Belke, D. v. Belke, S.

J-A22037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENISE C. BELKE IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
STEPHEN W. BELKE
Appellee No. 1932 MDA 2019
Appeal from the Order Entered September 7, 2017
In the Court of Common Pleas of Berks County
Domestic Relations at No.: 13-3879
DENISE C. BELKE IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
STEPHEN W. BELKE
Appellee No. 1933 MDA 2019
Appeal from the Order Entered October 31, 2019
In the Court of Common Pleas of Berks County
Domestic Relations at No.: 13-3879
BEFORE: SHOGAN, STABILE, and MURRAY, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 19, 2021
Appellant Denise C. Belke (“Ex-Wife”) appeals from the October 31,
2019 order entered in the Court of Common Pleas of Berks County (“trial
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court”), 1 granting in part and denying in part her exceptions to a divorce
master’s report and recommendation. Upon review, we vacate and remand
for further proceedings.
The facts and procedural history this case are undisputed.2 This case
has a long and tortuous history made more complicated by [Appellee] Stephen
W. Belke’s (“Ex-Husband”) living and working in Europe and his total lack of
involvement in the latter stages of this litigation. The parties met in Virginia
where Ex-Wife was a student at George Mason University and Ex-Husband
was an officer in the United States Marine Corps. Ex-Husband earlier received
a degree in chemical engineering from the University of Rochester. The
parties married in March 1988 and lived at various military installations. After
Ex-Wife gave birth to the parties’ first child, they decided that she would be a
stay-at-home mother.3 She stopped working. Ex-Husband eventually left the
armed services and took a job as an engineer with a company in Indiana. Ex-
Husband was promoted to a series of management positions. After seven
years, he left the company to become a production manager for ICI Paints in
Berks County starting in the year 2000.
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1 As more fully explained infra, we dismiss as duplicative Appellant’s appeal
docketed at 1932 MDA 2019, where she appealed from the September 7, 2017
order.
2 Unless otherwise specified, these facts come from the trial court’s August
14, 2017 opinion, modified by its September 7, 2017 order, and the trial
court’s October 31, 2019 opinion. See Trial Court Opinion, 8/14/17, at 1-4;
Trial Court Opinion, 10/31/19, at 1-5.
3 The parties’ are parents of two adult daughters.
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The parties purchased a home in Berks County but also lived for a time
in Manhattan Beach, California where ICI had a plant. The parties ultimately
returned to their home in Berks County. AkzoNobel purchased ICI Paints and
for five years, Ex-Husband travelled back and forth from Berks County to
AkzoNobel’s plant in Cleveland.
In November 2007, Ex-Wife learned that Ex-Husband had been involved
in extramarital affairs. When confronted by Ex-Wife, Ex-Husband admitted to
the affairs and out of remorse suggested the parties enter into a post-nuptial
agreement (the “Agreement”). The Agreement was drafted by Ex-Wife’s
counsel and the parties signed it on December 12, 2008. It provided, inter
alia, that in the event Ex-Husband’s continued extramarital sexual activity,
Ex-Wife would receive 100% of the marital assets and 60% of Ex-Husband’s
income.
Subsequently, AkzoNobel provided Ex-Husband with an opportunity to
work at their industrial coating division in Amsterdam, Netherlands. Ex-
Husband accepted this offer and the parties leased an apartment in
Amsterdam. Ex-Wife would visit Ex-Husband in Europe from time to time, but
she primarily resided in Berks County. Ex-Husband periodically returned to
the United States to spend time with Ex-Wife and go on family vacations.
During this time, the parties engaged in serious arguments. The relationship
between them was tumultuous and dysfunctional.
Ex-Husband eventually contacted Ex-Wife in February 2012 and told her
he did not see a way forward for the parties’ relationship and expressed a
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desire for a divorce. Ex-Husband then filed for divorce on May 2, 2012, but
later withdrew this action nine months later. On March 20, 2013, Ex-Wife filed
the instant divorce action.4 On March 22, 2016, Ex-Husband filed a motion to
bifurcate the divorce proceedings. Following a hearing, the trial court granted
the motion on December 28, 2016. On the same day, the trial court decreed
the parties divorced, but retained jurisdiction over all economic issues.5
Following extensive hearings, the divorce master, on August 15, 2016,
issued a report recommending that the trial court find the Agreement valid
and that the marital estate be divided in accordance with the terms of the
same. The parties stipulated before the divorce master that the Agreement
was valid.
As of the date of the master’s hearings, Ex-Wife resided part time in
Pennsylvania and part time in California. Ex-Wife is employed as a flight
attendant currently earning a gross income of approximately $40,000.00 per
year.
Since October 2010, Ex-Husband has resided in the Netherlands, initially
holding a position there with AkzoNobel. In 2014, his position with AkzoNobel
ended, and he commenced his current position with Starbucks, N.A., in the
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4 This became a bitter contest between the parties replete with numerous
motions, discovery skirmishes, two divorce master’s hearings, and two
appeals to this Court.
5 Ex-Wife appealed from the trial court’s order granting bifurcation and the
divorce decree (11 MDA 2017). Upon Ex-Wife’s application, however, the
appeal was ordered discontinued on July 5, 2017.
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Netherlands. Although Ex-Husband’s income was in dispute, the trial court
found that in 2012, he had a gross income, including wages and bonuses, of
$454,594.00, and $94,599.00 in benefit income or perquisites, for a total
income of $549,193.00. In 2013, Ex-Husband earned a total of
$684,307.00, consisting of $450,050.00 in wage income and $234,257.00 in
benefit income. For 2014, his aggregate income was $870,1236.00,
consisting of $644,685.00 in wages and $225,438.00 in benefit income. In
2015, his total income was $655,613.00, consisting of $511,957.00 in wages
and $143,656.00 in benefits. Ex-Husband was subject to a 36 percent tax
rate on all income.
Upon receiving the master’s report, the parties’ filed exceptions. Ex-
Husband initially raised 75 exceptions, see Ex-Husband’s Exceptions, 9/6/16,
at 1-11, but he pared them down in his memorandum in support of the
exceptions to the following:
1. The special master erred by failing to require [Ex-Wife] to
present a foundation or to properly authenticate photographs of
note cards, allegedly written by a person whom [Ex-Wife] tried
and failed to produce as a witness.
2. The special master erred by allowing [Ex-Wife] to testify and
introduce photographs of note cards allegedly written by a person
whom [Ex-Wife] tried and failed to produce as a witness.
3. The special master erred in making numerous findings of fact
that were not supported by the testimony and evidence presented.
4. The special master erred by finding that [Ex-Husband]
“immediately began a relationship with Jennifer Jordan,” which
was not supported anywhere by the record.
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5. The special master erred in his interpretation of what occurred
at [Ex-Wife’s] deposition, and for giving great weight to [Ex-
Husband’s] counsel’s failure to object to unseen documents, which
[Ex-Wife’s] counsel refused to provide for undersigned counsel’s
review, despite a request therefore, on the day of the deposition.
6. The special master erred by giving great weight to the
photographed note cards as evidence of Jennifer Jordan’s state of
mind, instead of concluding that Jennifer Jordan’s state of mind
was irrelevant.
7. The special master erred in failing and refusing to make rulings
on numerous and varying objections throughout the hearing and
allowing testimony to continue without ever making a ruling.
8. The special master erred in permitting the testimony of [Ex-
Wife’s] witnesses who were not listed on [Ex-Wife’s] pre-trial
statement, as required by Rule 1920-33(b)(3).
9. The special master erred by failing to correctly determine and
to consistently indicate which party had the burden of proof for
applicability of certain sections of the [Agreement], which was to
the detriment of [Ex-Husband].
10. The special master erred in permitting [Ex-Husband] to be
prejudiced on the first day of the hearing when, in the midst of
undersigned counsel’s direct examination of [Ex-Husband], the
master stopped the testimony and directed opposing counsel to
take over direct examination of [Ex-Husband], to his surprise and
detriment.
11. The special master erred in concluding that the parties
separated in February of 2012.[6]
12. The special master erred by failing to conclude that, in order
for Section I of the [Agreement] to be applicable, [Ex-Husband]
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6Ex-Husband argued below that Ex-Wife admitted in her complaint for support
that the parties separated in August 2011. To the extent this argument can
be read to implicate the doctrine of judicial admission and in light of the
disposition of this appeal, we direct the trial court to consider on remand
whether Ex-Wife is judicially estopped from claiming that they separated after
August 2011.
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had to have engaged in Illicit Acts, and [Ex-Wife] had to have filed
for divorce because of those Illicit Acts.
13. The special master erred by failing to conclude that [Ex-
Husband] had not committed Illicit Acts prior to the date of
separation.
14. The special master erred by failing to conclude that Section II
of the [Agreement] was not applicable.
15. The special master erred in failing to conclude that Section III
of the [Agreement] should be applicable.
Ex-Husband’s Memorandum In Support of Exceptions, 10/28/16, at 1-3
(unnecessary capitalizations omitted).
Ex-Wife, in turn, asserted only the following two exceptions.
1. The divorce master erred in finding that the date of separation
was not irrelevant with regard to the commission of illicit acts by
[Ex-Husband].
2. The divorce master erred in not finding that the date of
separation was irrelevant because the Agreement is, in effect,
open ended with regard to the commission of illicit acts by [Ex-
Husband].
Ex-Wife’s Exceptions, 9/19/16, at 1 (unnecessary capitalizations omitted).
By an opinion dated August 11, 2017 and filed on August 14, 2017, the
trial court sua sponte determined that the Agreement was invalid, and thus
unenforceable. As a result, the trial court dismissed the parties’ exceptions
and remanded the case to the divorce master for further proceedings. On
August 30, 2017, Ex-Wife filed a petition for certification of interlocutory
appeal regarding the August 14, 2017 order. On September 7, 2017, the trial
court certified the order. The following day, Ex-Wife appealed to this Court
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(1407 MDA 2017). On December 16, 2017, based on Ex-Husband’s
application, we quashed as interlocutory Ex-Wife’s appeal.
On April 4, 2018, Ex-Husband’s counsel withdrew her appearance and
Ex-Husband entered his appearance pro se. Thereafter, and continuing to (at
least) October 31, 2019, Ex-Husband took no part in these proceedings.
On May 15, 2018, Ex-Wife filed a motion to compel discovery, which the
trial court granted on May 23, 2018. On August 13, 2018, Ex-Wife filed a
petition for contempt/motion for sanctions, alleging that Ex-Husband failed to
comply with the trial court’s May 23 order, compelling him to respond within
45 days to Ex-Wife’s outstanding interrogatories and request for production
of documents. On September 20, 2018, the trial court issued an order finding
that Ex-Husband intentionally violated the May 23 order. The court further
ordered that: (1) Ex-Husband’s net monthly income calculated for support
purposes was no less than $35,642.00 for the years 2016, 2017, and 2018;
(2) he could not present any evidence before the master concerning the
distribution/division of marital property that differs from Ex-Wife’s evidence;
and (3) he pay Ex-Wife $750.00 within 30 days of the date of the order.
The divorce master’s hearing on remand was held on September 27,
2018 with Ex-Wife being the only witness. On April 13, 2019, the divorce
master filed his report and recommendation and proposed divorce decree.
The master recommended distributing 70% of marital assets to Ex-Wife and
30% to Ex-Husband, assets being defined according to 23 Pa.C.S.A. § 3501.
The master further recommended Ex-Husband pay alimony to Ex-Wife in the
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amount of $11,000.00 per month for 8 years, that each party is responsible
for their own debts and obligations and that each party retain items of
personalty titled in his or her name or in the party’s possession. Finally, the
master recommended Ex-Husband pay 60% of Ex-Wife’s attorney’s fees.
On April 23, 2019, Ex-Wife filed 16 exceptions to the master’s report,7
which we need not reproduce here, given our disposition below. On October
31, 2019, the trial court issued an order, granting in part and denying in part
Ex-Wife’s exceptions. Moreover, consistent with the master’s
recommendation, the trial court decreed, among other things, that: (1) Ex-
Wife shall receive 70% ($574,377.51) of the marital assets valued at
$820,482.15; (2) Ex-Husband shall pay to Ex-Wife $11,000.00 per month in
alimony for 8 years; and (3) the parties shall be responsible for their own
debts and obligations. In support of its October 31 order, the trial court filed
a detailed opinion, wherein it also incorporated its opinion dated August 14,
2017, as amended by its September 7, 2017 order. Thereafter, Ex-Wife
appealed from the September 7, 2017 order, which we previously had
declared interlocutory when we quashed her appeal, and the instant October
31, 2019 order. The trial court did not direct her to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.8
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7 Ex-Husband did not file any exceptions the master’s April 2019 report.
8On December 31, 2019, upon review of the docketing statements, this Court,
on its own, consolidated Ex-Wife’s appeals docketed at 1932 MDA 2019 and
1933 MDA 2019, respectively. On further review, as indicated in the text
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On appeal, Ex-Wife argues only that the trial court erred in sua sponte
questioning the validity of the Agreement, and declaring the same void and
unenforceable based on a variety of reasons, including, among others,
impossibility of performance, vagueness, material ambiguities,
unconscionability, constitutional infirmities and public policy.
This case presents an issue of contract interpretation, inasmuch as the
trial court construed the parties’ postnuptial agreement pursuant to its
jurisdiction under Section 3104(a)(1) of Divorce Code, 23 Pa.C.S.A.
§ 3104(a)(1). Our standard of review is de novo and our scope of review is
plenary. Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 517-18 (Pa.
Super. 2009), appeal denied, 991 A.2d 313 (Pa. 2010).
The fundamental rule in interpreting the meaning of a
contract is to ascertain and give effect to the intent of the
contracting parties. The intent of the parties to a written
agreement is to be regarded as being embodied in the writing
itself. The whole instrument must be taken together in arriving at
contractual intent. Courts do not assume that a contract’s
language was chosen carelessly, nor do they assume that the
parties were ignorant of the meaning of the language they
employed. When a writing is clear and unequivocal, its meaning
must be determined by its contents alone.
Only where a contract’s language is ambiguous may
extrinsic or parol evidence be considered to determine the intent
of the parties. A contract contains an ambiguity if it is reasonably
susceptible of different constructions and capable of being
understood in more than one sense. This question, however, is
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above, it is clear that both appeals concern the trial court’s September 7, 2017
order, made final and appealable by its October 31, 2019 order. Because both
appeals are duplicative of one another, we vacate the December 31, 2019
consolidation order and dismiss Appellant’s appeal at docket 1932 MDA 2019.
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not resolved in a vacuum. Instead, contractual terms are
ambiguous if they are subject to more than one reasonable
interpretation when applied to a particular set of facts. In the
absence of an ambiguity, the plain meaning of the agreement will
be enforced. The meaning of an unambiguous written instrument
presents a question of law for resolution by the court.
Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1046
(Pa. Super. 2015) (emphasis omitted).
The Agreement at issue provides in relevant part:
I. ILLICIT ACTS
1. If Husband engages in any Illicit Act or any other sexually
deviant acts, including but not limited to, visiting massage parlors,
having online set [sic] through chat rooms or engaging in same
sex acts or other same sex relations, at any time after the date of
this Agreement and Wife seeks a divorce as a result:
(a) Wife shall receive the Assets[9] as well as any assets acquired
by Husband and Wife after the date of this Agreement, whether
real or personal property, wherever located, free and clear of any
liability, encumbrance, or accompanying debt;
(b) Wife shall receive the greater of: (i) sixty percent (60%) of all
Husband’s present and future income, including but not limited to
income from salary, bonuses, and stock options; or (ii) One
Hundred Thousand Dollars ($100,000) per year until the earlier of
Wife’s or Husband’s death; and.
(c) Husband shall designate Wife as the sole beneficiary and shall
not remove her from any of Husband’s retirement accounts and/or
life insurance policies either those in existence as of the date of
this Agreement or those acquired or created after the date of this
Agreement.
II. DIVORCE
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9 A whereas clause of the Agreement defines the term “Assets” as Ex-
husband’s and Ex-Wife’s assets.
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2. If Husband seeks a divorce from Wife at any time after the date
of this Agreement for any reason:
(a). The parties agree to have the herein Agreement incorporated
but not merged into any divorce order entered by any court of
competent jurisdiction and the entry of any order deemed
necessary by the court to secure the performance of the terms
and conditions of the herein Agreement. It is further agreed by
the parties that the herein Agreement shall be incorporated, but
shall not merge, into the aforesaid decree of divorce;
(c) Wife shall receive sixty percent (60%) of all Husband’s present
and future income, from whatever source derived, including but
not limited to income from salary, bonuses, and stock options, but
such amount shall not be less than one Hundred Thousand Dollars
($100,000) per year;
(d) Husband shall designate Wife as sole beneficiary and shall not
remove her from Husband’s retirement accounts and life
insurance policies; and
(e) Husband shall pay all Wife’s legal fees and costs of court in
connection with the divorce proceeding.
3. If Wife seeks a divorce from Husband, not as a result of an Illicit
Act of Husband after the date of this Agreement:
(a) Nothing in this Agreement shall prevent Wife from seeking a
divorce from Husband for any reason. In such case, the parties
agree that this Agreement shall not be used to determine, limit or
relieve the rights and/or obligations of either party with respect to
spousal support, maintenance, alimony pendent elite [sic],
alimony, counsel fees or costs or any other payments of a similar
nature to which he or she, in the absence of this Agreement might
be entitled to by statute, including rights arising pursuant to the
Divorce Code of 1980, as amended, or any similar laws of any
jurisdiction which may be applicable now or at any future time.
Post-Nuptial Agreement, 12/12/2008, at 2-3.
Instantly, based upon our review of the record, we are constrained to
agree with Ex-Wife that the trial court erred when it, sua sponte, declared the
Agreement void and unenforceable, despite the parties stipulating to its
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validity before the master in 2016. More to the point, neither party challenged
the validity of the Agreement when they filed exceptions to the master’s
August 15, 2016 report. Indeed, Rule 1920.55-2, relating to exceptions from
a master’s report, provides in pertinent part that “[e]ach exception shall set
forth a separate objection precisely and without discussion. Matters not
covered by exceptions are deemed waived unless, prior to entry of the final
decree, leave is granted to file exceptions raising those matters.” Pa.R.C.P.
No. 1922.55-2(b). Here, it is clear that the trial court did not have before it
a question regarding the Agreement’s validity. Additionally, it is settled that
postnuptial agreements are to be evaluated under the same standards as
other contracts and that absent fraud, misrepresentation, or duress, spouses
are bound by the terms of their agreements. See Stackhouse v. Zaretsky,
900 A.2d 383, 386 (Pa. Super. 2006), appeal denied, 912 A.2d 838 (Pa.
2006). Our Supreme Court has cautioned that courts must not act in a manner
that would “constitute a paternalistic and unwarranted interference with the
parties’ freedom to enter contracts.” Simeone v. Simeone, 581 A.2d 162,
166 (Pa. 1990) (concluding that, consistent with traditional principles of
contract law, courts cannot impose a per se requirement that parties entering
into a prenuptial agreement must obtain legal counsel). To avoid such
paternalistic and unwarranted interference, we must conclude that the trial
court here erred when it sua sponte raised and decided, contrary to the
parties’ stipulation, the validity of the Agreement. See J.F. v. D.B., 897 A.2d
1261, 1277-78 (Pa. Super. 2006) (noting that the trial court, without a
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request to do so, assessed the validity of the contract). Finally, courts
generally are prohibited from sua sponte raising non-jurisdictional issues,
which necessarily would include the validity of an agreement. See Turner
Const. v. Plumbers Local 690, 130 A.3d 47, 63 (Pa. Super. 2015) (noting
that it is improper for courts to raise sua sponte non-jurisdictional issues); cf.
In re Adoption of K.M.G., 219 A.3d 662, 668 (Pa. Super. 2019) (en banc)
(“It is foundational that jurisdictional questions may be raised sua sponte.”),
aff’d, 240 A.3d 1218 (Pa. 2020). Accordingly, we remand this matter to the
trial court with direction to decide the parties’ exceptions filed in connection
with the August 15, 2016 master’s report. Furthermore, upon determining
which provision, if any, of the Agreement applies to this case, the trial court
is directed to remand the matter to the master for further proceedings for
purposes of distributing marital assets.10
Orders vacated. Case remanded. Consolidation order vacated. Appeal
at docket no. 1932 MDA 2019 dismissed. Jurisdictional relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/19/2021
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10 Lest there be any confusion, given the outcome herein, the trial court’s
August 14, 2017, September 7, 2017 orders, the master’s April 13, 2019
report and the trial court’s related October 31, 2019 order are rendered null
and void.
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