J-S24028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TARA COMAN, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

CHARLES COMAN, JR.

Appellee No. 2869 EDA 2014

Appeal from the Order entered September 12, 2014,

in the Court of Common Pleas of Monroe County,

Domestic Relations, at No(s): 1211 DR 2013, 9842 CV 2013

BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 08, 2015

Appellant, Tara Coman, (“Mother”), appeals from the trial court’s order 

denying her petition to enforce a post-nuptial agreement as it relates to the 

child support obligation of Appellee, Charles Coman, (“Father”). We affirm.

Mother and Father were divorced on May 1, 2014, and are the parents 

of two minor children. On May 19, 2014, Mother filed a petition to enforce 

the post-nuptial agreement executed by the parties on November 8, 2013. 

The agreement specified that it was “incorporated into any divorce decree ... 

but it shall not be merged with such decree.” Post-Nuptial Agreement, 

11/8/13, at 2. The objective of Mother’s petition was to enforce/increase 

the amount of Father’s monthly child support obligation from $697 (which 

Father paid pursuant to a December 31, 2013 domestic relations order 

issued after Mother filed for child support on November 5, 2013) to $1,100 
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(which Father agreed to pay in the November 8, 2013 post-nuptial 

agreement). Mother had also filed to modify child support on March 24, 

2014. A conference was held on April 29, 2014, after which Mother’s 

modification action was dismissed and the prior order for $697 monthly child 

support remained in effect. 

The trial court convened a hearing on Mother’s May 19, 2014 petition 

to enforce the post-nuptial agreement on August 21, 2014. On September 

12, 2014, it entered its order denying Mother’s petition for enforcement of 

post-nuptial agreement. Mother filed a timely appeal on September 30, 

2014, and the trial court and Mother have complied with Pa.R.A.P. 1925.

Mother presents two issues for our review:

I. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION IN RULING [MOTHER] WAIVED HER RIGHT 

TO SEEK ENFORCEMENT OF A POST-NUPTIAL AGREEMENT, 

WHERE THE EVIDENCE DEMONSTRATED AN ENFORCEABLE 

POST-NUPTIAL AGREEMENT EXISTED AND THAT SAID 

AGREEMENT PRECLUDED WAIVER OR MODIFICATION, 

EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY BOTH 

PARTIES?

II. WHETHER THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION BY DENYING [MOTHER’S] PETITION TO 

ENFORCE A PROPERLY EXECUTED POST-NUPTIAL 

AGREEMENT, WHICH DENIAL HAD THE EFFECT OF 

ORDERING A DOWNWARD MODIFICATION OF THE CHILD 

SUPPORT PROVISION OF THE AGREEMENT WHERE THERE 

WAS NO PETITION FOR MODIFICATION BEFORE THE 

COURT AND THE EVIDENCE DEMONSTRATED NO CHANGE 

IN CIRCUMSTANCES HAD OCCURRED? 

Mother’s Brief at 4.
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[Our] scope of review in a support matter focuses upon whether 

the lower court abused its discretion. Ashbaugh v. Ashbaugh,

426 Pa.Super. 589, 627 A.2d 1210 (1993). An abuse of 

discretion is “[n]ot merely an error of judgment, but if in 

reaching a conclusion the law is overridden or misapplied or the 

judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will, as shown by the evidence or 

the record, discretion is abused.” Id. (citation omitted).

Boullianne v. Russo, 819 A.2d 577 (Pa. Super. 2003).

Here, we discern no abuse of discretion by the trial court. In framing 

her two issues, Mother disregards the overarching nature of the law and 

policy applicable to agreements between parents vis-à-vis child support. 23 

Pa.C.S.A. § 3105 provides:

Effect of agreement between parties

(b) Certain provisions subject to modification.--A provision of an 

agreement regarding child support, visitation or custody shall be 

subject to modification by the court upon a showing of changed 

circumstances.

Section 3105 permits the modification of a child support agreement. 

Boullianne v. Russo, 819 A.2d at 580. “In [a] support action,... the payee 

may not claim that the [agreement] prevents the family court from 

modifying the order downward if such reduction is necessary to prevent the 

payor from having to comply with an order that he cannot pay due to 

changed circumstances.” Id.

We recently explained:

[M]arital settlement agreements that are merged into a divorce 

decree are treated differently than agreements that are 

incorporated into the divorce decree. See Jones v. Jones, 438 
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Pa.Super. 26, 651 A.2d 157, 158 (1994) (holding that an 

agreement that merges into the divorce decree is enforceable as 

a court order, but an agreement incorporated into the decree 

“survives as an enforceable contract [and] is governed by the 

law of contracts”). However, this distinction does not apply 

to the provisions of such agreements that concern 

matters of child support or custody. The Divorce Code 

specifically provides that regardless of whether an 

agreement between parties is merged or incorporated 

into the divorce decree, “[a] provision of an agreement 

regarding child support, visitation or custody shall be 

subject to modification by the court upon a showing of 

changed circumstances.” 23 Pa.C.S.A. § 3105(b); see also

McClain, 872 A.2d at 862–63. The Pennsylvania Supreme Court 

explained the policy behind this statute when it explained that 

“[p]arties to a divorce action may bargain between themselves 

and structure their agreement as best serves their interests. 

They have no power, however, to bargain away the rights of 

their children[.]” Knorr v. Knorr, 527 Pa. 83, 588 A.2d 503, 505 

(1991). Thus, regardless of the fact that the parties' PSA was 

incorporated into their divorce decree, the trial court had 

jurisdiction to modify the provision addressing Father's child 

support obligation.

Morgan v. Morgan, 99 A.3d 554, 557 (Pa. Super. 2014) (emphasis added).

Moreover, with regard to modification – which Mother pursued in her 

unsuccessful March 24, 2014 action – the Rules of Civil Procedure provide:

Pursuant to a petition for modification, the trier of fact 

may modify or terminate the existing support order in any 

appropriate manner based upon the evidence presented 

without regard to which party filed the petition for 

modification. If the trier of fact finds that there has been a 

material and substantial change in circumstances, the order may 

be increased or decreased depending upon the respective 

incomes of the parties, consistent with the support guidelines 

and existing law, and each party's custodial time with the child 

at the time the modification petition is heard.

Pa.R.C.P. 1910.19(c) (emphasis added).
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Here, the trial court expanded on our Commonwealth’s policy of 

fundamental fairness – to parents as well as children – and commented:

Initially, we note that a parent cannot bargain away the child’s 

right to support. Although the majority of the case law in this 

respect discusses the situation where a party agrees to less child 

support than they may be entitled, we believe the reverse is also 

true. Instantly, [Mother] chose to first proceed with a domestic 

relations support conference instead of seeking redress with the 

Court. “The support guidelines are to be considered both in 

entering the original support order, and in entering a modified 

order.” Shutter v. Reilly, 539 A.2d 424, 426 (Pa. Super. 1988).

Trial Court Opinion, 11/12/14, at 2 (unnumbered and one citation omitted).

Mother and Father were the only witnesses to testify at the August 21, 

2014 hearing on Mother’s petition to enforce post-nuptial agreement. 

Mother testified to filing for child support on November 5, 2013, and stated 

with regard to the corresponding December 17, 2013 support conference, “I 

thought they would go by the post-nup agreement when I went in there.” 

N.T., 8/21/14, at 14-15. She repeated, “I tried to go with the post-nup 

agreement, and they didn’t go with it.” Id. at 16. Mother testified, “they 

told me they’d go by [Father’s] income.” Id. As a result, Father was 

ordered on December 31, 2013 to pay child support of $697 per month. 

Mother explained that she then filed to modify child support on March 

24, 2014 because she “put the children in day care.” Id. at 24. Mother 

testified, however, that she “didn’t actually have day care” because she was 

“off from work.” Id. at 25. At the conference held on April 29, 2014, Father 
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provided his 2013 tax return, and Mother’s petition was dismissed, with 

Father’s $697 monthly child support obligation remaining in effect. Id. 

Similarly, Father testified that he provided his 2013 tax return at the 

April, 2014 support conference, and the amount of his support obligation 

was not changed from the $697 monthly support ordered on December 31, 

2013. Id. at 31. He explained that the conference officer reviewed his tax 

return, and “it was pretty much accurate based on the information I brought 

the first time, so nothing changed.” Id. Father testified that the $697 

monthly support amount was based originally on his “QuickBooks reporting” 

at the December 2013 conference. Id. at 32. Father explained that he 

“actually just got caught up” on his $697 monthly child support obligation, 

but “would not be able to” pay $1,100 monthly child support. Id. at 33-34.

Given the foregoing legal authority and facts of record, we find no 

abuse of discretion by the trial court in denying Mother’s petition to enforce 

post-nuptial agreement as it pertains to Father’s child support obligation.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015