J-S44019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 SALVATORE THOMAS DIBERARDO : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALICIA JEAN DIBERARDO : : Appellant : No. 2864 EDA 2022 Appeal from the Order Entered October 4, 2022 In the Court of Common Pleas of Delaware County Domestic Relations at No(s): 2022-00366, PACSES: 317301387

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.* MEMORANDUM BY NICHOLS, J.: FILED APRIL 15, 2024 Appellant Alicia Jean Diberardo appeals from the order awarding child support to Appellee Salvatore Thomas Diberardo. Appellant argues that the trial court’s child support order violated the parties’ post-separation settlement agreement. We affirm.

The trial court summarized the underlying facts of this matter as follows: [The parties] are the parents of one (1) minor child (hereinafter “child” or “minor child”). [The parties] entered into a property settlement agreement (hereinafter “PSA”), filed with the court on October 20, 2020, in which the parties agreed not to pursue child support against one another for the support of the minor child. (N.T. 9/27/22 p.5, at 1). According to the parties’ PSA, they both were to have shared custody of the minor. (N.T. 9/27/22 p.10, at 15-22). However, on March 8, 2022, nearly seventeen (17) months after the parties entered into their PSA, Appellee was

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* Retired Senior Judge assigned to the Superior Court.

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awarded primary custody of the minor child. (N.T. 9/27/22 p.10, at 10-14; 22-24).

Appellant has no overnight visitation with the minor child. (N.T.

9/27/22 p.10, at 22-23; p.15 at 24-25). Appellant contends that Appellee should indemnify Appellant because the PSA has an indemnification clause, and therefore support cannot be sought because the parties contracted against support. In addition, Appellant argues that either both parties mistakenly entered into the PSA believing that child support could not be sought, or in the alternative, Appellee knew that support could be sought and duped Appellant into believing that support could not be. (N.T.

9/27/22 p.7, at 13-16; p.19, at 19-20).

Appell[ee], filed for support on March 15, 2022. (N.T. 9/27/22 p.9, at 20-21). A conference for support was scheduled for April 12, 2022. Following the scheduled conference, a hearing for support was initially scheduled for May 9, 2022, later rescheduled to July 5, 2022, and then finally held on July 25, 2022. At the July 25, 2022 hearing, an order for the support of one child was entered. Appellant appealed the hearing officer’s order of July 25, 2022, and the parties were ordered to appear for a hearing de novo on September 27, 2022.

A hearing was held before the undersigned on September 27, 2022, wherein both parties were represented by counsel, and an order, dated October 3, 2022, was issued of which Appellant[] now appeals.

Trial Ct. Op., 5/22/23, at 1-2 (some formatting altered).

Appellant filed a timely notice of appeal and complied with Pa.R.A.P 1925(b). The trial court issued a Rule 1925(a) opinion addressing Appellant’s claims.

On appeal, Appellant raises the following issues for review: 1. Did the court err by entering an award in favor of [Appellee] for child support after [Appellee] had entered into a valid and binding contract that stated that neither party would seek child support from the other, “based upon their income and the periods of physical custody each party exercises with the minor

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child.” See Post Separation Property Settlement Agreement, Article III, ¶ 1?

2. Did the court err by first ordering that the post separation property settlement agreement of the parties was a binding and enforceable contract, and then refusing to enforce that contract on the issue of child support?

3. Did the court err by not finding that the post separation property settlement agreement, specifically, Article III, ¶ 1, relating to child support, was a mutual mistake of law which should allow the Appellant restitution for any child support payments made pursuant to First Nat’l Bank v. Rockefeller, 5 A.2d 205, 207 (Pa. 1939) and Rivera v. Leb. Sch. Dist., 2012 U.S. Dist. LEXIS 165410, 29 [(M.D. Pa. filed Nov. 20, 2012)]?

4. Alternatively, did the court err by not finding that the post separation property settlement agreement, specifically, Article III, ¶ 1, relating to child support was a deliberate and material misrepresentation by [Appellee] intended to induce [Appellant] to enter into the Post-Separation Property Settlement Agreement?

5. Did the court err by rendering a decision [that] is contrary to the substantial evidence and is an abuse of discretion?

6. Did the court err by rendering a decision [that] is in capricious disregard of the evidence of record in this matter?

Appellant’s Brief at 6-7 (some formatting altered).

The standard governing our review of a child support order is follows: [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. In addition, we note that the duty to support one’s child is absolute,

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and the purpose of child support is to promote the child’s best interests.

M.E.W. v. W.L.W., 240 A.3d 626, 634 (Pa. Super. 2020) (citation omitted).

“The principal goal in child support matters is to serve the best interests of the children through the provision of reasonable expenses.” E.R.L. v. C.K.L., 126 A.3d 1004, 1006 (Pa. Super. 2015) (citation and quotation marks omitted). Generally, a court determines child support using the support guidelines. See Pa.R.C.P. 1910.16-1 to 1910.16-7 (subsequently amended eff. Jan.1, 2022). “[T]here is a rebuttable presumption that the guideline- calculated support obligation is the correct support obligation.” Pa.R.C.P. 1910.16-1(d); see also Ileiwat v. Labadi, 233 A.3d 853, 861 (Pa. Super. 2020).

Pennsylvania courts recognize that parents may enter agreements concerning child support but cannot “leave their children short.” Kraisinger v. Kraisinger, 928 A.2d 333, 340 (Pa. Super. 2007) (quoting Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991)). “Private support agreements are subject to contract principles and enforceable in an action at law for damages or in equity for specific performance. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.” Sams v. Sams, 808 A.2d 206, 211 (Pa. Super. 2002) (citations and quotation marks omitted).

Therefore, if an agreement is fairly made and adequately provides for a child, a court may consider it binding on the parties. Id. However, a parent cannot bargain away the right of a minor child to adequate support from the other

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parent. Id. An agreement concerning child support, “is at best advisory to the court[,]” and the court can consider whether the agreement adequately serves the needs of a child. Knorr, 588 A.2d at 505. Additionally, the Divorce Code states that “[a] provision of an agreement regarding child support . . . shall be subject to modification by the court upon a showing of changed circumstances.” 23 Pa.C.S. § 3105(b).

Following our review of the parties’ briefs, the relevant law, and the trial court’s conclusions, we affirm based on the trial court’s opinion. See Trial Ct. Op. at 1-9. Specifically, we discern no abuse of discretion or error of law in the trial court’s conclusion that Appellee was entitled to child support. See id. at 5-8; see also Kraisinger, 928 A.2d at 340. Additionally, we agree with the trial court that Appellant’s remaining claims are meritless. See Trial Ct. Op. at 8-9. Accordingly, we affirm.

Order affirmed. Jurisdiction relinquished.

Date: 4/15/2024

-5- Circulated 03/27/2024 10:46 AM