Schmook, G. v. Russell, M.

J. S64035/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGIA L. SCHMOOK, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MICHAEL L. RUSSELL, :
: No. 694 MDA 2015
Appeal from the Order Entered March 25, 2015
In the Court of Common Pleas of Lancaster County
Civil Division No(s).: CI-06-09100
BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 22, 2015
Appellant, Georgia L. Schmook (“Wife”), appeals from the order
entered in the Lancaster County Court of Common Pleas, denying her
petition for special relief that alleged Appellee, Michael L. Russell
(“Husband”), breached their post-nuptial agreement.1 Appellant argues: (1)
the court’s finding that Husband cooperated with the listing agent for the
sale of the marital home was against the weight of the evidence; and (2) the
court erred in finding it could not modify the agreement under 23 Pa.C.S. §
3105(c), where Section 3105 allowed it to enforce the agreement. 2 We
*
Former Justice specially assigned to the Superior Court.
1
Husband filed a pro se appellee’s brief in this appeal.
2
For ease of disposition, we review Wife’s issues in reverse order.
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affirm.
The parties were married in 1993.3 On September 18, 2006, Wife filed
a complaint in divorce. Seven years later, on September 4, 2013, the
parties executed the underlying post-nuptial agreement (“PNA”),4 which
provided in pertinent part:
The marital home located at 9 Longenecker Road, Lititz,
Lancaster County, Pennsylvania is titled in the name of
Wife and Husband. The property is currently listed for
sale. Both Wife and Husband shall cooperate fully
with the listing agent for a sale to occur. Husband
agrees to keep the home in good repair as he is currently
living in the home while it is being sold. Upon sale of the
property Wife will receive $78,000.00 of the proceeds and
Husband will receive the remainder of the proceeds. At
the time of settlement, the settlement agent is directed to
provide a check to Wife and a check to Husband as set
forth above. Both Wife and Husband shall sign any
documents necessary to insure the sale of the home
at the legally appropriate time.
Post Nuptial Agmt. at 2 (emphases added). The PNA “was not incorporated
3
Following the divorce complaint, there was no activity on the docket for
more than two years, prompting the trial court to issue notice on November
24, 2008, of its intent to terminate the matter because of lack of activity.
Wife responded by filing a statement of intent to proceed.
The parties have three children, two of whom were minors as of
February 2009. Wife’s Aff. re Vital Statistics, 2/27/09, at 2-3. At the time
Wife filed her statement of intent to proceed, the parties and the two
younger children were living together in the marital home.
4
In executing the PNA, Wife was represented by Rebecca Cheuvront, Esq.,
and Husband proceeded pro se. The agreement divided the parties’ property
and provided that both parties waived spousal support, alimony, and
alimony pendent lite. Attorney Cheuvront represented Wife in all stages of
this matter, including the instant appeal.
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by reference or merged into the divorce decree; nor [did] it contain any
terms which permit judicial modification.” Trial Ct. Findings of Facts & Concl.
of Law, 3/25/15 (“Trial Ct. Findings”), at ¶ 16. On September 27, 2013, the
parties were divorced.
The trial court made the following findings of fact with respect to the
parties’ efforts to sell the marital home. The house was listed for sale in July
of 2013 with a price of $344,900, and subsequently a reduced price of
$327,500. “Husband prepared the home for showings, maintained the home
and made improvements per the Listing Agent’s suggestions.” Id. at ¶ 6.
In September 2014, approximately fourteen months after the house
was listed, the parties received an offer of $315,000, which they accepted.
“On October 14, 2014, after receiving the inspection report, the [buyers]
made a written corrective counterproposal . . . requesting that the parties
make repairs, at their own expense, as follows: (1) employ Mowrer’s
Construction to repair leaking windows and damage,” the “[c]urrent
estimate” for which was $4,200, “unless additional unforeseen damage has
occurred;” (2) repair roof issues; and (3) repair a leak in the furnace. Id. at
¶ 8.
9. Husband refused to accept the [buyers’]
counterproposal, and made a verbal counterproposal . . .
to the listing agent [of] a $3,000 credit at settlement.[5]
5
Our review of the hearing transcript reveals the sole reference to a $3,000
figure was made as follows. On cross-examination, Husband testified with
respect to the buyers’ offer:
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10. Wife ultimately offered to provide [$4,200] to
complete repairs. . . .
11. [H]usband was out of town and difficult to reach,
and, when [W]ife was finally able to contact [H]usband on
Sunday, October 19, 2014, the parties began their own
negotiation regarding acceptance of the counterproposal,
but they were unsuccessful in coming to consensus[.]
12. Consequently, the counterproposal was not signed
by the deadline, and the sale fell through, as the Buyers
signed a Release [that day,] on October 19, 2014.
13. As the listing agreement had already expired, the
parties then began to struggle to agree on a new listing
agent, as well as terms associated with same; this
continued on until November 18, 2014, when [Wife]
presented a Petition for Special Relief[,] requesting that
[Husband] be found in breach of the Postnuptial
Agreement for not having fully cooperated with the listing
agent for a sale to occur, and for not signing a document
necessary to ensure the sale of the home at the legally
appropriate time, namely the buyers[’] written . . .
counterproposal with [Wife] agreeing to provide [$4,200]
in repair costs.
Id. at 3.
The relief requested in Wife’s petition was “the ability to solely
communicate with and sign documents related to the listing and sale of the
. . . I was at $320,000. I said, that’s my bottom line.
And then what happened is I [told the listing agent that
if Wife is] willing to throwing anything in . . . have her put
in $1, then I will come down to the 315. She agreed to
put in $3,000 of that last 5,000 and that’s why price went
from 320 to 315. . . .
N.T. at 63.
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marital home and ultimately the ability to sign any agreement of sale, and
related documents, so that clear title can be conveyed to third party
buyers.” Wife’s Pet. for Special Relief, 11/18/14, at ¶ 7. 6 Wife also
requested an order directing the home to “be immediately placed back on
the market,” as well as attorney’s fees and expenses. Id.
On December 3, 2014, the court issued an order directing the marital
home be listed “at the agreed upon amount of $327,900.” Order, 12/3/14.
The court conducted a hearing on Wife’s petition on January 20, 2015, at
which the sole witnesses were Wife and Husband.7 As Wife’s issues on
appeal concern the weight of the evidence for the court’s finding that
Husband did not breach the PNA, we review the relevant testimony in detail.
Wife testified the sale “agreement was signed,” but the buyers
additionally requested “a seller’s assist.” N.T. at 12, 13. She set forth the
timeline of events as follows:
It started on a Friday afternoon with the addendum [of the
buyers requesting repairs or a seller’s assist. Husband]
told the agent that he would give him an answer on
Sunday at 5.
So went through the whole weekend with [the] buyers
6
While Wife’s petition is included in the certified record, there is no entry on
the trial docket for this filing. We rely on the trial court’s statement that the
petition was filed on November 18, 2014. See Trial Ct. Findings at ¶ 13.
7
Both parties were represented by counsel at the hearing. At the time of
the hearing, Husband was living at the marital home. N.T. Divorce H’rg,
1/20/15, at 35.
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wanting this house and not knowing what’s happening with
the addendum so I finally—I said to [the listing agent] that
I’ll take the $4200 and pay it, and [Husband] would not
sign . . . the addendum.
. . . The agreement of sale was signed but [Husband]
would not still sign the addendum even though he wasn’t
going to have to pay that $4200. I was going to.
Then that went till Sunday night and then [the agent]
called me back and said, well, [Husband] now will sign the
agreement but he wanted [a particular piece of stained
glass that was in her possession] and I said, okay.
Id. at 12-13.
Wife explained why she agreed to Husband’s request for the stained
glass: “I just want to get this house sold. We can’t let a deal fall through.
It’s been two years. We need to get this house sold.” Id. at 14. She
further testified,
I wasn’t at home right then. I [told Husband,] meet me at
the house[8] at 8:30, I’ll be home. He said, okay.
I got to the house, I said, I’ll give you the stained glass,
you can—you sign the addendum. He did not come to the
house. Then he texted me and said he was sleeping, put
the stained glass on the porch at [the marital home].
[A]t that point, it was 9:00 or after 9. I wasn’t going to
go take a huge piece of stained glass over to [the marital
home] and put it on the porch.
[T]he addendum did not get signed and the next morning .
. . the buyers signed a release to get out of the
agreement[.]
8
Wife did not explain which house she was referring to; by context we
presume she meant her own house.
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Id.
Wife further testified that at the time of the hearing, there was an
offer of $315,000 to purchase the house, a price she would agree to. 9 Id. at
16, 20. Wife requested a court order granting her “authority to sign
documents for a sale of [$315,000] and higher,” stating:
I don’t trust that if I don’t have something in writing that—
who knows. [Husband] might be able to just take it off the
market again or when this listing runs out, maybe it
doesn’t get relisted or who knows. . . .
Id. at 21.
Husband testified to the following. He works as a mortgage originator
for M & T Bank. Id. at 35, 36. Husband would likewise “like to move on”
and “get the house sold.” Id. at 41. The terms of the PNA, including Wife’s
receipt of $78,000 from the proceeds of the sale of the house, were based
on “recommendations from several realtors that the house would sell rapidly
at” $344,900. Id. at 39, 62. Husband, however, subsequently agreed to a
reduced price of $327,900, although it would result in reduced proceeds to
him, as Wife “was not willing to accept a fair reduction in her $78,000 net
proceeds.” Id.at 39-40.
Husband testified to the following concerning the rejected offer. He
signed an agreement for a sale price of $315,000, contingent on the buyers’
9
Wife also stated that a sale agreement did not list her as a seller. N.T. at
19-20.
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inspection. The buyers’ radon testing “had to be done twice,” and Husband
allowed them “to place the machine in the basement for three . . . or four
days” and retest. Id. at 47. By that Friday afternoon, Husband rejected the
buyers’ subsequent counteroffer to repair the windows, gas leak, and other
items, reasoning, “[W]e already reduced our price” “[d]own to [$315,000]
and they can buy the house as is.” Id. at 48-49. He then told the listing
agent he was going to Maryland, would not have email or cell phone service,
and would return on Sunday. Id. at 48. Husband emphasized that Wife
offered to pay the $4,200 after the buyers executed the release to
terminate the transaction. Id. at 49.
On cross-examination, Husband further testified to the following. He
denied that Wife told him on the Friday afternoon that she would personally
pay the $4,200. Id. at 56-57. On Sunday, Wife asked him through text
messages whether he would sign the addendum. Husband “had no clue
what was being referred to as the addendum because” on Friday he had
informed the agent “we’re done negotiating.” Id. at 53. At this time on
Sunday, he was not aware Wife and the agent had offered to pay the buyers
$4,200, and instead, he was “under the impression that [the buyers] had
accepted [his] offer from Friday afternoon, that [he and Wife] would pay no
more repairs and they would accept the property as is.” Id. at 57. “By
[the] time” Husband checked his email at 6:30 or 7:00 Sunday evening, “the
release had already been signed by the buyers.” Id. at 54.
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With respect to the stained glass, Husband stated he was entitled to
that personal property under the PNA and Wife previously agreed she would
return it to him, “[b]ut on several occasions when [he] asked [to] come over
and [retrieve it,] she refused.” Id. at 55. On that Sunday night, Wife “said
[he] could have the stained glass,” and Husband “told her to put it on the
front porch.” Id. Although Wife offered to return the glass if he signed the
agreement, in his estimation their conversation about the stain glass did not
relate to the sale of the house, as “[b]y that time, the deal was dead.” Id.
The following exchange occurred on cross examination:
[Wife’s counsel:] But ostensibly everyone had until
midnight so they may have signed the release but you still
had the viability of resurrecting this contract with [Wife]
paying $4200. You did. You had until midnight that night.
[Husband:] That was never explained to me, number
one. And number two, when you’re saying the contract
I’m referring to, I’m referring to the Friday afternoon when
I told [the listing agent] I was done. We already knocked
[$]12,500 off. [The buyers] could buy the house as is,
they could get whoever they wanted to do the repairs.
Q. If you thought all of that was true, sir, then why in
the world would you enter into an agreement with [Wife]
that if she gave you a piece of glass, you would go ahead
and sign?
A. Because I wanted my piece of glass that she took
from my possession.
Q. So you were essentially going to commit a fraud,
get her to give you something when you had no intention
of—
A. I was willing to sign the document.
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Q. And that document—
A. It was already done at that point. It was a done
deal at that point. The game was over.
Id. at 58-59.
With respect to the upkeep of the home, Husband testified to the
following. “[T]he house was a little dated,” and thus Husband stripped
wallpaper, repainted three bedrooms, painted the exterior trim, and in the
summer, mowed the lawn and pulled weeds. Id. at 43, 51. Wife “only
[returned] to the house once . . . to do about two hours worth of painting in
a bedroom” and the remainder of the work was performed by Husband or by
someone whom he paid. Id. 45. There have been five open houses and
eleven showings, and Husband believed he cooperated with the listing agent.
Id. at 41, 44. He “never denied a listing, . . . an open house, [or] a showing
and . . . always had the property ready for each event.” Id. at 42.
Finally, Husband testified that while he accepted the September 2014
offer of $315,000, as of January 2015 hearing, he would no longer agree to
this price because “the housing market has changed drastically since that
time,” “[t]he number of buyers . . . in the market has decreased drastically,”
mortgage interest rates were “as low as [3.25%] on a 30-year fixed rate
mortgage,” which was more than “a point lower than they were at that
time.” Id. at 50. Additionally, Husband emphasized that the PNA’s
provision that he “cooperat[e] fully with the listing agent” did not require
him “to accept any offer or counteroffer.” Id.at 39, 46.
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Following the parties’ testimony, the trial court declined to award
attorneys’ fees to either party and stated its finding that neither party “is
intentionally in breach of the post nuptial agreement,” and that their
“attempts at negotiating, given the change in circumstances, are [in] bad
faith.” Id. at 74, 75-76. The court encouraged the parties to reach an
agreement, and advised that if they could not, “[T]hen you’re stuck with
what you’ve signed and written as far as I can tell.” Id. Nevertheless, the
court allowed the parties two weeks to present proposed findings of fact and
conclusions of law as to whether the court could “add certain parameters to
[the] agreement,” as suggested by Wife.10 Id. at 75.
On March 23, 2015, the court issued the above findings of fact and an
order dismissing Wife’s petition. The court reiterated its finding that
“[c]ontrary to [Wife’s] claim, both parties have cooperated fully with the
listing agent for a sale to occur,” and “that neither party has willfully
breached any provision of the Postnuptial Agreement which would entitle the
10
The court noted Wife’s request “to require a sale at a certain price . . . and
request that she be entitled to . . . sign all documents necessary to
accomplish that.” Id. at 75. It remarked, “Ultimately, the agreement itself
[does not include and thus] leaves very open [the] terms of the sale
prices[.]” Id. at 74.
On appeal, Wife’s brief responds to the court’s “findings [concerning]
deficiencies in the” PNA. Wife’s Brief at 12. She states that although
Attorney Cheuvront drafted the original PNA, the parties themselves revised
and executed the agreement, and “ the record does not refer to . . . what
role counsel played in the ultimate agreement.” Wife’s Brief at 9, 12-13.
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other to attorney’s fees and cost.” Trial Ct. Findings at ¶¶ 14-15.
Furthermore, the court found that because the PNA did not provide for
“judicial modification of the agreement,” the court lacked authority under 23
Pa.C.S. § 3105(c) to modify the terms of the PNA. Id. at ¶¶ 16-17. Wife
took this timely appeal.
On appeal, Wife’s first claim is that the trial court’s finding—that
Husband cooperated with the listing agent for the sale of the house—was
against the weight of the evidence.11 In support, she avers the following.
The house was listed for sale for two years with “little to no interest in the
home.” Wife’s Brief at 21. The one offer in October 2014 for $315,000 “was
not acceptable to Husband, as the buyers wanted [a] seller’s assist.” Id.
“In an effort to keep the sale alive Wife agreed to pay the seller’s assist,
which caused Husband to agree to the sale, so long as Wife provided him
with a piece of stained glass that was not mentioned anywhere in the
Agreement.” Id. “[T]he only thing holding up settlement was Husband not
signing the addendum, despite the fact Wife assumed the $4200 in seller’s
assist.” Id. at 22. “Text messages entered into evidence . . . show
11
Wife’s argument on this issue, consisting of less than two and a half
pages, included no legal authority. We remind counsel, “Failure to develop
an argument with citation to, and analysis of, relevant authority waives that
issue on review.” Harris v. Toys "R" Us-Penn, Inc., 880 A.2d 1270, 1279
(Pa. Super. 2005) (citing Pa.R.A.P. 2119(b)). Nevertheless, in light of the
relatively short hearing transcript and the court’s findings of fact, in this
particular case we decline to find waiver of Wife’s issue.
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Husband’s agreement with the sale at $315,000.00, and were inconsistent
with his sworn testimony.” Id. Testimony at the hearing “established
[there was] a second offer . . . at the lower price, and another interested
party was viewing the home for a second time;” however, “[n]one of these
prospective buyers was offering Husband’s arbitrary value of $327,500.00.”
Id. at 22. “Because the Trial Court held it did not have authority to modify
terms of the post nuptial agreement . . . Wife requests that this matter be
remanded to the Trial Court for a hearing . . . , consistent with the law.” Id.
at 22-23. We find no relief is due.
“Where . . . a property settlement agreement did not merge into the
divorce decree, it stands as a separate contract, is subject to the law
governing contracts, and is to be reviewed as any other contract.” Mazurek
v. Russell, 96 A.3d 372, 378 (Pa. Super. 2014) (citation omitted). With
respect to a claim of breach of contract, this Court has stated:
[W]ith regard to factual determinations, the trial court acts
as the factfinder in a bench trial and may believe all, part
or none of the evidence presented. Issues of “credibility
and conflicts in evidence are for the trial court to resolve;
this Court is not permitted to reexamine the weight and
credibility determinations or substitute our judgment for
that of the factfinder.” Furthermore, “the findings of the
judge in a non-jury trial are given the same weight and
effect as a jury verdict such that the court’s findings will
not be disturbed on appeal absent an abuse of discretion,
error of law, or lack of support in the record.” We will not
disturb the court’s factual findings merely on the basis we
would have reached a different conclusion; rather, our task
is to “determine whether there is competent evidence in
the record that a judicial mind could reasonably have
determined to support the finding.”
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Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006)
(citations omitted).
In its opinion, the trial court stated:
Contrary to Wife’s claim, the Trial court found that both
parties cooperated fully with the listing agent for the sale
to occur. The Trial court further found that neither party
willfully breached any provision of the PNA which would
entitle the other to attorney’s fees and cost.
Trial Ct. Op., 6/18/15, at 3. It reasoned:
At the hearing, Husband testified credibly and
extensively regarding his efforts to cooperate with the
listing agent and prepare the marital home for sale. [N.T.
at 35-56.] Husband prepared the home for showings,
maintained the home and made improvements per the
Listing Agent’s suggestions. On his own accord, he
reduce[d] the sale price from $344,900.00 to
$327,500.00. He also agreed to the sale of the home at
the reduced price of $315,000.00[. Id. at 38-47.]
The trial court found both parties to be credible in their
testimony although testifying from different perspectives
and interpretations of the circumstances. Both parties
presented their evidence to support their interpretations,
and the trial court found that neither party was in
contempt of the PNA. [Id. at 74. T]he trial court acted
within its[ ] discretion in making such findings which were
clearly not against the weight of the testimony and
evidence.
Trial Ct. Op. at 7.
The parties’ testimony, as we summarized above, revealed
inconsistencies as to when Wife communicated her offer to personally pay
$4,200 as a seller’s assist and when the deadline for the parties to accept
the buyers’ counteroffer expired. The trial court was free to “believe all, part
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or none of the evidence presented” and resolve any conflicts in evidence and
credibility issues. See Ruthrauff, Inc., 914 A.2d at 888. Furthermore,
Wife’s arguments, both in the underlying petition for special relief and in the
instant appeal, focus solely on Husband’s conduct on the weekend
surrounding October 19, 2014 and rejection of the $4,200 seller’s assist
addendum. Wife does dispute Husband’s testimony that—aside from two
hours that Wife contributed—he singly renovated the home’s appearance
and, over the course of fourteen months, prepared the home for five open
houses and eleven showings. See generally N.T. at 41-45, 51. Wife also
does not address or dispute Husband’s testimony that under the PNA, he
was not required to accept any offer on the house. See id. at 39, 46.
Accordingly, we find no basis to disturb the court’s conclusion that Husband
did not breach the PNA.
Wife’s second argument on appeal is that the court misapprehended
her petition as a request for the court to modify the PNA. Instead, she
maintains, she “merely [sought] enforcement by way of economic justice”
“of the provision which provides for the sale of real estate and for her to
receive a sum certain.” Wife’s Brief at 16. Wife contends the court had
authority to effectuate economic justice under 23 Pa.C.S. § 3105(a), 23
Pa.C.S. § 3104(a)(1) and (5), and 23 Pa.C.S. § 3323(f).
Because we uphold the trial court’s determination that Husband did
not breach the PNA, we need not reach this second issue, of whether the
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court could or should have intervened to effect economic justice.
In light of the foregoing, we affirm the court’s order denying Wife’s
petition for special relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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