J-S67028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK B. HASSENPLUG IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TERESA G. HASSENPLUG,
N/K/A TERESA ANN GORDON
Appellee No. 619 EDA 2016
Appeal from the Order dated January 26, 2016
In the Court of Common Pleas of Chester County
Civil Division at No. 2009-14172
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 26, 2016
Mark B. Hassenplug (“Husband”) appeals from the January 26, 2016
order granting the petition for special relief filed by Teresa G. Hassenplug
(“Wife”), which sought to enforce the parties’ marital settlement agreement.
After careful consideration, we affirm.
Husband and Wife were married in 1996, and divorced on May 29,
2012. After settlement discussions, their divorce decree incorporated a
property settlement agreement (“PSA”), which the “parties, through their
counsel, agreed . . . would supplant any form of ancillary relief.” Report of
the Special Master and Settlement Agreement, 05/29/2012, at 1-2.
On September 9, 2015, Wife filed a petition of enforcement of the
obligations under the PSA. Wife alleged that Husband failed to sell marital
*Former Justice specially assigned to the Superior Court.
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property. She requested specific relief from the court in enforcing
paragraphs 7 and 8 of the PSA and for reasonable attorney fees. See
Petition for Enforcement of Obligations under the PSA, 09/09/2015, at 1-2.
Following a hearing in January 2016, the trial court issued this order:
1. [Husband] shall immediately list the marital residence
located at 2 Heatherwood Drive, Malvern, Pennsylvania for sale
with [Realtor] at Long and Foster in Devon, Pennsylvania.
Immediately means within the next ten (10) days.
2. The property shall be listed in "as is" condition. Any
further improvements costing money may only be done after
communication between the parties' attorneys and the
agreement of both parties.
3. [Husband] will keep the house in excellent condition and
make the house readily available for any showings or anything
else the realtor needs.
4. If [Realtor] does not wish to be the listing agent, counsel
for the parties will contact the [c]ourt and a different listing
agent shall be chosen.
5. [Husband] will not receive a credit for the approximately
$35,000 of home improvements he has testified that he has
made to the property.
6. [Husband] will provide to counsel for [Wife] a list of
furniture that he thinks needs to be removed from the residence,
along with a list of dates that [Wife] may choose from to remove
the furniture.
7. The net proceeds from the sale of the house will be divided
60/40 with Wife receiving 60%.
8. The proceeds from the sale of the house will be held by the
law office of Gawthrop Greenwood, PC in escrow pending the
reconciliation of any credits or adjustments that need to be
made.
9. [Husband] is directed to immediately make arrangements
for the auction of the 2003 Hummer, and the Indian Chief
Motorcycle. The vehicles are to be auctioned within the next
thirty (30) days. The proceeds are to be divided 60/40 in Wife's
favor. Wife is to receive the funds within 10 days of Husband's
receipt of the sale price.
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10. [Wife] is directed to obtain the title immediately (and
assign it, if necessary to [Husband]) for the Indian Chief Silver
Motorcycle and provide that to her counsel, who will in turn
provide it to [Husband]. Once [Husband] is in receipt, he will
have thirty (30) days to then have that vehicle sold at auction.
The proceeds are to be divided 60/40 in Wife's favor. Wife is to
receive the funds within ten (10) days of Husband's receipt of
the funds.
11. The parties shall contact Alita Rovito and schedule an
appointment with her within the next 45 days in order to
complete the arbitration process.
12. Counsel fees against [Husband] shall be waived as he has
not been given credit for the repairs/refurbishing he has done
thus far to the marital residence.[1]
Trial Court Order, 01/26/2016, at 1-3.
Husband filed a notice of appeal to this Court in February 2016.
Thereafter, the trial court ordered Husband to file a concise statement of
errors pursuant to Pa.R.A.P. 1925(b), which he did in March 2016. The trial
court filed a responsive opinion. See Trial Ct. Op., 04/04/2016.
On appeal, Husband raises the following issues.
1. Did trial court err in changing the terms of the Property
Settlement Agreement and providing that the property shall be
listed in “as is” condition, ignoring the terms of the parties [sic]
previously negotiated agreement?[2]
2. Did the trial court err in addressing the issue of credits for
home improvements as the issue was not plead by either party
and was raised by [Wife]’s counsel without regard to
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1
In addition, the trial court equitably ordered Wife to pay $700.00 in
counsel fees to Husband. See Trial Court Order, 03/8/2016.
2
Husband withdrew this challenge to the lower court’s decision. See
Husband’s Brief at 12.
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[Husband]’s due process rights or the terms of the parties’
agreement which provided:
“The proceeds from the sale of the house shall be held by
the law firm of Gawthrop Greenwood in escrow pending
the reconciliation of any credits or adjustments that need
to be made. Once counsel for the parties have determined
that reconciliation, the proceeds shall be delivered to the
respective counsel for distribution to the parties.”
3. Did the trial court err in dismissing [Husband]’s reliance on
the realtor’s agreed agency as it applied to home improvements.
The parties’ agreement specifically provides that the parties
agree that all communication between the parties related to the
house will go through the real estate agent?
4. Did the trial court err in its determination that [Husband]
would not receive a credit for approximately $35,000 of home
repairs ignoring the testimony provided by the [Husband] and
the parties Agent, Judy Harle as provided for by the terms of the
parties agreement?
5. Did the trial court err in giving any weight to [Wife]’s
counsel fee claim and/or further waiving said counsel fee claim
as against the [Husband]’s claim for a credit for the repairs when
[Wife] presented no evidence of counsel fees?
Husband’s Brief at 6-7.
Before addressing Husband’s issues on appeal, we address Wife’s
motion to quash. See Wife’s Brief at 10.3 Wife contends that Husband
failed to preserve issues for appeal by failing to file post-trial motions in
accordance with Pa.R.Civ.P. 227.1 or failing to make objections in the court
below. See id. at 12. Wife also contends that Husband filed a defective
brief that failed to comply with Pa.R.A.P. 2119. See id. at 13. Wife
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3
In May 2016, Wife filed a motion to quash Husband’s appeal, which was
denied without prejudice to her right to raise the issues presented therein
before this panel. See Order Denying Motion to Quash, 06/29/2016.
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maintains that Husband’s failure to cite legal authority or note where his
claims were preserved in the record constitutes a waiver. See id. at 14.
Regarding Husband’s failure to file post-trial motions, Rule 1930.2
provides that “[t]here shall be no motions for post-trial relief in any domestic
relations matter.” Pa.R.Civ.P. 1930.2(a). Accordingly, Husband was not
required to file a post-trial motion.
Regarding deficiencies in Husband’s brief, an argument section
containing substantial inadequacies is ground for finding waiver of an issue
presented on appeal. See Pa.R.A.P. 2119(a).
It is well settled that the argument portion of an appellate brief
must be developed with pertinent discussion of the issue, which
includes citations to relevant authority. […] ‘When an appellant
fails to develop his issue in an argument and fails to cite any
legal authority, the issue is waived.’
In re S.T.S., 76 A.3d 24, 41-42 (Pa. Super. 2013) (citing Pa.R.A.P. 2119(a),
quoting Commonwealth v. B.D.G., 959 A.2d 362. 371-372 (Pa. Super.
2008)).
Notably, Husband risks waiver by failing to develop his argument with
citations to relevant legal authority. However, dismissal because of a
defective brief is an extreme action that we decline to take in this case. See
Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa.
1980); see R.A.P. 902. Accordingly, Wife’s motion to quash is denied.
Husband’s brief contains one argument as to issues two through four.
Husband contends that the trial court erred or otherwise abused its
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discretion by misinterpreting the parties’ PSA and by failing to accord proper
weight to the testimonies. See Husband’s Brief at 13.
In Pennsylvania, we enforce property settlement agreements
between husband and wife in accordance with the same rules
applying to contract interpretation. A court may construe or
interpret a consent decree as it would a contract, but it has
neither the power nor the authority to modify or vary the decree
unless there has been fraud, accident or mistake. It is well-
established that the paramount goal of contract interpretation is
to ascertain and give effect to the parties' intent. When the trier
of fact has determined the intent of the parties to a contract, an
appellate court will defer to that determination if it is supported
by the evidence. Further, where as here, the words of a contract
are clear and unambiguous, the intent of the parties is to be
ascertained from the express language of the agreement itself.
Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004) (internal
quotations and citations omitted; formatting modified).
Contract interpretation presents a question of law, for which our
standard of review is de novo. See Kraisinger v. Kraisinger, 928 A.2d
333, 339 (Pa. Super. 2007). Nevertheless, “‘we are bound by the trial
court's credibility determinations.’” Kraisinger, 928 A.2d at 339 (quoting
Stamerro v. Stamerro, 889 A.2d 1251, 1257-58 (Pa. Super. 2005)
(citations omitted)). “‘[A]bsent an abuse of discretion, we will not usurp the
trial court's fact-finding function.’” Stamerro, 889 A.2d at 1257 (quoting
Chen v. Chen, 840 A.2d 355, 360 (Pa. Super. 2003), appeal denied, 775
A.2d 808 (Pa. 2001)).
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In this case, the parties’ PSA governs the disposition of property rights
under the divorce decree. Wife specifically petitioned the court to enforce
paragraph 8 of the PSA, which states:
The marital residence shall be listed with [realtor]. The list price
will be set by [realtor] based on a competitive market analysis
that she will perform. The parties shall consider any
recommendations made by the realtor to fix up the property for
sale. If the parties consent to the work and one or both of the
parties advance costs for the work, than that individual or the
parties will get reimbursed for the costs for the monies they
have laid out off the top of the proceeds. The net proceeds
would then be divided 60/40 with Wife receiving 60%. The
parties further agree that both are to be consulted equally by the
realtor for any decision regarding the sale of the house. The
parties agree that they shall accept the first offer within ten
percent of the recommended list price. Husband shall give
access to the realtor for showings and agrees to the use of a lock
box. The parties agree that all communication between the
parties related to the house will go through the real estate
agent. The proceeds from the sale of the house shall be held by
the law firm of Gawthrop Greenwood in escrow pending the
reconciliation of any credits or adjustments that need to be
made. Once counsel for the parties have determined that
reconciliation, the proceeds shall be delivered to the respective
counsel for distribution to the parties.
Agreement, at 6 ¶ 8 (emphasis added). These terms were intended to
govern the matter of advancing costs for work to prepare the marital
property for sale. Accordingly, the court properly interpreted the PSA and
did not commit an error of law.
Here, the trial court properly determined that both parties’ consent to
repairs was a condition precedent to reimbursement. Whether Wife gave
her consent was a point of contention for the parties during the hearing.
Husband maintained that he made extensive repairs. Notes of Testimony
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(N.T.), 01/19/2015, at 10-11. Husband knew the PSA required Wife’s
consent. Id. at 12, 44, 57. Wife testified that she needed to agree to
repairs before they were made. Id. at 91-92. According to Wife, she was
not aware of repairs Husband was making. Id. at 106. She also maintained
that she did not consent to pay for any repairs and was not obligated to pay
for them under their agreement. Id. at 92.
The trial court found Wife’s testimony credible that she did not agree
to pay for the work.4 We defer to this finding, as it is supported by the
record. See Kraisinger, 928 A.2d at 339. Accordingly, Husband’s claim is
without merit.
Husband also contends, at issue five, that the court abused its
discretion in waiving his counsel fee claim against Wife as consideration for
his ineligibility for reimbursement. See Husband’s Brief at 17. His claim
lacks merit.
“Our standard of review of an award of attorneys' fees is well settled:
we will not disturb a trial court's determinations absent an abuse of
discretion.” Miller v. Miller, 983 A.2d 736, 743 (Pa. 2009) (citing
Verholek, 741 A.2d at 795). The lower court awarded Husband counsel
fees as a “means to mitigate the overall financial ‘hit’ to husband.” Trial Ct.
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4
Because the trial court determined Wife did not consent to the work,
Husband was not justified in relying on the realtor’s recommendations. See
Trial Ct. Op. at 4.
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Op. at 5. We conclude that the trial court did not abuse its discretion in
fashioning an equitable remedy for Husband’s financial benefit. See Miller,
983 A.2d at 743 (citing 23 Pa.C.S.A. § 3502(e)(7)).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2016
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Hassenplug, M. v. Hassenplug, T.
Combined Opinion