Dinenna, P. v. Dinenna, D., Sr. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
PETRA DINENNA N/K/A PETRA : IN THE SUPERIOR COURT OF
THOMAS : PENNSYLVANIA
:
:
v. :
:
:
DAVID DINENNA, SR. :
: No. 312 MDA 2022
Appellant :
Appeal from the Order Entered January 14, 2022
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2002-6087C
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 9, 2023
David DiNenna, Sr. (“Husband”) appeals from the order denying (1) his
petition for special relief requesting that the trial court determine the amount
of his military pension to be distributed to Petra DiNenna n/k/a Petra Thomas
(“Wife”), and (2) his exceptions filed in response to a master’s report
concerning the same issue. We affirm.
We glean the following facts from the certified record. Husband began
serving in the military in 1987. He and Wife married in 1992 and separated
in 2002, and thereafter initiated divorce proceedings. In 2005, the trial court
appointed a master to address, inter alia, equitable distribution of marital
property and alimony. The master held a hearing wherein the sole issue to
be addressed was equitable distribution of Husband’s military pension.
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* Former Justice specially assigned to the Superior Court.
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Husband and Wife reached an agreement at the hearing, and thus no
testimony was taken. The terms of the agreement were put on the record
and the transcript was attached as “Exhibit A” to a report prepared by the
master.
As articulated by Wife’s counsel on the record, the agreement
concerning the military pension, in its entirety, stated “Wife to receive [forty-
five] percent of [H]usband’s military pension, as of his retirement date. If a
quatro[1] is necessary, it is to be prepared by pension analysis with the parties
sharing the costs of preparation.” N.T. Master’s Hearing, 11/16/06, at 8.
Counsel for both Husband and Wife expressed their consent to this language
on the record. See id. The master then memorialized the agreement within
his report as follows:
vi. The Plaintiff, Petra DiNenna, the former spouse is awarded
[forty-five percent] of the service member’s disposable retirement
pay as of his retirement date. If a [QDRO] were necessary, it was
to be prepared by pension analysis with the parties sharing the
cost of preparation. The master researched the issue of the
necessity of a QDRO and recommends that the Uniform Services
Former Spouses’ Protection Act does not require a QDRO. Since
military retirement pay is a federal entitlement and not a qualified
pension plan, there is no such requirement that a QDRO be used.
As long as the award is set forth in the divorce decree or other
court order in an acceptable manner, that is sufficient. The Master
recommends that the expense of a QDRO not be incurred.
Attached to this master’s report is a copy of the Uniform Services
Former Spouses’ Protection Act and a treatise titled Dividing
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1 The word “quatro” appears to be an erroneous transcription of the
abbreviation “QDRO,” short for Qualified Domestic Relations Order. As we will
discuss in the body of this memorandum, Husband points to this error as
evidence of an ambiguity in the contract.
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Military Retired Pay Under the Uniformed Services Former
Spouse’s Protection Act and they are marked are Exhibits “B” and
“C” respectively.
vii. The language to be used in this Divorce Decree is
recommended as follows: “The former spouse (Plaintiff, Petra
DiNenna) is awarded [forty-five percent] of the member’s
(Defendant, David DiNenna’s) disposable retirement pay as of his
retirement date[.]”
Master’s Report, 4/23/07, at ¶ 8(B) (cleaned up). Subsequently, a divorce
decree was entered in 2007 which stated “[i]t is further ordered, adjudged,
and decreed that pursuant to the settlement terms as described in the
Master’s Report, [Wife] is awarded [forty-five percent] of [Husband]’s
disposable retirement pay as of his retirement date.” Divorce Decree, 7/5/07
(cleaned up).
Husband continued serving in the military until he retired in 2017. There
was no further activity in the divorce portion of this action until 2020, when
Husband filed a petition to determine the appropriate division of his pension,
arguing that Wife was only entitled to forty-five percent of the marital portion
of the pension, not of the entire pension. The trial court appointed another
master, Susan A. Maza, Esquire, to address the issues raised in the petition
for special relief. Both Husband and Wife participated in an evidentiary
hearing before Master Maza and filed memoranda prior to and after the
hearing.
Master Maza then filed a report on July 6, 2021, recommending that the
agreement was clear and unambiguous, and that Wife was entitled to forty-
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five percent of the entire military pension based on the agreement of the
parties. Husband filed exceptions to the report. The trial court held oral
argument on the exceptions but did not take any additional testimony. On
January 14, 2022, the court entered an order that (1) denied Husband’s
exceptions; (2) found that the parties, in the presence of their attorneys,
agreed and consented that Wife is to receive forty-five percent of Husband’s
military pension, as of his retirement; (3) the agreement was the result of a
contractual agreement between the parties, not a court order; and (4) the
phrase “Petra Di[N]enna n/k/a Petra Thomas is to receive 45 percent of David
Di[N]enna’s military pension, as of his retirement date” is clear and
unambiguous. See Order, 1/14/2022.
This timely appeal followed. Husband and the trial court complied with
Pa.R.A.P. 1925. Husband raises the following issue on appeal:
Whether the trial court committed an error of law and/or an abuse
of discretion in finding the contractual terms of the parties[’]
November 16, 2006 agreement stating [Wife] to receive [forty-
five] percent of [Husband]’s total military pension, as of his
retirement was clear and unambiguous when there were both
patent and latent ambiguities in the agreement?
Husband’s brief at 2.
Our review is governed by the following principles:
A marital support agreement incorporated but not merged into the
divorce decree survives the decree and is enforceable at law or
equity. A settlement agreement between spouses is governed by
the law of contracts unless the agreement provides otherwise.
The terms of a marital settlement agreement cannot be modified
by a court in the absence of a specific provision in the agreement
providing for judicial modification.
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When interpreting a marital settlement agreement, the trial court
is the sole determiner of facts and absent an abuse of discretion,
we will not usurp the trial court’s fact-finding function. On appeal
from an order interpreting a marital settlement agreement, we
must decide whether the trial court committed an error of law or
abused its discretion.
Because contract interpretation is a question of law, this Court is
not bound by the trial court’s interpretation. Our 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 review the entire record in making its decision.
However, we are bound by the trial court’s credibility
determinations.
Rosiecki v. Rosiecki, 231 A.3d 928, 932-33 (Pa.Super 2020) (cleaned up).
“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.” Paroly v. Paroly, 876 A.2d 1061, 1063 (Pa.Super 2005)
(citation omitted). “Absent fraud, misrepresentation, or duress, spouses
should be bound by the terms of their agreements.” See id. at 1065 (citation
omitted).
Husband’s assertion that the marital settlement agreement is
ambiguous necessarily requires us to interpret a contract. The “paramount
goal of contractual interpretation is to ascertain and give effect to the intent
of the parties. In determining the intent of the parties to a written agreement,
the court looks to what they have clearly expressed, for the law does not
assume that the language was chosen carelessly.” Wiley v. Brooks, 263
A.3d 671, 676 (Pa.Super. 2021) (citation omitted). While “construing
agreements involving clear and unambiguous terms, this Court need only
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examine the writing itself to give effect to the parties’ understanding.”
Rosiecki, supra at 933 (cleaned up). “In other words, the intent of the
parties is generally the writing itself.” Id. (citation omitted). “The language
of a contract is unambiguous if we can determine its meaning without any
guide other than a knowledge of the simple facts on which, from the nature
of the language in general, its meaning depends.” Riverview Carpet &
Flooring, Inc. v. Presbyterian SeniorCare, ___ A.3d ___, 2023 WL
4412195 at *32 (Pa.Super. 2023).
A contract “is ambiguous if it is reasonably susceptible of different
constructions and capable of being understood in more than one sense.”
Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citation omitted). “A
contract is not ambiguous merely because the parties do not agree on its
construction.” Pass v. Palmiero Automotive of Butler, Inc., 229 A.3d 1,
5 (Pa.Super. 2020) (citation omitted). “Nor does an ambiguity exist if it
appears that only a lawyer’s ingenuity had made the language uncertain.” Id.(cleaned up).
When an ambiguity exists, “the court considers the parties’ outward and
objective manifestations of assent, as opposed to their undisclosed and
subjective intentions.” Rosiecki, supra at 933 (citation omitted). The court
may take into consideration the “surrounding circumstances, the situation of
the parties, the objects they apparently have in view, and the nature of the
subject-matter of the agreement.” Stamerro v. Stamerro, 889 A.2d 1251,
1258 (Pa.Super. 2005) (citation omitted). “The court will adopt an
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interpretation that is most reasonable and probable bearing in mind the
objects which the parties intended to accomplish through the agreement.” Id.(citation omitted).
The contested provision before us, as transcribed at the hearing in front
of the master on November 16, 2006, is as follows: “Wife to receive [forty-
five] percent of [H]usband’s military pension, as of his retirement date. If a
quatro is necessary, it is to be prepared by pension analysis with the parties
sharing the costs of preparation.” N.T. Master’s Hearing, 11/16/06, at 8. The
agreement was then ultimately memorialized in the divorce decree, which
stated: “It is further ordered, adjudged, and decreed that pursuant to the
settlement terms as described in the Master’s Report, [Wife] is awarded [forty-
five percent] of [Husband]’s disposable retirement pay as of his retirement
date.” Divorce Decree, 7/5/07. We note that the oral agreement utilized the
term “military pension,” whereas the decree used “disposable retirement pay.”
Additionally, the decree did not contain a reference to either a “quatro” or a
QDRO because, prior to entry of the decree, the master determined that a
QDRO is not required for distribution of federal entitlements like the military
pension in question. See Master’s Report, 4/23/07, at ¶ 8(B)(vi).
With this background in mind, we turn to the positions of the parties.
Husband first argues that the agreement concerning his military pension is
patently ambiguous, and that the intent of the parties was for Wife to receive
forty-five percent of the marital portion of the military pension, not forty-
five percent of the entire pension. See Husband’s brief at 14-17. Specifically,
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he contends that the language “[forty-five] percent of husband’s military
pension” is not clear since it “does not indicate [the] value of the pension
which [Wife] is to receive [forty-five] percent of.” Id. at 16. He highlights
that the total value of the pension was different when the agreement was
made in 2006 than when he retired in 2017, and similarly, the value of the
marital portion in 2006 was different than the total value at the same time.
See id. at 16-17. He believes that other provisions in the agreement, such
as a cash distribution to Wife, specified both a known value and timing of
payment, unlike the pension provision, supporting the notion that it is
ambiguous. See id. at 16. He also accuses the court of failing to review the
whole agreement, and instead focusing on a single term. See id. at 22, 27.
He argues that had the court considered the additional language from the
verbal agreement referencing “pension analysis” preparing a “quatro,” it
would be compelled to find an ambiguity because it is unclear (1) that “quatro”
actually meant “QDRO,” (2) under what circumstances preparation of a QDRO
would be necessary, or (3) how a QDRO might impact Husband’s pension.
See id. at 24-26.
Relatedly, Husband maintains that even if the agreement concerning his
military pension is seemingly clear on its face, there is nonetheless a latent
ambiguity based on the collateral circumstances surrounding the agreement.
See id. at 18. He states that the purpose of the hearing before the master
was to dispose of marital assets, which would include only the part of his
pension earned during the marriage. See id. at 18. He believes that a
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pension valuation report prepared at the time of the agreement, as well as
the fact that the parties understood Husband would continue serving in the
military after the divorce, support the intention that Wife receive only forty-
five percent of the marital portion of the pension. See id at 16, 18. Since
there is an ambiguity, he avers that the trial court committed an error of law
or abused its discretion by failing to conduct its own hearing concerning these
issues, rather than relying on a report from the hearing officer without the
benefit of the record developed therewith. See id. at 20-21. He notes that
although the court had access to Master Maza’s 2021 report and
recommendation, it did not review the transcript or exhibits, as they were not
filed by the master.2 Id. As such, Husband asks this Court to find an
ambiguity as a matter of law and independently review the record to
determine that the intent of the parties was for Wife to receive only forty-five
percent of the marital portion of his pension. See id. at 27-28.
In considering this issue, the trial court found that the provision
regarding Husband’s military pension was clear and unambiguous on its face.
See Trial Court Opinion, 6/13/22, at 13. It held that the provision “awards
[Wife] forty-five percent (45%) of [Husband]’s disposable retirement pay” and
that the phrase “as of his retirement date” is the point at which Wife would be
____________________________________________
2 Our review of the record supports Husband’s assertion that Master Maza did
not file the record developed before her. The certified record on appeal does
not include a transcript of the evidentiary hearing held on April 14, 2021, nor
does it contain any exhibits introduced at that hearing. However, given our
disposition that the contract in question is clear and unambiguous, infra, this
omission from the certified record does not hinder our review.
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entitled to begin receiving the distribution. Id. at 14. It noted that nowhere
in the record is the word “marital” used, nor does the agreement utilize any
formula to determine Wife’s award. See id. The court further stated that just
because Husband has a different interpretation of the agreement, that does
not constitute an ambiguity. See id. at 14-16. Finally, the court reviewed
Exhibit “B” to the master’s report filed in 2007, which contained a handout
from the United States Department of Defense website addressing division of
military retired pay pursuant to the Uniformed Services Former Spouses’
Protection Act. It found that this article provided Husband and Wife with
examples of both acceptable and unacceptable language for military pensions
under the act. See id. at 16-17. The court highlighted that none of the
parties objected to the language of the verbal agreement after it was
incorporated into the divorce decree, and therefore it is presumed that their
intentions were clearly expressed as set forth. See id.
Wife agrees with the trial court that the contested agreement regarding
Husband’s military pension is “clear and unambiguous.” Wife’s brief at 9. She
also challenges the assertion that there is a latent ambiguity, arguing that no
consideration should be given to the pension analysis discussed by Husband
because it was not incorporated into the agreement or the master’s report.
See id. at 10. She further states that the intent of the parties was for her to
receive forty-five percent of Husband’s whole military pension, as the military
pay was only one asset amongst others considered in the negotiations
involving the marital estate. See id. at 11. She indicates that the parties
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were aware that Husband intended to continue serving in the military, which
would impact the pension, and the parties negotiated with that in mind and
with the benefit of independent counsel. See id. at 10-11. She claims that,
at the time of and in consideration of the agreement, she entered into the
agreement bearing the risk of receiving nothing in the event Husband died
before payout. See id. at 6.
After careful review of the certified record, the arguments of the parties,
and the applicable law, we conclude that the trial court did not commit an
error of law in finding the agreement between Husband and Wife
unambiguous. First, we reject Husband’s arguments that there was a patent
ambiguity on the face of the contract. Like the lower court, we can determine
the agreement’s meaning “without any guide other than a knowledge of the
simple facts on which, from the nature of the language in general, its meaning
depends.” See Riverview Carpet, supra at *32. Whether reviewing the
agreement as memorialized in the transcript from the master’s hearing or the
decree itself, the phrase “Wife to receive [forty-five] percent of [H]usband’s
military pension” or “[Wife] is awarded [forty-five percent] of [Husband’s]
disposable military pay,” means the same thing. The value of the award is
forty-five percent of the entire pension. As the trial court correctly identified,
there was no use of the word “marital” or phrase “marital portion” in the
agreement concerning the pension. Nothing in the language used indicates
any intent to limit the obligation to only the marital portion. Without use of
such a qualifier, the phrase “[forty-five] percent of [H]usband’s miliary
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pension” is clearly understood to mean forty-five percent of the whole pension.
We further agree with both the trial court and Husband that the phrase “as of
his retirement date” refers to when payments to Wife were to begin, and also
indicates the triggering event for determination of the amount of payment.
Additionally, review of other portions of the contract do not create an
ambiguity concerning the military pension distribution. Use of the word
“quatro” in the sentence immediately following that provision does not create
an ambiguity as to the value of the pension or its timing of payment. We note
that neither this term nor the word “QDRO” were contained within the decree,
as the master determined that a QDRO is not applicable to military pensions.
Thus, this ancillary provision has no bearing on the distribution or valuation
of the military pension whatsoever. Husband does not argue that a QDRO is
in fact required to be prepared for distribution of the pension, and he did not
challenge the special master’s recommendation in 2007 that one was not
needed. In the same vein, we are not persuaded by Husband’s assertion that
the specific cash payment to Wife identified in the agreement somehow casts
doubt on the meaning of the provision concerning the military pension. The
fact that the language concerning the cash distribution contained both a
certain sum and schedule of payments does not prevent us from
understanding the agreement as it pertains to the military pension.
In short, there is nothing contained within the language of the
agreement itself supporting Husband’s argument that the parties intended to
limit Wife’s entitlement to the marital share of the pension. The contract’s
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meaning can be ascertained by its plain language. The fact that Husband does
not agree with the court’s interpretation does not create an ambiguity. See
Pass, supra at 5.
Next, we address and reject Husband’s arguments that there is a latent
ambiguity in the agreement concerning his military pension. The crux of this
contention is that, since it is beyond cavil that only the marital portion of the
pension was subject to equitable distribution, Husband’s apparent agreement
to give Wife a larger portion of his pension is illogical absent some extrinsic
explanation. Although the concept of a latent ambiguity has been discussed
by this Court in matters involving interpretation of contracts in family law
cases,3 the doctrine has largely been considered and developed in cases
involving challenges to wills and insurance contracts. Nonetheless, the
principles articulated in those matters guide us in determining whether there
is a latent ambiguity in situations involving marital settlement agreements.
“Generally speaking, an ambiguity in a will must be found without
reliance on extrinsic evidence; extrinsic evidence is admissible only to
resolve, not create, an ambiguity.” In re Estate of Cassidy, ___ A.3d
___, 2023 WL 3910447 at *4 (Pa.Super. 2023) (citation omitted) (emphasis
added). “A latent ambiguity arises from collateral facts which make the
meaning of a written document uncertain, although the language appears
clear on the face of the document.” Id.____________________________________________
3 See, e.g., Krizovensky v. Krizovensky, 624 A.2d 638 (Pa.Super. 1993);
Kohn v. Kohn, 364 A.2d 350 (Pa.Super. 1976).
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The most ordinary instance of a latent ambiguity is where an
instrument of writing contains a reference to a particular person
or thing and is thus apparently clear on its face, but it is shown by
extrinsic evidence that there are two or more persons or things to
whom or to which the description in the instrument might properly
apply.
Koplin v. Franklin Fire Ins. Co. of Philadelphia, 44 A.2d 877, 879
(Pa.Super. 1945) (cleaned up). For example, this Court has stated:
A latent ambiguity in an insurance contract may be one in which
the description of insured property is clear on face of instrument,
but there is more than one estate to which the description applies,
or it may be one where property is imperfectly or in some respects
erroneously described, so that description does not refer with
precision to any particular object, and if such an ambiguity
develops, extrinsic evidence is admissible to show intent of
parties.
Id. (cleaned up). In the context of challenges to wills, we have stated that
“[w]here a latent ambiguity exists, the court may resort to parol evidence
(such as testimony of the scrivener) to determine the decedent’s true intent.”
Estate of Cassidy, supra at *4.
We find that by his arguments, Husband attempts to use extrinsic
circumstances to create, rather than resolve, any latent ambiguity. See id.
The clear and unambiguous language of the agreement references with
precision the entirety of Husband’s pension in describing the property subject
to Wife’s forty-five-percent share. Nonetheless, Husband devotes a significant
portion of his brief to identifying collateral matters to explain why he would
not have agreed to give Wife forty-five percent of his entire pension. Put
another way, he tries to convince us of the parties’ subjective intent, and why
it is contrary to the express language used in the contract. However, it is not
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the role of the courts to focus on subjective intent in interpreting clear
agreements. See Wert v. Manorcare of Carlisle, PA, LLC, 124 A.3d 1248,
1260 (Pa. 2015) (“[W]here language is clear and unambiguous, the focus of
the interpretation is upon the terms of the agreement as manifestly
expressed rather than as, perhaps, silently intended[.]” (emphasis in
original)).
The case sub judice is distinguishable from other matters where we have
found a latent ambiguity. See, e.g., In re Estate of Schultheis, 747 A.2d
918 (Pa.Super. 2000) (holding that the phrase “I give my shares of stock . . .
as follows” in a will was latently ambiguous when the will specifically
bequeathed 2,045 shares to named beneficiaries, yet it was determined that
the decedent in fact owned 3,288 shares); Kohn, supra (ruling that the term
“alimony” was latently ambiguous in a marital settlement agreement when (1)
numerous express provisions in the agreement implied that “alimony” meant
child support payments, (2) the definition of “alimony” typically did not
concern payments for purposes of child support, and (3) there existed a
supplemental agreement between the parties expressly reducing “alimony”
payments if federal regulations permitting a tax deduction for such payments
were changed); Koplin, supra (holding there was a latent ambiguity in a
contract disparately insuring two chicken houses on a property, where the
agreement only labelled them as Chicken House No. 1 and Chicken House No.
2 and where the parties disputed which provision applied to the single chicken
house that burned down).
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The common thread in these cases is that some external fact is required
to clarify a provision because a description was inadequate, or a term was
used in contravention to its ordinary meaning or definition. However, that is
not what Husband advocates for in the instant matter. This is not an instance
where the marital settlement agreement inadequately described the military
pension so that there was confusion as to what was being addressed.
Similarly, the parties here did not use some distinct term in contravention to
its customary meaning, triggering a need for information to be found outside
the four corners of the contract. Husband’s position really amounts to an
attempt to re-write the agreement, one we find clear and unambiguous, to
include new terms that were never identified therein. That we cannot do. See
Vaccarello v. Vaccarello, 757 A.2d 909, 914 (Pa. 2000) (“When the terms
of a written contract are clear, this Court will not re-write it to give it a
construction in conflict with the accepted and plain meaning of the language
used.”).
Since the trial court correctly determined that the marital settlement
agreement is clear and unambiguous, it did not err in denying Husband’s
petition for special relief or his exceptions to the master’s report and
recommendation.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2023
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