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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CHRISTINE G. BRITT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTOPHER B. BRITT, : No. 898 WDA 2014
:
Appellant :
Appeal from the Order, May 20, 2014,
in the Court of Common Pleas of Erie County
Civil Division at No. 15286-2010
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015
Appellant, Christopher B. Britt (“Husband”), appeals from the order
dated May 20, 2014, that granted appellee, Christine G. Britt’s (“Wife”)
petition for special relief in this divorce dispute. After careful review, we
reverse and remand.
The relevant facts and procedural history of this case are as follows.
On November 18, 2010, Wife filed for divorce against Husband. On June 15,
2012, Wife filed her affidavit of consent to divorce, followed by Husband on
October 8, 2012. On October 10, 2012, the parties entered into a Marital
Settlement Agreement (“the Agreement”). The Agreement was incorporated
into the parties’ October 12, 2012 divorce decree. The subject of this appeal
concerns a paragraph that directed Husband to transfer the fixed amount of
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$42,000 from his Erie Insurance 401(k) Savings Plan to Wife by tax-free
rollover. Specifically, Paragraph 9 of the Agreement provided as follows:
9. HUSBAND’S ERIE INSURANCE 401(K)
SAVINGS PLAN
Husband agrees to transfer to Wife via a
Qualified Domestic Relations Order the sum of
$42,000.00 from his Erie Insurance 401(k)
Savings Plan. This transfer will take place so
as to constitute a tax free rollover. Counsel for
Wife shall prepare the Qualified Domestic
Relations Order relating to Husband’s Erie
Insurance 401(k) Savings Plan.
Paragraph 11 of the Agreement addressed the parties’ insurance
policies and pension plans as follows:
11. INSURANCE POLICIES AND PENSION RIGHTS
Unless and except as otherwise provided
herein, each of the parties agrees that the
other, after execution of this Agreement, shall
have the right to make any changes in his or
her respective insurance policies, including, but
not limited to, change of his or her beneficiary,
increasing or decreasing the coverage amount,
or cancellation of such policies. Except as
provided for herein, each party releases any
rights he or she may have in the vested
pension and/or retirement rights of the other.
Following the execution of the Agreement, Husband requested Wife to
allow him to transfer to her the entirety of his Transamerica
Diversified 401(k) account so he could access the Erie Insurance account in
order to purchase a home with his new wife. On November 26, 2012, Wife
agreed to Husband’s request. Because the parties did not know the exact
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balance of the Transamerica Diversified Account at that time, they agreed
that in the event the Transamerica account balance exceeded $42,000, Wife
was to pay Husband the amount by which the account exceeded $42,000. If
the Transamerica Diversified Account balance fell short of $42,000, Husband
was to pay Wife the difference.
For reasons not entirely clear, the matter stagnated for over a year.
When Wife’s counsel submitted the first draft of the Qualified Domestic
Relations Order (“QDRO”), Wife raised a claim that she should have a share
of any post-separation increase in value of the Transamerica Diversified
Account beyond the $42,000 she originally agreed to accept. Husband did
not agree with Wife’s claim that she was entitled to any increase in the value
of the account.
On March 12, 2014, Wife filed a petition for special relief claiming that
Husband had not complied with an oral agreement on the distribution of a
retirement account to her. A hearing was scheduled for May 5, 2014. The
parties and counsel appeared. On May 20, 2014, the trial court entered an
order determining that the parties had reached an oral agreement modifying
their written Agreement, and awarded Wife a share of the post-separation
increase in Husband’s Transamerica Diversified Account, in addition to the
$42,000 rollover provided in the Agreement.
Husband filed a timely appeal on June 2, 2014; and on June 10, 2014,
the trial court issued a Rule 1925(b) order. Husband filed his initial
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Rule 1925(b) statement on June 30, 2014, reserving the right to amend
upon receipt of the May 5, 2014 transcript. The transcript was filed on
July 17, 2014, and the trial court issued its opinion on July 22, 2014.
Husband filed an amended Rule 1925(b) statement on August 4, 2014.1
Husband raises two issues for our consideration:
1. Did not the trial court err in awarding [Wife] a
share of the post separation earnings of
[Husband’s] retirement account in that there is
no record evidence to support the decision?
2. Did not the trial court err in determining that
the parties created an oral modification to the
written marital settlement agreement that
granted [Wife] a share of post separation
increase in value in the retirement plan?
Husband’s brief at 5. We will address these issues together.
We review a trial court’s decision to grant special relief in a divorce
action under an abuse of discretion standard:
Judicial discretion requires action in conformity with
law on facts and circumstances before the trial court
after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue
for decision, it misapplies the law or exercises its
discretion in a manner lacking reason. Similarly, the
trial court abuses its discretion if it does not follow
legal procedure.
Prol v. Prol, 935 A.2d 547, 551 (Pa.Super. 2007) (citation omitted).
1
We note Husband had not been granted permission to file an amended
Rule 1925(b) statement. However, the issues raised in his timely June 30,
2014 Rule 1925(b) statement are preserved.
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Husband argues that the trial court erred when it refused to hear
testimony or receive any evidence at the May 5, 2014 hearing, and instead
used its “equitable powers” to modify the Agreement. We have reviewed the
transcript contained in the certified record, and Husband is correct that the
trial court declined to hear testimony from either Husband or Wife at the
May 5th hearing. Wife’s counsel spoke of a “side deal” the parties allegedly
made “outside of counsel in November of 2012” that called for Wife to get an
increased amount. (Notes of testimony, 5/5/14 at 10, 12, 15.) Husband’s
counsel strongly disagreed with Wife’s counsel’s statements and pointed out
that on November 19, 2012, a proposed addendum to the Agreement was
sent to Wife’s counsel which provided for $42,000 from the Transamerica
Diversified Account as opposed to the Erie Insurance 401(k) Savings Plan.
(Id. at 8.) A year passed before Wife’s counsel responded with the request
that Wife receive the increased value of the account above the original
$42,000. (Id. at 8-9.) According to Wife’s counsel, the Transamerica
Diversified Account’s value had increased to $58,000. (Id. at 9.)
The trial court explained its decision to award Wife an amount beyond
$42,000 as follows:
The crux of the parties’ agreement was [Wife] was to
receive the account, and was to ultimately end up
receiving a net value, at that time, of $42,000.00,
after either reimbursing [Husband] for any
“overpayment” or receiving a supplemental payment
from [Husband] for any “underpayment.” The
account was never transferred. The account grew in
value. The Court exercised its equitable powers
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in resolving the dispute which subsequently
arose with regard to the increase in the value
of the Diversified account.
Trial court opinion, 7/22/14 at 52 (emphasis added).
Husband maintains the trial court erred when it attempted to justify its
decision by referring to its equity powers. In support of his position,
Husband cites to Section 3105 of the Divorce Code which provides as
follows:
§ 3105. Effect of agreement between parties
(c) Certain provisions not subject to
modification.--In the absence of a specific
provision to the contrary appearing in the
agreement, a provision regarding the
disposition of existing property rights and
interests between the parties, alimony,
alimony pendente lite, counsel fees or
expenses shall not be subject to modification
by the court.
23 Pa.C.S.A. § 3105(c). See also Stamerro v. Stamerro, 889 A.2d 1251,
1258 (Pa.Super. 2005) (when enforcing an agreement, the court must
ascertain the intent of the parties and it cannot modify or vary the
agreement unless there is “conclusive proof” of fraud, misrepresentation, or
duress, or the agreement provides for judicial modification); Brower v.
Brower, 604 A.2d 726, 731 (Pa.Super. 1992) (the terms of a marital
2
We note the trial court’s order granting Wife’s petition for special relief is
vague in determining an actual dollar amount: “[Wife] shall also pay to
[Husband] a pro rata share of any growth on said difference (the difference
being the amount by which the account exceeded $42,000.00 as of
November 26, 2012) to the date of transfer.”
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settlement agreement cannot be modified by a court in the absence of a
specific provision in the agreement providing for judicial modification).
Our review indicates the parties may have attempted to modify their
agreement to provide Wife with a different source of funds than set out in
the Agreement; however, the record does not support any agreement by the
parties that Wife would get more than the specific amount of $42,000.
Additionally, the parties’ Agreement contained a specific paragraph
regarding modification. Specifically, Paragraph 18 provides:
18. MODIFICATION
No modification or waiver of any of the terms
hereof shall be valid unless in writing and
signed by both parties. No waiver of any
breach hereof or default hereunder shall be
deemed a waiver of any subsequent breach or
default of the same or similar nature.
Based on this provision, any modification was to be in writing and signed by
both parties. Accordingly, any alleged “side deal” between the parties was
required to be in writing and signed by the parties in order to properly
modify the Agreement.
Based on this record, the parties have not modified the Agreement and
the trial court had no authority to change the Agreement for them.
Therefore, we reverse the order of the trial court and remand for
proceedings consistent with this Memorandum. Jurisdiction relinquished.
Order reversed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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