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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PHYLLIS M. HESS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RODNEY R. HESS,
Appellant No. 1094 MDA 2015
Appeal from the Order Entered May 18, 2015
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-08-06819
BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED MAY 27, 2016
Rodney R. Hess (“Husband”) appeals from the May 18, 2015 order
granting a petition to enforce filed by Phyllis M. Hess (“Wife”) and directing
Husband to pay Wife $12,000 for breach of their divorce agreement (“the
Agreement”) and $2,525 for her attorney’s fees. We affirm.
The trial court summarized the history of this matter as follows:
This matter commenced on June 23, 2008, when [Wife]
filed for divorce from [Husband]. The parties eventually
attended a divorce hearing before Special Divorce Master, Julia
G. Vanasse on February 24, 2011. At the outset of the hearing
the Master stated: “This is the time and place that was set for
the hearing in the Hess versus Hess matter. And it is my
understanding that the parties have arrived at an agreement
between themselves in order to conclude this matter today, and
we’re actually putting a full postnuptial agreement on the
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*
Former Justice specially assigned to the Superior Court.
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record.” (Trial Tr. p 2, 5–11, February 24, 2011.) Neither party
has asserted that the Master inaccurately summarized the
purpose of the hearing. An agreement was entered on that
date.
On September 24, 2014, after a family business court
presentation and upon consideration of Wife’s Petition for
Enforcement and Contempt of Divorce Agreement Dated
February 24, 2011, the court scheduled a hearing. The hearing
was held on April 16, 2015, and the Court issued an order on
May 15, 2015.
* * *
Both Wife and Husband agree that Husband has not paid
all of the money due to Wife under the parties’ Agreement (Trial
Tr. p. 6–13, 51–52, April 16, 2015). At the time of the April 16,
2015 hearing, Husband had not paid $12,000.00 of the equitable
distribution portion of the Agreement and had missed three
months of the alimony portion of the [A]greement. (Id. at 6–
13). Husband testified that he did not knowingly and voluntarily
enter into the Agreement (Id. at 24). At the time of the
Agreement, Husband was not represented by counsel, and he
testified that he did not understand that the alimony and
equitable distribution portions of the Agreement were two
separate things and that he would be responsible to pay both
amounts to Wife in accordance with the Agreement. (Id. at 23–
24, 43–44).
Prior to the divorce master hearing, Husband did have an
attorney and that attorney helped draft the language of the
Agreement (Id. at 45). Husband testified that he had
representation until late 2010 (Id.). The court accepted his
attorney’s Petition to Withdraw as Counsel on January 24, 2011.
(See court’s January 24, 2011 Order.) Husband testified that he
reads and writes in English and that he ran a successful business
during the parties’ marriage (Trial Tr. p. 31, April 16, 2015).
When the Agreement was read onto the record, the divorce
master asked Husband if he had a chance to review portions of
the Agreement with his prior counsel, if he heard and understood
the terms, and if he voluntarily wished to enter into the
Agreement, and Husband responded in the affirmative (Trial Tr.
p. 10–11, February 24, 2011). At the conclusion of the April 16,
2015 hearing, Wife withdrew the contempt portion of her
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petition, asking the court to consider only the enforcement of the
Agreement (Trial Tr. p. 57, April 16, 2015). Neither side
presented testimony to support the existence of fraud,
misrepresentation, or duress when the parties entered into the
Agreement. The court therefore found that a valid contract
between Husband and Wife was formed on February 24, 2011,
Husband and Wife are bound by contract principles found in
Pennsylvania law, and Husband was in breach of the Agreement.
(See court’s May 15, 2015 Order.)
Trial Court Opinion, 8/13/15, at 1–4. Husband filed a timely appeal, and
both he and the trial court complied with Pa.R.A.P. 1925.
Husband presents the following questions for our consideration:
Is the failure of the trial court to address [Husband’s] claim of
duress appealable error?
Did the trial court err in that it placed too much emphasis on
[Husband] having an attorney prior to the divorce master
hearing?
Did the trial court err in that it placed too little emphasis on
[Husband’s] statement that his agreement was based only on his
continuing to have the current income from his business?
Husband’s Brief at unnumbered 4.
In Pennsylvania, we enforce settlement agreements between husband
and wife in accordance with the same rules applicable to contract
interpretation. Osial v. Cook, 803 A.2d 209, 213–214 (Pa. Super. 2002).
Thus, our review is guided by the following standards:
Because contract interpretation is a question of law, this Court is
not bound by the trial court’s interpretation. Our standard of
review over questions of law is de novo and to the extent
necessary, the scope of our review is plenary as the appellate
court may review the entire record in making its decision.
However, we are bound by the trial court’s credibility
determinations.
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When interpreting a marital settlement agreement, the
trial court is the sole determiner of facts and absent an abuse of
discretion, we will not usurp the trial court’s fact-finding
function. On appeal from an order interpreting a marital
settlement agreement, we must decide whether the trial court
committed an error of law or abused its discretion.
Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citations
omitted). Furthermore:
this Court must accept findings of the trial court that are
supported by competent evidence of record, as our role does not
include making independent factual determinations. In addition,
with regard to issues of credibility and weight of the evidence,
this Court must defer to the trial judge who presided over the
proceedings and thus viewed the witnesses first hand.
Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (citation
omitted).
Husband’s first issue concerns his defense of duress.1 According to
Husband, for “two and a half years [he] was badgered, humiliated and
falsely accused of hiding money;” he was “under huge stress;” his “business
was in harm’s way if [Wife’s] constant fraud allegations became public
knowledge;” and he “was not free to consult with counsel, as finances
prohibited it[.]” Husband’s Brief at unnumbered 7–8 (internal quotation
marks omitted). Husband argues that such testimony was evidence of
“duress,” which is defined as “the degree of restraint or danger, either
actually inflicted or threatened and impending, which is sufficient in severity
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1
Husband raised the issue of duress in his statement of errors complained
of on appeal. Pa.R.A.P. 1925(b) Statement, 6/16/15, at ¶ 1.
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or apprehension to overcome the mind of a person of ordinary firmness.”
Id. at unnumbered 7 (quoting Adams v. Adams, 607 A.2d 1116, 1119 (Pa.
Super. 1992)).
We note that the premise of Husband’s first question, as presented, is
flawed. The trial court did, in fact, consider his claim of duress:
Duress is defined as: “That degree of restraint or danger, either
actually inflicted or threatened and impending, which is sufficient
in severity or apprehension to overcome the mind of a person of
ordinary firmness. . . . Moreover, in the absence of threats of
actual harm there can be no duress where the contracting part is
free to consult with counsel.” Lugg v. Lugg, 64 A.3d 1109, 1113
(Pa. Super. 2013) quoting Adams v. Adams, 607 A.2d 1116,
1119 (Pa. Super. 1992) (disapproved on other grounds by
Stoner v. Stoner, 819 A.2d 529 (Pa. Super. 2003)). Husband
affirmed to the Divorce Master that his entry into the Agreement
was both knowing and voluntary. While he retracted those
affirmations at the April 16, 2015 hearing, the Court did not find
his retractions credible. Further, Husband raised no claims
of duress regarding his entry into the Agreement at the
April 16, 2015 hearing. He offered no testimony or
evidence of any restraint or danger, either actual or
threatened. While Husband may be displeased with the Court’s
findings of fact that are contrary to his position, such displeasure
alone is not sufficient to constitute reversible error.
Trial Court Opinion, 8/13/15, at 5–6 (emphasis supplied).
Upon review of the certified record, we discern no basis on which to
disturb the trial court’s ruling. The record supports the trial court’s factual
finding that Husband offered no testimony or evidence of any restraint or
danger, either actual or threatened. Indeed, Husband confirmed that he
heard and understood all of the terms of the agreement as they were placed
on the record; that he had an opportunity to review the legally binding
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language drafted by his attorney; and that he was voluntarily entering the
Agreement in lieu of a hearing. N.T., 2/24/11, at 10–11. The testimony
Husband did offer concerned financial hardships and the bitterness of
divorce, none of which prevented him from knowingly and voluntarily
executing the Agreement that his attorney helped to draft. Moreover, with
regard to credibility determinations, we defer to the trial judge who presided
over the proceedings. Mackay, 984 A.2d at 533. Husband’s first issue does
not warrant relief.
We address Husband’s second and third issues in tandem because they
both challenge the weight of the evidence. We reiterate, “[W]ith regard to
issues of credibility and weight of the evidence, this Court must defer to the
trial judge who presided over the proceedings and thus viewed the witnesses
first hand.” Mackay, 984 A.2d at 533.
Husband first argues that the trial court erred by placing too much
emphasis on the fact that Husband had an attorney before the February 24,
2011 hearing in front of the divorce master. Husband’s Brief at unnumbered
8. Husband asserts, “[T]he fact [Husband] had counsel prior to the hearing,
does not negate his inability to consult with counsel at the divorce master
hearing.” Id. at unnumbered 9. Next, Husband argues that the trial court
placed too little emphasis on Husband’s understanding that he was
financially responsible under the Agreement as long as he was “president of
[his] company” and could “meet these financial obligations.” Husband’s
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Brief at unnumbered 9. Husband contends that “if [he] had counsel or at
least an opportunity to consult with counsel, such language would [not] have
made it into the [A]greement.” Id. at unnumbered 10.2
For each of the issues, the trial court considered legal principles and
the terms of the Agreement. Moreover, Wife and Husband each provided
testimony supporting their positions. N.T., 4/16/15, at 4–23, 23–55. The
trial court had the opportunity to observe both witnesses. It gave less
weight to Husband’s testimony based on his retractions and improbable
assertions. Then, it rendered its opinion accordingly:
A marriage settlement agreement is not void on grounds that a
spouse did not consult with independent legal counsel prior to
executing the agreement. Simeone v. Simeone, 581 A.2d 162
(Pa. 1990). In this case however, Husband did have an attorney
until late 2010. He admits that portions of the Agreement were
actually drafted by this attorney, and Husband testified that he
had a chance to discuss those portions with the attorney prior to
the February 24, 2011 settlement hearing, even though Husband
was unrepresented at that hearing. Not only did Husband have
the acumen to run his own business, but he had the prior benefit
of counsel regarding the Agreement. Both of these factors cause
the Court to question Husband’s assertions at the June 2015
hearing that he failed to understanding [sic] of the Agreement
when he entered into it on February 24, 2011.
Further, terms of a marriage settlement agreement are
binding on a spouse without regard to whether those terms were
fully understood by that spouse when the agreement was
executed. Id. However, Husband affirmed to the Divorce Master
that his entry into the Agreement was both knowing and
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2
In violation of Pa.R.A.P. 2119(a), Husband does not cite any legal
authority in support of his weight arguments.
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voluntary, and the Court did not find credible, his April 16, 2015
testimony to the contrary.
* * *
At the February 24, 2011 divorce hearing Husband said, “I want
to make it noted that as long as I am president of this company,
I can meet these settlement obligations.” To which the Master
replied, “. . . It is a binding agreement, so even if factors
change, it’s not going to change the nature of the agreement.”
(Trial Tr. p. 8, February 24, 2011). The Agreement does not
contain a modification and waiver clause, requiring any
modification or waiver to be formally executed. At no point does
the Agreement contemplate that Husband can stop making
payments simply because his circumstances change. The court
found that the parties intended to be bound by the Agreement
regardless of changes in circumstances.
Trial Court Opinion, 8/13/15, at 6–7.
Upon review of the certified record, we conclude that the trial court’s
credibility and weight determinations are well supported. After hearing the
terms of the Agreement placed on the record, the divorce master stated:
“[B]ased on things as they stand right now, this was the parties’ agreement.
But we also discussed the fact that it is a binding agreement, so even if
factors change, it’s not going to change the nature of the agreement.” N.T.,
2/24/11, at 8. Additionally, Wife’s counsel explained, “Even if [Wife] were to
lose her job and her income would decline, if [Husband’s] company was to
increase its revenues or you were to win the Power Ball, this doesn’t change.
Your financial picture is frozen in time. This is a binding agreement, despite
the fact both of you had to give a little bit to get to where we are today.”
N.T., 2/24/11, at 9. Husband affirmed that he heard and understood the
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terms of the agreement as they were placed on the record at the divorce
master’s hearing. N.T., 2/24/11, at 10–11. His subsequent attempt to
retract those statements was disingenuous. N.T., 4/16/15, at 47–49.
Based on the certified record and the trial court’s well-reasoned
discussion set forth above, we will not disturb the trial court’s credibility and
weight conclusions, and we find no abuse of discretion or error of law. Thus,
we affirm the May 18, 2015 order granting Wife’s petition to enforce.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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