Opinion
1490 WDA 2021 J-A15024-22
08-02-2022
THERESE SABREE v. ERNEST H. SHARIF Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 7, 2021, in the Court of Common Pleas of Allegheny County, Civil Division at No(s): FD 00-000529-002.
BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.
MEMORANDUM
KUNSELMAN, J.
Ernest H. Sharif, Esq. appeals, pro se, from the order directing partition of the property that he and his ex-wife, Therese Sabree, own. Because the parties did not contract for Ms. Sabree to surrender her right as a cotenant to seek a partition of the property, and because laches is inapplicable, we affirm and remand for further proceedings.
Mr. Sharif and Ms. Sabree married in 1989 and acquired the home at issue during their marriage. Fifteen years later, Ms. Sabree moved to Florida with the couple's minor son, due, in part, to physical abuse that Mr. Sharif inflicted upon her. The following year, Mr. Sharif filed for divorce. In May of 2010, Mr. Sharif moved for a final order of divorce, to which he attached an affidavit of consent. Both parties signed that document.
The affidavit provided in relevant part, "The parties agree [Ms. Sabree] has sole custody of [the minor] child and may allow child to visit [Mr. Sharif] throughout the year at [Ms. Sabee's] discretion." Affidavit of Consent, 5/27/10, at 1 (some capitalization omitted). The next section, on "PROPERTY RIGHTS," stated, "The parties agree [Mr. Sharif] will have the right to sole possession of [the home] as between the parties, and that [Ms. Sabree] will not surrender any ownership rights that she acquired in [the home] during the marriage." Id.
A final decree of divorce issued on November 8, 2010.
In 2018, Mr. Sharif fell behind on a loan. In order to modify that loan, Mr. Sharif petitioned the trial court to remove Ms. Sabree's name from the deed to the home. As a result, the parties entered a consent order, wherein Ms. Sabree agreed to co-sign the loan modification without assuming financial responsibility. She also agreed not to seek a partition of the property until either (a) the lender accepted the loan modification or (b) 60 days passed.
Sixty-three days later, Ms. Sabree commenced this partition action. The matter proceeded to a bench trial on whether Ms. Sabree may demand a partition of the property. Thereafter, the court entered an order directing equitable partition. This timely appeal followed.
See Kapcsos v. Benshoff, 194 A.3d 139, 142 (Pa. Super. 2018) (en banc) (describing the procedure for a partition action and explaining that it involves two, distinct phases; following the first phase, any party may appeal the order directing partition as of right).
Mr. Sharif raises two issues on appeal:
1. Whether the trial court erred in finding that the affidavit of consent . . . was void and inapplicable in this case?
2. Whether the trial court erred in finding that the doctrine of laches was inapplicable on the basis that [Mr. Sharif] is seeking this remedy with unclean hands?Mr. Sharif's Brief at 7 (some capitalization omitted).
When reviewing a trial court's non-jury decision, our "standard of review . . . is to assess whether the findings of facts by the trial court are supported by the record and whether the trial court erred in applying the law." Woullard v. Sanner Concrete & Supply, 241 A.3d 1200, 1207 (Pa. Super. 2020). Additionally, this Court "must consider the evidence in the light most favorable to the verdict winner and reverse the trial court only where the findings are not supported by the evidence of record or are based on an error of law." Id. Regarding questions of law, our scope of review is plenary, and our standard of review is de novo. See id.
The learned Judge Mary C. McGinley, writing for the Court of Common Pleas of Allegheny County, authored a detailed, well-reasoned opinion to support the order that the property by equitably partitioned. Based upon our review of that opinion, the record evidence, the parties' appellate briefs, and oral argument before this Court, we fully agree with the trial court's legal analysis. Because the trial court's opinion thoroughly and correctly addresses the matters that Mr. Sharif raises on appeal, we adopt the trial court's opinion dated January 27, 2022 as our own.
Therein, the trial court held that Ms. Sabree did not surrender her right to seek a partition of the marital home by signing the May 27, 2010 affidavit of consent. The only property right that Ms. Sabree forfeited in the affidavit was her right of possession, not her ownership rights, which include the right of partition.
Regarding the equitable doctrine of laches, the trial court first found that Ms. Sabree did not delay in filing suit, because she initiated this action three days after the 60-day-waiting period under the consent order expired. Also, even if we calculate the time period from when Ms. Sabree left the home (in 2004), the trial court determined that equity still would not lend Mr. Sharif its aid, because he physically abused Ms. Sabree during their marriage. That abuse forced her to flee the martial home with their son. Thus, the trial court ruled that Mr. Sharif had unclean hands. The evidence of record, when viewed in the light most favorable to Ms. Sabree, supports that factual finding.
We direct the parties to attach a copy of Judge McGinley's opinion to this Memorandum in all future proceedings.
Order affirmed. Case remanded for equity to partition the property.
Ms. Sabree's request for sanctions against Mr. Sharif is denied.
Jurisdiction relinquished.
Judgment Entered.