The Superior Court confirms the concept of a child support agreement as convertible into alimony. | Fox Rothschild LLP


Unchangeable child support arrangements are infrequent, but occasionally arise when parties negotiate property settlement agreements. It usually arises when a dependent spouse claims that a certain level of child support to have to payable regardless of the payer’s situation. In theory, this could be done by making child support unamendable in the agreement, but case law has evolved indicating that where child support is recoverable by seizure of property or incarceration, a different standard should apply. See Nicholson vs. Combs 703 A.2d 407 (Pa. 1997) This spawned what happened in a Columbia County case, Long. v. Long 2022 Pa. Great. 129 where the parties agreed that if the payor spouse obtained a reduction in support, he would pay an equivalent amount of support.

The parties settled property and spousal support on the basis of child support of $1,800 per month in June 2018 and divorced two months later. The wife obtained the marital residence after her refinancing. A child was emancipated shortly after the agreement was signed, and the husband continued to pay $1,800 as per the agreement. In 2020, the husband was granted a variation of custody so he now had joint custody of the remaining 14 years. He then filed a request to reduce his support. His argument was that any support obligation was terminable when the wife remarried; a concept arising from his interpretation of 23 Pa.CS Sec. 3706. The wife replied that the alimony was “reimbursement” alimony as contemplated by Zullo c. Zullo, 613 A.2d 544 (Pa. 1992), Bold versus Bold, 574 A.2d 552 (Pa. 1992) and Wagoner versus Wagoner648 A.2d 299 (Pa. 1994).

The Superior Court’s published opinion notes that a property settlement agreement is a contract and is governed by contract law. He adds, however, that under section 3105(c) of the Divorce Code, an agreement to pay child support is not changeable, while a court award of child support is subject to change. under Sections 3701 and 3706. The parties may, of course, arrange for their agreements to provide for variation of child support in the event of changed circumstances, but this must be specified in the written agreement. Courts are not permitted to read termination or modification events into an agreement without appropriate language reflecting that intent. Woodings v. Woodings 601 A.2d 854 (Pa. Super. 1992).

The case has a curious twist because the agreement was executed while child support was still deductible. The Tax Reform Act 2017, which ended alimony as a deduction, provided for a one-year grace period. Thus, agreements made before December 31, 2018 still had deductible child support. The husband requested a hearing to assess what part of his support obligation would be deductible. On this subject, the Superior Court agreed and referred the case. So the obligation remained fixed at $1,800 despite the change in custody, but if the 50/50 custody arrangement had produced a support obligation of $1,600, the remaining $200 would still be owed but taxable. for the recipient and deductible by the payer as alimony.

Some lessons flow from this. In this case, it looks like the husband represented himself in the 2018 divorce settlement. It looks like he missed some issues that the lawyer could have helped him spot. The first is what might be called a “catastrophe clause”. It is sometimes defined as “disability”, but it is a term that should itself have a reliable definition. The best solution is to define a catastrophe-based modification as one in which the payor’s income decreases to a specified trigger level and is not self-inflicted. The second is a changing of the guard as we saw in this case. If the husband got primary custody, he still owes the $1,900, but that would be all child support and the ex-wife would have to pay child support with the child support included in her income. The last problem is to define the termination of alimony. In this case, it is clear from the agreement that child support ends when the child graduates from high school. But we’ve seen agreements that turn alimony into alimony but then overlook a termination date. This could arguably produce lifelong alimony.

Nota Bene: Alimony deduction laws seem like ancient history, but other old readers may recall that “alimony” that ends on a date traceable to a child’s emancipation n is not deductible. 26 USC Sec 71(c).

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