J-A08016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIAN SHELDON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOANNE SHELDON :
:
Appellant : No. 1689 EDA 2020
Appeal from the Order Entered August 12, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2016-14233
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED MAY 26, 2021
Joanne Sheldon (Wife) appeals from the order granting the petition for
special relief filed by Brian Sheldon (Husband) during post-decree
proceedings. Wife specifically challenges the trial court’s grant to Husband
of “full control” of the sale of the former marital residence, “at a price to sell”
and “capped at $445,000.00”; the court also ordered that if there were “no
offers or movement,” the list price “shall drop by $5,000.00” every two
weeks. Upon review, we affirm.
Husband and Wife married on May 22, 1999. After separating, and in
contemplation of divorce, they entered into a Property Settlement
Agreement (PSA) dated February 29, 2016. On July 14, 2016, Husband filed
____________________________________________
* Former Justice specially assigned to the Superior Court.
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for divorce. On May 26, 2017, the trial court entered a divorce decree which
incorporated the parties’ PSA.
Pertinently, the PSA provided Wife with the marital residence, in
exchange for waiving her interest in Husband’s retirement accounts, as well
as any claims for spousal support, alimony, counsel fees and expenses. PSA
at 4-7. Because Husband was a payor on the mortgage of the marital
residence, the PSA provided that Wife “refinance the current mortgage on
the property by September, 2019. If for any reason, [Wife] defaults on the
mortgage for 45 days, the residence shall immediately be listed for sale.”
Id. at 9.
On June 28, 2019, Husband filed a petition for special relief to enforce
the PSA based on Wife’s failure to make mortgage payments between May
and July of 2019. The court held a hearing on September 10, 2019. In
finding Wife in contempt, the court explained:
. . . [Wife] admitted, on direct examination by her own lawyer,
that she failed to make timely payments for two months. N.T.,
[9/10/19, at] 17-18. The lender’s documents, which [the trial
court] found more credible than her testimony, proved she failed
to make payments for three months. Id. at 29. Nothing in her
testimony suggested that she was willing or able to perform her
obligation to refinance by the month’s end. To the contrary, she
testified that she would only have the property listed for sale by
the end of the month, and her focus was not minimizing the
harm she was causing to [Husband], but maximizing the gain on
the sale by acting as the listing agent. Id. at 19-20.
[The trial court] found [Wife] in breach of the PSA, id., and . . .
also found that [Wife’s] default caused great harm to
[Husband’s] credit worthiness, id. at 32-33. Because the PSA
was made an order of the court in the divorce decree, [the
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court] also found [Wife] in contempt for having intentionally
breached her obligation to list the property for sale within 45
days after she defaulted. Id. at 30-31.
Trial Court Opinion, 9/24/20, at 4.
On the day of the hearing, September 1, 2019, the parties executed a
consent order requiring Wife to list the property for sale no later than
September 30, 2019. Order, 9/10/19, at ¶1. The order granted Wife full
control of the listing until February 22, 2020, at which time Husband would
“have the option of designating a [realtor] for the listing of the property for
a period of 145 days.” Id. at ¶2. Wife agreed to make monthly mortgage
payments, cooperate with all realtors, make the residence available for
showing, and keep it in good order and repair. Id. at ¶¶3, 5-6.
Wife listed the property for $874,995.00. On March 5, 2020, Husband
filed a petition for contempt. Husband averred that Wife continued to make
late payments on the mortgage and was overpricing the property, “making a
mockery of the Court’s Order and ensuring that the home would not sell and
further perpetuating the damage to [Husband’s] credit.” Petition for
Contempt, 3/5/20, at ¶13. The trial court held another hearing on August
12, 2020. Husband testified that on February 22, 2020, he retained a real
estate agent to list the property, but Wife would not cooperate. N.T.,
8/12/20, at 15. Husband also testified that his agent performed a market
analysis on the property and determined the fair market value in September
2019 to be between $385,000 - $425,000. Id. at 14.
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Husband presented the testimony of real estate agent Raymond Jones,
who testified that the fair market value of the property in August of 2020
was $524,000 to $554,000; however, Mr. Jones noted Wife denied him
access to the home, and flooding issues on the property would impact the
sale. N.T., 8/12/20, at 46-48. Husband had submitted into evidence
“Exhibit 1,” an appraisal conducted on August 1, 2020 which valued the
property at $545,000. Id. at 18. Like Mr. Jones, Husband noted that the
property sustained recent water damage and would require mold
remediation and repair. Id. at 22-23.
Consistent with the above testimony, the trial court found Wife “failed
to perform her obligations as ordered by the court in 2019.” Trial Court
Opinion, 9/24/20, at 6. Accordingly, the trial court ordered, in relevant part:
1. [Husband] is to have full control of the property listing for
301 Smith Road, Schwenksville, PA as well as utilize a realtor
of [Husband’s] choice. The property is to be listed at a price
to sell.
2. [Wife] is to cooperate with all negotiations pertaining to the
listing and sale of the property at 301 Smith Road,
Schwenksville, PA, as well as sign any/all necessary
paperwork pertaining to said property. The failure of [Wife]
to comply with this Order may result in Sanctions of a fine of
$100.00 a day for every day in Contempt of this Court’s
Order.
3. The sale price of the property at 301 Smith Road,
Schwenksville, PA is to be capped at $445,000 (Four Hundred
and Forty Five Thousand Dollars). If there is no offers or
movement on said property after 2 weeks, the price of said
property shall drop by $5,000 (Five Thousand Dollars) every
2 weeks thereafter.
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4. Within 10 days of the date of this order, [Wife] is to make the
property at 301 Smith Road, Schwenksville, PA available to
[Husband’s] real estate agent. [Wife] is to cooperate with the
process of showing the property. If [Wife] does not comply
with this Order, Law Enforcement may be utilized to gain
entry into said property.
Order, 8/12/20, at ¶¶1-4.
Wife filed this appeal. Both Wife and the trial court have complied with
Pennsylvania Rule of Appellate Procedure 1925. On appeal, Wife presents
the following two issues:
A. Whether through its Order of August 12, 2020, the trial court
erred as a matter of law and abused its discretion in altering
the terms of the parties’ Property Settlement Agreement
entered on February 29, 2016.
B. Whether the trial court erred as a matter of law and abused
its discretion in overruling an Order of Court by a Judge in the
same Court in the same matter.
Wife’s Brief at 3.
We review a trial court’s decision to grant or deny special relief in
divorce actions for an abuse of discretion.
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if,
in resolving the issue for decision, it misapplies the law or
exercises its discretion in a manner lacking reason. Similarly,
the trial court abuses its discretion if it does not follow legal
procedure.
An abuse of discretion exists when the trial court has rendered a
decision or a judgment which is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was
motivated by partiality, prejudice, bias or ill will.
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However, our deference [to the trial court] is not uncritical. An
order may represent an abuse of discretion if it misapplies the
law. It is therefore our responsibility to be sure that in entering
its order the court correctly applied the law. An order may also
represent an abuse of discretion if it reaches a manifestly
unreasonable result. This will be the case if the order is not
supported by competent evidence. It is therefore also our
responsibility to examine the evidence received by the court to
be sure that the court’s findings are supported by the evidence.
Although we will accept and indeed regard ourselves as bound
by the court’s appraisal of a witness’ credibility, we are not
obliged to accept a finding that is not supported by the evidence.
When reviewing questions of law, our scope of review is plenary.
Conway v. Conway, 209 A.3d 367, 371 (Pa. Super. 2019) (citation omitted
and formatting altered). Further, with regard to Wife’s challenge of the trial
court’s interpretation of the parties’ PSA, we note that post-nuptial
agreements are to be reviewed under the same principles as pre-nuptial.
Lugg v. Lugg, 64 A.3d 1109, 1112 (Pa. Super. 2013). We recognize:
The determination of marital property rights through prenuptial,
post-nuptial and settlement agreements has long been
permitted, and even encouraged. Where a prenuptial agreement
between the parties purports to settle, fully discharge, and
satisfy any and all interests, rights, or claims each party might
have to the property or estate of the other, a court’s order
upholding the agreement in divorce proceedings is subject to an
abuse of discretion or error of law standard of review. An abuse
of discretion is not lightly found, as it requires clear and
convincing evidence that the trial court misapplied the law or
failed to follow proper legal procedures. We will not usurp the
trial court’s fact-finding function.
* * *
As to interpretation, enforcement, and remedies, in
Pennsylvania, [property settlement] agreements are interpreted
in accordance with traditional principles of contract law.
Generally, the parties are bound by their agreements, absent
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fraud, misrepresentation or duress. They are bound without
regard to whether the terms were read and fully understood and
irrespective of whether the agreements embodied reasonable or
good bargains.
When interpreting an [] agreement, the court must determine
the intention of the parties. When the words of a contract are
clear and unambiguous, the intent of the parties is to be
discovered from the express language of the agreement. Where
ambiguity exists, however, the courts are free to construe the
terms against the drafter and to consider extrinsic evidence in so
doing.
Sabad v. Fessenden, 825 A.2d 682, 686, 688 (Pa. Super. 2003)
(quotations and citations omitted).
Because contract interpretation is a question of law, this Court is not
bound by the trial court’s interpretation. Stamerro v. Stamerro, 889 A.2d
1251, 1257–58 (Pa. Super. 2005) (citations and quotations omitted). Our
standard of review 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. Id. However, we are bound by the trial court’s
credibility determinations. Kraisinger v. Kraisinger, 928 A.2d 333, 339
(Pa. Super. 2007) (when interpreting marital settlement agreement, trial
court is sole determiner of facts; absent abuse of discretion, we will not
usurp trial court’s fact-finding function).
When construing agreements involving clear and unambiguous terms,
this Court need only examine the writing itself to give effect to the parties’
understanding. Creeks v. Creeks, 619 A.2d 754, 756 (Pa. Super. 1993).
The court must construe the contract only as written and may not modify
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the plain meaning of the words under the guise of interpretation. Id. When
the terms of a written contract are clear, this Court will not re-write it or
give it a construction in conflict with the accepted and plain meaning of the
language used. Id.
Here, the PSA specified “the parties may utilize any remedy or section
set forth in the Pennsylvania Divorce Code of 1980, as amended, to enforce
any term of this Agreement as though it had been an Order of Court.” PSA
at 8. Regarding modification, the PSA states, “No modification or waiver of
any of the terms hereof shall be valid unless in writing and signed by both
parties and no waiver of any breach hereof or default hereunder shall be
deemed a waiver of any subsequent default of the same or similar nature.”
Id. at 7.
Wife asserts that the trial court erroneously modified the plain
meaning of the PSA, and that the PSA fails to contemplate a list price for the
property – reasonable or otherwise – or that the property be sold “as is.”
Wife’s Brief at 11-12. Wife claims that despite “her best efforts,” she was
unable to refinance the property in the time set forth in the PSA, and
therefore listed the property for sale in September 2019. Id. at 10-11.
Wife contends the trial court’s order capping the list price and requiring the
price decrease $5,000 every two weeks until sold was an impermissible
modification of the PSA and an error of law. Id.
Conversely, Husband argues the Divorce Code “grants the trial courts
broad power to enforce orders of equitable distribution, and provides
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remedies available against one who fails to comply with a court’s order of
equitable distribution.” Husband’s Brief at 13 (citing Prol v. Prol, 935 A.2d
547, 553 (Pa. Super. 2007)). Husband cites Section 3502 of the Divorce
Code, which states:
(e) Powers of the court.--If, at any time, a party has failed to
comply with an order of equitable distribution, as provided for in
this chapter or with the terms of an agreement as entered into
between the parties, after hearing, the court may, in addition to
any other remedy available under this part, in order to effect
compliance with its order:
(1) enter judgment;
* * *
(4) order and direct the transfer or sale of any property
required in order to comply with the court’s order;
* * *
23 Pa.C.S.A. § 3502(e) (emphasis added).
Husband contends the trial court “did not alter the terms of the
parties’ PSA when it fashioned the August 12, 2020 Order. Rather, the trial
court, after a full hearing, found [Wife] in contempt of the duties imposed by
the September 10, 2019 Order and found [Husband] continued to be
harmed by [Wife’s] continued willful disregard for the Court’s September 10,
2019 Order. . . .” Husband’s Brief at 14. We agree.
First, the PSA permits modification so long as modification is “in
writing and signed by both parties.” The September 10, 2019 consent order
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modifying the terms of the PSA was signed by both parties and permissible
under the express terms of the PSA.
Likewise, the trial court did not err in finding Wife willfully violated the
September 10, 2019 consent order. The court explained:
Notwithstanding that the [September 10, 2019] order created a
mechanism by which [Wife] would eventually forfeit control over
the selling price, it also gave her an extra five months to sell the
property at the highest price the market would bear and
extended the deadline for satisfying the note indefinitely, to
whatever date the property might be sold.
Two weeks after the deadline of February 22, 2020, [Husband]
filed a Petition for Contempt of the September 10, 2019 Order.
The petition averred that when [Wife] listed the property for
sale, she set the initial price at $874,900.00, far above the value
suggested by a market analysis by [Husband’s] real estate
agent. The petition also averred that when [Wife] failed to sell
the property by February 22, 2020 and [Husband] notified [Wife]
that he would exercise his option to list the property for sale, she
breached her obligation to cooperate with [Husband’s] real
estate agent.
On August 12, 2020, [Husband] appeared in court and produced
testimony and documentary evidence supporting his allegations.
...
* * *
From the foregoing evidence the [trial court] found [Wife] failed
to perform her obligations as ordered by the court in 2019. To
achieve a remedy for [Husband] in view of [Wife’s] continuing
breach of her obligations to sell the property and pay the note,
the [trial court] decided that the house would be listed for sale
by [Husband’s] real estate agent, as is, priced to sell. The [trial
court] filed a written order giving [Husband] full control over
listing the property for sale, except that the price was not to
exceed $445,000.00 and for every two weeks the property
remained unsold, the price was to be dropped $5,000.00. Like
[the September 10, 2019 consent order], the [court] ordered
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[Wife] to fully cooperate with the listing agent. In view of her
longstanding intransigence, the [court] specifically ordered her
to allow [Husband’s] agent to enter the property, and stated that
[Husband] and his agent could apply to law enforcement for
assistance if [Wife] refused entry.
Trial Court Opinion, 9/24/20, at 5-7.
The record supports the court’s reasoning, and we thus discern no
error or abuse of discretion. The Divorce Code grants the court full “equity
power and jurisdiction” to advance justice. Section 3323(f) provides:
Equity power and jurisdiction of the court.—In all
matrimonial causes, the court shall have full equity power and
jurisdiction and may issue injunctions or other orders which
are necessary to protect the interests of the parties or to
effectuate the purposes of this part and may grant such
other relief or remedy as equity and justice require
against either party or against any third person over whom
the court has jurisdiction and who is involved in or concerned
with the disposition of the cause.
23 Pa.C.S.A. § 3323(f) (emphasis added).
Under Section 3323(f), the trial court may order a party to act or
refrain from acting if and as appropriate. “[T]he parameters of the
enforcement authority the General Assembly intended to give the trial
courts,” are ascertained “by considering the occasion and necessity for the
enactment and the object the Legislature sought to attain in the statute.”
Annechino v. Joire, 946 A.2d 121, 123 (Pa. Super. 2008). As this Court
noted in Annechino, the purpose of the 1988 amendments to the Divorce
Code was to extend remedies, sanctions and vehicles of enforcement to
agreements covering certain matters ancillary to divorce. Id. at 124. In
sum, the trial court in this case had equitable power and jurisdiction to enter
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the August 12, 2020 order specifying conditions to effectuate the sale of the
marital residence consistent with the terms of the parties’ PSA. 23 Pa.C.S.A.
§ 3323(f).
Husband testified that despite agreeing to pay the mortgage as
provided in the PSA, Wife did not pay the mortgage, and as a result, his
credit score dropped nearly 300 points. N.T., 8/12/20, at 9. Also, Wife’s
delay of the sale of the property and violation of both the PSA and
September 10, 2019 consent order caused Husband to incur additional
attorney’s fees for the pursuit and presentation of the contempt petitions.
Id. at 9, 20-22. Wife provided no explanation for her failure to comply with
the PSA and September 10, 2019 consent order; despite the court ordering
Wife to appear at the August 12, 2020 hearing, Wife opted to travel to North
Carolina for a “vacation with her family.” See Wife’s Brief at 11 n.1; see
also N.T., 8/12/20, at 3-4.
As discussed above, the court found Husband credible, and entered
the August 12, 2020 order to advance the purpose of the parties’ PSA and
September 10, 2019 consent order, i.e., resolve equitable distribution of the
marital estate. See 23 Pa.C.S.A. § 3502(e)(4) (“If, at any time, a party has
failed to comply with an order of equitable distribution” the trial court may
“order and direct the transfer or sale of any property required in order to
comply with the court’s order.”). We agree with the trial court that under
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these circumstances, where Wife was clearly in contempt, the order was
appropriate.1
In her second issue, Wife baldly asserts the trial court’s August 12,
2020 order “effectively nullified [the September 10, 2019 consent order] and
rewrote the Order with no regard to the contractual agreements set forth in
the PSA.” Wife’s Brief at 16. Wife cites Hainsey v. Com. Pa. Liquor
Control Bd., 602 A.2d 1300 (Pa. 1992), for the general proposition that it is
“improper for one judge to overrule another judge based upon the same
record facts in that such action [constitutes] an abuse of discretion.” Wife’s
Brief at 14 (citing Hainsey, 602 A.2d at 1305). Wife suggests that because
the September 10, 2019 order was silent as to a list price for the marital
residence, the August 12, 2020 order effectively nullified the September 10,
2019 order and was an abuse of discretion by the trial court.
The trial court opined:
On appeal [Wife] argues that the undersigned “overruled” [the
September 10, 2019] order by regulating the sale price of the
property, but that term did nothing to impede [the September
10, 2019] order insofar as it gave [Husband] an option to sell
____________________________________________
1 For example, Husband and his realtor both testified that the property
sustained flood damage, and “at this point, it could be an unsalable home.”
N.T., 8/12/20, at 46-47. Husband also stated there was “now mold damage
in the house that needs to be remediated. There’s a flooding issue that
occurred several times that needs to be remediated.” Id. at 22. Husband
urged the trial court to order the property “listed as is and hav[e] someone
be willing to take on the mold remediation and renovations that are required
to fix the sump pump issue and with the flooding.” Id. at 22-23.
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the property and required [Wife] to cooperate with his real
estate agent if he exercised that option. The restrictions on the
sale price advanced [the September 10, 2019 order] goal of
enforcing the parties’ agreement, in which [Wife’s] satisfaction of
the note was an indispensable part of the equitable distribution
of the assets and liabilities of the marital estate.
Trial Court Opinion, 9/24/20, at 10.
We agree with the trial court that the August 12, 2020 order does not
“overrule” the prior order. The September 10, 2019 order was a permissible
modification of the PSA. After Husband filed for contempt of the order, the
court conducted a hearing, and based on the evidence, found Wife in
contempt. Accordingly, the court entered the August 12, 2020 order
consistent with the policy and provisions of the Divorce Code. See 23
Pa.C.S.A. § 3323(f), supra; see also § 3502 (authorizing court to order
transfer or sale of property as equitable remedy for an order of equitable
distribution).
Wife fails to cite any case law or authority – and we have uncovered
none – to support her assertion that the August 12, 2020 order overrules or
conflicts with the September 10, 2019 order. See Pa.R.A.P. 2119(a)-(b)
(requiring an appellant to discuss and cite pertinent authorities);
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)
(finding issue waived because appellant “cited no legal authorities nor
developed any meaningful analysis”). In fact, most of Wife’s argument on
this issue is mere recitation of the argument in her first issue. See Wife’s
Brief at 18 (“Given the foregoing facts of record, it cannot be said that the
trial court’s order was well reasoned.”).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2021
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