Promislo, J. v. Steinhouse, J.

J-A13002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACQUELINE PROMISLO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN STEINHOUSE : No. 2755 EDA 2018
Appeal from the Order Entered August 9, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): D15078464
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 14, 2019
Appellant, Jacqueline Promislo (“Wife”), appeals from an order refusing
to enforce a Property Settlement Agreement (“Agreement”) she and Appellee,
Jonathan Steinhouse (“Husband”), signed on July 28, 2016, and refusing to
find Husband in contempt of court. We affirm in part, reverse in part, and
remand.
The parties married in June 1999 and two children were born of the
marriage: a son, currently age nineteen, and a minor daughter, presently age
seventeen. Wife filed a divorce complaint on July 15, 2015, and the parties
were divorced on October 17, 2016. On July 28, 2016, the parties entered
into the Agreement, which provided, inter alia, as follows:
8 CHILD SUPPORT AND ALIMONY
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* Retired Senior Judge assigned to the Superior Court.
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8.1 Effective August 1, 2016, [Husband] will pay support to
[Wife] the rate of $4,500 per month, allocated $2,000 child
support, and $2,500 to alimony pendente lite (“APL”)/alimony
through March 31, 2017. In April, 2017, the parties will
recalculate child support and alimony using the support guidelines
formula applied to their incomes/earning capacities at the time.
In the event [Wife] has no income at that time, the calculation will
be done using an earning capacity for her of $50,000. Effective
April 1, 2017 and continuing until [Husband’s] child support and
alimony obligations have been recalculated by agreement or
court order, [Husband] will pay support to [Wife] at the rate of
$3,792 a month, allocated $1,854 for child support, and $1,938
to alimony, on an interim basis (“the interim period”). The
recalculated support and alimony obligations shall be retroactive
to April 1, 2017, and [Husband’s] payments going forward will be
adjusted to account for any shortfall or overpayment during the
interim period.
Agreement, 7/28/16, at ¶ 8.1 (emphasis added). The Agreement also
provided, “No modification or waiver of any of the terms of this Agreement
shall be valid unless in writing and signed by both parties.” Id. at ¶ 10.1
(emphasis added). Wife avers that the parties negotiated a Second Addendum
to the Agreement but never signed it. Wife’s Brief at 10; N.T., 8/9/17, at 7,
20. She offered an addendum, unsigned, and identified it as “M-2.” N.T.,
8/9/17, at 7–8, 11.
On May 30, 2018, Wife filed a “Petition for Enforcement and Contempt
of the July 28, 2016 Property Settlement Agreement.” The trial court
conducted a hearing on August 9, 2018, following which it entered the
appealed order, which provides:
AND NOW, THIS 9TH DAY OF AUGUST, 2018, UPON
CONSIDERATION OF THE MATTER BEFORE THIS COURT, IT IS
HEREBY ORDERED, ADJUDGED AND DECREED THAT:
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THE COURT DOES NOT FIND WILLFUL [sic] AND THEREFORE THE
COURT DOES NOT FIND FORMER HUSBAND, JONATHAN I.
STEINHOUSE IN CONTEMPT.
THE REQUEST BY COUNSEL FOR FORMER WIFE, JACQUELINE
PROMISLO THAT THE COURT ORDER FORMER HUSBAND TO PAY
SUMS TO FORMER WIFE AT THIS TIME IS DENIED.
Order, 8/9/18 (verbatim). Wife filed a timely notice of appeal. Both Wife and
the trial court complied with Pa.R.A.P. 1925.
Wife raises the following issues on appeal:
A. Whether the Trial Court abused its discretion by failing to
enforce the parties’ July 28, 2016 Property Settlement
Agreement.
B. Whether the Trial Court abused its discretion by failing to
determine that Husband breached the terms of the parties’
Property Settlement Agreement for purposes of calculating
Husband’s child support and alimony obligation.
C. Whether the Trial Court abused its discretion and misapplied
the law by failing to order Husband to pay the amounts due to
Petitioner/Plaintiff under the parties’ July 28, 2016 Property
Settlement Agreement, which also details the remedies
available for breach of the Agreement.
D. Whether the Trial Court abused its discretion and misapplied
the law by failing to hold Husband in contempt of court for
failing to pay Petitioner/Plaintiff the amounts due under the
parties July 28, 2016 Property Settlement Agreement.
Wife’s Brief at 6.
The trial court concluded that Wife did not meet “her burden of proof as
to willful conduct on the part of [Husband] for a finding of contempt.” Trial
Court Opinion, 11/2/18, at 5. It further determined that the parties did not
execute an amendment “or formal change” to the provision of their Agreement
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regarding the amount Husband was to pay Wife for child support and alimony.
Id. Without identifying support for its decision, the court also found that the
record failed to provide “a clear determination of monies actually owed to
[Wife] by [Husband].” Id. at 7. The trial court refused to enforce the
Agreement.
The law of contracts governs marital settlement agreements.1 Bianchi
v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004). Contract interpretation is
a question of law, and this Court is not bound by the trial court’s interpretation.
Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa. Super. 2005). Moreover,
“[i]t is well-established that the paramount goal of contract interpretation is
to ascertain and give effect to the parties’ intent.” Lang v. Meske, 850 A.2d
737, 739 (Pa. Super. 2004). “[W]here . . . the words of a contract are clear
and unambiguous, the intent of the parties is to be ascertained from the
express language of the agreement itself. Brosovic v. Nationwide Mut.
Ins., 841 A.2d 1071 (Pa. Super. 2004).” Bianchi v. Bianchi, 859 A.2d 511,
515 (Pa. Super. 2004). While unambiguous contracts are interpreted by the
court as a matter of law, ambiguous writings are interpreted by the finder of
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1 The Agreement was incorporated but not merged in the divorce decree.
Agreement, 7/28/16, at ¶ 16.1; Divorce Decree, 10/17/16, at 1. “An
agreement that is incorporated but not merged in the divorce decree survives
as a separate, enforceable contract that is not subject to modification” unless
the “agreement contains provisions specifically to the contrary.” Wilder, 17
Pa. Family Prac. & Proc., §§ 7.6–7.7 (7th ed. 2008).
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fact. Kripp v. Kripp, 784 A.2d 158, 162 (Pa. Super. 2001), rev’d on other
grounds by Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004).
We review the order denying Wife’s petition to enforce the Agreement
for abuse of discretion. Bennett v. Bennett, 168 A.3d 238, 245 (Pa. Super.
2017). “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.” Id. Bennett further instructs that absent fraud,
misrepresentation, or duress, parties are bound by the terms of their marital
settlement agreements. Id. We observed in Bennett, parties “are free to
enter into bargains they later regret, and bad deals are as enforceable as good
ones provided the agreement is free of fraud or duress.” Id. (citing Wilder,
[17] Pa. Family Prac. & Proc., [§ 7:3]). Indeed, this Court has stated, “It is
evident our Supreme Court has already rejected [the] proposed standard that
this [C]ourt delve into whether [an] agreement was fair and reasonable,
absent any showing of fraud, misrepresentation or duress.” Lugg v. Lugg,
64 A.3d 1109, 1112 (Pa. Super. 2013). There are no allegations of fraud,
misrepresentation, or duress in this case.
Wife’s first three issues are intertwined and aver that the trial court
abused its discretion in refusing to enforce the Agreement; we address them
together. The Agreement provides that Husband was to pay Wife $4,500 per
month. Agreement, 7/28/16, at ¶ 8.1. On April 1, 2017, and continuing until
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“recalculated by agreement or court order,” Husband was to pay Wife $3,792
per month “allocated $1,854 for child support, and $1,938 to alimony.” Id.
At the August 9, 2018 hearing, Wife testified that the parties’ attorneys
agreed in September 2017 to Husband’s monthly payment to Wife in the
amount of $3,093,2 allocated $2,060 for child support and $1,033 for alimony.
N.T., 8/9/18, at 7. Wife further testified that Husband paid that amount in
September and October 2017. Id. at 9. Wife stated that in March 2018,
Husband paid Wife $159, and in the months April–July 2018, Husband paid
Wife $371 per month. Id. at 10–11. There was no testimony regarding
whether Husband made payments in November 2017 through February 2018,
and if he did, the amount of those payments.3 At the time of the hearing,
August 9, 2018, Husband had not made a payment for August. Id. at 29.
Husband testified that when he executed the Agreement in July 2016,
he was represented by counsel and “worked closely with Counsel.” N.T.,
8/9/18, at 26. He further admitted that the Agreement required him initially
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2 Wife initially mistakenly stated, or the notes of testimony contain a
typographical error, that the amount was $3,103. The referenced amount
actually totaled $3,093 per month, and subsequent references by the parties
and the trial court were to the correct amount. See N.T., 8/9/18, at 8, 9, 15;
Trial Court Opinion, 11/2/18, at 6.
3 In her brief, Wife avers that Husband paid her $1,746 in November 2017;
$1,656.16 in December 2017; $923.38 in January 2018; and $1663.40 in
February 2018. Wife’s Brief at 11 (citing Reproduced Record at 13a [N.T.,
8/9/18, at 10]). However, her citation to the record is erroneous. Nowhere
in the record is there any testimony regarding amounts Husband paid for the
months of November 2017 through February 2018.
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to pay Wife $4,500 per month, and beginning April 1, 2017, $3,792 per month
on “an interim basis.” Id. When asked about the parties’ alleged addendum
in September 2017 to lower Husband’s monthly obligation to $3,093, Husband
stated, “I can’t recall if we reached an agreement,” id., but he never explained
why he paid that amount in September and October 2017. Husband confirmed
that the monthly amounts he paid in March through July 2018, were $159 in
March and $371 thereafter. Id. at 30, 32. Husband testified that he
voluntarily left his job because there were “some problems at my company
and I took a new job.” Id. at 24. He was promptly laid off “right after I
started,” and did not obtain a new position until the time of the hearing, to
begin August 20, 2018, earning “a base salary of $130,000 plus commission.”
Id. at 24, 29–30. Husband did not file a petition to modify child support,
however, until June 2018. Id. at 28–29.4
We have reviewed the record and conclude that it does not support the
trial court’s refusal to enforce the Agreement. As noted, this case does not
involve any allegations of fraud, misrepresentation, or duress. In interpreting
the Agreement as a contract, the trial court had “neither the power nor the
authority to modify or vary the [writing] unless there is conclusive proof of
fraud or mistake.” Bianchi, 859 at 515. Because the language of the
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4 In its Pa.R.A.P. 1925(a) opinion, the trial court represented that a hearing
was “scheduled [for] January 7, 2019,” in “Domestic Relations Court”
regarding Husband’s June 20, 2018 petition. Trial Court Opinion, 11/2/18, at
8.
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Agreement is clear and unambiguous, the court was compelled to examine the
writing itself to give effect to the parties’ understanding. Lang, 850 A.2d at
739–741.
The Agreement provided that it could not be modified or waived except
in writing and signed by both parties; therefore, “the party seeking to show
subsequent oral modification in the agreement must prove it by clear, precise,
and convincing evidence, as in cases where fraud, accident, or mistake is
alleged.” Nicolella v. Palmer, 248 A.2d 20, 23 (Pa. 1968). While the
Agreement contemplated that the parties would recalculate the amount of
support in April 2017, any modification was required to be in writing and
signed by the parties. There was no signed writing offered as evidence in
this case, and the trial court correctly found that the addendum Wife
referenced as “M-2” was not executed by the parties. Trial Court Opinion,
11/2/18, at 5. Therefore, the provision of the Agreement requiring that
beginning April 1, 2017, Husband owed Wife “$3,792 per month, allocated
$1,854 for child support, and $1,938 to alimony” should have been enforced.
Agreement, 7/28/16, at ¶ 8.1. The trial court has not supported its decision
to ignore the clear language of the Agreement, which resulted in an abuse of
discretion. Indeed, the trial court ignored the applicable standard in deciding
whether a contract must be enforced. Upon remand, the trial court is to
enforce the mandate of paragraph 8.1 for the amounts Husband was
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contractually obligated to pay Wife and adjust for any amounts Husband
already has paid. Thereafter, Wife may enter judgment on the verdict.5
Contempt finding affirmed. Order reversed. Case remanded for
proceedings consistent with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/19
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5 Because Wife’s fourth issue regarding the trial court’s refusal to hold
Husband in contempt is not supported by the requisite level of explanation or
case law in support in Wife’s appellate brief, we could find the issue waived.
Wife’s Brief at 19; In re M.Z.T.M.W., 163 A.3d 462 (Pa. Super. 2017) (failure
to develop argument and cite relevant authority results in waiver). Instead,
we conclude that the trial court correctly determined that Husband was not in
contempt, and we affirm that finding.
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