J-A08024-20
2020 PA Super 140
WILLIAM D. LEWIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CAMERON H. LEWIS : No. 2227 EDA 2019
Appeal from the Order Entered June 24, 2019
in the Court of Common Pleas of Monroe County,
Civil Division at No(s): No. 580-DR-2016,
No. 6265-CV-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
OPINION BY KUNSELMAN, J.: FILED JUNE 12, 2020
At issue in this appeal is the validity of a post-nuptial settlement
agreement executed between Appellant William Lewis (Husband) and Appellee
Cameron Lewis (Wife). Husband petitioned for enforcement of the settlement
agreement and for Wife’s contempt of the same. Wife counter-petitioned,
claiming she only signed the agreement under duress, in constant fear of
Husband’s punishing retribution, in a daze from his manipulation of her
medication, and without the opportunity to consult an attorney. Alternatively,
Wife alleged fraud in the inducement, claiming Husband deceived her into
believing the document was a legal fiction, a mere paper trail he needed for
his employment, and not a settlement of their marital property incident to a
divorce. After two days of testimony, the trial court took the extraordinary
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measure of invalidating the settlement agreement on both of these grounds.
Husband appeals, and after careful review, we affirm.
The complex factual and procedural history of this case is as follows:
The parties met in March 2013 when Husband hired Wife to provide childcare
to his two children. At that time, Wife was 20 and Husband was 46. Within
three weeks they married. Wife dropped out of college and became a stay-
at-home stepmom. The parties had a daughter of their own the following
year. Their marriage soon became tumultuous, as evinced by multiple legal
proceedings. Throughout those proceedings, Husband maintained Wife
suffered from various psychiatric disorders and that he was the victim of her
physical abuse. In June 2016, Husband obtained a Protection From Abuse
(PFA) order against Wife, which he claimed she repeatedly violated. This led
to criminal charges, findings of contempt, and ultimately Wife’s incarceration.
Then the truth was unveiled. In a July 2018 PFA hearing, evidence
revealed Husband was the actual perpetrator of the abuse, and that once he
was armed with the June 2016 PFA order, Husband used it as a weapon
against Wife. Husband would invite Wife back to the marital home and then
file contempt charges against her. The court concluded “Husband had been
playing the system, using the Monroe Court of Common Pleas as one tool in
furtherance of his very calculated, complex, web of domestic violence, control
and intimidation against Wife.” See Trial Court Opinion (T.C.O. 1), 6/24/19,
at 1. The court granted Wife’s July 2018 PFA petition and awarded her
exclusive possession of the marital residence and temporary sole custody of
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the parties’ child.1 Husband appealed that decision, and we affirmed. See
C.H.L. v. W.D.L., 214 A.3d 1272 (Pa. Super. 2019).
This appeal concerns the circumstances under which the parties
executed their post-nuptial settlement agreement. Although we particularize
the facts in our analysis below, we provide this summary by way of general
background. In December 2016, following Husband’s extensive abuse,
including his manipulation of Wife’s mental health and medication, Wife
attempted suicide. While she recovered in a psychiatric hospital, Husband
broached the idea of her signing a settlement agreement, which he assured
her was simply a paper trail he needed to show his employer (the federal
government) that he was separated from his “crazy wife,” or else his security
clearance would be jeopardized.
Wife was released from the hospital before Christmas 2016, but her
mental and physical state did not improve. Husband continued dispersing
Wife’s medication to make her feel nauseous and apathetic. On January 10,
2017, Wife met with her psychiatrist to change her medication. Still, the
medication’s side effects remained unbearable, so three days later, on
morning of January 13, 2017, Wife went back to the psychiatrist. Husband
forced his attendance at these psychiatry appointments.
According to Wife, when the parties returned to their car after the
second appointment, Husband gave her the settlement agreement. He
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1 The court denied Husband’s cross-petition.
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allowed Wife ten minutes to review it as he drove her to a notary public.
Husband reiterated that the settlement agreement was simply a paper trail he
needed for work and that they would not divorce. When Wife told him she did
not feel comfortable signing anything without consulting an attorney, Husband
responded, “If you dare get a lawyer, I’m divorcing you and you will never see
your daughter again.” Wife said she believed this threat, because in the past,
Husband inflicted punishments when she disobeyed him.
While Husband waited in the car, Wife had the agreement notarized by
Steven Garvey, an acquaintance of Husband. Husband told Wife he could not
come into the notary’s office with her, or else it would look like he was forcing
her to sign it. After Wife had her signature notarized, the parties drove to
Husband’s counsel, where he had his signature notarized while Wife waited in
the car. The parties then returned home. Wife claimed she did not read the
January 13, 2017 settlement agreement before she signed it. Wife asked
Husband for a copy, but he refused to provide one. Until July 2018, the only
time the parties discussed the settlement agreement was when Husband
threatened Wife with divorce and reminded her she was entitled to nothing.
By virtue of the July 2018 PFA order, Wife received exclusive possession
of the marital residence. Husband then filed a petition to enforce the
settlement agreement, asserting his right to exclusive possession of the
marital home; he also sought to hold Wife in contempt of that agreement.
Wife filed a counter-petition challenging the validity of the settlement
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agreement on grounds of duress and fraud in the inducement. The trial court
held a hearing on the matter on November 19, 2018 and February 1, 2019.
On June 24, 2019, the court issued an order invaliding the settlement
agreement on the grounds of duress and fraud; the court dismissed Husband’s
petition as moot. The court issued a contemporaneous opinion explaining its
decision. See T.C.O. 1, at 1-45. Upon receiving Husband’s timely-filed
concise statement of matters complained of on appeal, the court issued
another opinion pursuant to Pa.R.A.P. 1925(a) to supplement its previous one.
See Supplemental Trial Court Opinion (T.C.O. 2), 9/16/19, at 1-10.
Husband presents three issues for our review:
1. Whether the trial court erred and abused its discretion
in invalidating the divorce settlement agreement
dated January 13, 2017, which was duly executed by
the parties, on the grounds of duress?
2. Whether the trial court erred and abused its discretion
by invalidating the divorce settlement agreement
dated January 13, 2017, which was duly executed by
the parties, on the grounds of intentional fraud in the
inducement?
3. Whether the trial court erred and abused its discretion
by relying upon past court proceedings informing the
basis of its opinion, thereby exhibiting an appearance
of bias?
Husband’s Brief at 7.
At the outset, we observe the relevant standards of review. Settlement
agreements are subject to contract principles. See Sams v. Sams, 808 A.2d
206, 210 (Pa. Super. 2002). “In determining whether the trial court properly
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applied contract principles, the reviewing Court must decide, based on all the
evidence, whether the trial court committed an error of law or abuse of
discretion.“ Id. (citation omitted). We have said an abuse of discretion
is synonymous with a failure to exercise a sound,
reasonable, and legal discretion. It is a strict legal term
indicating that an appellate court is of the opinion that there
was commission of an error of law by the trial court. It does
not imply intentional wrong or bad faith, or misconduct, nor
any reflection on the judge but means the clearly erroneous
conclusion and judgment—one that is clearly against logic
and the effect of such facts as are presented in support of
the application or against the reasonable and probable
deductions to be drawn from the facts disclosed upon the
hearing; an improvident exercise of discretion; an error of
law.
Adams v. Adams, 848 A.2d 991, 993-993 (Pa. Super. 2004) (citation
omitted). In conducting appellate review, “[w]e will not usurp the trial court’s
fact-finding function.” Stackhouse v. Zaretsky, 900 A.2d 383, 386 (Pa.
Super. 2006). (citations omitted). To the extent that we must decide a
question of law, however, our standard of review is de novo, and our scope of
review is plenary. See, e.g., Stoner v. Stoner, 819 A.2d 529, 530 n.1 (Pa.
2003).
In his first issue, Husband contends the court abused its discretion when
it invalidated the parties’ settlement agreement on grounds of duress. His
argument is twofold: first, Husband argues the record did not support the
court’s findings; and second, even if the court’s factual findings stand, they
do not constitute duress as a matter of law. We discuss each argument in
turn.
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By claiming the record did not support the trial court’s findings, Husband
takes primary aim at the court’s credibility determinations. It is well-settled
that this Court is bound by the trial court’s credibility determinations. See,
e.g., Stamerro v. Stamerro, 889 A.2d 1251 (Pa. Super. 2005). This Court
has explained how we review credibility determinations:
We 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, we must defer to the presiding trial judge who
viewed and assessed the witnesses first-hand. However, we
are not bound by the trial court’s deductions or inferences
from its factual findings.
V.B. v. J.E.B., 55 A.3d 1193, 1198 (Pa. Super. 2012) (citations omitted).
Here, credibility was paramount, as the trial court’s decision relied
almost exclusively on Wife’s testimony to reach its decision. The court
emphatically concluded that Wife’s testimony was “wholly credible” and
Husband’s testimony was “wholly incredible” and downright misleading.
Although Husband concedes credibility determinations are within the purview
of the trial court, he argues we should discount them. He asserts Wife’s
testimony was impeached not only by her previous words and deeds, but also
by Husband’s two witnesses.
As to Wife’s prior conduct, Husband points to her admitted criminal
history of making a false rape report to police about an ex-boyfriend. Husband
also notes Wife sent him contradictory letters of affection while she was
incarcerated, in which she stated she was thankful for having him in her life,
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that he was “honest, good looking, smart, sexy, [and] loyal[.]” See N.T.,
11/19/18, (Day 1) at 56. She also wrote she was sorry for “being a horrible
person,” for hurting Husband, and for lying to him. Id.
Additionally, Husband cites the testimony of his two witnesses, who
were the only other witnesses besides the parties. Husband highlights the
testimony of Samuel Jones, who made home repairs for Husband, and who
stated he once witnessed Wife lie about being abused:
[…] I was there one night, the night the water tank blew up,
so I just finished the water tank and, you know, like I know
[Husband] and [Wife] were, you know, arguing upstairs,
and [Husband] came downstairs to kind of escape from it
and [we] were like talking and I guess [Wife] had no idea
that I was downstairs at that time, you know, or [Husband]
wasn’t downstairs with me, but she fell down the stairs and
then she proclaimed that [Husband] threw herself down the
stairs, and he was standing right next to me, and after that
I said you know what, this is just like complete chaos,
craziness here, I said I’m sorry [Husband], you know, like
you gotta find somebody else to come over here and you
know do work, I just, I can’t put myself in these situations.
N.T., 2/1/19, (Day 2), at 8-9.
Mr. Jones also testified about an argument between the parties on
January 13, 2017, the day the parties executed the settlement agreement.
So I remember standing there and [Husband] was doing
some, you know, work on his laptop or whatever, you know
because we were talking back and forth in between, you
know, me working there, and you know, she had, then they
like erupted into an argument and [Husband] said listen,
this isn’t the time, you know, like this isn’t the time for this
right now, we have people working inside the house, and
you know, she took the papers that she had and threw them
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on the table and said here, you wanted it, you got it, and
then she stormed out.
Id. at 7.
Lastly, Husband cites the testimony of Steven Garvey, his acquaintance
and the notary public who notarized the settlement agreement for Wife.
Contrary to Husband’s characterization of the testimony (that the witness did
not find anything out of the ordinary regarding Wife’s demeanor), Mr. Garvey
stated he did not recall Wife’s demeanor. Id. at 16. However, Mr. Garvey also
testified he did not see Husband in the parking lot.
Wife did not take the stand to rebut the testimony of either witness, but
she did address her own contradictory statements. Regarding her previous
statements to Husband, Wife explained:
I lied in these letters [to Husband] because it’s the only, it’s
the only place I have to go after jail. It’s the only thing I
have in life, and if I really wrote down what I felt, he would
have cut me off like I was a piece of trash. So I said
whatever I needed to say to come back home and figure
everything out. I was feeding his ego.
N.T. (Day 1) at 57-58. Wife also testified that Husband put money “on my
books” (presumably her commissary fund) and that he asked her to write him
letters to prove that she wanted to be with him. Id. at 53-54.
Regarding her previous false statements to police, Wife explained:
Alright, I was married to [Husband], I didn’t want to be
married, I wanted nothing to do with it three months into
marriage, so I went and I slept with my ex-boyfriend. This
is going to look really bad, but I’m just going to say it, I told
[Husband] about this, I told him what I did, and he said if
you want to be with me you need to go to the police station
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and you need to file rape charges. I told him, I said that’s
not what happened, he goes I don’t care, so I did it. It was
found unfounded and I got a hundred hours community
service and a year of good behavior [i.e. probation]. So yes
I have been [arrested and convicted of making false
statements to the authorities].
Id. at 58-59.
The court addressed the credibility issues in its opinion accompanying
the order:
Given the circumstantial evidence surrounding the notarized
[settlement agreement], [the psychiatrist’s] records
showing Husband’s attendance, and the conflicting direct
testimony from Husband’s own witness, Mr. Jones, which all
weigh in favor of Wife’s account and against Husband’s, [the
court] find[s] Husband’s testimony to be wholly incredible.
Furthermore, Husband had an argumentative demeanor on
the stand and, as [the court] remarked on the record, a
clear agenda in his testimony. [The court] highly suspect[s]
Husband attempted to mislead [this court] in furtherance of
that agenda, and [the court] caution[s] him against such
misleading testimony in future proceedings.
[The court] find[s] incredible Mr. Jones’s testimony because
it conflicts with Husband’s testimony[.] While the court
find[s] Mr. Garvey credible, [the court] do[es] not weigh his
testimony heavily in [its] decision as he is unable to
remember when Wife arrived at his office, nor her demeanor
on that day, nor the vehicle in which she left. [The court]
find[s] Wife wholly credible. Wife’s demeanor in testifying,
consistency with prior testimony before this [c]ourt, and
willingness to expose her own disobedience of a court order,
along with the circumstantial evidence surrounding the
notarized [settlement agreement] and [the psychiatrist’s]
records confirm Husband’s attendance, all lend credence to
her account of the events on January 13, 2017.
T.C.O. 1 at 31-32.
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Husband believes the trial court erred because his two witnesses’
testimony deserve more weight. For support, he cites Sobel v. Sobel, 254
A.2d 649, 651 (Pa. 1969) for the proposition that “a person’s mental capacity
is best determined by spoken words and conduct, and the testimony of
persons who observed such conduct on the date in question outranks
testimony as to observations made prior to and subsequent that date.”
Husband’s reliance is misplaced. Sobel concerned a person’s
competency to make an inter vivos gift. It has little bearing on the issue of
witness credibility. More to the point, Husband’s witnesses were not privy to
the moments encompassing the duress; they had no knowledge of the threats
Husband made to Wife in the car, nor the danger she faced if she failed to
comply.
We do not dispute Husband’s contention that the above testimony, if
reweighed, could have painted an entirely different picture. The problem with
Husband’s argument is he mistakenly believes it is our role to reweigh
evidence. As we stated in Stackhouse, supra, “We will not usurp the trial
court’s fact-finding function.” After all, “[i]t was within the province of the
[trial court] as fact-finder to resolve all issues of credibility, resolve conflicts
in evidence, make reasonable inferences from the evidence, believe all, none,
or some of the evidence, and ultimately adjudge [the parties].”
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006).
Here, the trial court heard Husband’s attempts to impeach Wife’s
credibility, as well as Wife’s explanations for the things and she did and said.
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The trial court simply believed Wife. The court also heard Husband’s witnesses
testify about various anecdotes and impressions from certain interactions with
the parties. The court did not find them particularly useful.
Most significantly, the court’s credibility determinations did not rest
solely on testimony. What appeared more persuasive for the court, was not
so much the testimony of the witnesses, but two separate documents: the
psychiatrist’s record of attendance; and the notarization page of the
settlement agreement. These documents corroborated Wife’s timeline of
events on January 13, 2017 – the day the parties executed the settlement
agreement – and they directly refuted Husband’s story. Husband testified he
worked that day and had his signature of the settlement agreement notarized
the following Monday, January 16. However, the psychiatrist’s record
indicated Husband attended the morning appointment on January 13; and the
settlement agreement indicated Husband had his signature notarized on
January 13. Furthermore, Husband’s version of events also conflicted with his
own witness, Mr. Jones, who testified Husband was present while Mr. Jones
worked in the home. When Husband was confronted with these
inconsistences, the court observed Husband become argumentative and
evasive.
In the end, the court had to ascertain the true story of what happened,
from four witnesses, whose accounts partially overlapped with one another’s.
Surely the court faced a dilemma, whether to believe an imperfect Wife on the
witness stand after she admitted to lying in previous instances. Such is a task
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we do not relish, and, without having the benefit of observing the parties
firsthand, one we cannot perform. The court ultimately chose to believe Wife.
We cannot say this decision was so unreasonable or improvident that it
constituted an abuse of discretion. See Adams, supra.
Having discerned that the record supports the trial court’s factual
findings, we turn now to the second part of Husband’s duress claim, i.e.,
whether Wife’s allegations constituted duress as a matter of law. To begin
this discussion, we return to contract principles.
Settlement agreements, whether pre-nuptial or post-nuptial, are
contracts and thus governed by the same rules of law used in determining the
validity of contracts. See id., 848 A.2d at 993 (citation omitted); see also
Stackhouse, 900 A.2d at 386. Absent fraud, misrepresentation, or duress,
parties are generally bound by the terms of their agreements. Adams, 848
A.2d at 993 (citation omitted); see also Simeone v. Simeone, 581 A.2d
162, 165 (Pa. 1990). Mutual assent is necessary to enter into a contract;
mutual assent does not exist however, when one of the contracting parties
elicits the assent of the other contracting party by means of duress. See
Adams, 848 A.2d at 993 (citation omitted). Because settlement agreements
are presumed valid and binding, the party seeking to avoid or nullify the
agreement has the burden of proving the invalidity of the agreement by clear
and convincing evidence. See In re Ratony’s Estate, 277 A.2d 791, 795
(Pa. 1971).
Our Supreme Court defined duress as follows:
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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. The quality of firmness is assumed to
exist in every person competent to contract, unless it
appears that by reason of old age or other sufficient cause
he is weak or infirm. Where persons deal with each other on
equal terms and at arm's length, there is a presumption that
the person alleging duress possesses ordinary firmness.
Moreover, in the absence of threats of actual bodily harm
there can be no duress where the contracting party is free
to consult with counsel.
Carrier v. William Penn Broadcasting Co., 233 A.2d 519, 521 (Pa. 1967);
The Supreme Court has also employed this definition when analyzing
duress claims involving settlement agreements between spouses. See
Simeone, 581 A.2d at 167 (citing Carrier, 233 A.2d at 521).
In our review of the relevant Pennsylvania case law, no spouse has ever
convinced a court to void a settlement agreement on grounds of duress. There
have been many instances where the party claiming duress suffered unseemly
pressures to sign an agreement, but in each case, the courts concluded that
those pressures did not constitute duress in the legal sense. For instance, in
Simeone, supra, the claimant alleged she was forced to sign a prenuptial
agreement on the eve of her wedding, “a time when she could not seek
counsel without the trauma, expense, and embarrassment of postponing the
wedding.” Id., 581 A.2d at 167. Likewise, in Hamilton v. Hamilton, 591
A.2d 720, 722 (Pa. Super. 1991), the claimant alleged she was told that
without a prenuptial agreement, there would be no wedding, notwithstanding
the fact that “she was pregnant, unemployed, and probably frightened.” In
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Lugg v. Lugg, 64 A.3d 1109, 1113-1114 (Pa. Super. 2013), we concluded
that “[d]aily badgering and one and one-half hours of ‘pressure and
negotiations’ does not rise to the level of coercion necessary to find duress.”
Husband argues the instant case is “strikingly similar” to Adams,
supra, and he is entitled to relief as a matter of law. See Husband’s Brief at
33. In Adams, a wife alleged she entered her marriage settlement agreement
under duress. The trial court denied her claim. On appeal, the wife argued
“the court failed to recognize her low self-esteem, dominance by an abusive
husband, fear of the judicial system, treatment for attention deficit disorder,
and alcoholism as evidence of her incapacity to assent.” Adams, 848 A.2d at
993. We disagreed and affirmed the trial court.
Whether the facts found by the trial court constitute duress as a matter
of law is a purely legal question for which our scope of review is plenary, and
our standard of review is de novo. See Stoner, supra. Using the first clause
of the duress definition, we initially look at the “degree of restraint or danger,
either actually inflicted or threatened and impending…” See Carrier, supra.
Here, Wife testified that she believed she had to sign the agreement,
that she was constantly afraid of Husband and the punishments he doled out
when she disobeyed him. See N.T. (Day 1) at 21-22, 27. Wife stated a
common punishment was that Husband kicked Wife out of the house, locked
the doors, and forced her to sleep on the porch. Id. at 23. Although she was
unsure how often Husband did this, she tallied the figure at more than ten
times over the course of their short marriage. Id. Beyond this degradation,
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Husband had begun physically abusing her prior to the execution of the
settlement agreement. Id. at 53. Wife explained: “So it was always this
manipulation of ‘if you go against this, I’ll do what I have always done in the
past and make sure you pay for it.’” Id.
Beyond the looming consequences for Wife’s disobedience, we also
observe Husband’s specific threat to Wife in the car on the way to the notary:
if Wife did not sign the agreement, he would ensure she never saw their
daughter again. Id. at 21. By January 2017, when they entered this
agreement, Husband had already been exploiting the judicial system to control
Wife. For example, after obtaining a PFA against Wife in June 2016, Husband
twice invited her back into the home and then filed for criminal contempt. In
fact, on the day the parties executed the agreement, a second contempt
petition was pending. Further, Wife testified that Husband had previously
threatened to “file an Amber Alert” if Wife took their daughter to the park. Id.
at 23. Finally, while there was no testimony that Husband “actually inflicted”
physical abuse in the car while driving to the notary, Wife’s testimony made
clear the restraint on her will was “threatened” and the danger to her person
was “impending.”
We next look at the second clause of the duress definition, i.e., whether
the restraint or danger was “sufficient in severity or apprehension to overcome
the mind of a person of ordinary firmness.” See Carrier, supra. Regarding
the “severity and apprehension” of the danger, Wife testified that another one
of Husband’s preferred punishments was to drain the parties’ joint bank
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account so she had no access to money. See N.T. (Day 1) at 23. Although
we do not categorize financial hardship as “danger,” we cannot ignore that
Husband controlled Wife’s finances. The severity and apprehension of
Husband’s abuse were intensified, because without financial resources, Wife’s
ability to escape the abuse was limited.
The next part of the duress analysis is whether a person of ordinary
firmness could overcome the aforementioned degree of restraint and danger.
Importantly, we observe the trial court’s conclusion that Wife did not even
possess “ordinary firmness” on account of “1) Husband’s control over Wife,
through intense and sustained domestic abuse; 2) Wife’s attempted suicide in
close proximity to the execution of the [settlement agreement]; and 3) Wife’s
heavy medication, which caused her to feel nauseous and apathetic.” T.C.O.
1 at 39.
We must clarify the duress inquiry on this point: when determining
whether a party could overcome the restraint or danger, may the court
consider that party’s unique state of mind, or must the court only consider the
state of mind of the “ordinary person.” In other words, is the test subjective
or objective?
The line of cases comprising the duress definition suggests that the
inquiry begins as an objective test, but if the presumption of “ordinary
firmness” is rebutted, the inquiry shifts to a subjective test. See Carrier, 233
A.2d at 521 (“The quality of firmness is assumed to exist in every person
competent to contract, unless it appears that by reason of old age or other
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sufficient cause he is weak or infirm.”); see also Irwin v. Weikel, 127 A.
612, 614-615 (Pa. 1925) (holding that the party claiming duress did not
controvert presumption of ordinary firmness)).2
The unique nature of a marriage contract also supports the potential use
of a subjective test. Carrier provides, “[w]here persons deal with each other
on equal terms and at arm’s length, there is a presumption that the person
alleging duress possesses ordinary firmness.” Carrier, 233 A.2d at 521
(emphasis added). But our Supreme Court “recognized in Simeone that
‘parties to [marriage contracts] do not quite deal at arm’s length, but rather
at the time the contract is entered into stand in a relation of mutual confidence
and trust….’” Stoner, 819 A.2d at 533 (quoting Simeone, 581 A.2d at 167).
Although the Stoner excerpt concerned the full disclosure of assets as
a necessary requirement of marital contract formation, its rationale applies in
this context. After all, mutual assent (free from duress) is also a necessary
requirement of marital contract formation. Unlike individuals making business
deals, parties to a marriage contract do not quite deal at arm’s length; each
party has intimate knowledge of whether the other party is weak or infirm. In
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2 The Supreme Court’s Carrier definition is taken entirely from Smith v.
Lenchner, 205 A.2d 626, 628 (Pa. Super. 1964), which in turn cites, inter
alia, Irwin. We do not employ the Restatement (Second) of Contracts when
the seminal Simeone favored Carrier instead. Such an avenue appears
doubly foreclosed considering that the Restatement (Second) explicitly omits
the term “ordinary firmness” for its “vagueness and impracticability.” See
Restatement (Second) of Contracts § 175 (comment b).
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a duress case, it would be absurd to preclude the court from considering these
subjective weaknesses or infirmities, if proven by sufficient evidence, in favor
of an objective “ordinary person” standard.
In other words, we presume a duress claimant has ordinary firmness,
but a claimant can rebut that presumption if the claimant shows sufficient
evidence of weakness or infirmity.3 Instantly, Wife had been under psychiatric
care for some time prior to the execution of the settlement agreement.
Additionally, when she saw her psychiatrist, Husband made sure he attended.
See N.T. Day 1, at 13. Wife testified, “I would tell him I don’t want you to be
in here with me, and he would be like well, you’re on my insurance so either
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3 In its opinion, the trial court invites us to carve out an automatic “battered
spouse syndrome” exception to the duress case law. The thinking goes, if a
claimant was a victim of domestic violence, then she has a per se weakness
or infirmity when contracting with her abuser. The trial court opined:
“‘Battered woman syndrome’ recognizes that a battered person faces repeated
and continued force from their abuser, whether that be physical or
psychological, and that such force is coercive.” T.C.O. 1 at 37 (citing
Commonwealth v. Stonehouse, 555 A.2d 772, 783 (Pa. 1989) (holding that
battered spouse syndrome was a defense to homicide)).
We note first that battered spouse syndrome is not within the ordinary
training, knowledge, intelligence and experience of a fact-finder, and thus
such a legal defense would require expert testimony. See Stonehouse, 555
A.2d at 782-783. In this case, no such expert testimony was offered. More
to the point, we must recognize our role. “The Superior Court is an error
correcting court and we are obliged to apply the decisional law as determined
by the Supreme Court of Pennsylvania.” Matter of M.P., 204 A.3d 976, 986
(Pa. Super. 2019) (citation omitted). “It is not the prerogative of an
intermediate appellate court to enunciate new precepts of law or to expand
legal doctrines. Such is a province reserved to the Supreme Court.” Id.
(citation omitted). For those reasons, we decline to carve out a per se
exception in this case.
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you let me go or I’m not paying for your appointment.” Id. On at least one
occasion, Husband successfully suggested an unnecessary diagnosis; Wife
testified:
I used to go to the psychiatrist’s office, [Husband] was
present, I would tell them there’s a GPS tracker on my car,
he manipulates me, he’s mean, and he knows what I’m
doing, where I’m doing, he’s all involved in my life. He’s
going through my phone constantly, he text messages
himself from my phone to think I’m crazy, and [Husband]
would be[,] [“]I told you she’s schizophrenic, I told you she’s
acting crazy.[”] So I would get angry and I would go off,
because I don’t have a voice, and the psychiatrist is
believing him, so at one point in time, oh she’s
schizophrenic, so yes, you can say I was diagnosed
schizophrenic.
Id. at 44.
As a result of Husband’s dominance and Wife’s reaction to it, Wife was
prescribed unnecessary medications. Moreover, Wife did not understand what
medications she took, because Husband kept them under lock and key, and
refused to tell her what they were or what they were for. Id. at 13. By
December 2016, Wife’s mental state deteriorated as she endured Husband’s
abuse. Id. at 10. After Husband told Wife to “leave his F’ing house,” that she
would never see her daughter again, and after his malevolent urging that she
kill herself, Wife attempted suicide. Id.
After taking her to the hospital, Husband had Wife involuntarily
committed to a psychiatric hospital. While she was committed, Husband
visited her, and for the first time, mentioned the idea of signing a separation
agreement. In late December 2016, Wife left the psychiatric hospital, but she
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still felt physically and psychologically unstable. Id. at 17. On January 10,
2017, Wife went to see the psychiatrist, with Husband in attendance. Wife
wanted to go back to the hospital; she said she felt “like I was losing my mind,
like I was going crazy.” Id. at 18. The psychiatrist changed Wife’s medication,
although Wife did not know how the medication was changed as Husband
continued to disperse the pills. Three days later, in the morning of January
13, Wife went back to the psychiatrist. Wife testified,
I called them because at this point I’m really sick,
everything I eat I’m like throwing up, and I’m just like, I felt
like I was like a zombie to the world, like, for example, like
the house could have been burning and I really wouldn’t
have care. I was just out of it completely.
Id. at 20. Following this appointment, Husband drove her to the notary so
she could sign the settlement agreement he had drafted.
Once Wife was finally able to free herself from the cycle of domestic
violence by obtaining a PFA in 2018, she was able to have a voice in her own
mental health. She testified that none of the antidepressants or mood
stabilizers were necessary, and that their numbing effect had caused her to
accept Husband’s behavior and believe his absurd threats. See id. at 27-28.
Given Husband’s infliction of systematic mental and physical abuse, and
given the side effects of the unnecessary medication that Husband controlled,
we conclude Wife rebutted the presumption that she possessed ordinary
firmness at the time she signed the settlement agreement. Thus, the court
properly considered Wife’s individual state of mind. Likewise, we consider this
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finding to determine whether Wife met the legal definition of duress; i.e.,
Wife’s ability to overcome the degree of restraint and danger Husband
imposed on her.
When Wife signed the settlement agreement, she faced both impending
physical danger, and Husband’s explicit threat that she would never see her
child again unless she signed it. The physical danger and the explicit threat
operated as a restraint of Wife’s free will. Because Husband had followed
through with his threatened punishments before, including his improper use
of the legal system to obtain sole custody, these threats caused Wife
apprehension. Moreover, Wife was in a mentally and physically weakened
state to resist this restraint and danger, due to the unnecessary medications
Husband gave her. In short, the degree of threatened restraint and impending
danger was sufficient in severity and apprehension to overcome Wife’s
personal state of mind.
Wife has met the legal definition of duress up to this point, but the
duress analysis does not necessarily end here. Our Supreme Court has said,
“In the absence of threats of actual bodily harm there can be no duress where
the contracting party is free to consult with counsel.” See Carrier, supra.
Because we conclude that the danger Wife faced was the impending threat of
actual bodily harm, we do not have to decide whether Wife had the opportunity
to consult counsel. Still, we acknowledge that the threat of actual bodily harm
was not explicitly verbalized by Husband in the car on the way to the notary.
However, even if Husband’s impending physical abuse – abuse he previously
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inflicted as punishment for her noncompliance – did not equate a “threat of
actual bodily harm,” we would still conclude Wife has met the legal definition
of duress. This is because Wife did not have the opportunity to consult with
counsel.
In our case law, the duress claimant’s ability to consult with an attorney
has often proved to be fatal to the claim. No matter how reprehensible the
negotiation tactics were, if the claimant was able to consult with an attorney,
the danger or restraint could not have been sufficiently severe to constitute
legal duress. In Adams, the claimant consulted her attorney on multiple
occasions prior to entering the agreement. 848 A.2d at 994. In Hamilton,
not only did the claimant have an opportunity to consult with an attorney, her
attorney even advised her not to sign the agreement. 591 A.2d at 722.
Instantly, the court concluded Wife had no such opportunity, based in
part upon Wife’s testimony that Husband told her she would never see her
daughter again if she dared consult counsel. See T.C.O. 1 at 42. Husband
primarily relies on his own testimony to argue there is “substantial support”
in the record that Wife had ample opportunity to consult an attorney.
At trial, Husband testified he sent Wife the draft of the settlement
agreement in August 2016, approximately five months prior to the parties’
execution of the agreement. See N.T. (Day 2) at 21-22. Although Husband
did not furnish the draft at trial, he did confront Wife with one of her text
messages where Husband purported she acknowledged the draft. Wife’s text
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stated, “Wow I got my divorce papers today, guess that was my birthday
surprise.” See N.T. (Day 1) at 35.
Wife testified these “divorce papers” from August 2016 did not include
the settlement agreement that she executed in January 2017:
Wife: [I]f I remember correctly I did get papers,
but these papers, now, they, were divorce
papers, [Husband] has been talking about
divorce for years, it’s always been his key,
but these papers was, it wasn’t if I remember
it wasn’t like a stack of papers, it was like
four or five pages long and I’m like what do
you want me to do with these, he’s like just
sign them and send them back. So yes, I did
send those text[s], like I did, I did get papers
but it was for the divorce, like it, divorce
papers, I believe, that was it. There was
nothing attached to them.
Id.
Husband’s counsel pressed Wife further:
Counsel: Now you indicated in your counter-petition
that [Husband] described these documents
as estate planning documents?
Wife: I don’t know what estate documents even
mean.
Counsel: Okay, well that’s what you indicated in your
counter-petition, so I’m asking you, what did
you mean by that when you filed your
counter-petition?
Wife: I didn’t, my lawyer filed it, so I don’t know.
[…] I mean not to sound dumb here, I don’t
know what estate documents even are, like I
don’t know.
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Id. at 39-40.
Husband also relies on the testimony of Mr. Jones, who was at the
parties’ home on the day the parties executed the settlement agreement. Mr.
Jones testified Wife “took the papers that she had and threw them on the table
and said here, you wanted it, you got it, and then she stormed out.” See N.T.
(Day 2) at 7.
We understand Husband’s contentions, and we also recognize that it
was Wife’s burden, not Husband’s, to show she did not have an opportunity
to consult an attorney. Moreover, we have held that the opportunity to consult
an attorney may occur long before a proposed agreement is ever reduced to
writing. See Simeone v. Simeone, 551 A.2d 219, 225 (Pa. Super. 1988),
affirmed 581 A.2d 162 (Pa. 1990) (holding that the duress claimant had an
opportunity to consult counsel, despite no draft being presented until the eve
of the wedding, because witness testimony revealed that parties previously
discussed a potential prenuptial agreement).4
Whether Wife had the opportunity to seek counsel turns on the
credibility of the witnesses. The trial court did not weigh heavily Mr. Jones’
testimony that Wife threw down a stack of papers on the counter. Mr. Jones
did not testify that the stack of papers included the settlement agreement;
this was an inference Husband wanted the trial court to make, and one that is
____________________________________________
4 We clarify that this citation to Simeone refers to the Superior Court’s
decision prior to the Supreme Court’s Simeone decision, which we discussed
above.
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largely irrelevant to the question of whether Wife signed the agreement under
duress. Instead, the court found Wife maintained throughout her testimony
that, while Husband often threatened divorce as a punishment, he told Wife
the settlement agreement he gave her to sign in January 2017 was merely a
paper trail he needed for his employment. See N.T. (Day 1) at 34, 16. In
fact, Husband told Wife explicitly he was not divorcing her, but that he needed
an agreement saying they were separated. Id. at 49-50. Husband promised
Wife he loved her and he “wouldn’t do you dirty.” Id. at 16.
Because Wife did not consider the settlement agreement to be incident
to a divorce, it follows that the “divorce papers” she received in August 2016
were truly different in nature from the settlement agreement presented to her
on January 13, 2017 (notwithstanding her unfamiliarly with her lawyer’s
“estate planning” terminology). This inference is supported by Wife’s cross-
examination testimony that she never negotiated the division of property with
Husband prior to the settlement agreement, a document Husband promised
had nothing to do with a potential divorce. Id. at 36-37. Instantly, what
Husband seeks is for this Court to “usurp the trial court’s fact-finding function”
and reweigh the testimony, per our discussion above. See Stackhouse,
supra.
In sum, we conclude the record supports the trial court’s determination
that Wife did not have the ability to consult with an attorney. When coupled
with our analysis above regarding Wife’s inability to overcome the degree of
restraint and danger, we ultimately conclude Wife met the legal definition of
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duress. As such, the settlement agreement lacked mutual assent, rendering
it voidable. The court did not err when it granted Wife’s request to invalidate
the settlement agreement. By virtue of our disposition of Husband’s first
appellate issue, we need not address Husband’s second issue, whether Wife
established the alternative ground of fraud.
We turn to Husband’s final appellate issue, whether the court
demonstrated an appearance of bias. Husband presents a myriad of examples
of judicial impropriety. See Husband’s Brief at 47-52. Most are regurgitations
of Husband’s previous arguments concerning the court’s credibility
determinations. See id. at 49-51. By now we have addressed the credibility
issue thoroughly, but we observe that an adverse ruling does not establish
bias on the part of the judge. See Commonwealth v. McCauley, 199 A.3d
947, 951 (Pa. Super. 2018) (citing Commonwealth v. Travaglia, 661 A.2d
352, 367 (Pa. 1995)).
In three other instances of the trial court’s alleged bias, we must find
waiver pursuant to Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). We briefly
summarize them as follows.
First, Husband takes aim at the trial court’s first opinion (T.C.O.1, at 1-
45), which the court issued contemporaneously with its order. In this opinion,
the court stated it took judicial notice of the prior proceedings and then
detailed the parties’ elaborate procedural history. Husband’s specific
contention, however, is not that the court took judicial notice of the record.
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His contention is the court had an implicit bias in the instant matter after
having previously adjudicated the parties’ prior cases, including the July 2018
PFA hearing, where the court made the rather remarkable credibility
determination that Husband “was playing the system like a Stradivarius.” See
C.H.L. v. W.D.L., 214 A.3d 1272, 1275 (Pa. Super. 2019). The issue is
waived, because Husband did not seek the court’s recusal prior to or even
during the instant hearing.5
Second, Husband cites the portion of testimony where the court
reprimanded him. See Husband’s Brief at 48-49. At one point during the
testimony, the court discovered Husband was texting with his sequestered
witness. See N.T. (Day 1) at 45-47. The court instructed Husband’s counsel
to review the texts and, without divulging what the texts said, represent with
appropriate candor whether Husband violated the court’s sequestration order.
Counsel conceded the witness texted Husband, but only because the witness
had to leave soon to retrieve his daughter from school. The court was satisfied
by counsel’s explanation that the text was purely logistical and allowed the
testimony to continue. If Husband detected impropriety with the court’s
demeanor, he was obligated to raise the matter immediately.
____________________________________________
5 We do not suggest that this trial court, or any court that presides over
multiple family court cases, should automatically recuse when confronted with
its prior credibility determinations. On this issue, we “recognize that our trial
judges are honorable, fair and competent” and that “the judge himself [or
herself] is best qualified to gauge his [or her] ability to preside impartially.”
In re A.D., 93 A.3d 888, 893 (Pa. Super. 2014).
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Finally, Husband contends the trial court conducted an improper factual
investigation when it independently researched the person who notarized
Husband’s signature of the settlement agreement, and thus the court
improperly considered facts not offered in reaching its decision. Only this
allegation of impropriety is worthy of discussion.
We review challenges to a court’s partiality for an abuse of discretion.
McCauley, 199 A.3d at 950.
[T]he appearance of bias or prejudice can be as damaging
to public confidence in the administration of justice as the
actual presence of bias or prejudice. However, simply
because a judge rules against a [party] does not establish
bias on the part of the judge against that [party]. Along the
same lines, a judge’s remark made during a hearing in
exasperation at a party may be characterized as
intemperate, but that remark alone does not establish bias
or partiality.
Id. at 950-951 (citations and quotations omitted).
In practice, “[d]iscretion is abused when the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Commonwealth
v. Goldman 70 A.3d 874, 879 (Pa. Super. 2013) (quoting Commonwealth
v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).
In its opinion accompanying its order, the court noted:
Husband’s signature was notarized on the same day as
Wife’s, January 13, 2017, by a Jennifer Berger, stamped in
Stroud Township. [The court] also note[s] that there is a
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Jennifer Berger, who is a notary public, working as a
paralegal in the office of Kash Fedrigon Belanger, LLC.
Furthermore, the office of Kash Fedrigon Belanger, LLC. is
located in Stroud Township and represented Husband at the
time of the [settlement agreement’s] execution.
T.C.O. 1 at 31.
Husband avers none of this information was contained in the notes of
testimony, and thus the court impermissibly based its decision on facts and
evidence not of record. While we agree with Husband that the court’s inquiry
into Jennifer Berger’s employment was an error of judgment, we do not
conclude it was so manifestly unreasonable that it rises to the level of an
abuse of discretion.
Critically, the court’s inquiry into Jennifer Berger had no bearing on the
court’s findings. We know this because it was never a mystery where, and by
whom, Husband had his signature notarized. Both parties testified Husband
took the settlement agreement to his attorney’s office. The only dispute was
when Husband had his signature notarized. Wife testified that after she had
her signature notarized, the parties immediately drove to Husband’s
attorney’s office to get his signature notarized. Husband testified that he took
the settlement agreement to his attorney on the following Monday, January
16, 2017. See N.T. (Day 2) at 28. To resolve this discrepancy, the court
consulted the settlement agreement. Wife’s signature was stamped by Mr.
Garvey. Husband’s signature was stamped by Jennifer Berger. Both
notarizations are separately dated January 13, 2017.
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Husband’s argument does not end here. Husband‘s Brief also suggests
the court should not have even consulted the notarization stamps in the
settlement agreement, because the settlement agreement was not formally
admitted into evidence. See Husband’s Brief at 48. Although Husband marked
the settlement agreement as his Exhibit 2, discussed it in detail on the witness
stand, and used it to cross-examine Wife, Husband apparently forgot to seek
its admission into evidence. See N.T. (Day 1) at 45, 47-48, 55. In fact,
Husband forgot to seek admission of all his exhibits. Unlike those exhibits,
the settlement agreement also exists in the record, because Husband attached
it to his petition for contempt and enforcement. Only on appeal does Husband
shy away from this document.
We find this situation to be akin to the conundrum presented in Green
v. Green, 69 A.3d 282 (Pa. Super. 2013). In Green, divorcing parties
appeared for an equitable distribution trial. But at trial, the parties reached a
partial agreement. And although the trial never actually took place, they
reduced this partial agreement to a document that they labeled as “Exhibit 1.”
Years later, the trial court considered “Exhibit 1” to adjudicate outstanding
property issues. Unhappy with the court’s decision, the husband appealed.
On appeal, the appellant argued that the trial court’s consideration of
“Exhibit 1” was erroneous, because “Exhibit 1” was never formally admitted
into evidence. Green, 69 A.3d at 283-285. In our review, we observed it
should have been clear to the appellant that the trial court intended to use
“Exhibit 1” as record evidence; we noted further that the appellee’s underlying
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motion referenced “Exhibit 1;” and we recognized that the appellant never
objected to the court’s use of “Exhibit 1” at trial. Id. at 286-287. Ultimately,
we concluded the husband waived the issue for failing to raise it in the lower
court, pursuant to Pa.R.A.P. 302(a). Id.
Returning to the instant matter, Husband was the party who sought the
enforcement of the settlement agreement. He was the party who entered it
into the record. And at trial, he utilized it on both direct and cross
examination, because he was the party seeking to uphold its validity. After
the trial court explained its decision, Husband’s failure to seek formal
admission of the settlement agreement became fortuitous, because the
notarization page impeached his testimony. Only on appeal does Husband
argue the trial court could not consider it. We disagree and conclude that,
like in Green, Husband cannot object to the court’s reliance on a document
he sought to uphold for the first time on appeal. As such, we conclude
Husband has largely waived his third appellate issue. To the extent that he
has not, the trial court did not display an appearance of impropriety.
In sum, we conclude the trial court did not commit an abuse of
discretion, nor an error of law, when invalidating the parties’ settlement
agreement on grounds of duress. Given this decision, we need not address
Husband’s challenge to the trial court’s finding of fraud. We further conclude
that Husband’s allegations of trial court impropriety are waived or merit no
relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/20
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