KRAISINGER V. KRAISINGER 2007 Pa.Super. 197, 928 A.2d 333 (2007) CASE BRIEF

KRAISINGER V. KRAISINGER

2007 Pa.Super. 197, 928 A.2d 333 (2007)

NATURE OF THE CASE: H appeals denying his exceptions to and making final the master's recommendation that from February 8, 2005, to January 26, 2006, H pay $3,825 support per month for the parties' four minor children, and as of January 27, 2006, pay a reduced amount of $2,707 per month plus $193 per month for arrears.

FACTS: H and W had four children before W filed for divorce. They entered into a marriage settlement agreement which was incorporated with, but did not merge into, the May 15, 2002, Divorce Decree. H was to purchase a residence, 'the farm', for W. If W sold the farm before the mortgage was satisfied, which she did, H was to pay wife a monthly amount equivalent to the mortgage obligation, taxes and insurance, for a total of $2,393.35 per month, for a time period equal to the original term of the mortgage. H also was to pay 'undivided family support' of $3,000 per month for 48 months beginning January 1, 2002, followed by a payment of $500 per month per child, with a 5% annual increase beginning January 1, 2007. W waived the right to seek additional child or spousal support 'because of the amount H has agreed to pay for [wife's residence] including taxes and insurance until first mortgage is paid off or for 15 years, whichever is less.' W was to pay all future attorney fees for any modifications to the agreement. W filed for additional child support. The court ruled against the settlement agreement and permitted the action. The hearing officer considered whether the agreement was made without fraud and coercion, fair and reasonable, and did not prejudice the children's welfare. She determined there was no fraud or coercion. She further determined H was paying $2,000 per month in child support ($500 per child). She also concluded that the $2,393.45 per month husband was paying for the mortgage must also be considered child support since the parties' agreement stated that W waived the right to seek additional child support because of the amount husband agreed to pay for the mortgage. Since the hearing officer concluded H was paying more than he would be required to pay under the support guidelines, she determined the agreement was fair and reasonable and did not prejudice the welfare of the children. The court determined that the hearing officer erred in considering the mortgage payments to be child support. It held W purportedly waived the right to seek additional child support only until the first mortgage on the farm was paid off or for fifteen years, whichever was less. W sold the farm and the mortgage was paid off. Thus, W's purported waiver was no longer in effect. The court then determined each child support payment of $2,000 was substantially less than the guidelines required and thus was not fair or reasonable. The court remanded to the hearing officer for recalculation of support based upon the new guidelines in effect. H appealed. H contends that the court erred in applying the nurturing parent doctrine and in failing to impute an earning capacity to W when fashioning the support Order.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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