Mazurek, E. v. Russell, J. (opinion)

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J-A13040-14 2014 PA Super 130 EDWARD S. MAZUREK, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. JOANNE R. RUSSELL, Appellee No. 2580 EDA 2013 Appeal from the Order entered August 6, 2013, in the Court of Common Pleas of Montgomery County, Family Court, at No(s): 2008-14339 BEFORE: ALLEN, MUNDY, and JENKINS, JJ. OPINION BY ALLEN, J.: Edward S. Mazurek FILED JUNE 24, 2014 pro se1 from the order granting the Petition for Contempt of Property Settlement Regarding Undergraduate Father and Mother are the divorced parents of four children. On April 20, 2010, provides: 14. Undergraduate Education. 14.1 undergraduate institutions as are reasonable and appropriate for the Children, with the pa consent shall not be unreasonably withheld. In addition to the other payments set forth in this Agreement, [Father] shall pay one hundred percent (100%) of the reasonable expenses ____________________________________________ 1 Father is an attorney. J-A13040-14 associated with the Children attending such institutions. Such expenses shall include, but not necessarily be limited to, all reasonable test and application fees, tuition costs, fees, room 14.2 Contractual Obligation. The payments provided for in this Paragraph 14 are not to be considered in the nature of child support and, as such, shall not be modifiable. This obligation for [Father] to pay the expenses under this Paragraph 14 shall be considered contractual in nature, and shall not be governed by case law or the Pennsylvania Rules of Civil Procedure. PSA, 4/20/10, at 30-31 (emphasis supplied).2 On July 8, 2013, Mother filed an Emergency Petition for Contempt of Property Settlement Regarding Undergraduate Expenses incurred by the partie Manhattan College in New York City. Father filed a Response in Opposition Regarding Undergraduate Expenses on July 11, 2013. consented to Luke attending Marymount Manhattan College and that consent esponse in Opposition, 7/11/13, at ____________________________________________ 2 In Pennsylvania, parents do not have a legal obligation to pay for their by contract. Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009). -2- J-A13040-14 Id. at 3. NOT consent to Luke attending Father for withholding my unconditional consent in that regard Id. at 4. Father incorporated and referenced a June 24, 2013 email he sent Id. at 6. Id. Father then explained that he would pay for Marymount Manhattan College if the estrangement ended, if Father was would maintain a 3.0 grade point average, and if Luke not take his car to college in New York City. Id. at 6-7. Father continued to aver that he did See id. at 7-9. Our review of the record indicates that Father attached two email exhibits to his response in opposition. The first email, from Father to Luke, dated May 2, 2013, reads as follows: Since you have not included me in, or kept me informed of, anything having to do with your college application process or -3- J-A13040-14 college selection process, I want you to know my thoughts on your decision to send a deposit to Manhattan Marymount. I do not believe Manhattan Marymount is a good choice for you, even among the schools to which you have been accepted of this assessment sum, it is not worth $50,000 per year $200,000 for four especially where you have other better choices, and would have had even more better choices had you included me in the application process. That is a fact. That being the case, I believe Emerson would be an excellent place for you, assuming, of course, that you are genuinely (Hundreds of thousands of dollars should not be wasted on poor or mediocre performance.) But, you have not been accepted or rejected by Emerson yet, and remain on the wait list. I have been imploring you in emails and text messages to please call me to undertake immediately a strategy consisting of concrete actions to gain admittance to Emerson from the wait list. To date, you have completely ignored me. Because of the urgency and critical importance of this matter, I am imploring you again. Please call or text or email me with a time to meet to discuss what we have to do to gain your admittance into Emerson. I cannot do it without your input and participation. It would be foolish to spurn me in this life-changing situation because I can guarantee that your chances will be exponentially better with my involvement. Please call me ASAP. Love, Dad Response in Opposition, 7/11/13, Exhibit A. Approximately two months later, in an email sent to Mother dated June 24, 2013, Father wrote: On the matter of Luk Since Luke is no longer at the Prep [high school], I do not have an email address for him, so please forward this email to him if you deem it appropriate. -4- J-A13040-14 nt Agreement, you agreed to cooperate with me in connection with have been unwilling to cooperate with me, I had no role in the selection of suitable colleges to which he should have applied. Likewise, I had no role in the selection of the school he plans to performance at the Prep, these were decisions in which I should have clearly been involved as his Father, especially if you or he estrangement] changes immediately and Luke has me back in is absurd to exp Additionally, if Luke wants me to pay for his college, Luke will have to agree in writing when he turns 18 to waive any privacy rights he has under FERPA to permit me full and direct access to his college records. I have no intention of having a repeat progress without having the ability directly and immediately to verify his status and pr determine whether Luke is meeting acceptable standards of academic performance sufficient to justify having me continue to pay the extremely high cost of over $50,000 a year for his college. Luke is an exceptionally bright boy much brighter than his lackluster grades reflect. Luke is able to dominate academically at Manhattan Marymount and I hope to God he does. By dominate, I mean the summa cum laude range of 3.75+ GPA. But, whether he academically dominates or not, he will have to maintain an absolute minimum GPA of 3.0 and satisfy all other academic requirements in each and every semester for me to continue to pay for such an extremely expensive school. This standard is lower than many colleges part through scholarships. For Luke to maintain the scholarship I am effectively being asked to provide him, he will have to maintain the decidedly reasonable academic standards that I have established. Finally, Luke will not be permitted to have his car at college. He does not need it, it will be a distraction from his academic life, -5- J-A13040-14 and it creates a high risk of huge wasteful expenses in parking tickets and impoundment and towing fees in New York City. I am trying to get the money for his first semester. Because neither you nor he has communicated with me in any way, shape or form about a single detail of the expenses you expect me to pay, I have no idea what amount will be due or when it is semester by this summer, I cannot guarantee that I will have it in which case Luke will have to take out a loan that I will re-pay when I get the money, assuming that all of the foregoing Response in Opposition, 7/11/13, Exhibit B. The trial court convened a hearing on July 29, 2013. Father testified his consent for Luke to attend Marymount Manhattan College. N.T., 7/29/13, at 5-6, 16-17. Father reiterated that his consent was contingent Father access to his college grades and academic records; maintaining a 3.0 grade point average; and not taking his car to college in New York City. Id. at 6-10. petition, finding Father in contempt of the PSA, and directing Father to pay Father and the trial court have complied with Pa.R.A.P. 1925. In his Pa.R.A.P. 1925(b) statement, Father included in his six asserted errors four of the errors he presents to th App. P. 1925(b)(4)(vi), to the extent this Statement has identified errors in -6- J-A13040-14 general terms, that is because [Father] cannot readily discern the basis for rrors Complained of on Appeal, 9/6/13, at 1. Additionally, Father asserted: Because of the non-specificity of the ruling complained of on appeal, [Father] reserves the right to seek leave to file a supplemental Statement to clarify his position in response to the See official note to Pa. R. App. P. 1925(b)(4). Id. at n.1. In its November 7, 2013 opinion, the trial court countered that pu -18. Despite its alleged errors. Id. Our review of the record indicates that Father did not seek leave to file a supplemental Pa.R.A.P. 1925(b) statement. A concise statement must be specific enough for the trial court to identify and address each issue the appellant wishes to raise on appeal. See In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013). Because we find that concise statement was sufficiently specific, and we readily waiver assessment. In re A.B., supra; see also Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1119-1120 (Pa. Super. 2007) (addressing distinguishable). Father presents four issues for our review: -7- J-A13040-14 1. 2013 Emergency Petition for Contempt of Property Settlement Agreement Regarding Undergraduate Expenses. 2. 3. Whether the trial court erred in ordering [Father] to pay, within ten (10) Marymount Manhattan College and $700.00 to [Mother]. 4. Whether the trial court erred in ordering [Father] to pay, fees in the amount of $7,577.00. F merit to F remaining two issues are rendered moot. not be disturbed absent an abuse of discretion. Guadagnino v. Montie, 646 A.2d 1257, 1259 (Pa. Super. 1994). This Court will not find an abuse of discretion simply for an error of judgment. Rather, it is an abuse of discretion when the trial court either overrides or misapplies the law, its judgment is manifestly unreasonabl decision is the result of partiality, prejudice, bias or ill will. Holderman v. Hagner, 760 A.2d 1189, 1192 (Pa. Super. 2000). -8- J-A13040-14 merged into their divorce decree. See property settlement agreement did not merge into the divorce decree, it stands as a separate contract, is subject to the law governing contracts, and Crispo v. Crispo, 909 A.2d 308, 312-313 (Pa. Super. 2006) (citation omitted). Private support agreements are subject to contract principles and are enforceable in an action at law for damages or in equity for specific performance. Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. Id. 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 Id. (citation omitted). This plain meaning under the guise of Little v. Little, 657 A.2d 12, 15 (Pa. Super. 1995) (citation omitted). When a contract is free from ambiguity, the court must interpret the contract as written. Tuthill v. Tuthill, 763 A.2d 417, 420 (Pa. Super. 2000) (en banc). Conversely, we have explained: Where the contract terms are ambiguous, however, the court is free to receive extrinsic evidence to resolve the ambiguity. -9- J-A13040-14 A contract will be found to be ambiguous only if it is fairly susceptible of different constructions and capable of being understood in more than one sense. It is the function of the court to decide, as a matter of law, whether the contract terms are clear or ambiguous. The fact that the parties have different interpretations of a contract does not render the contract ambiguous. Id. examine the surrounding circumstances i.e., extrinsic or parol evidence to Lower v. Lower, 584 A.2d 1028, 1031 (Pa. Super. 1991) (citation omitted). Based on the foregoing, and our de novo standard and plenary scope ge expenses. undergraduate institutions as are reasonable and appropriate for the Children, consent shall not be unreasonably withheld. In addition to the other payments set forth in this Agreement, [Father] shall pay one hundred percent (100%) of the reasonable expenses associated with the Children attending such institutions. Such expenses shall include, but not necessarily be limited to, all reasonable test and application fees, tuition costs, fees, room PSA, 4/20/10, at 30 (emphasis added). Id. We susceptible of different constructions and capable of being understood in - 10 - J-A13040-14 Tuthill, supra persuasive as extrinsic and parol evidence. Lower, supra. At the hearing, Father agreed that he is required to pay for the p -6. Marymount Manhattan College. Id Father access to academic records, maintain a 3.0 grade point average, and not have a car in New York City as justification for reasonably withholding his consent to pay for undergraduate expenses. Id. at 6-7, 9- tions precedent. Those are the reasons why I am withholding my consent from Id. at 7. educations. tended Fordham Id Id. at 10. undergraduate expenses, Father testified: FATHER: not trying to evade my financial obligations and have background testimony so that the court can be ass - 11 - J-A13040-14 THE COURT: All right. I will overrule the objection. FATHER: their private educational expenses for 19 years, 18 years, 15 years and 13 years respectively so far and Id important because it demonstrates the reasonableness of my withholding Id. at 15. Father explained that he paid $50,000 a year for his oldest child to attend Williams College, and $50,000 a year for his second child to attend Fordham University. Id. at 28. Furthermore, Father cited the Merriam Webster dictionary definition of not Id. at 30-31. Father continued: [Luke] has not been a good [high school] student. I need to monitor his progress so that I can insure and stay on top of him that he does not squander this tremendous opportunity that is afforded to him. *** Your Honor, I keep going back to the contract, and you are assessment, it is the contract that governs. And so [Mother] has to prove that my consent is being unreasonably withheld. Is it had anything to do with me in five years? Is it unreasonable that I would not be able to monitor his academic progress in want him to maintain a crummy B average where tuition is $50,000 a year? Is this court going to tell me that a person is unreasonable for holding those convictions? - 12 - J-A13040-14 *** [Mother and I] left the [PSA] open-ended, Your Honor, because circumstances arise. Th who has kids knows that a lot of stuff can happen with kids over So circumstances are now that I am not willing to consent to having this kid go to college wh going to maintain at least a 3.0 average. Is this court going to Id. at 34-35. Father added: And I am a father. I am not some litigant. I am a father, and I doing what I can to stop this estrangement, monitoring his academic progress, and ensuring that he maintain academic standards. hy I am withholding my consent that he attend Marymount or anyplace else unless those conditions are met because I am his father. Id. at 40. Id. at 16-17. He explained: [Manhattan Marymount] is an extremely expensive school. All in for me to expect a student to maintain a minimum B average for the day, $200,000. Id. at 19. - 13 - J-A13040-14 Father was the sole witness to testify at the hearing; Mother did not testify nor did she present any witnesses. Again, the parties contracted for The record evidence is unequivocal that Father indeed offered a reasonable explanation for withholding his consent. In the factually similar case of Fina v. Fina, 737 A.2d 760 (Pa. Super. Fina filed a petition for special and contempt agai was incorporated but not merged into the divorce degree. In relevant part, the agreement provided: [Father] agrees to be responsible for twenty-five (25%) percent of the cost of the college tuition and expenses of each minor child, if consulted concerning the choice of an undergraduate school and provided he agrees thereto, which agreement shall not be unreasonably withheld. Id. at 762, 766 (emphasis supplied). The evidentiary hearings in Fina establ Id. at 766- - 14 - J-A13040-14 we explained: As paragraph 14(b) indicates, [mother] and [daughter] had an indicates that this obligation was not met. Thus, the trial court claim for reimbursement of 25% of Id. at 767. In Fina Id. at 762, 766. Similarly, the parties in the present case which consent shall not be unreasonably withheld. In contrast, we found a father to be obligated to pay for college expenses in Wineburgh v. Wineburgh, 816 A.2d 1105 (Pa. Super. 2002), but not merged into the divorce decree, provided for the father to pay 100% h regards to the college have the right to approve or disapprove a particular college but will exercise Id. at 1106. Again, the Wineburgh family situation was one in which it was undisputed that the child matriculating to college did not communicate with the father, who learned that the son was attending community college when the father appeared in - 15 - J-A13040-14 court for a child support conference. Id. In applying contract principles, the panel in Wineburgh Fina Id. at 1109. Wineburgh Id. Upon review, we align our decision with that of Fina, and are comp mutually consent which consent shall We cannot ignore the significance of this language to which the parties contracted. We are further persuaded by the extrinsic and parol evidence presented by Father regarding whether his The record in this case could not be clearer. Through his pleadings and testimony of record, Father evinced a Marymount Manhattan College. Father explained that he withheld his ollowing - 16 - years of J-A13040-14 Mindful of our de novo standard of review and plenary scope of review, rial the trial court abused its discretion because, ironically, it exercised its . McMullen v. Kutz, 925 A.2d 832, 833-834 issue for decision, it misapplies the law, exercises its discretion in an Accordingly, we reverse the August 6, 2013 order finding Father in contempt and requiring his payment of undergraduate expenses and counsel fees. Order reversed. Jurisdiction relinquished. Judge Jenkins files a Concurring Statement. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 - 17 -

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