Sheldon, B. v. Sheldon, J. ( 2021 )


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  • J-A08016-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    BRIAN SHELDON                                :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                                :
    :
    :
    JOANNE SHELDON                               :
    :
    Appellant               :   No. 1689 EDA 2020
    Appeal from the Order Entered August 12, 2020
    In the Court of Common Pleas of Montgomery County Civil Division at
    No(s): No. 2016-14233
    BEFORE:      PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY MURRAY, J.:                                          FILED MAY 26, 2021
    Joanne Sheldon (Wife) appeals from the order granting the petition for
    special    relief   filed     by   Brian   Sheldon   (Husband)      during    post-decree
    proceedings. Wife specifically challenges the trial court’s grant to Husband
    of “full control” of the sale of the former marital residence, “at a price to sell”
    and “capped at $445,000.00”; the court also ordered that if there were “no
    offers or movement,” the list price “shall drop by $5,000.00” every two
    weeks. Upon review, we affirm.
    Husband and Wife married on May 22, 1999. After separating, and in
    contemplation       of      divorce,   they   entered   into   a   Property   Settlement
    Agreement (PSA) dated February 29, 2016. On July 14, 2016, Husband filed
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-A08016-21
    for divorce. On May 26, 2017, the trial court entered a divorce decree which
    incorporated the parties’ PSA.
    Pertinently, the PSA provided Wife with the marital residence, in
    exchange for waiving her interest in Husband’s retirement accounts, as well
    as any claims for spousal support, alimony, counsel fees and expenses. PSA
    at 4-7.     Because Husband was a payor on the mortgage of the marital
    residence, the PSA provided that Wife “refinance the current mortgage on
    the property by September, 2019. If for any reason, [Wife] defaults on the
    mortgage for 45 days, the residence shall immediately be listed for sale.”
    Id. at 9.
    On June 28, 2019, Husband filed a petition for special relief to enforce
    the PSA based on Wife’s failure to make mortgage payments between May
    and July of 2019.    The court held a hearing on September 10, 2019.        In
    finding Wife in contempt, the court explained:
    . . . [Wife] admitted, on direct examination by her own lawyer,
    that she failed to make timely payments for two months. N.T.,
    [9/10/19, at] 17-18. The lender’s documents, which [the trial
    court] found more credible than her testimony, proved she failed
    to make payments for three months. Id. at 29. Nothing in her
    testimony suggested that she was willing or able to perform her
    obligation to refinance by the month’s end. To the contrary, she
    testified that she would only have the property listed for sale by
    the end of the month, and her focus was not minimizing the
    harm she was causing to [Husband], but maximizing the gain on
    the sale by acting as the listing agent. Id. at 19-20.
    [The trial court] found [Wife] in breach of the PSA, id., and . . .
    also found that [Wife’s] default caused great harm to
    [Husband’s] credit worthiness, id. at 32-33. Because the PSA
    was made an order of the court in the divorce decree, [the
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    court] also found [Wife] in contempt for having intentionally
    breached her obligation to list the property for sale within 45
    days after she defaulted. Id. at 30-31.
    Trial Court Opinion, 9/24/20, at 4.
    On the day of the hearing, September 1, 2019, the parties executed a
    consent order requiring Wife to list the property for sale no later than
    September 30, 2019. Order, 9/10/19, at ¶1. The order granted Wife full
    control of the listing until February 22, 2020, at which time Husband would
    “have the option of designating a [realtor] for the listing of the property for
    a period of 145 days.” Id. at ¶2. Wife agreed to make monthly mortgage
    payments, cooperate with all realtors, make the residence available for
    showing, and keep it in good order and repair. Id. at ¶¶3, 5-6.
    Wife listed the property for $874,995.00. On March 5, 2020, Husband
    filed a petition for contempt. Husband averred that Wife continued to make
    late payments on the mortgage and was overpricing the property, “making a
    mockery of the Court’s Order and ensuring that the home would not sell and
    further perpetuating the damage to [Husband’s] credit.”           Petition for
    Contempt, 3/5/20, at ¶13. The trial court held another hearing on August
    12, 2020. Husband testified that on February 22, 2020, he retained a real
    estate agent to list the property, but Wife would not cooperate.          N.T.,
    8/12/20, at 15. Husband also testified that his agent performed a market
    analysis on the property and determined the fair market value in September
    2019 to be between $385,000 - $425,000. Id. at 14.
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    Husband presented the testimony of real estate agent Raymond Jones,
    who testified that the fair market value of the property in August of 2020
    was $524,000 to $554,000; however, Mr. Jones noted Wife denied him
    access to the home, and flooding issues on the property would impact the
    sale.    N.T., 8/12/20, at 46-48.        Husband had submitted into evidence
    “Exhibit 1,” an appraisal conducted on August 1, 2020 which valued the
    property at $545,000. Id. at 18. Like Mr. Jones, Husband noted that the
    property    sustained   recent   water    damage    and   would   require    mold
    remediation and repair. Id. at 22-23.
    Consistent with the above testimony, the trial court found Wife “failed
    to perform her obligations as ordered by the court in 2019.”         Trial Court
    Opinion, 9/24/20, at 6. Accordingly, the trial court ordered, in relevant part:
    1. [Husband] is to have full control of the property listing for
    301 Smith Road, Schwenksville, PA as well as utilize a realtor
    of [Husband’s] choice. The property is to be listed at a price
    to sell.
    2. [Wife] is to cooperate with all negotiations pertaining to the
    listing and sale of the property at 301 Smith Road,
    Schwenksville, PA, as well as sign any/all necessary
    paperwork pertaining to said property. The failure of [Wife]
    to comply with this Order may result in Sanctions of a fine of
    $100.00 a day for every day in Contempt of this Court’s
    Order.
    3. The sale price of the property          at 301 Smith Road,
    Schwenksville, PA is to be capped at   $445,000 (Four Hundred
    and Forty Five Thousand Dollars).      If there is no offers or
    movement on said property after 2      weeks, the price of said
    property shall drop by $5,000 (Five    Thousand Dollars) every
    2 weeks thereafter.
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    4. Within 10 days of the date of this order, [Wife] is to make the
    property at 301 Smith Road, Schwenksville, PA available to
    [Husband’s] real estate agent. [Wife] is to cooperate with the
    process of showing the property. If [Wife] does not comply
    with this Order, Law Enforcement may be utilized to gain
    entry into said property.
    Order, 8/12/20, at ¶¶1-4.
    Wife filed this appeal. Both Wife and the trial court have complied with
    Pennsylvania Rule of Appellate Procedure 1925.      On appeal, Wife presents
    the following two issues:
    A. Whether through its Order of August 12, 2020, the trial court
    erred as a matter of law and abused its discretion in altering
    the terms of the parties’ Property Settlement Agreement
    entered on February 29, 2016.
    B. Whether the trial court erred as a matter of law and abused
    its discretion in overruling an Order of Court by a Judge in the
    same Court in the same matter.
    Wife’s Brief at 3.
    We review a trial court’s decision to grant or deny special relief in
    divorce actions for an abuse of discretion.
    Judicial discretion requires action in conformity with law on facts
    and circumstances before the trial court after hearing and
    consideration. Consequently, the court abuses its discretion if,
    in resolving the issue for decision, it misapplies the law or
    exercises its discretion in a manner lacking reason. Similarly,
    the trial court abuses its discretion if it does not follow legal
    procedure.
    An abuse of discretion exists when the trial court has rendered a
    decision or a judgment which is manifestly unreasonable,
    arbitrary, or capricious, has failed to apply the law, or was
    motivated by partiality, prejudice, bias or ill will.
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    However, our deference [to the trial court] is not uncritical. An
    order may represent an abuse of discretion if it misapplies the
    law. It is therefore our responsibility to be sure that in entering
    its order the court correctly applied the law. An order may also
    represent an abuse of discretion if it reaches a manifestly
    unreasonable result. This will be the case if the order is not
    supported by competent evidence. It is therefore also our
    responsibility to examine the evidence received by the court to
    be sure that the court’s findings are supported by the evidence.
    Although we will accept and indeed regard ourselves as bound
    by the court’s appraisal of a witness’ credibility, we are not
    obliged to accept a finding that is not supported by the evidence.
    When reviewing questions of law, our scope of review is plenary.
    Conway v. Conway, 
    209 A.3d 367
    , 371 (Pa. Super. 2019) (citation omitted
    and formatting altered). Further, with regard to Wife’s challenge of the trial
    court’s interpretation of the parties’ PSA, we note that post-nuptial
    agreements are to be reviewed under the same principles as pre-nuptial.
    Lugg v. Lugg, 
    64 A.3d 1109
    , 1112 (Pa. Super. 2013). We recognize:
    The determination of marital property rights through prenuptial,
    post-nuptial and settlement agreements has long been
    permitted, and even encouraged. Where a prenuptial agreement
    between the parties purports to settle, fully discharge, and
    satisfy any and all interests, rights, or claims each party might
    have to the property or estate of the other, a court’s order
    upholding the agreement in divorce proceedings is subject to an
    abuse of discretion or error of law standard of review. An abuse
    of discretion is not lightly found, as it requires clear and
    convincing evidence that the trial court misapplied the law or
    failed to follow proper legal procedures. We will not usurp the
    trial court’s fact-finding function.
    *     *     *
    As  to    interpretation,  enforcement,  and   remedies,    in
    Pennsylvania, [property settlement] agreements are interpreted
    in accordance with traditional principles of contract law.
    Generally, the parties are bound by their agreements, absent
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    fraud, misrepresentation or duress. They are bound without
    regard to whether the terms were read and fully understood and
    irrespective of whether the agreements embodied reasonable or
    good bargains.
    When interpreting an [] agreement, the court must determine
    the intention of the parties. When the words of a contract are
    clear and unambiguous, the intent of the parties is to be
    discovered from the express language of the agreement. Where
    ambiguity exists, however, the courts are free to construe the
    terms against the drafter and to consider extrinsic evidence in so
    doing.
    Sabad v. Fessenden, 
    825 A.2d 682
    , 686, 688 (Pa. Super. 2003)
    (quotations and citations omitted).
    Because contract interpretation is a question of law, this Court is not
    bound by the trial court’s interpretation.    Stamerro v. Stamerro, 
    889 A.2d 1251
    , 1257–58 (Pa. Super. 2005) (citations and quotations omitted).        Our
    standard of review is de novo and to the extent necessary, the scope of our
    review is plenary as the appellate court may review the entire record in
    making its decision.     
    Id.
        However, we are bound by the trial court’s
    credibility determinations.    Kraisinger v. Kraisinger, 
    928 A.2d 333
    , 339
    (Pa. Super. 2007) (when interpreting marital settlement agreement, trial
    court is sole determiner of facts; absent abuse of discretion, we will not
    usurp trial court’s fact-finding function).
    When construing agreements involving clear and unambiguous terms,
    this Court need only examine the writing itself to give effect to the parties’
    understanding. Creeks v. Creeks, 
    619 A.2d 754
    , 756 (Pa. Super. 1993).
    The court must construe the contract only as written and may not modify
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    the plain meaning of the words under the guise of interpretation. 
    Id.
     When
    the terms of a written contract are clear, this Court will not re-write it or
    give it a construction in conflict with the accepted and plain meaning of the
    language used. 
    Id.
    Here, the PSA specified “the parties may utilize any remedy or section
    set forth in the Pennsylvania Divorce Code of 1980, as amended, to enforce
    any term of this Agreement as though it had been an Order of Court.” PSA
    at 8. Regarding modification, the PSA states, “No modification or waiver of
    any of the terms hereof shall be valid unless in writing and signed by both
    parties and no waiver of any breach hereof or default hereunder shall be
    deemed a waiver of any subsequent default of the same or similar nature.”
    Id. at 7.
    Wife asserts that the trial court erroneously modified the plain
    meaning of the PSA, and that the PSA fails to contemplate a list price for the
    property – reasonable or otherwise – or that the property be sold “as is.”
    Wife’s Brief at 11-12. Wife claims that despite “her best efforts,” she was
    unable to refinance the property in the time set forth in the PSA, and
    therefore listed the property for sale in September 2019.      Id. at 10-11.
    Wife contends the trial court’s order capping the list price and requiring the
    price decrease $5,000 every two weeks until sold was an impermissible
    modification of the PSA and an error of law. Id.
    Conversely, Husband argues the Divorce Code “grants the trial courts
    broad power to enforce orders of equitable distribution, and provides
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    remedies available against one who fails to comply with a court’s order of
    equitable distribution.” Husband’s Brief at 13 (citing Prol v. Prol, 
    935 A.2d 547
    , 553 (Pa. Super. 2007)).      Husband cites Section 3502 of the Divorce
    Code, which states:
    (e) Powers of the court.--If, at any time, a party has failed to
    comply with an order of equitable distribution, as provided for in
    this chapter or with the terms of an agreement as entered into
    between the parties, after hearing, the court may, in addition to
    any other remedy available under this part, in order to effect
    compliance with its order:
    (1) enter judgment;
    *     *      *
    (4) order and direct the transfer or sale of any property
    required in order to comply with the court’s order;
    *     *      *
    23 Pa.C.S.A. § 3502(e) (emphasis added).
    Husband contends the trial court “did not alter the terms of the
    parties’ PSA when it fashioned the August 12, 2020 Order. Rather, the trial
    court, after a full hearing, found [Wife] in contempt of the duties imposed by
    the September 10, 2019 Order and found [Husband] continued to be
    harmed by [Wife’s] continued willful disregard for the Court’s September 10,
    2019 Order. . . .” Husband’s Brief at 14. We agree.
    First, the PSA permits modification so long as modification is “in
    writing and signed by both parties.” The September 10, 2019 consent order
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    modifying the terms of the PSA was signed by both parties and permissible
    under the express terms of the PSA.
    Likewise, the trial court did not err in finding Wife willfully violated the
    September 10, 2019 consent order. The court explained:
    Notwithstanding that the [September 10, 2019] order created a
    mechanism by which [Wife] would eventually forfeit control over
    the selling price, it also gave her an extra five months to sell the
    property at the highest price the market would bear and
    extended the deadline for satisfying the note indefinitely, to
    whatever date the property might be sold.
    Two weeks after the deadline of February 22, 2020, [Husband]
    filed a Petition for Contempt of the September 10, 2019 Order.
    The petition averred that when [Wife] listed the property for
    sale, she set the initial price at $874,900.00, far above the value
    suggested by a market analysis by [Husband’s] real estate
    agent. The petition also averred that when [Wife] failed to sell
    the property by February 22, 2020 and [Husband] notified [Wife]
    that he would exercise his option to list the property for sale, she
    breached her obligation to cooperate with [Husband’s] real
    estate agent.
    On August 12, 2020, [Husband] appeared in court and produced
    testimony and documentary evidence supporting his allegations.
    ...
    *     *        *
    From the foregoing evidence the [trial court] found [Wife] failed
    to perform her obligations as ordered by the court in 2019. To
    achieve a remedy for [Husband] in view of [Wife’s] continuing
    breach of her obligations to sell the property and pay the note,
    the [trial court] decided that the house would be listed for sale
    by [Husband’s] real estate agent, as is, priced to sell. The [trial
    court] filed a written order giving [Husband] full control over
    listing the property for sale, except that the price was not to
    exceed $445,000.00 and for every two weeks the property
    remained unsold, the price was to be dropped $5,000.00. Like
    [the September 10, 2019 consent order], the [court] ordered
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    [Wife] to fully cooperate with the listing agent. In view of her
    longstanding intransigence, the [court] specifically ordered her
    to allow [Husband’s] agent to enter the property, and stated that
    [Husband] and his agent could apply to law enforcement for
    assistance if [Wife] refused entry.
    Trial Court Opinion, 9/24/20, at 5-7.
    The record supports the court’s reasoning, and we thus discern no
    error or abuse of discretion. The Divorce Code grants the court full “equity
    power and jurisdiction” to advance justice. Section 3323(f) provides:
    Equity power and jurisdiction of the court.—In all
    matrimonial causes, the court shall have full equity power and
    jurisdiction and may issue injunctions or other orders which
    are necessary to protect the interests of the parties or to
    effectuate the purposes of this part and may grant such
    other relief or remedy as equity and justice require
    against either party or against any third person over whom
    the court has jurisdiction and who is involved in or concerned
    with the disposition of the cause.
    23 Pa.C.S.A. § 3323(f) (emphasis added).
    Under Section 3323(f), the trial court may order a party to act or
    refrain from acting if and as appropriate.        “[T]he parameters of the
    enforcement authority the General Assembly intended to give the trial
    courts,” are ascertained “by considering the occasion and necessity for the
    enactment and the object the Legislature sought to attain in the statute.”
    Annechino v. Joire, 
    946 A.2d 121
    , 123 (Pa. Super. 2008). As this Court
    noted in Annechino, the purpose of the 1988 amendments to the Divorce
    Code was to extend remedies, sanctions and vehicles of enforcement to
    agreements covering certain matters ancillary to divorce.     
    Id. at 124
    .   In
    sum, the trial court in this case had equitable power and jurisdiction to enter
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    the August 12, 2020 order specifying conditions to effectuate the sale of the
    marital residence consistent with the terms of the parties’ PSA. 23 Pa.C.S.A.
    § 3323(f).
    Husband testified that despite agreeing to pay the mortgage as
    provided in the PSA, Wife did not pay the mortgage, and as a result, his
    credit score dropped nearly 300 points.      N.T., 8/12/20, at 9.   Also, Wife’s
    delay of the sale of the property and violation of both the PSA and
    September 10, 2019 consent order caused Husband to incur additional
    attorney’s fees for the pursuit and presentation of the contempt petitions.
    Id. at 9, 20-22. Wife provided no explanation for her failure to comply with
    the PSA and September 10, 2019 consent order; despite the court ordering
    Wife to appear at the August 12, 2020 hearing, Wife opted to travel to North
    Carolina for a “vacation with her family.”    See Wife’s Brief at 11 n.1; see
    also N.T., 8/12/20, at 3-4.
    As discussed above, the court found Husband credible, and entered
    the August 12, 2020 order to advance the purpose of the parties’ PSA and
    September 10, 2019 consent order, i.e., resolve equitable distribution of the
    marital estate. See 23 Pa.C.S.A. § 3502(e)(4) (“If, at any time, a party has
    failed to comply with an order of equitable distribution” the trial court may
    “order and direct the transfer or sale of any property required in order to
    comply with the court’s order.”). We agree with the trial court that under
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    these circumstances, where Wife was clearly in contempt, the order was
    appropriate.1
    In her second issue, Wife baldly asserts the trial court’s August 12,
    2020 order “effectively nullified [the September 10, 2019 consent order] and
    rewrote the Order with no regard to the contractual agreements set forth in
    the PSA.”     Wife’s Brief at 16.       Wife cites Hainsey v. Com. Pa. Liquor
    Control Bd., 
    602 A.2d 1300
     (Pa. 1992), for the general proposition that it is
    “improper for one judge to overrule another judge based upon the same
    record facts in that such action [constitutes] an abuse of discretion.” Wife’s
    Brief at 14 (citing Hainsey, 602 A.2d at 1305). Wife suggests that because
    the September 10, 2019 order was silent as to a list price for the marital
    residence, the August 12, 2020 order effectively nullified the September 10,
    2019 order and was an abuse of discretion by the trial court.
    The trial court opined:
    On appeal [Wife] argues that the undersigned “overruled” [the
    September 10, 2019] order by regulating the sale price of the
    property, but that term did nothing to impede [the September
    10, 2019] order insofar as it gave [Husband] an option to sell
    ____________________________________________
    1 For example, Husband and his realtor both testified that the property
    sustained flood damage, and “at this point, it could be an unsalable home.”
    N.T., 8/12/20, at 46-47. Husband also stated there was “now mold damage
    in the house that needs to be remediated. There’s a flooding issue that
    occurred several times that needs to be remediated.” Id. at 22. Husband
    urged the trial court to order the property “listed as is and hav[e] someone
    be willing to take on the mold remediation and renovations that are required
    to fix the sump pump issue and with the flooding.” Id. at 22-23.
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    the property and required [Wife] to cooperate with his real
    estate agent if he exercised that option. The restrictions on the
    sale price advanced [the September 10, 2019 order] goal of
    enforcing the parties’ agreement, in which [Wife’s] satisfaction of
    the note was an indispensable part of the equitable distribution
    of the assets and liabilities of the marital estate.
    Trial Court Opinion, 9/24/20, at 10.
    We agree with the trial court that the August 12, 2020 order does not
    “overrule” the prior order. The September 10, 2019 order was a permissible
    modification of the PSA. After Husband filed for contempt of the order, the
    court conducted a hearing, and based on the evidence, found Wife in
    contempt.        Accordingly, the court entered the August 12, 2020 order
    consistent with the policy and provisions of the Divorce Code.                See 23
    Pa.C.S.A. § 3323(f), supra; see also § 3502 (authorizing court to order
    transfer or sale of property as equitable remedy for an order of equitable
    distribution).
    Wife fails to cite any case law or authority – and we have uncovered
    none – to support her assertion that the August 12, 2020 order overrules or
    conflicts with the September 10, 2019 order.             See Pa.R.A.P. 2119(a)-(b)
    (requiring   an     appellant   to   discuss     and   cite   pertinent   authorities);
    Commonwealth v. Antidormi, 
    84 A.3d 736
    , 754 (Pa. Super. 2014)
    (finding issue waived because appellant “cited no legal authorities nor
    developed any meaningful analysis”). In fact, most of Wife’s argument on
    this issue is mere recitation of the argument in her first issue. See Wife’s
    Brief at 18 (“Given the foregoing facts of record, it cannot be said that the
    trial court’s order was well reasoned.”).
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    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/26/2021
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