Child Custody, Visitation & Relocation

Any Provision of a Property Settlement Agreement Regarding Child Support, Child Visitation or Child Custody is Subject to Modification by the Court

In the family law, child support modification appellate case of Morgan v. Morgan, PICS Case No. 14-1362 (Pa. Super. Aug. 21, 2014), the Honorable Christine L. Donohue writing on behalf of the Pennsylvania Superior Court ruled that even though father’s child support obligation was arrived at through a property settlement agreement that was incorporated, rather than merged, into a divorce decree, the trial court retained jurisdiction to modify the provision of the divorce decree dealing with child support.

The parties, parents of an unemancipated adult son named C.M., were divorced in Maryland in 2003. In conjunction with the divorce, the parties entered into a property settlement agreement (PSA) that provided that father would pay mother alimony and child support. The PSA provided that father’s alimony obligation would remain fixed until July 1, 2007.

After that time, either party could seek to modify the amount of the obligation. The PSA was incorporated into a divorce decree. In May 2007, father registered the Maryland divorce decree and PSA in Franklin County, PA. Almost immediately thereafter, father filed a petition seeking to reduce his alimony obligation. In response, mother filed a petition seeking to increase father’s alimony.

In 2011, while a second appeal from the alimony proceedings was pending, mother filed a support action because father had told her that he was going to cease paying child support for C.M. As part of the support proceedings, Father’s employer submitted income information which revealed that father had been lying about his income and submitting falsified documents.

Father’s fraud upon the court led to a protracted period of discovery, and the parties did not appear before the trial court on mother’s support petition until July 2012. Ultimately, the trial court entered an order setting father’s child support obligation and providing that it would be retroactive to May 3, 2007. On appeal, father challenged the amount of support determined by the trial court.

According to father, because his child support obligation was arrived at through an agreement (rather than support proceedings) and because this agreement was incorporated (rather than merged) into the divorce decree, the trial court lacked jurisdiction to modify his support obligation.

“Father is correct that in our law, (martial) settlement agreements that are merged into a divorce decree are treated differently than agreements that are incorporated into the divorce decree(,)” the Superior Court stated, citing Jones V. Jones, 651 A.2d 157 (Pa. Super. 1994), which held that an agreement that merges into a divorce decree is enforceable as a court order, but an agreement incorporated into a decree “survives as an enforceable contract (and) is governed by the law of contracts.”

The court noted, however, that this distinction does not apply to the provisions of such agreements that concern matters of child support or custody, as the Divorce Code specifically provides that, regardless of whether an agreement between parties is merged or incorporated into a divorce decree, a “provision of an agreement regarding child support, visitation or custody shall be subject modification by the court upon a showing of changed circumstances.”

If the parties to a divorce action bargain between themselves and structure their agreement as best serves their interest; however, they have no power to bargain away the rights of their children as the court explained.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly 37 PLW 855 (September 9, 2014)

Filed Under: Family Law; Child Support; Child Visitation

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