Post, S. v. Anderson, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
SUSAN J. POST : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN D. ANDERSON :
:
Appellant : No. 2183 EDA 2022
Appeal from the Order Entered June 30, 2022
In the Court of Common Pleas of Carbon County
Domestic Relations at No: 19-3410,
PACSES: 202300986
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED JULY 19, 2023
Appellant, John D. Anderson, appeals from the June 30, 20221 order
directing him to pay alimony to his former wife, Appellee, Susan J. Post, in
accordance with the parties’ Property Settlement Agreement (“PSA”), which
was incorporated but not merged into the divorce decree in this matter. We
affirm.
The parties married on August 11, 1991, and Appellant filed a complaint
in divorce on November 18, 2019. On December 29, 2020, the parties
executed the PSA, in which Appellant agreed to pay Appellee, Susan J. Post,
$318.00 per month for six years. The PSA further provided in relevant part
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1 Appellant filed his appeal prior to the docketing of this order. The order’s
omission from the docket was an apparent oversight by the trial court that
has since been corrected.
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that “Husband’s obligation to alimony shall be non-modifiable except upon the
reduction of Husband’s employment income or Wife’s remarriage and/or
cohabitation with a person of the opposite sex who is not a member of the
spouse’s family[.]” PSA at VIII.
On June 15, 2021, Appellant filed a petition to modify his obligation
based on a reduction in income. As of the parties’ separation, Appellant was
earning $53,700 as an employee of a Dollar General store. In July of 2020,
Appellant required knee surgery and began receiving short term disability pay,
which ceased in December of 2020. Thereafter, Appellant obtained a job
driving a school bus, at which he earned less than he did at Dollar General.
Appellant admitted that, upon completion of his treatment for his knee injury,
his doctor released him to return to work with no restrictions. Appellant
nonetheless sought out the bus driver job because it would not require him to
be on his feet while working.
On November 22, 2021, a hearing officer issued a report reflecting the
foregoing facts. The hearing officer reasoned that Appellant’s reduction in
income was voluntary and therefore did not entitle him to a modification of
the contractual alimony payment. The hearing officer also reasoned that
Appellant’s modification petition opened the door for an assessment of
Appellee’s income, which had increased since separation. The hearing officer
recommended that alimony payments cease based on Appellee’s increased
income. On November 23, 2021, the trial court entered an interim order in
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accord with the hearing officer’s recommendations, retroactively terminating
his alimony obligation as of June 15, 2021, the date of his modification
petition.
On December 7, 2021, Appellee filed exceptions to the hearing officer’s
November 22, 2021 report and recommendations. She did not file exceptions
to the trial court’s November 23, 2021 interim order. By orders of June 8,
2022 and June 16, 2022,2 the trial court ordered that Appellant’s alimony
obligation be reinstated retroactive to June 15, 2021. On June 28, 2022,
Appellant filed a motion for reconsideration arguing, among other things, that
the trial court’s jurisdiction lapsed before its June 8 and June 16, 2022 orders,
because Pa.R.C.P. 1910.12(h) provides that a final order “shall” be entered
within 60 days of exceptions to the interim order. The sixty-day period from
Appellee’s exceptions expired on Monday February 7, 2022 well before the
June, 2022 orders in question. The trial court denied reconsideration on June
30, 2022. This timely appeal followed.
Appellant presents the following questions:
A. Whether the trial court committed an error of law, abused
its discretion, or otherwise ruled improperly in
disregarding [Appellee’s] failure to file exceptions to its
order dated November 23, 2021, as would have been
necessary to challenge that order in addition to the
exceptions that [Appellee] actually did file in opposition
to the separate report of the hearing officer dated one
day earlier, November 22, 2021, pursuant to
Pennsylvania Rule of Civil Procedure No. 1910.12(e),
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2 The June 16, 2022 order addressed arrearages.
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thereby depriving the trial court of subject matter
jurisdiction to review and modify the said order.
B. Whether the trial court committed an error of law, abused
its discretion or otherwise ruled improperly in entering its
orders dated June 8, 2022 and June 16, 2022 (and by
subsequently affirming same upon reconsideration by
order dated June 30, 2022), in disregard of the
termination of its jurisdiction to do so more than sixty
(60) days after the filing of ‘Plaintiff, Susan J. Post’s
Exceptions to the Report of the Hearing Officer Filed in
the Domestic Relations Section Report Dated November
23 [sic], 2021’ pursuant to Pennsylvania Rule of Civil
Procedure 1910.12(h).
C. Whether the trial court committed an error of law, abused
its discretion or otherwise ruled improperly in exceeding
the abuse of discretion standard of review as applicable
to exceptions in a support case, by which such abuse of
discretion can only be found by clear and convincing
evidence of a misapplication of law, an unreasonable
exercise of judgment, and/or a judgment based on bias,
ill will, prejudice, or partiality.
1. Whether the trial court likewise committed an error
of law, abused its discretion, or otherwise ruled
improperly in applying principles of equity and
fairness, rather than the law of contracts, to
overrule the hearing officer’s findings and interpret
the parties’ written [PSA] in a way that is
inconsistent with the clear and unambiguous terms
of that agreement itself.
Appellant’s Brief at 29-30 (italics in original).
In his first assertion of error, Appellant argues that Appellee committed
a fatal procedural misstep by filing exceptions to the hearing officer’s report
and recommendations, rather than to the trial court’s interim order. Rule
1910.12(d) provides for a hearing officer to receive evidence, hear argument,
and issue a report, as happened in this case. Pa.R.C.P. 1910.12(d). Rule
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1910.12(e) requires the trial court to enter an interim order in accordance
with the recommended order of the hearing officer, as the trial court did in
this case on November 23, 2021. Pa.R.C.P. 1910.12(e). Rule 1910.12(e)
further provides that any party may file “written exceptions to the report of
the hearing officer and interim order” within 20 days of the date of mailing or
receipt of the interim order. Id. Rule 1910.12(f), in turn, provides detailed
guidance on exceptions to the hearing officer’s report:
Within twenty days after the date of receipt or the date of
mailing of the report by the hearing officer, whichever occurs first,
any party may file exceptions to the report or any part thereof, to
rulings on objections to evidence, to statements or findings of
facts, to conclusions of law, or to any other matters occurring
during the hearing. Each 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
order, leave is granted to file exceptions raising those matters. If
exceptions are filed, any other party may file exceptions within
twenty days of the date of service of the original exceptions.
Pa.R.C.P. 1910.12(f). Subsection (g) then provides, without explicit reference
to the hearing officer’s report or the interim order, that the absence of
exceptions within 20 days renders the interim order final. Pa.R.C.P.
1910.12.(g).
In this case, the trial court reasoned as follows:
[Appellee] filed timely exceptions to the hearing officer’s
report. She was not required to file an identical set of exceptions
to the interim order issued by the Domestic Relations Office
considering said order reiterated the hearing officer’s report nor
necessarily include the words ‘and Interim Order’ on those
exceptions. This court feels that [Appellee] followed proper
procedure for filing exceptions and did not need to duplicate those
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exceptions as a challenge to the interim order or even reference
that it was to the interim order.
Trial Court Opinion, 8/30/22, at 8. As noted above, the trial court’s interim
order in this case was entered one day after the hearing officer’s report.
Appellant provides no law supporting his argument that the absence of
exceptions to both the report and the interim order precludes the movant from
obtaining relief. Our own research has uncovered no such law and in fact, the
applicable rules do not require the filing of duplicative exceptions. We,
therefore, discern no merit to Appellant’s first assertion of error.
Next, Appellant argues that the trial court’s jurisdiction over Appellee’s
exceptions lapsed because the court failed to issue a final order within 60 days
of the date of the exceptions. Rule 1910.12(h) provides:
If exceptions are filed, the interim order shall continue in
effect. The court shall hear argument on the exceptions and enter
an appropriate final order substantially in the form set forth in
Rule 1910.27(e) within sixty days from the date of the filing of
exceptions to the interim order. No motion for post-trial relief
may be filed to the final order.
Pa. R.C.P. No. 1910.12(h). Appellant notes that the statute is mandatory, as
it provides that the trial court “shall” hear argument and issue an order.
Further, there is no doubt that the order in this case was late. The question
is what relief, if any, is available to Appellant.
Appellant relies on Rule 1910.12(h) and 42 Pa.C.S.A. § 5505 to support
his argument that jurisdiction lapsed. The latter provides: “Except as
otherwise provided or prescribed by law, a court upon notice to the parties
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may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.” 42 Pa.C.S.A. § 5505. This Court has
held that “§ 5505 applies only to final orders.” Mfrs. and Traders Trust. Co.
v. Greenville Gastroenterology, 108 A.3d 913, 971 n.3 (Pa. Super. 2015).
We do not believe these two statutes, individually or in tandem, deprived the
trial court of jurisdiction in this case. We have already concluded that, given
Appellee’s timely exceptions, the interim order was not rendered final. And
Rule 1910.12(h) expressly provides for subsequent modification of the interim
order. Thus, because the interim order was not rendered final by the absence
of timely exceptions, and because Rule 1910.12(h) expressly provides for
subsequent modifications, § 5505 does not apply here.
Appellant also argues that the trial court’s jurisdiction lapsed because it
issued its order more than sixty days after Appellee’s exceptions. As Appellant
acknowledges, Rule 1910.12(h) is silent on the consequences of a trial court’s
failure to act within 60 days. Appellant argues that this Court’s opinion in
L.A.D. v. T.M.B., 201 A.3d 1273 (Pa. Super. 2018), supports his argument.
In L.A.D., we vacated as a nullity a reconsidered final support order entered
after the statutorily prescribed 120 days for reconsideration had passed. In
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that case, by operation of Pa.R.C.P. 1930.2,3 the trial court’s failure to act
within 120 days of its grant of reconsideration resulted in a denial and
rendered the underlying order final and appealable. Thus, the trial courts’
jurisdiction was divested as of the beginning of the new appeal period. Id. at
1277.
The instant matter is different. Rule 1930.2, at issue in L.A.D.,
addresses motions for reconsideration of orders that would otherwise be final
and appealable. Thus, the trial court may retain jurisdiction by granting
reconsideration within the original 30-day appeal period. A grant of
reconsideration under Rule 1930.2, followed by the trial court’s failure to enter
a reconsidered decision within 120 days, results in a deemed denial of the
underlying motion and the commencement of a new appeal period. Pa.R.C.P.
1930.2(d). Pursuant to the express language of Rule 1930.2 and this Court’s
opinion in L.A.D., the trial court had no jurisdiction to enter a reconsidered
order more than 120 days after it first granted reconsideration. Thus, its
subsequent reconsidered order was a nullity. L.A.D., 201 A.3d at 1277.
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3 Rule 1930.2 governs motions for reconsideration in support actions. Its
explanatory comment explains that the timeliness requirements of Rule
1930.2 harmonize with Appellate Rule 1701, which permits a trial court to
take further action on a final order subject to appeal in the event of a motion
for reconsideration. Pa.R.C.P. 1930.2; Pa.R.A.P. 1701(b)(3). We observe that
that the Rules of Criminal Procedure employ a similar provision for the deemed
denial of timely post-sentence motions. Pa.R.Crim.P. 720(B)(3).
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Rule 1910.12(h), unlike Rule 1930.2, does not address reconsideration
of an otherwise final and appealable order. Rather, it addresses exceptions
to an interim order. And, while Rule 1910.12(h) provides a mandatory 60-
day deadline for entry of a final order, it does not include any language stating
that the trial court’s failure to act on exceptions within the prescribed 60 days
results in a deemed denial of all exceptions, thus rendering the interim order
final and appealable. In these respects, Rule 1910.12(h) is substantively
distinct from Rule 1930.2. From the inclusion of a deemed denial provision in
Rule 1930.2. (and Pa.R.Crim.P. 720), we can infer that its omission from Rule
1910.12 is intentional. See Commonwealth v. Kelly, 102 A.3d 1025, 1029
(Pa. Super. 2014) (explaining that it is not for the courts to add to a statute
a requirement its author did not include). That is, “[A]s a matter of statutory
interpretation, although one is admonished to listen attentively to what a
statute says[;] [o]ne must also listen attentively to what it does not say.”
Kmonk-Sullivan. State Farm Mut. Cas. Auto Ins. Co., 788 A.2d 955, 966
(Pa. 2001) (quoting Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L.Rev. 527, 536 (1947)).
In summary, Appellant is correct that the use of the word “shall” is
mandatory, and that the trial court was derelict in its mandatory duty in this
case. We nonetheless conclude there is no statutory or jurisprudential
authority for Appellant’s argument that the trial court’s inaction divested it of
jurisdiction. We therefore move to the merits.
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In his final argument, Appellant asserts that the trial court
misinterpreted the parties’ PSA. As explained above, the PSA provides that
“Husband’s obligation to alimony shall be non-modifiable except upon the
reduction of Husband’s employment income or Wife’s remarriage and/or
cohabitation with a person of the opposite sex who is not a member of the
spouse’s family[.]” PSA at VIII. Appellant’s income has since been reduced.
Appellee is not remarried or cohabiting with a member of the opposite sex.
Given these undisputed facts, and the plain language of the PSA, Appellant
argues that he is entitled to a reduction in his alimony obligation under the
PSA, and that the trial court erred in granting Appellee’s exceptions to an
interim order that did so.
Alimony obligations arising from contractual agreements, rather than
court orders, are governed by contract law. Long v. Long, 282 A.3d 694,
698 (Pa. Super. 2022). We discern the parties’ intent as follows:
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. When the terms of a contract are
clear and unambiguous, the intent of the parties is to be
ascertained from the document itself. When, however, an
ambiguity exists, parol evidence is admissible to explain or clarify
or resolve the ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument, or latent,
created by extrinsic or collateral circumstances. A contract is
ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense.
Id. (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004)).
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The trial court relied on the doctrine of necessary implication to conclude
that Appellant’s voluntary reduction in his income would not entitle him to a
reduced Alimony payment under the PSA. The doctrine of necessary
implication operates as follows:
In the absence of an express provision, the law will imply an
agreement by the parties to a contract to do and perform those
things that according to reason and justice they should do in order
to carry out the purpose for which the contract was made and to
refrain from doing anything that would destroy or injure the other
party's right to receive the fruits of the contract.
Courts employ the doctrine of necessary implication as a
means of avoiding injustice by inferring contract provisions that
reflect the parties’ silent intent. In the absence of an express
term, the doctrine of necessary implication may act to imply a
requirement necessitated by reason and justice without which the
intent of the parties is frustrated.
The duty of good faith and the doctrine of necessary
implication apply only in limited circumstances. Implied duties
cannot trump the express provisions in the contract. Both the
implied covenant of good faith and the doctrine of necessary
implication are principles for courts to harmonize the reasonable
expectations of the parties with the intent of the contractors and
the terms in their contract.
Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. 2005) (internal
citations and quotation marks omitted).
In Stamerro, this Court held that the doctrine of necessary implication
prevents a spouse from seeking a reduction of a contractual alimony payment
based upon a voluntary reduction of income. Id. at 1261-62. We explained
that “[t]he purpose of alimony is to provide the receiving spouse with sufficient
income to obtain the necessities of life. Alimony is generally based upon
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reasonable needs in accordance with the parties standard of living established
during the marriage, and the payor’s ability to pay.” Id. at 1259. Given the
purposes of alimony, the Stamerro Court held that the trial court properly
implied a term whereby the husband could not reduce his contractual alimony
obligation through a voluntary reduction of income. Id. at 1261-62.
Although the agreement did not expressly state that
Husband could seek a reduced alimony payment only upon an
involuntary salary reduction, to infer otherwise would give
Husband the power to unilaterally defeat the purpose for which
the alimony agreement was made, and to destroy Wife’s right to
receive the benefit of the support for which she bargained.
Id.Stamerro is directly on point here. The record reflects that Appellant
was medically cleared to return to his prior job but chose a lower paying job
instead. Under the rationale of Stamerro, Appellant’s action would
improperly deprive Appellee of the benefit of the alimony that she bargained
for. Thus, the doctrine of necessary implication applies in the circumstances
before us in order to avoid an injustice. We therefore discern no error in the
order on appeal—by which the trial court reinstated Appellant’s contractual
alimony obligation—because the only basis for reduction or elimination of
Appellant’s obligation was his voluntary reduction in income.
Based on the foregoing, we affirm the trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2023
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