failure to make
payments toward the tuition and other college
expenses of the children which are not
otherwise covered by funds owned by the
children or held on their behalf,
e.g. scholarships, awards and grants, on or
before the payment is due.
17. [Father] has willfully disobeyed the Court’s
February 19, 2008 Decree in Divorce by
refusing to comply with the Agreement of the
parties.
Petition for contempt and enforcement, 6/9/15 at 2-3, ¶¶ 8-17. Mother
sought a determination that Father was in contempt, reimbursement for
55% of the college expenses of the older two children which Mother had
already paid, and payment of $55,000 as an initial contribution toward the
tuition and expenses anticipated for the third child to attend college. Mother
also sought attorney’s fees, costs, and expenses.
Following a hearing and the submission of briefs, the trial court
granted the petition with respect to the amounts owed by Father to Mother
for tuition and denied the petition with respect to the request for attorney’s
fees. In addition to paying for expenses already incurred, the trial court
entered judgment against Father in the amount of $55,000 for estimated
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future educational and related expenses for the second child and $55,000 for
future expenses for the third child. Father then timely appealed to this
court.
Father presents the following issues for this court’s review:
1. Whether the trial court abused its discretion
and committed an error of law when it imposed
a prospective obligation to make payments
toward future college tuition and expenses
before such expenses are incurred?
2. Whether the trial court abused its discretion
and committed an error of law when it imposed
an obligation to make payment toward
unsubstantiated educational expenses?
Father’s brief at 5.
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.” Chen
v. Chen, 840 A.2d 355, 360 (Pa.Super. 2003),
appeal granted in part, 853 A.2d 1011 (Pa. 2004).
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. Tuthill v. Tuthill, 763 A.2d 417, 419
(Pa.Super. 2000) (en banc), appeal denied, 775
A.2d 808 (Pa. 2001).
“[J]udicial discretion” requires action in
conformity with law on facts and
circumstances before the trial court after
hearing and due consideration. Such
discretion is not absolute, but must
constitute the exercise of sound
discretion. This is especially so where,
as here, there is law to apply. On
appeal, a trial court’s decision will
generally not be reversed unless there
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appears to have been an abuse of
discretion or a fundamental error in
applying correct principles of law. An
“abuse of discretion” or failure to
exercise sound discretion is not merely
an error of judgment. But if, in reaching
a conclusion, law is overridden or
misapplied, or the judgment exercised is
manifestly unreasonable or lacking in
reason, discretion must be held to have
been abused.
In re Deed of Trust of Rose Hill Cemetery Ass’n
Dated Jan. 14, 1960, 590 A.2d 1, 3 (Pa. 1991)
(internal citations omitted). See also Miller v.
Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super.
2000). “Because contract interpretation is a
question of law, this Court is not bound by the trial
court’s interpretation.” Chen, supra at 360. “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.” Kripp v.
Kripp, 849 A.2d 1159, 1164 n. 5 (2004). However,
we are bound by the trial court’s credibility
determinations. Wade v. Huston, 877 A.2d 464
(Pa.Super. 2005). (Footnote omitted.)
Stamerro v. Stamerro, 889 A.2d 1251, 1257-1258 (Pa.Super. 2005).
A reviewing court is permitted only to construe the contract as it is
written and may not modify the plain meaning of the contract. Mazurek v.
Russell, 96 A.3d 372, 378 (Pa.Super. 2014).
Initially, Father contends that the trial court improperly ordered him to
prepay for college tuition and expenses for the second and third children.
Both parties agree that the law of contracts governs a property settlement
agreement if the agreement is not merged into the divorce decree. If such
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an agreement is incorporated, but not merged, into the divorce decree, it
survives the entry of the divorce decree and is then governed by contract
law. Nessa v. Nessa, 581 A.2d 674, 676 (Pa.Super. 1990). The intention
of the parties determines whether an agreement has merged with a divorce
decree. Peck v. Peck, 707 A.2d 1163, 1165 (Pa.Super. 1998). In
ascertaining the intent of the parties, a court looks to the plain language of
the agreement itself. Id.
Here, a review of the record reveals that Section 1.3 of the Agreement
specifically provides “[t]his Agreement shall be incorporated into, but not
merged with, any divorce decree that may be entered.” (Agreement,
Section 1.3 at 2.) The trial court incorporated the Agreement as part of the
divorce decree by order dated February 19, 2008. (Order, 2/19/08 at 1.) A
provision in a valid incorporated but not merged agreement is not subject to
modification by the trial court. See 23 Pa.C.S.A. § 3105(c); McMahon v.
McMahon, 612 A.2d 1360 (Pa.Super. 1992).
Here, Section 4.3 of the Agreement provides that Father shall pay
55% of the private school and college expenses for the three children that
are not covered by funds owned by the children or held on their behalf,
scholarships, awards, and grants. Section 4.3 further provides:
[t]he parties shall make the payments required by
this paragraph on or before the date that the
payment is due. Such expenses are defined as
all expenses billed by the institution or service
providers to the institutions including without
limitation, tuition, room and board, cafeteria
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fees, books and bookstore fees, laboratory
fees, and activity fees.
Agreement, Section 4.3 at 16 (emphasis added).
The trial court ordered Father to pay $55,000 for the future college
expenses of each of the two younger children. At the time, the second child
had two and one-half years of college remaining. The third child was in
tenth grade. The Agreement contains no provision for prepayment of
tuition. It only states that Father and Mother shall make the required
payments on or before the date that the payment is due. In the case of the
third child who was in tenth grade at the time, it is not clear whether he will
actually attend college. Similarly, according to the record, there are not bills
currently due for the second child for tuition and expenses that will be
incurred in the future. Based on the plain language of the Agreement,
Father has no obligation to prepay educational expenses that have not been
incurred and may not be incurred. Although the trial court was attempting
to avoid the situation of Father not paying the expenses as they came due,
as had happened before, the trial court lacked the authority to do so based
on the language of the Agreement.
Father next contends that the trial court abused its discretion and
committed an error of law when it imposed an obligation to make payment
toward unsubstantiated educational expenses. Father argues that even
though Mother provided a list of expenses incurred for the two older children
while they were in college, no effort was made to differentiate between
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general expenses and bona fide educational expenses. Father concedes
that the information may be in Mother’s exhibits but argues that the trial
court made no effort to determine whether these claimed expenses were for
actual education expenses.
The trial court did not address this issue in its opinion issued pursuant
to Pa.R.A.P. 1925(a) because Father did not raise it in his concise statement
of errors complained of on appeal, which he filed pursuant to
Pa.R.A.P. 1925(b). In his statement, Father poses the following question:
“2. Whether the trial court abused its discretion and committed an error of
law when it imposed a prospective obligation to make payment toward
unsubstantiated school expenses?” (Concise statement of errors complained
of on appeal, 4/20/16 at 1-2 (emphasis added).) This issue referred to the
prospective assessment for expenses that had not yet occurred, rather than
the legitimacy of alleged expenses already incurred. Issues not raised in a
Rule 1925 concise statement of errors will be deemed waived. Linde v.
Linde Enterprises, Inc., 118 A.3d 422, 430 (Pa.Super. 2015), appeal
denied, 129 A.3d 1243 (Pa. 2015). An appellate court may raise waiver
under Rule 1925(b) sua sponte. Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011).
Order affirmed in part and reversed in part. The portion of the order
entering judgment in the amount of $51,965.58 is affirmed. The portion of
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the order entering judgment in the amounts of $55,000 for future college
expenses for both of the two younger children is reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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