Reiley, R. v. Reiley, E.

J-S38017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELENA REILEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD REILEY :
:
Appellant : No. 454 MDA 2020
Appeal from the Order Entered February 6, 2020
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-12-12528
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 14, 2020
Richard Reiley (“Husband”) appeals from the order denying his motion
to modify the alimony payment amount. He argues that the court erred in
concluding that the parties’ agreement as to alimony did not enable the court
to modify the alimony amount. We affirm.
Elena Reiley (“Wife”) filed a divorce complaint in August 2012, and in
June 2014, the parties reached an agreement governing alimony, among
other things, and at a hearing before a master, they orally placed the terms
of the agreement on the record. Husband’s counsel stated that pursuant to
the agreement, Husband would pay alimony of $500 a month, “with all of the
qualifiers that alimony under the law attaches.” N.T., 6/13/14, at 4. Husband’s
counsel continued, “So it’s taxable as alimony and it’s subject to termination
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* Former Justice specially assigned to the Superior Court.
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upon cohabitation and all that stuff and, of course, it’s terminable upon death.”
Id. at 5. The master then asked the term of the alimony, and Husband’s
counsel replied, “It’s permanent.” Id.
In November 2019, Husband filed a petition seeking to modify alimony
based on an increase in his living expenses, and to terminate the alimony
based on Wife’s alleged co-habitation. The trial court ordered the parties to
submit briefs addressing whether it could modify the alimony amount, and
scheduled a hearing to determine whether to terminate alimony based on co-
habitation. Husband subsequently withdrew his request to terminate alimony
due to co-habitation. The court canceled the hearing and denied Husband’s
petition. Husband filed a timely Notice of Appeal.
Husband raises the following issues:
I. Whether the trial court erred in failing to interpret the
parties’ agreement, which was placed on the record before
the divorce master and in which permanent alimony to
[Wife] was agreed upon, per the transcript, “with all of the
qualifiers that alimony under the law attaches”?
II. Whether the trial court erred in denying [Husband] the
opportunity to show at a hearing a change in circumstances
of a substantial and continuing nature which warrant
modification and/or termination of this alimony order,
pursuant to 23 Pa.C.S.A. § 3701(e)?
III. Whether the trial court’s error was compounded when
its order dated December 6, 2019, permitted a hearing,
pursuant to 23 Pa.C.S.A. § 3701(e), on the issue of [Wife’s]
possible co-habitation but not on a change in [Husband’s]
circumstances, based on the same language in the
transcript of the recitation of the parties’ agreement, to wit:
“[W]ith all the qualifiers that alimony under the law
attaches”?
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Husband’s Br. at 2.
Husband first claims the court erred when interpreting the parties’
agreement. He claims the court could modify the alimony under the
agreement because the agreement provided that the alimony was with “all
qualifiers that alimony under the law attaches.” N.T., 6/13/14, at 4.
“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.” Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa.Super.
2005). Contract interpretation raises questions of law, which we review de
novo. Id.
Because the parties agreed to alimony, 23 Pa.C.S.A. § 3105 governs.
Egan v. Egan, 125 A.3d 792, 799 (Pa.Super. 2015). Section 3105 provides,
in relevant part:
(a) Enforcement.--A party to an agreement regarding
matters within the jurisdiction of the court under this part,
whether or not the agreement has been merged or
incorporated into the decree, may utilize a remedy or
sanction set forth in this part to enforce the agreement to
the same extent as though the agreement had been an
order of the court except as provided to the contrary in the
agreement.
...
(c) Certain provisions not subject to modification.--In
the absence of a specific provision to the contrary appearing
in the agreement, a provision regarding the disposition of
existing property rights and interests between the parties,
alimony, alimony pendente lite, counsel fees or expenses
shall not be subject to modification by the court.
23 Pa.C.S.A. § 3105(a), (c).
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Therefore, “alimony agreements are ‘not [to] be subject to modification
by the court’ unless the agreement contains ‘a specific provision to the
contrary.’” Rosiecki v. Rosiecki, 231 A.3d 928, 933 (Pa.Super. 2020)
(quoting 23 Pa.C.S.A. § 3105(c)); see also Egan, 125 A.3d at 798 (explaining
that “the purpose of [S]ection 3105(c) is to encourage marital settlement
agreements by assuring the parties that the courts will enforce the
agreements as written”).
Here, the trial court refused to modify the parties’ alimony agreement
because it found no “specific provision” of the agreement allowing it to do so:
The agreement between the parties is void of a provision
specifying that the award of alimony is modifiable,
therefore, the Court is without the ability to modify. This
interpretation of the statute and agreement is in accordance
with the case of Egan v. Egan, holding that 23 Pa.C.S.A. §
3105(c) prohibits judicial modification of an agreement
regarding alimony unless the agreement includes “specific
language indicating the parties’ consent to such review.”
125 A.3d 792, 796 (Pa.Super. 2015). Accordingly, the
agreed upon alimony award is not modifiable. . . .
Order, filed Feb. 6, 2020, at 1-2.
The court did not err. The parties entered into an agreement where
Husband agreed to pay alimony to Wife “with all of the qualifiers that alimony
under the law attaches.” N.T., 6/13/14, at 4. Counsel stated, “So it’s taxable
as alimony and it’s subject to termination upon cohabitation and all that stuff
and, of course, it’s terminable upon death.” Id. Counsel further clarified that
the alimony was “permanent.” Id. Counsel did not discuss modification of the
alimony amount. The agreement discussed only termination of the award, and
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contains no provision allowing for modification by the court. There was no
express provision providing for court modification.
Husband nonetheless claims that, by agreeing that the alimony was
subject to “all the qualifiers that alimony under the law attaches,” Wife agreed
that the court could modify the amount of alimony under 23 Pa.C.S.A. § 3701.
Section 3701 provides that a court may allow alimony when it finds it
necessary, and may also modify an alimony order, under certain conditions.
23 Pa.C.S.A. § 3701(a)-(e).
Modification and termination.--An order entered
pursuant to this section is subject to further order of the
court upon changed circumstances of either party of a
substantial and continuing nature whereupon the order may
be modified, suspended, terminated or reinstituted or a new
order made. Any further order shall apply only to payments
accruing subsequent to the petition for the requested relief.
Remarriage of the party receiving alimony shall terminate
the award of alimony.
23 Pa.C.S.A. § 3701(e).
Section 3701 has no application here because the court did not order
alimony. Rather, the parties entered into an agreement that provided for
alimony and they orally recited it on the record. That agreement contemplated
the termination of alimony; it did not, however, include a “specific provision”
allowing the court to modify alimony.
In his last two issues, Husband claims that the court erred in failing to
hold a hearing on modification, particularly where it had scheduled a hearing
to determine whether Wife was co-habitating. We disagree. The agreement
addressed termination of the alimony obligation, including upon co-habitation.
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It did not address modification. Once Husband took his co-habitation claim off
the table, there was no longer any reason to hold a hearing.
Order affirmed.
Judge Kunselman joins the memorandum and files a concurring statement in
which President Judge Emeritus Stevens joins.
President Judge Emeritus Stevens joins the memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2020
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