Hawk, D. v. Hawk, T.

J-A30027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID G. HAWK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRACEY C. HAWK, :
:
Appellant. : No. 1749 WDA 2017
Appeal from the Order, October 26, 2017,
in the Court of Common Pleas of Allegheny County,
Family Court at No(s): FD 10-008168-016.
DAVID G. HAWK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRACEY C. HAWK : No. 1795 WDA 2017
Appeal from the Order Entered, October 26, 2017,
in the Court of Common Pleas of Allegheny County,
Family Court at No(s): FD 10-008168-016.
BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.
DISSENTING MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 25, 2019
The Majority’s analysis is thorough and eminently reasonable. I
respectfully dissent, because I do not find the parties’ use of the terms
“modification” and “termination” to be ambiguous. Even if I did so find, I
would resolve the ambiguity by consulting the Rules of Statutory
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* Retired Senior Judge assigned to the Superior Court.
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Interpretation, before considering the parties’ own beliefs and conduct. Under
either approach, I would reverse the trial court and reinstitute the alimony.
First, I note that the source of the alimony in this case was the parties’
own agreement, as opposed to a court award. In such cases, in accordance
with contract law, we give words their ordinary meaning and we ascertain the
intent of the parties from the document itself. See Kripp v. Kripp, 849 A.2d
1159, 1163 (Pa. 2004). I do not find the terms “modification” and
“termination” to be ambiguous. In my read of the agreement, the parties
employed the terms “modification” and “termination” in separate ways at
separate times.
Regarding modification, the agreement incorporated the entirety of the
Domestic Relations Code’s Chapter 37, including Section 3706’s bar to
alimony. See consent order of court, dated October 10, 2014, at ¶8 (“This
alimony shall be modifiable in accordance with the provisions of 23 Pa.C.S.A.
§ 3701, et. seq.”) (Emphasis added). But not every section of the alimony
chapter speaks to modification; thus not every section applies.
For instance, Section 3704 (“Payment of support, alimony and alimony
pendente lite”) has no bearing on modifiability of alimony. Likewise, Section
3705 (“Enforcement of foreign decrees”) is irrelevant. To determine whether
Section 3706 (“Bar to alimony”) applies to the agreement, one must first
determine whether Section 3706 addresses modification. I conclude that it
does not. Section 3706 accomplishes two things: 1) prevents the court from
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issuing an alimony award if cohabitation exists and 2) terminates an alimony
award if cohabitation is discovered. It does not modify anything.
Regarding “termination,” the parties employed the term once, to denote
the expiration of the alimony payments. See Order of court dated October 10,
2014, ¶ 7(b)(ii) (“[Husband] shall pay to [Wife] … through October 16, 2027,
at which time [Husband’s] alimony obligation shall terminate.”)(Emphasis
added).
Because I may only ascertain the parties’ intent from the document
itself, I view these provisions to indicate that the parties understood
“modification” and “termination” have two different meanings. When does the
alimony obligation terminate? 2027. Can it ever be modified? Yes. How? The
same manner that an alimony award can be modified, when either party
experiences a change in circumstances.
Although the initial source of Wife’s alimony was an award, the parties
converted the award to an agreement via the April 2015 consent order. That
means if they wanted alimony to terminate upon Wife’s cohabitation, the
parties were obligated to include specific language to that effect. See, e.g.,
Woodings v. Woodings, 601 A.2d 854, 859 (Pa. Super. 1992) (holding that
unless parties so specify, an alimony agreement may not be modified,
extended or terminated). In my opinion, referring to the entirety of the
alimony chapter for modification of this agreement is not enough to specifically
agree to termination upon cohabitation.
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Second, even if I agreed with the Majority that the use of the terms was
ambiguous, instead of looking to the parties’ conduct – as the Majority does –
I would first consult the Rules of Statutory Interpretation to resolve the
ambiguity.1 The parties themselves referred to the statutes to explain when
alimony could be modified. If the court must refer to statutes to decide an
issue, it follows that the court should refer to the case law and the Rules of
Statutory Interpretation to resolve an ambiguity within those statutes.
From there, I note that Section 3701 of the Divorce Code also clearly
differentiates between “modification” and “termination.” See § 3701(e).
Section 3701(e) provides:
(e) Modification and termination.--An order entered
pursuant to this section is subject to further order of the
court upon changed circumstances of either party of a
substantial and continuing nature whereupon the order may
be modified, suspended, terminated or reinstituted or a
new order made. Any further order shall apply only to
payments accruing subsequent to the petition for the
requested relief. Remarriage of the party receiving alimony
shall terminate the award of alimony.
23 Pa.C.S. § 3701(e) (emphasis added).
Section 3701(e) addresses four distinct concepts pertaining to alimony:
modification; suspension; termination; and reinstitution. Modification
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1 It is well settled that courts interpreting a statute must strive to give effect
to every one of its provisions. See 1 Pa.C.S.A. § 1921(a); see also Cimino
v. Valley Family Medicine, 912 A.2d 851, 853 (Pa. Super. 2006), appeal
denied, 921 A.2d 494 (Pa. 2007) (“We also must construe a statute in such a
way as to give effect to all its provisions, if possible, thereby avoiding the need
to label any provision as mere surplusage.”)).
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concerns the ability to change the amount of alimony. Termination pertains
to when alimony would permanently stop. Suspension of alimony is a
temporary hold on alimony payments, and a reinstitution of alimony resumes
the payments that were suspended. These are all distinct terms. Thus, I
would again conclude that the agreement’s generic reference to the alimony
statutes for modification was insufficient to terminate Husband’s obligation
upon Wife’s cohabitation.
Finally, regarding Wife’s conduct, I acknowledge that Wife clearly
thought cohabitation would cause her alimony to stop, and that her fear of
financial hardship motivated her to conceal the cohabitation. But it is less
clear that Wife understood whether the interruption of her alimony would be
permanent or temporary. Because Wife received $2,640 per month, even a
temporary suspension or a reduction of alimony could cause her financial
hardship. Thus, to the extent we infer intent from the parties’ conduct, one
could argue that Wife hid her cohabitation, not because she believed
cohabitation would permanently stop her alimony, but because she thought
cohabitation temporarily suspended her payments.
For instance, Wife also thought – mistakenly – that any romantic or
sexual relationship, short of cohabitation, would also stop her alimony.
Consequently, I hesitate to give much credence to a party’s own interpretation
of a contract, especially when that party misunderstands the legal effect of
the terms she agreed to. In any event, what Wife actually agreed to was
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“modification” by statute. Regarding “termination,” she agreed only to a date
certain.
To conclude: because I do not find the use of these terms to be
ambiguous, I would not consider the parties’ conduct to discern their intent.
Even if the terms were ambiguous, under the unique circumstances presented
in this case, where the parties incorporated an entire chapter of the Domestic
Relations Code to define a term in their contract, I would consult the Rules of
Statutory Interpretation before the parties’ beliefs to resolve the ambiguity.
In either case, I would conclude that cohabitation has no bearing on Wife’s
right to alimony under the express terms of this agreement, regardless of
what the parties believed. I would therefore reverse the trial court’s decision
to terminate alimony.
I concede that my views are not unassailable, especially in light of this
atypical alimony agreement that sought to be treated, at least in part, as if it
were an adjudicated order. This Court was tasked with navigating the
competing interplay between an alimony contract and an alimony award.
Reasonable minds could certainly disagree with my analysis and indeed the
learned Majority does.
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