Bennett, P. v. Bennett, P.

J-A24011-16
2017 Pa. Super. 253
PETER Y. BENNETT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PAMELA A. BENNETT
No. 428 EDA 2016
Appeal from the Order January 19, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 1995-60876-E
BEFORE: BOWES, OTT AND SOLANO, JJ.
OPINION BY BOWES, J.: Filed August 4, 2017
Peter Y. Bennett (“Husband”) appeals from the March 1, 2016 order
imposing a constructive trust over a pension benefit that accrued during his
marriage to Pamela A. Bennett (“Wife”).1 We reverse.
Husband and Wife married on January 29, 1972 and divorced
approximately twenty-three-and-one-half years later. Two children were
born of the marriage. In anticipation of the divorce, the parties executed a
property settlement agreement to facilitate equitable distribution. The
agreement covered the various economic aspects of the divorce, including
____________________________________________
1
Technically, Husband receives two related pension benefits that he earned
while working for the American Can Company and its successor, James River
Corporation, for thirteen years during the marriage. For ease of discussion,
we refer to the pensions as a single asset.
J-A24011-16
the distribution of marital assets and Husband’s assent to paying the marital
liabilities, alimony, child support, and the children’s college expenses. As it
relates to the present case, the accord provides:
3. Legal Advice. Each of the parties acknowledges that he and
she has had the opportunity to consult with independent legal
counsel regarding the terms and provisions of this Agreement
and his or her legal rights and obligations, and each party
further acknowledges and accepts that this Agreement is, in the
circumstances, fair and equitable, and that it is being entered
into freely and voluntarily, and that the execution of this
Agreement is not the result of any duress or undue influence.
Each party has made a full and complete disclosure to the
other of his and her entire assets and liabilities, and each
is informed and familiar with the property, estate and
assets, earnings and income of the other.
....
6. Distribution of Property.
(a) The parties acknowledge that they have previously sold
and divided to their mutual satisfaction the proceeds from the
sale of their former marital residence. Each party shall retain the
proceeds from the sale thereof received by him and her free and
clear of any claim of the other.
(b) The parties have previously divided to their
mutual satisfaction all items of tangible personal property,
household furnishings, motor vehicles, bank accounts,
investments, business interests, stocks, securities, retirement
accounts, insurance policies and all other assets which, as
between the parties, are or may be subject to equitable
distribution, and each party does hereby release and relinquish
any and all claims that either of them have or may have with
respect to any property, property interest or asset.
-2-
J-A24011-16
Property Settlement Agreement, 4/21/95, at 3, 4-5 (emphases added).2
Although the accord did not identify any specific marital assets or state
the percentage basis that the assets would be divided, it listed the liabilities
that Husband was solely responsible for repaying. Likewise, the agreement
stipulated that the potential net proceeds from a possible lawsuit against
Boise Cascade Corporation would be divided equally. During the evidentiary
hearing, Wife testified that she requested fifty percent of the pension
benefits because it was in keeping with the parties’ promise to split the other
assets equally.
The property settlement agreement was incorporated but not merged
into the July 12, 1995 divorce decree. Approximately nineteen years later,
on September 2014, Wife filed a petition to impose a constructive trust
pursuant to 23 Pa.C.S. § 3505(d), which we reproduce infra. She averred
that, in executing the property settlement agreement, Husband failed to
make a full disclosure of the pension benefit that he earned during the
____________________________________________
2
Husband and Wife dedicate significant discussion in their briefs to whether
the reference to “retirement accounts” in the property settlement agreement
subsumed the pension benefit that Husband earned during the marriage.
However, that issue is a diversion. Regardless of the semantics of whether a
“pension benefit” equates to a “retirement account,” the asset is subject to
the recital’s catch-all provision “all other assets . . . subject to equitable
distribution[.]” Property Settlement Agreement, 4/21/95, at 4.
-3-
J-A24011-16
marriage.3 Wife requested the creation of a constructive trust as to the
previously undisclosed marital asset, an accounting of the monthly benefits
Husband received since the account entered pay status, and fifty percent of
the marital value of past and future benefits. She also requested counsel
fees and the costs associated with drafting the Qualified Domestic Relations
Orders (“QDRO”) needed to facilitate the future payment of her portion of
the benefit.
Husband filed preliminary objections in the nature of a demurrer based
upon the position that the formation of a constructive trust pursuant to §
3505(d) required, as a prerequisite, the filing of an inventory during the
equitable distribution process, and, in the absence of that form, the
statutory provision is inapplicable. In addition, Husband leveled a
preliminary objection to the petition based upon insufficient specificity
insofar as Wife failed to assert that Husband secreted the pension’s
existence when the agreement was formed. After conferring with the
attorneys, the trial court summarily overruled Husband’s preliminary
objections and scheduled an evidentiary hearing on Wife’s petition.
____________________________________________
3
While there was no discussion regarding whether the pension benefit had
vested prior to the date of separation, we observe that non-vested pensions
are marital property subject to equitable distribution. Berrington v.
Berrington, 598 A.2d 31, 34 (Pa.Super. 1991). Thus, it was an asset
subject to disclosure/acknowledgment under the property settlement
agreement.
-4-
J-A24011-16
The evidence adduced at the hearing revealed that Husband has a
pension that entered pay status during October 2012. Since then, Husband
has received a monthly benefit of $1,785.75, which calculates to an annual
benefit of $21,429. Wife testified that she and Husband did not discuss the
pension in anticipation of equitable distribution of their marital estate. 4
Their discussions focused upon liquidating the marital residence, which was
subject to encumbrances, and satisfying debts. She identified two
conversations with Husband wherein both parties agreed that the only
significant marital asset was the family home. Neither party mentioned the
pension or retirement benefits that possibly accrued during the marriage.
Wife did not assert that Husband mislead her or lied about the
existence of the pension benefit. Instead, she testified that she was
unaware of the pension and believed that the home was the only asset to be
divided. She received $1,100 from the sale of the property. In relation to
her view of the marital estate, Wife stated, “I didn't think there was
anything. I didn't think I was signing away anything. And with the house, it
____________________________________________
4
Wife presented the expert testimony of John McGovern, C.P.A., who stated
that the parties received a $29,000 retirement distribution from an
unidentified account during 1992. Mr. McGovern was unable to specify
whether the source of the distribution was an IRA, 401(k), vested pension,
or a combination of retirement plans. The only meaningful information to
flow from the witness was that, approximately three years prior to the
parties’ execution of the property settlement agreement, Husband and Wife
both knew that some form of retirement income existed and withdrew at
least a portion of it.
-5-
J-A24011-16
was $1100; I left the marriage with $1100, a car and two part-time jobs[.]”
N.T., 1/19/16, at 47. Wife also testified that she believed the agreement
was boilerplate and that the references to various assets did not apply to
them. She explained, “I believed it was a template. I looked for the things
that he and I agreed upon and made sure that they were [included] and
signed it.” Id. at 44.
During his testimony, Husband countered, “we did, in fact, review the
document [and] we were very comfortable with the fact that the assets
weren't identified [and] the fact I was going to pick up all the outstanding
liabilities[.]” Id. at 71-72. He also testified that he believed Wife was aware
of all of the marital assets. He stated that Wife had knowledge of the
pension in the past because, along with the increase in salary, he and Wife
considered the pension benefit when Husband faced the decision whether to
accept his position with American Can Company and, then having been
promoted by its successor, whether to uproot the family from its hometown
in Connecticut and move to Virginia. In addition, he surmised that the 1992
distribution that Wife’s expert referenced was connected to a 401(k) plan
that Husband contributed to when he worked for those entities. Id. at 79,
86-87.
At the conclusion of the evidence, the trial court announced from the
bench its decision to grant Wife’s petition for a constructive trust. The court
entered a final order memorializing its decision on March 1, 2016. Husband
-6-
J-A24011-16
filed a timely appeal.5 His concise statement of errors complained of on
appeal filed pursuant to Pa.R.A.P. 1925(b) leveled five issues 6, which he
restates as follows:
____________________________________________
5
The notice of appeal was filed prematurely approximately two weeks after
the close of the evidentiary hearing. However, Husband’s misstep was
corrected on March 1, 2016, when the trial court entered a final order
granting Wife’s requested relief. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”).
6
The Rule 1925(b) Statement asserted the following issues:
a. The Court abused its discretion and/or committed an error of
law in granting Defendant's petition for a constructive trust over
Husband's pension plans and awarding her 50% of the same on
the basis that there was not a full and fair disclosure of the
assets at the time of settlement despite Defendant's failure to
allege fraud;
b. The Court abused its discretion and/or committed an error of
law in granting Defendant's petition for a constructive trust over
Husband's pension plans and awarding her 50% of the same
despite the existence of contractual language in the Marital
Settlement Agreement indicating that full and fair disclosure was
made and that Defendant was satisfied with her knowledge of
the estate at the time of Agreement; that the parties' waived
discovery; that the parties mutually released each other from
any claims related to their rights under Pennsylvania's Divorce
Code; that the parties had divided in advance of the Agreement
all assets to their mutual satisfaction, and;
c. The Court abused its discretion and/or committed an error of
law in granting Defendant's petition for a constructive trust over
Husband's pension plans and awarding her 50% of the same on
the basis that Defendant overcame by clear and convincing
evidence the presumption of disclosure and/or that Defendant
(Footnote Continued Next Page)
-7-
J-A24011-16
1. Did the [t]rial [c]ourt err by granting a constructive trust
pursuant to 23 Pa.C.S.A. § 3503(d) without establishing that
[Husband] failed to disclose an asset as required by a general
rule of the Supreme Court?
2. Did the [t]rial [c]ourt err by finding that [Wife] rebutted by
clear and convincing evidence the presumption of full disclosure
by [Husband]?
3. Did the [t]rial [c]ourt err by failing to affirm the terms of
the parties’ Property Settlement Agreement?
4. Did the [t]rial [c]ourt err by applying its credibility
determination as the standard for determining whether
misrepresentation or fraud occurred in the execution for the
Property settlement Agreement?
Appellant’s brief at 4.
Husband’s brief does not conform to Pa.R.A.P. 2119 insofar as he
failed to divide the argument into sections that correspond with the four
_______________________
(Footnote Continued)
did not have knowledge of the assets at the time the Agreement
was executed.
d. The Court abused its discretion and/or committed an error of
law in granting Defendant's petition for a constructive trust over
Husband's pension plans and awarding her 50% of the same by
applying its determination as to the credibility of the parties to
its determination as to the plain reading of the disclosure and
waiver language set forth in the Agreement.
e. The court abused its discretion and/or committed an error of
law in granting Defendant's petition for a constructive trust over
Husband's pension plans and awarding her 50% of the same by
misapplying 23 Pa.C.S.A. § 3505(d) which applies only where
there is a failure to disclose the assets as required by general
rule of the Supreme Court.
Husband’s Rule 1925(b) Statement, 2/3/16, at 1-2.
-8-
J-A24011-16
issues he raised in his statement of questions involved. Instead of
complying with the procedural uniformity of Rule 2119, Husband identifies
four overlapping arguments. For example, rather than enumerating his
arguments in correlation with the numerals used in the statement of
questions presented, Husband lists his arguments alphabetically. Moreover,
those arguments are in disorder. Husband’s argument A is actually four
interwoven assertions, and his remaining arguments in B, C, and D do not
align with any numerical counterparts. In addition, while addressing
substantively different concerns, the arguments Husband identifies as B and
D share an identical heading, “The Trial Court erred by Failing to Affirm the
Parties Property Settlement Agreement.” See Appellant’s brief at 20, 30.
Finally, Husband’s argument D is a collection of various complaints, some of
which are subsumed by issues three and four. Although this Court is
authorized to quash a nonconforming brief, Husband’s procedural missteps
do not substantially impede our ability to perform appellate review, and we
shall address the merits of the arguments that have been preserved for
review in the Rule 1925(b) statement. See Pa.R.A.P. 2101;
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (“Despite
the numerous defects in Appellant's brief, we will address the one claim that
we are able to review[.]”).
As noted in his statement of questions presented, Husband raises
several procedural challenges to the trial court’s application of 23 Pa.C.S. §
-9-
J-A24011-16
3505(d) under the facts of this case. However, since we ultimately find that
the certified record does not sustain the trial court’s factual findings in
support of Wife’s position that the constructive trust was warranted, we do
not confront those arguments herein. Instead, we presume that § 3503(d)
applies and address the effect of the recital in the property settlement
agreement, wherein the parties acknowledged full and complete disclosure
of assets.
Section 3505(d) of Divorce Code, provides as follows:
(d) Constructive trust for undisclosed assets.--If a party
fails to disclose information required by general rule of the
Supreme Court and in consequence thereof an asset or assets
with a fair market value of $1,000 or more is omitted from the
final distribution of property, the party aggrieved by the
nondisclosure may at any time petition the court granting the
award to declare the creation of a constructive trust as to all
undisclosed assets for the benefit of the parties and their minor
or dependent children, if any. The party in whose name the
assets are held shall be declared the constructive trustee unless
the court designates a different trustee, and the trust may
include any terms and conditions the court may determine. The
court shall grant the petition upon a finding of a failure to
disclose the assets as required by general rule of the Supreme
Court.
23 Pa.C.S. § 3503(d).
By its terms, § 3503(d) does not require a party to demonstrate that
the failure to disclose an asset was deliberate or intentional. This is because
the provision is triggered by a breach of a parties’ affirmative obligation to
“disclose information required by general rule of the Supreme Court,” e.g.,
an inventory under Rule 1920.33, which did not occur in this case.
- 10 -
J-A24011-16
However, mindful that parties to property settlement agreements are
entitled to enforcement measures set forth in the Divorce Code, see
§ 3105(a), we find that the provision’s silence as to disclosure clauses did
not preclude Wife from invoking this remedial provision. Cf. Creeks v.
Creeks, 619 A.2d 754 (Pa.Super. 1993) (where husband failed to include
asset in inventory pursuant to agreement’s disclosure clause, the breach
triggers action for constructive trust). Nevertheless, prior to granting the
requested relief in the case at bar, the trial court was required to reconcile
the pension benefit’s omission from the accord with Wife’s affirmative
acknowledgment that she received full and complete disclosure and was not
only informed of, but also familiar with, the marital estate.
In Pennsylvania, the law of contracts governs a property agreement if
the agreement is not merged into a divorce decree. Crispo v. Crispo, 909
A.2d 308, 313 (Pa.Super. 2006) (“property settlement agreements are
presumed to be valid and binding upon the parties”). An agreement that is
not merged, “stands as a separate contract, is subject to the law governing
contracts and is to be reviewed as any other contract.” Id. at 312-313.
Our Supreme Court previously explained,
under the law of contracts, in interpreting an agreement, the
court must ascertain the intent of the parties. Robert F. Felte,
Inc. v. White, 451 Pa. 137, 302 A.2d 347, 351 (1973). In
cases of a written contract, the intent of the parties is the writing
itself. If left undefined, the words of a contract are to be given
their ordinary meaning. Pines Plaza Bowling, Inc. v.
Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958). When the
terms of a contract are clear and unambiguous, the intent of the
- 11 -
J-A24011-16
parties is to be ascertained from the document itself. Hutchison
v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390
(1986).
Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004).
We review the trial court’s order upholding the agreement for an abuse
of discretion. Lugg v. Lugg, 64 A.3d 1109, 1110 n.1 (Pa.Super. 2013). As
we explained in Lugg, “[a]n 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. Additionally, we will not
usurp the trial court’s factfinding function.” Id.
In Simeone v. Simeone, 581 A.2d 162 (Pa. 1990), our Supreme
Court clarified the standards for determining the validity of marital
settlement agreements and abolished the prior paternalistic approach to
enforcement. The High Court announced that “Absent fraud,
misrepresentation, or duress, spouses should be bound by the terms of their
agreements.” Id. at 165. As the venerable Joann Ross Wilder, Esquire,
couched the concept in Pennsylvania Family Practice and Procedure 5th,
2002 at 96, “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.”
As it relates to the case at bar, the Simeone Court admonished, “If an
agreement provides that full disclosure has been made, a presumption of full
disclosure arises.” Id. at 167. Likewise, the Court explained, “If a spouse
- 12 -
J-A24011-16
attempts to rebut this presumption through an assertion of fraud or
misrepresentation then this presumption can be rebutted if it is proven by
clear and convincing evidence.” Id. Thus, “Absent fraud, misrepresentation
or duress, spouses should be held to the terms of their agreements.” Lugg,
supra at 1112; Stoner v. Stoner, 819 A.2d 529, 533 (Pa. 2003) (expressly
rejecting approach which allows court to inquire into reasonableness of
parties’ bargain). This Court subsequently explained, “an agreement is valid
even if it does not contain financial disclosure itself and can be upheld if it
merely recites that such disclosure has been made.” Paroly v. Paroly, 876
A.2d 1061, 1066 (Pa.Super. 2005). Indeed, “a full and fair disclosure in the
property settlement agreement merely requires sufficient disclosure to allow
the intended party to make an informed decision.” Busch v. Busch, 732
A.2d 1274, 1278 n. 5 (Pa.Super. 1999).
Although this Court’s holding in Lugg, supra concerned the waiver of
disclosure rather than an acknowledgment of full disclosure, our reasoning is
informative. In pertinent part, the Lugg Court addressed whether the trial
court erred in denying a wife’s claim to set aside a property settlement
agreement due to her husband’s failure to fully disclose assets when the
agreement was executed. In an attempt to circumvent the fact that she
expressly waived economic disclosure, the wife argued that a person cannot
waive disclosure if they do not know what was being waived. Id. at 1112.
The Court rebuffed that reasoning in light of the legislature’s adoption of 23
- 13 -
J-A24011-16
Pa.C.S. § 3106, which allows a party to waive economic disclosure in a
prenuptial agreement, and our High Court’s prior reasoning in Stoner,
supra, that “pre-and post-nuptial agreements are to be similarly viewed.”
Id. at 1112-1113. Thus, the Lugg Court held that parties to a property
settlement agreement may waive full economic disclosure. Id. at 1113.
Specifically, the Court held, “[w]e must reject the assertion that economic
disclosure cannot be waived because the party waiving disclosure does not
know the extent of what is being waived.” Id. at 1112.
Instantly, the trial court employed reasoning similar to the wife in
Lugg in an attempt to elevate Wife’s belated claim of lack of disclosure over
her express assent that full and complete disclosure actually occurred and
the acknowledgment that she was familiar with the marital estate. The
lynchpin of the trial court’s logic is that, notwithstanding Wife’s explicit
recognition of full disclosure, she should be excused from that provision
because she believed that she knew the extent of the marital estate when
she signed the agreement. Stated another way, the trial court concluded
that Wife should not be bound by the disclosure recital because she was not
actually familiar with all of the marital assets that she certified knowing
about. The trial court’s rationale conflicts with our analogous holding in
Lugg that a party to an agreement can, in fact, waive economic disclosure
even if they do not know the full extent of that waiver. Like the Lugg Court,
we find herein that Wife cannot negate the recital affirming her knowledge of
- 14 -
J-A24011-16
the marital estate based upon a subsequent assertion that she did not know
the full extent of the assets when she executed the certification. Plainly,
having acknowledged both the disclosure and her familiarity with the assets,
absent clear and convincing evidence of Husband’s misconduct, Wife’s
subjective belief regarding the nature and extent of the marital estate is
irrelevant. Thus, we conclude that the disclosure recital applies herein, and
absent clear and convincing evidence of fraud, duress, or misrepresentation
to permit Wife to overcome the presumption of full disclosure, the recital is
valid and enforceable.
Next, we review the court’s determination that Wife sustained her
evidentiary burden of establishing fraudulent misrepresentation. Our High
Court reiterated the elements misrepresentation as follows,
In order to void a contract due to fraudulent misrepresentation,
the party alleging fraud must prove, by clear and convincing
evidence: (1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with knowledge of its
falsity or recklessness as to whether it is true or false; (4) with
the intent of misleading another into relying on it; (5) justifiable
reliance on the misrepresentation; and (6) resulting injury
proximately caused by the reliance. All of these elements must
be present to warrant the extreme sanction of voiding the
contract.
Porreco v. Porreco, 811 A.2d 566, 570-571 (Pa. 2002) (plurality) (internal
citations omitted).
Instantly, Wife did not expressly assert misrepresentation in her
petition for a constructive trust or during her testimony regarding the
parties’ discussion of the marital assets. Nevertheless, the trial court
- 15 -
J-A24011-16
reasoned that Wife was uninvolved with Husband's employment
compensation beyond his salary, and therefore, she was unaware of the
pension benefit that accrued during the marriage. Indeed, despite both the
fact that Wife neglected to assert misrepresentation and the dearth of
evidence to support its finding, the trial court went so far as to conclude that
“Husband affirmatively told her that there were no other assets beyond the
house considered in the Agreement.” Trial Court Opinion, 3/31/16, at 6.
The record belies the trial court’s findings of fact. Wife did not present
any evidence of fraud or misrepresentation. At most, Wife established that
the parties did not discuss the pension and that Husband did not disclose it.
However, in light of her evidentiary burden to rebut the presumption of
disclosure, evidence that a potentially inadvertent or negligent omission may
have occurred is woefully inadequate to establish fraud or misrepresentation
that would negate Wife’s certification that she received full disclosure.
Notwithstanding Wife’s failure to plead or prove misrepresentation
under Porreco, supra, the trial court concluded that Husband misled her
about the marital assets. As noted, the court’s reasoning is founded upon a
purported credibility determination in Wife’s favor. However, the certified
record cannot sustain the court’s finding that a meaningful credibility dispute
existed. In fact, the parties concur that the pension was not discussed
before they executed the agreement, and Wife does not assert that Husband
mislead her or misrepresented the marital estate. She simply testified that
- 16 -
J-A24011-16
she was unaware of the pension when she signed the recital certifying her
familiarity with the assets. Thus, contrary to the trial court’s expression of
rationale, this case does not turn upon a credibility determination regarding
whether Husband made an express misrepresentation.7 The trial court erred
in invoking the non-existent issue of credibility in order to compensate for
Wife’s failure to adduce evidence of fraud or misrepresentation.
Likewise, the record will not sustain the court’s conclusion that Wife
adduced clear and convincing evidence of misrepresentation. The only
evidence in the certified record that could conceivably support the trial
court’s finding of misrepresentation are two of Wife’s responses during
cross-examination. At one point, Wife responded to an inquiry by retorting,
“in my book and from our conversation, there was nothing, and I had no
reason to believe that he would not have mentioned [the pension].” N.T.,
1/19/16, at 60. Then, when asked whether she believed that Husband
purposely withheld the information from her, she answered “it appears so.”
Id. This evidence is neither clear nor compelling. The first statement
simply restates the fact that the asset was not discussed. The latter
response is a qualified suggestion that, in the absence of any other
____________________________________________
7
Any credibility dispute was limited to whether Wife had known of the
pension in the past. However, regardless of whether Wife was completely
unaware of the pension or had previously known of it and simply forgot
when she executed the agreement, that issue is irrelevant to whether
Husband intentionally mislead her.
- 17 -
J-A24011-16
acceptable explanation, Wife believed that Husband must have misled her.
Both statements fail to reach the quantum of clear and convincing evidence
of fraudulent misrepresentation that the High Court detailed in Porreco,
supra (fraud requires material false representation made with intent to
mislead).
In addition to the dearth of direct evidence to support the trial court’s
conclusion that Husband misrepresented the marital estate or intentionally
withheld information from Wife regarding his pension benefit, the
circumstantial evidence favoring that finding is limited to what the trial court
characterized as Husband’s evasiveness and argumentative answers during
cross-examination. However, absent direct evidence indicating that
Husband hid the asset or purposefully lied to Wife about its existence,
Husband’s demeanor during cross-examination is hardly clear and
convincing evidence of fraud or misrepresentation.
In sum, Wife failed to assert fraudulent misrepresentation, much less
prove it by clear and convincing evidence, and the trial court’s purported
credibility determination in her favor is ineffective. The undisputed facts
established that Husband and Wife did not discuss the pension prior to
executing the agreement. While the trial court speculates that Husband
intentionally hid the asset from Wife, the evidence does not bear out that
insinuation, and the trial court erred in relying upon a contrived credibility
determination to negate Wife’s failure to satisfy her evidentiary burden of
- 18 -
J-A24011-16
proving the requisite scienter to rebut the presumption that full disclosure
occurred. See Colonna v. Colonna, 791 A.2d 353, 357 (Pa.Super. 2001)
(rejecting wife’s contention that she was not fully aware of her statutory
rights because, absent proof of material misrepresentation or fraud,
reviewing court may not examine whether parties attained informed
understandings of rights they were surrendering); Busch, supra at 1278
n.5 (full and fair disclosure need only allow intended party to make informed
decision).
As the certified record does not support the trial court’s finding that
Husband engaged in fraud or misrepresentation, the trial court erred in
determining that Wife was not bound by the disclosure recital. Accordingly,
we reverse the trial court order imposing a constructive trust over the
pension benefits pursuant to § 3505(d).
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
- 19 -