J-S32027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RUTH Y. WINGARD, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT E. SEANOR,
Appellee No. 1881 WDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Butler County
Civil Division at No(s): F.C. No. 80-90847-D
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 25, 2015
Appellant, Ruth Y. Wingard (hereinafter “Wife”), appeals from the
order entered on October 17, 2014, granting in part and denying in part
Wife’s “Petition to Enforce Alimony.” We affirm.1
The trial court has ably explained the underlying facts of this case:
The parties hereto, [Wife] and Robert Seanor [(hereinafter
“Husband”)], were married on June 8, 1957, and divorced
on April 21, 1979. As part of the divorce proceedings[,] the
parties entered into a settlement agreement which was
adopted by Order of Court on February 15, 1979 (“1979
Agreement”). The parties entered into a subsequent
agreement pursuant to an Interim Order dated November
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1
Within Husband’s appellate brief, Husband claims that Wife’s appeal is
frivolous and that her conduct has been obdurate, vexatious, and done in
bad faith; Husband requests that this Court “award [] counsel fees, costs[,]
and damages” and remand the matter so that the trial court may determine
the amount of the award. We deny Husband’s request for relief.
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10, 1980 (“1980 Agreement”), which modified the 1979
Agreement. The 1980 Agreement was finalized by Order of
Court dated December 1, 1980.
The 1980 Agreement provided in pertinent part:
[When [Husband’s] obligation for support of his son shall
terminate for any reason, the sum of $500.00 per month
plus one-half of any increase in the net pension above
$566.09 per month shall be payable to [Wife] until
February 1, 1994, said sums to be paid out of the
military pension. Thereafter, support shall continue
being paid to [Wife] in the amount of one-half of the net
pension as it then exists or as it shall be from time to
time increased in the future for the natural life of [W]ife.
. . . The portion of payments hereunder payable to
[W]ife shall be treated as alimony. . . .]
[On March 10, 2014, Wife filed a “Petition to Enforce
Alimony,” naming Husband as the respondent. In pertinent
part, the petition declared:
5. Since the issuance of the last order[, Husband]
converted his Air [F]orce Retirement to a Civil Service
Retirement.
6. [Wife] has received [$482.00] per month since
February 1994.
7. [Wife] has not received any portion of cost of living
adjustments.
8. [Wife] avers upon information and belief that she
should have received a total of $170,057.28 from
February 1994 until August 2013.
9. However, [Wife] received only a total of $113,270.00
since February 1994, leaving a balance due and owing to
[Wife] in the amount of $56,787.04.
...
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13. The November 10, 1980 Order provides [that W]ife
should receive one-half [] of the net pension for the
natural life of [] Wife.
14. [Husband] should be ordered to obtain a life
insurance policy in which [Wife] is named the
irrevocable beneficiary in order for [Wife] to receive the
support for the remainder of her natural life should
[Husband] predecease [Wife].
15. Said life insurance policy should be in the amount of
$131,787.00 (which represents the amount currently
owed to [Wife] plus the future amount owed to [Wife]).
16. [Wife] wishes to modify support to comply with the
November 10, 1980 Order, be awarded current and back
support determined by the cost of living adjustments,
and for [the trial court] to force [Husband] to obtain a
life insurance policy in which [Wife] is named the
irrevocable beneficiary.
Wife’s Petition to Enforce Alimony, 3/10/14, at 4-5 (internal
emphasis omitted).]
[By order entered May 21, 2014, the trial court declared
that a hearing on Wife’s petition would take place on August
14, 2014. On the day of the hearing, t]he [trial c]ourt
initially met with counsel in chambers. Based upon the
discussion with counsel, the [trial c]ourt stated in open
court on the record that “the facts are not in dispute, only
the existence of survivor benefits and what the applicable
law is to determine that.” Then, counsel for Husband . . .
stated on the record in open court:
As we indicated in Chambers, we have agreed that the
monthly alimony on a present basis, net of tax, and that
is the amount that would be in the Order, is $750.10,
and that the arrears which are recognizable total
$13,072.77.
...
[T]he applicable provision of the contract here says that
alimony is to be payable to [Wife,] which is measured by
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one-half of the net military pension. It’s payable for her
lifetime. And that’s what the contract says. And the
dispute, as Your Honor indicated at the outset, is that
[Wife] takes the position that somehow that converts to
a survivor interest in the pension itself, which we’ve
argued was not possible in 1979 or 1980, and is, beyond
that, not what the contract provides. So those are the
matters I think will be addressed by the submissions of
counsel.
[N.T. Hearing, 8/14/14, at 3-5 (emphasis added).]
Following [Husband’s counsel’s] representations, counsel for
Wife [] stated: “I am in agreement with all the facts
that were presented by [Husband’s counsel] as well
as the agreements that were []presented into
evidence.” [Id. at 6 (emphasis added).] Accordingly, [the
trial court declared that, at the conclusion of the hearing,
the only matter left for the trial court to decide was whether
Wife was entitled to a modification of the 1980 Agreement,
to declare that she was entitled to] survivor benefits . . . .
Trial Court Opinion, 10/17/14, at 1-3.
Following the hearing (but before the trial court issued its final order in
the case), Wife filed a “Memorandum of Law in Support of Petition to
[Enforce] Alimony.” Within this memorandum, Wife attempted to retreat
from her in-court stipulation that the “the [alimony] arrears which are
recognizable total $13,072.77.” N.T. Hearing, 8/14/14, at 3-6. Wife’s
memorandum claimed that her earlier stipulation was based upon her belief
that the four-year statute of limitations for contract actions applied to her
arrearages claim – and that she was now of the opinion that the four-year
statute of limitations was inapplicable to her claim. Wife’s Memorandum in
Support, 8/28/14, at 6. Further, with respect to Wife’s claim that the trial
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court order “[Husband] to obtain a life insurance policy in which [Wife] is
named the irrevocable beneficiary,” Wife’s memorandum stated:
the parties appear to agree that, due to Husband’s
advanced age and declining health, Husband will be unable
to secure life insurance[. Thus,] the only reasonable
alternative available to secure Husband’s responsibility to
Wife is to direct Husband to take all steps necessary to
name Wife as survivor beneficiary/annuitant on Husband’s
federal civil service pension.
Id. at 8.
On October 17, 2014, the trial court entered an order that granted
Wife’s Petition to Enforce Alimony in part and denied the petition in part.
Specifically, and in accordance with the parties’ stipulation in open court, the
trial court ordered that Wife was “entitled to back alimony in the amount of
$13,072.77, and current alimony in the amount of $750.10 per month;”
however, the trial court denied the remainder of Wife’s petition. Trial Court
Order, 10/17/14, at 1.
Wife filed a timely notice of appeal; she now raises two claims before
this Court:
[1.] Whether the trial court erred when [it] applied a four []
year statute of limitations to [Wife’s] claim for arrearages
owed to [Wife]?
[2.] Whether the trial court erred when [it] did not order
that [Husband’s] responsibility to pay [Wife] alimony for the
remainder of her natural life be secured by a policy of life
insurance or by [Wife] being named as survivor
beneficiary/annuitant of [Husband’s] federal civil service
pension?
Wife’s Brief at 4 (some internal capitalization omitted).
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Wife has waived her appellate claims.
According to Wife’s first claim on appeal, Wife contends that the trial
court erred in calculating the alimony arrearages that Husband owed to Wife.
This claim is waived because, during the August 14, 2014 hearing, Wife
stipulated that “the [alimony] arrears which are recognizable total
$13,072.77.” N.T. Hearing, 8/14/14, at 3-6. As we have explained:
Statements of fact by one party in pleadings, stipulations,
testimony, and the like, made for that party’s benefit, are
termed judicial admissions and are binding on the party.
Nasim v. Shamrock Welding Supply Co., 563 A.2d 1266,
1267 (Pa. Super. 1989) (“It is well established that a
judicial admission is an express waiver made in court or
preparatory to trial by a party or his attorney, conceding for
the purposes of trial, the truth of the admission.”). Judicial
admissions are deemed true and cannot be contradicted by
the admitting party. Rizzo v. Haines, 555 A.2d 58, 59 (Pa.
1989); Wills v. Kane, 2 Grant 60, 63 (Pa. 1853) (“When a
man alleges a fact in a court of justice, for his advantage,
he shall not be allowed to contradict it afterwards. It is
against good morals to permit such double dealing in the
administration of justice.”). If there is some support in the
record for the truth of an averment, the trial court abuses
its discretion if it disregards the admission. Rizzo, 555
A.2d at 69. Such averments are binding on a party whether
admitted by counsel or the client. Glick v. White Motor
Co., 458 F.2d 1287, 1291 (3rd Cir. 1972). Such admissions
are considered conclusive in the cause of action in which
they are made—and any appeals thereof [] – and the
opposing party need not offer further evidence to prove the
fact admitted.
John B. Conomos, Inc. v. Sun Co., 831 A.2d 696, 712-713 (Pa. Super.
2003) (some internal citations omitted).
Both Wife and the trial court were bound by her stipulation that “the
[alimony] arrears which are recognizable total $13,072.77.” N.T. Hearing,
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8/14/14, at 3-6; see also Kershner v. Prudential Ins. Co., 554 A.2d 964,
966 (Pa. Super. 1989) (en banc) (“stipulations are binding upon the court as
well as on the parties agreeing to them”). Wife cannot now claim that the
trial court erred when, pursuant to the parties’ stipulation, it ordered that
Wife was “entitled to back alimony in the amount of $13,072.77.” Wife’s
first claim on appeal is thus waived.
With respect to Wife’s second claim on appeal, Wife contends that the
trial court erred when it failed to order Husband “to obtain either a life
insurance policy [or] take all steps necessary to name [Wife] as survivor
beneficiary/annuitant on [Husband’s] federal civil service pension in order to
secure [Husband’s] obligation to [Wife].” Wife’s Brief at 11. Wife’s claim
regarding the life insurance policy is waived because, within Wife’s post-
hearing memorandum, Wife admitted that, “due to Husband’s advanced age
and declining health, Husband will be unable to secure life insurance.”
Wife’s Memorandum in Support, 8/28/14, at 8 (emphasis added); see
Ciamaichelo v. Independence Blue Cross, 928 A.2d 407, 413
(Pa.Cmwlth. 2007) (“[a] party’s statement in its brief is treated as a judicial
admission, which, although not evidence, has the effect of withdrawing a
particular fact from issue”); 8 SPP 2d § 50:15 (same). Wife cannot claim
that the trial court erred in failing to order that Husband obtain a life
insurance policy, when Wife concedes that Husband cannot secure such a
policy.
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Wife has also waived her claim that the trial court erred in failing to
order that Husband “take all steps necessary to name [Wife] as survivor
beneficiary/annuitant on [Husband’s] federal civil service pension.” Wife’s
Brief at 11. Wife’s petition requested only that the trial court order Husband
“to obtain a life insurance policy in which [Wife] is named the irrevocable
beneficiary in order for [Wife] to receive the support for the remainder of her
natural life should [Husband] predecease [her].”2 Wife’s Petition to Enforce
Alimony, 3/10/14, at 4 (emphasis added). Further, within her brief on
appeal, Wife does not explain how she could, or why she should, be named
as “survivor beneficiary/annuitant on [Husband’s] federal civil service
pension.” See Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa.
Super. 2011) (Superior Court “may not act as counsel for an appellant and
develop arguments on [her] behalf”). Thus, since Wife did not plead her
claim for relief in her petition or develop her argument on appeal, Wife’s
claim on appeal is waived.
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2
Moreover, even if Wife properly claimed that she should be named as
“survivor beneficiary/annuitant on [Husband’s] federal civil service pension,”
Wife’s claim would fail. Under the terms of the support agreement, Wife
possessed no direct interest in Husband’s pension; rather, Husband’s “net
pension” merely served as an index for Wife’s alimony payment. The 1980
Agreement, 11/10/80, at ¶ 3 (“support shall continue being paid to [Wife] in
the amount of one-half of the net pension”) (emphasis added). Therefore,
under the terms of the 1980 Agreement, Wife’s support payment was
contingent upon the existence of a pension payment to Husband. Under
the terms of the 1980 Agreement, since Husband’s pension payments will
end when he dies, Wife would not be entitled to alimony in the event
Husband predeceases Wife.
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2015
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