Opinion
J-S30015-16 No. 2269 EDA 2015
06-21-2016
ROBERT R. ZANDROWICZ Appellant v. AGNIESZKA M. ZANDROWICZ Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 25, 2015
In the Court of Common Pleas of Monroe County
Domestic Relations at No(s): 2894 CIVIL 2012; 389 DR 2012 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Robert R. Zandrowicz ("Husband"), appeals from the order entered in the Monroe County Court of Common Pleas, which granted the petition to enforce the marital property settlement agreement (the "Agreement") filed by Appellee, Agnieszka M. Zandrowicz ("Wife"). We affirm.
The relevant facts and procedural history of this case are as follows. Husband and Wife married in 1998 and had two daughters during the marriage. The parties separated in 2011, and Husband filed a divorce complaint on April 11, 2012. After separation but prior to divorce, the parties found a marital property settlement form on the Internet, read it together, and executed the Agreement pursuant to their wishes without the aid of counsel. Per the Agreement, beginning June 30, 2012, Husband was to: (1) keep the marital residence and assume full responsibility for the mortgage; (2) pay Wife $1,500.00 per month in spousal maintenance for eighty-four months; and (3) pay Wife $1,159.00 per month in child support. The parties filed the Agreement with the court on April 20, 2012. On July 31, 2012, the court entered a divorce decree, which incorporated the terms of the Agreement.
Following the divorce, Wife and the children continued to reside in the marital residence with Husband until October 2014. During that time, Husband did not pay Wife the child support or spousal maintenance provided for in the Agreement. In October 2014, both parties filed petitions for modification of child support. After hearings on the child support matter, the court increased Husband's child support obligation to $2,068.00 per month. Around the same time, Wife filed a petition to enforce the Agreement due to Husband's failure to provide Wife any spousal maintenance and child support since the divorce. Husband filed an answer and new matter on December 15, 2014, which raised various affirmative defenses to enforcement of the Agreement. On December 29, 2014, Wife filed an answer to Husband's new matter, and the court scheduled the petition for a hearing. The court conducted hearings on March 19, 2015, and May 21, 2015.
On June 24, 2015, the court granted Wife's petition to enforce the Agreement and ordered Husband to: (1) pay Wife spousal maintenance arrears in the amount of $51,000.00 within twelve months; (2) pay Wife spousal maintenance of $1,500.00 per month beginning on June 30, 2015; and (3) pay Wife child support arrears in the amount of $32,452.00 at the rate of $1,500.00 per month until paid in full. On July 24, 2015, Husband timely filed a notice of appeal. On August 11, 2015, the court ordered Husband to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Husband timely complied on September 1, 2015.
Husband raises the following issues for our review:
UNJUST ENRICHMENT: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY UNJUSTLY ENRICHING WIFE WHEN IT DECLINED TO CREDIT HUSBAND THE PERIOD OF TIME (APPROXIMATELY TWENTY EIGHT AND A HALF...MONTHS) SUBSEQUENT TO THE AGREEMENT WHEN WIFE AND MINOR CHILDREN WERE LIVING WITH HUSBAND, AND HUSBAND WAS FINANCIALLY SUPPORTING THEM?
LACK OF FULL AND FAIR DISCLOSURE: DID THE TRIAL COURT ERR AND/OR ABUSE[] ITS DISCRETION BY UPHOLDING THE PARTIES' AGREEMENT IN ITS ENTIRETY WHEN TESTIMONY REVEALED THAT THERE WAS NOT FULL AND FAIR DISCLOSURE BETWEEN THE PARTIES AS TO THE DEBT HUSBAND ASSUMED, OR THE ASSETS OF THE PARTIES, AND TESTIMONY AND EVIDENCE SHOWED THAT THERE WAS A LACK OF FULL UNDERSTANDING AS TO THE TERMS, CONDITIONS AND PROVISIONS OF THE AGREEMENT, WHEN NEITHER PARTY WAS REPRESENTED BY COUNSEL, NEITHER PARTY SPEAKS ENGLISH AS A FIRST LANGUAGE?
WAIVER: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO DETERMINE THAT WIFE WAIVED ANY AND ALL CLAIMS RELATIVE TO SPOUSAL MAINTENANCE AND CHILD SUPPORT THROUGH OCTOBER 15, 2014, THE PERIOD OF TIME DURING WHICH SHE AND THE MINOR CHILDREN WERE RESIDING WITH AND BEING
FINANCIALLY SUPPORTED BY HUSBAND[?]
LACHES: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION WHEN IT FAILED TO CONSIDER HUSBAND'S ARGUMENT FOR LACHES GIVEN THAT WIFE FAILED TO COMMENCE AN ACTION TO ENFORCE THE [] AGREEMENT FOR APPROXIMATELY TWO AND A HALF YEARS AFTER THE EXECUTION OF THE AGREEMENT, AND HUSBAND IS PREJUDICED BY OWING PAST DUE ALIMONY AND CHILD SUPPORT FOR THE PERIOD OF TIME PRIOR TO WIFE AND CHILDREN MOVING OUT?
MUTUAL MISTAKE: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION WHEN IT FAILED TO CONSIDER HUSBAND AND WIFE'S MUTUAL MISTAKE AS TO THE MODIFIABILITY OF THE CHILD SUPPORT SET FORTH IN THE AGREEMENT, AND NEITHER PARTY WAS REPRESENTED BY COUNSEL, AND BOTH PARTIES INTENDED THE ALIMONY AND CHILD SUPPORT PAYMENTS TO BE NON-MODIFIABLE?
EQUITABLE ESTOPPEL: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO UPHOLD HUSBAND'S ARGUMENT FOR EQUITABLE ESTOPPEL, WHEN BOTH PARTIES TESTIFIED THAT THEY BELIEVED AT THE TIME THEY ENTERED THE AGREEMENT THAT SUPPORT WAS NOT MODIFIABLE, AND HUSBAND'S AGREEMENT TO PAY WIFE EIGHTY-FOUR (84) MONTHS OF ALIMONY WAS CONDITIONED UPON THE FIXED CHILD SUPPORT AMOUNT SET FORTH IN THE AGREEMENT OF $1,159.00 PER MONTH?
ILLUSORY PROMISE: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO TAKE INTO ACCOUNT THAT HUSBAND'S ACCEPTANCE OF THE TERMS OF THE AGREEMENT WAS CONDITIONED UPON THE MISTAKEN BELIEF, WHICH WAS REINFORCED BY WIFE, THAT THE SUPPORT FIGURES WERE NOT MODIFIABLE, WHEN THE BARGAINED FOR PROMISE WAS ILLUSORY?
INTENT OF THE PARTIES: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO TAKE INTO ACCOUNT THE INTENT OF THE PARTIES AT THE TIME THE AGREEMENT WAS ENTERED INTO, AND FAILING TO
CONSIDER TESTIMONY AND EVIDENCE THAT COULD HAVE CLARIFIED THE SAME, ESPECIALLY GIVEN THE LACK OF SPECIFICITY IN THE TERMS OF THE AGREEMENT?(Husband's Brief at 16-18).
REASONABLE ABILITY TO PAY: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY ISSUING AN ORDER DIRECTING HUSBAND TO PAY SPOUSAL MAINTENANCE ARREARS IN THE AMOUNT OF $51,000.00 WITHIN TWELVE (12) MONTHS, SPOUSAL MAINTENANCE OF $1,500.00 PER MONTH, CHILD SUPPORT ARREARS IN THE AMOUNT OF $32,452.00...AT THE RATE OF $1,500.00 PER MONTH UNTIL PAID IN FULL, ON TOP OF THE CHILD SUPPORT CALCULATED BY DOMESTIC RELATIONS IN THE AMOUNT OF $2,068.00 PER MONTH (TOTAL MONTHLY PAYABLE BY HUSBAND EQUALS $9,318.00) WITHOUT CONSIDERING HUSBAND'S REASONABLE ABILITY TO PAY GIVEN HIS INCOME AND EXPENSES?
For purposes of disposition, we have reordered Appellant's issues.
As a preliminary matter, we observe:
Rule 1030. New MatterPa.R.C.P. 1030(a). Importantly, the list of affirmative defenses contained in Pa.R.C.P. 1030(a) is not exclusive. Falcione v. Cornell School District , 557 A.2d 425, 428 (Pa.Super. 1989). "An affirmative defense is distinguished from a denial of facts which make up a plaintiff's cause of action in that a[n affirmative] defense will require the averment of facts extrinsic to the plaintiff's claim for relief." Id. "Failure to plead an affirmative defense in compliance with [Pa.R.C.P.] 1030 results in waiver of the defense." Werner v. Werner , 573 A.2d 1119, 1121 (Pa.Super. 1990), appeal denied, 527 Pa. 668, 593 A.2d 843 (1991); see also Pa.R.C.P. 1032(a).
(a) Except as provided by subsection (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading "New Matter." A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.
* * *
Instantly, Husband raised his first issue, unjust enrichment, and his second issue, lack of full and fair disclosure, for the first time in his court-ordered Rule 1925(b) statement. Both of these claims are affirmative defenses because they require Husband to aver facts extrinsic to Wife's claim for relief, which would prevent the enforcement of the Agreement. See Falcione , supra. Because Husband failed to raise these affirmative defenses in a new matter in response to Wife's petition to enforce the Agreement or any time prior to the filing of his Rule 1925(b) statement, they are waived for purposes of our review. See Werner , supra ; Pa.R.C.P. 1032(a). Therefore, we will not address the merits of Husband's first and second issues on appeal.
With respect to Appellant's remaining claims on appeal, the relevant law is as follows. Private support agreements are subject to contract principles and are enforceable in an action at law for damages or in equity for specific performance. Nicholson v. Combs , 550 Pa. 23, 43, 703 A.2d 407, 417 (1997). The action at law for damages might include the unpaid amount of support plus interest, whereas relief in equity for specific performance seeks an order directing the payor to comply with his future support obligations under the agreement. Id. "The powers of a domestic relations judge are plenary and the function is that of a law judge or equity chancellor as the case demands." Horowitz v. Horowitz , 600 A.2d 982, 984 n.1 (Pa.Super. 1991).
On appeal from an order interpreting a marital settlement agreement, we must decide whether the trial court committed an error of law or abused its discretion. Tuthill v. Tuthill , 763 A.2d 417, 419 (Pa.Super. 2000) (en banc), appeal denied, 565 Pa. 675, 775 A.2d 808 (2001). "We do not usurp the trial court's fact-finding function." Id.
"[J]udicial discretion" requires action in conformity with law on facts and circumstances before the trial court after hearing and due consideration. Such discretion is not absolute, but must constitute the exercises of sound discretion. This is especially so where, as here, there is law to apply. On appeal, a trial court's decision will generally not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying correct principles of law. An "abuse of discretion" or failure to exercise sound discretion is not merely an error of judgment. But if, in reaching a conclusion, law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason, discretion must be held to have been abused.In re Deed of Trust of Rose Hill Cemetery Ass'n Dated Jan. 14 , 1960 , 527 Pa. 211, 216, 590 A.2d 1, 3 (1991) (internal citations omitted). See also Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000). "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 (Pa.Super. 2005).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jennifer Harlacher Sibum, we conclude Husband's, third, fourth, fifth, sixth, seventh and eighth issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of those questions. ( See Trial Court Opinion, filed June 24, 2015, at 3-12) (finding: (issues 3 and 4) Husband failed to prove necessary elements to assert defense of laches or waiver; parties testified that they knowingly remained in marital residence together following their decision to separate; Wife testified she had access to Husband's bank accounts with Husband's knowledge, maintained household, and cared for parties' children; Husband testified he provided financial support for benefit of household and kids, and that living arrangement provided Husband with convenient and easy opportunity to spend time with his children; in light of this testimony, Husband failed to demonstrate that continued cohabitation with Wife and Wife's delayed petition to enforce Agreement caused him to suffer prejudice; thus, Husband's reliance on doctrine of laches and waiver merits no relief; (issues 5 and 6) parties testified that after separation, in effort to save money on counsel fees, they obtained blank marital property settlement form from Internet; Husband and Wife both testified that they read form together and discussed relevant terms and provisions they wanted to include; both Husband and Wife further stated that after discussion, Husband populated form in accordance with parties' mutual agreement; Husband's belief that his spousal maintenance and child support obligations would be constant and unmodifiable was result of his own judgment and does not appear to have been induced by any representation on Wife's part; thus, doctrine of equitable estoppel does not apply and Husband's equitable estoppel and illusory promise claims are meritless; (issue 7) Agreement does not contain any language that pertains to modification of spousal maintenance and child support obligations; at time of execution of Agreement, parties simply did not contemplate or address possibility of modification of these obligations; further, court can increase child support obligation regardless of Agreement or either parties' assumption regarding modifiability; thus, Husband failed to establish by clear, precise, and convincing evidence that mutual mistake of fact existed, which would entitle him to relief; (issue 8) Agreement evinces clear and unambiguous intent by both parties to determine and settle their respective property rights finally and for all time; parties also intended to be legally bound by terms of Agreement; plain reading of spousal maintenance provision of Agreement reveals parties' intent to have Husband pay Wife $1,500.00 per month in spousal maintenance for eighty-four months subject to termination upon Wife's death or remarriage; even though parties were not represented by counsel at time of execution of Agreement, court will not assume parties chose their words carelessly; Husband's own testimony supports finding that Agreement is clear and unambiguous because Husband stated it was his own belief that he would have to pay spousal maintenance and child support for eighty-four months; Agreement also contained valid and enforceable child support provision, which court properly modified after parties' filed petitions for modification in October 2014; thus, Husband's complaint that court ignored intent of parties when it granted Wife's petition to enforce Agreement fails). Therefore, with respect to Husband's third, fourth, fifth, sixth, seventh, and eighth issues on appeal, we affirm on the basis of the trial court's opinion.
With respect to Husband's ninth issue on appeal, Husband argues the court failed to consider his ability to pay or Wife's actual need when it ordered Husband to pay child support and spousal maintenance pursuant to the Agreement. Husband complains the court order requires him to pay Wife approximately $9,000.00 per month in child support and spousal maintenance despite the fact that Wife admitted to the use of Husband's accounts to pay her own bills after the divorce. Husband avers the court-ordered payment schedule does not leave him enough money each month to pay his bills including his mortgage, taxes, and insurance. Husband concludes his court-ordered assumption of liabilities pursuant to the Agreement is unreasonable, and this Court should vacate and reverse the trial court's enforcement of the Agreement. We disagree.
This Court is not permitted to review the reasonableness of a marital settlement agreement to determine its validity. Paroly v. Paroly , 876 A.2d 1061, 1065 (Pa.Super. 2005). Importantly:
Traditional principles of contract law provide perfectly adequate remedies where contracts are procured through fraud, misrepresentation or duress. Consideration of other factors, such as the knowledge of the parties and the reasonableness of their bargain, is inappropriate. [Postnuptial] agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreement.Simeone v. Simeone , 525 Pa. 392, 400, 581 A.2d 162, 165 (1990).
Instantly, prior to divorce, Husband and Wife read the marital property settlement agreement form together, discussed the relevant terms and provisions they wanted to include, and then Husband populated the form pursuant to the parties' wishes. The trial court's June 24, 2015 order merely enforced the terms of the Agreement entered into by the parties. When granting Wife's petition to enforce the Agreement, the court specifically determined the Agreement was clear and unambiguous and Husband's challenges to the enforcement of the Agreement had no merit. Husband cannot now avoid his contractual obligations under the Agreement with an assertion that the terms are unreasonable in light of his income and other expenses. See Simeone , supra ; Paroly , supra. Therefore, the trial court properly granted Wife's petition to enforce the Agreement, and Husband's ninth issue on appeal has no merit. See Tuthill , supra. Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/21/2016
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