Mackay v. Mackay

• Decision Date: 13 November 2009
• Docket Number: No. 192 WDA 2009.,No. 193 WDA 2009.,192 WDA 2009.,193 WDA 2009.
• Citation: 984 A.2d 529,2009 PA Super 219
• Parties: Stuart J. MACKAY, Appellee v. Jamie K. MACKAY, Appellant. Jamie K. Mackay, Appellant v. Stuart J. Mackay, Appellee.
• Court: Pennsylvania Superior Court

984 A.2d 529

2009 PA Super 219

Stuart J. MACKAY, Appellee v. Jamie K. MACKAY, Appellant.

Jamie K. Mackay, Appellant v. Stuart J. Mackay, Appellee.

No. 192 WDA 2009.

No. 193 WDA 2009.

Superior Court of Pennsylvania.

Argued August 25, 2009.

Filed November 13, 2009.

Joanne R. Wilder, Pittsburgh, for appellee.

Brian C. Vertz, Pittsburgh, for appellee.

BEFORE: BENDER, BOWES and CLELAND, JJ.

OPINION BY BENDER, J.:

¶ 1 In these consolidated appeals, Jamie K. Mackay ("Mother") appeals from the orders entered on January 22, 2009 and January 26, 2009, respectively, wherein the trial court directed Stuart J. Mackay ("Father") to pay a monthly child support obligation of $810.00 for three minor children and denied Mother's "Petition to Enforce Agreement" and her claim for counsel fees.¹ We affirm.

¶ 2 The trial court succinctly summarized the underlying facts and procedural history as follows:

Mother and Father married in 1988. Four children were born during the marriage. Father was employed selling water treatment systems until August of 1992, when he and Mother decided he would leave his employment to serve as the stay-at-home caregiver for the parties' children. Mother served as the "breadwinner" for the family through her employment as the Director of Environmental Health and Safety for a large multinational corporation. The parties separated in April of 2005, with Father relocating to Florida with his parents. The litigation that initiated these proceedings was a Complaint for Spousal Support filed by Father in May of 2005. Father filed a Complaint in Divorce in July of 2005, and the undersigned presided over the trial of the claims for equitable distribution, alimony pendente lite, alimony, child support and counsel fees held from May 31 to June 1, 2006. [The trial court] distributed the marital estate 50% to each party, awarded Father alimony pendente lite but denied his alimony claim, denied Father's counsel fee claim and awarded Mother child support of $698 per month. [The trial court] entered a divorce decree in December of 2006. In March of 2007 the parties modified the child support by consent order to $1,094 per month.

In May of 2008 Mother filed a Petition to Enforce Agreement to Pay College Expenses and Father filed a Petition to Modify Child Support. By consent of the parties, [the trial court] consolidated the Petitions for a hearing held on January 13, 2009. In two separate orders, [the trial court] awarded Mother support of $810 per month for the three minor children in her custody but denied her request to force Father to contribute to the college expenses of the parties' oldest child. Mother filed timely appeals from these orders.

Trial Court Opinion ("T.C.O."), 4/13/09, at 1-2 (footnote committed).

¶ 3 Mother filed her notices of appeal on February 6, 2009, and on February 25, 2005, Mother complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mother presents six questions for our review:

I. Whether the trial court erred in failing to grant Mother's Petition to Enforce Agreement and by failing to enforce the parties' agreement to share the costs and expenses of their children's college educations.

II. Whether the trial court erred in failing to require Father to reimburse Mother for his fair share of the costs and expenses incurred and paid to-date by Mother for the college education of the parties' daughter, and by failing to require Father to pay his fair share of all future costs and expenses for the college educations of the parties' children.

III. Whether the trial court erred in calculating Mother's net monthly income.

IV. Whether the trial court erred in failing to calculate Father's net monthly income based upon his previously adjudicated and established earning capacity.

V. Whether the trial court erred in calculating guideline support and by failing to include and allocate support for all additional expenses for the parties children.

VI. Whether the trial court erred in failing to award Mother counsel fees for Father's failure to comply with the parties' agreement.

Mother's brief at 9.

¶ 4 When reviewing a support order, our standard of review is well settled:

[T]his Court may only reverse the trial court's determination where the order cannot be sustained on any valid ground. We will not interfere with the broad discretion afforded the trial court absent an abuse of the discretion or insufficient evidence to sustain the support order. An abuse of discretion is not merely an error of judgment; if, in reaching a conclusion, the court overrides or misapplies the law, or the judgment exercised is shown by the record to be either manifestly unreasonable or the product of partiality, prejudice, bias or ill will, discretion has been abused.

Samii v. Samii, 847 A.2d 691, 694 (Pa.Super.2004) (citations omitted). Furthermore, this Court:

must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, this Court must defer to the trial judge who presided over the proceedings and thus viewed the witnesses first hand.

Hogrelius v. Martin, 950 A.2d 345, 348 (Pa.Super.2008). "When the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province, as are credibility determinations, [and] the court is free to choose to believe all, part, or none of the evidence presented." Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa.Super.2001), appeal denied, 568 Pa. 723, 797 A.2d 915 (2002). "[T]his Court is not free to usurp the trial court's duty as the finder of fact." Isralsky v. Isralsky, 824 A.2d 1178, 1190 (Pa.Super.2003) (quoting Nemoto v. Nemoto, 423 Pa.Super. 269, 620 A.2d 1216, 1219 (1993)).

¶ 5 This Court recently reiterated, "Pennsylvania law does not impose an obligation on parents to provide for their children's college expenses." In re Estate of Johnson, 970 A.2d 433, 439 (Pa.Super.2009) (citing Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), and Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995)). However, a parent may assume financial responsibility for a child's secondary education. See Emrick v. Emrick, 445 Pa. 428, 284 A.2d 682, 683 (1971); Bender v. Bender, 715 A.2d 1199, 1202 (Pa.Super.1998).

¶ 6 In Johnson, the father of two minor children executed a written marital dissolution agreement ("MDA"), wherein he agreed, inter alia, to pay the children's college expenses according to a contemplated future agreement. The relevant provision provided, "Husband does agree to contribute to each child's college education pursuant to and in accordance with the agreement of the parties or applicable law." Id. at 439. However, after the father died, his estate challenged several facets of the agreement, including this obligation. The trial court held that the father's estate was not obligated to contribute to the children's college expenses because there was no enforceable agreement on that point in the marital settlement agreement. Id. at 435. This Court affirmed the trial court on this issue, holding that the mother and father failed to execute the future agreement contemplated in the MDA, and the provision did not contain sufficient specific terms to constitute an enforceable agreement in and of itself. Essentially, we concluded that the relevant provision was not tantamount to an enforceable agreement, but rather, it merely contemplated a future agreement.

¶ 7 Herein, Mother challenges the trial court's January 26, 2009 order denying her Petition to Enforce Agreement, wherein she alleged Father's oral agreement to pay for the children's college expenses.² In rejecting Mother's petition, the trial court reasoned as follows:

[D]uring the marriage, possibly in October of 2004, [the parties] discussed their existing plan for Mother to retire in 2007 and care for the children while Father would return to the workforce. Father, who was handling the family's finances, said Mother and Father instead would both have to work to pay for their children's college educations. [Father] does not dispute that the parties agreed at that time to pool their incomes to pay for their children's college educations. Mother asserts that this agreement, made during the parties' marriage, should still be enforced after the parties' separation and divorce. This position is untenable, as the verbal agreement clearly was premised on the parties continuing to live together as a single economic unit. For example, Mother acknowledged[,] "my salary went to paying the household expenses, so anything that he made would go to college expenses." [N.T. 1/13/09, at] 86.

T.C.O. at 3.

¶ 8 Mother argues that, although the trial court "found that the parties had an agreement, ... the trial court erroneously declined to enforce the agreement because the parties were no longer together as husband and wife." Mother's brief at 17 (citations omitted). Mother continues that, since the parties' purported oral agreement was not contingent upon remaining married, the trial court erred in failing to enforce it. As noted, below, however, Mother's position misconstrues the trial court's findings.

¶ 9 Where, as here, a party seeks to enforce a disputed oral agreement, it is incumbent upon that party to establish the essential terms and conditions that constitute the enforceable agreement. Boyle v. Steiman, 429 Pa.Super. 1, 631 A.2d 1025, 1033 (1993). Further, unlike a disputed written agreement, "in cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, courts must look to surrounding circumstances and course of dealing between the parties in order to ascertain their intent." Id.

¶ 10 In contrast to Mother's assertion that Father conceded...