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DEBORAH (SANTORELLA) NITKIEWICZ v. JOSEPH NITKIEWICZ (01/05/88)

filed: January 5, 1988.

DEBORAH (SANTORELLA) NITKIEWICZ, APPELLANT,
v.
JOSEPH NITKIEWICZ



Appeal from the Order of the Court of Common Pleas, Westmoreland County, Civil Division, at No. 3337 of 1983.

COUNSEL

Sandra L. Kitman, Pittsburgh, for appellant.

Joseph F. Falatovich, Greensburg, for appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, Olszewski, Del Sole, Kelly, Popovich and Johnson, JJ. Popovich, J., files a dissenting opinion in which Del Sole and Kelly, JJ., join.

Author: Brosky

[ 369 Pa. Super. Page 505]

This is an appeal from the Order of the trial court dismissing appellant's exceptions and declaring the Agreement entered into between the parties in this divorce action to be valid and binding.*fn1

[ 369 Pa. Super. Page 506]

Appellant presents the following questions for our review: (1) whether the trial court erred in finding that appellant signed the Marriage Settlement Agreement of her own free will; (2) whether the trial court erred in failing to consider or in discounting the evidence of physical violence and threats; (3) whether the trial court erred in failing to consider the unreasonableness of the Agreement in determining the question of duress; (4) whether the trial court erred in finding that the Agreement was not signed under duress because appellant chose not to retain independent counsel; (5) whether the trial court erred in finding that the Agreement was executed in the context of a full and fair disclosure; and (6) whether the trial court erred in failing to find the Agreement unconscionable and against public policy and, therefore, void and unenforceable.

Upon review of the record, the trial court opinion and briefs by counsel, we respectfully reverse the decision of the trial court.

The facts of the case are relatively uncomplicated. Appellee husband met with his attorney on March 2, 1983 to discuss his marital difficulties. The attorney was then directed to prepare a post-nuptial marriage settlement agreement for the parties, and on March 5, 1983, both appellant and appellee met with the attorney to review the agreement. The attorney advised appellant that he was representing appellee and that she (appellant) could take the agreement to an attorney of her choice for advisement. Appellant declined to do this. Appellee's attorney then proceeded to explain the agreement to the parties. Appellant, prior to executing the agreement, acknowledged that

[ 369 Pa. Super. Page 507]

    she understood all of the provisions and that she was signing the agreement voluntarily.

Under the terms of the agreement, appellant was to convey her interest in the marital residence to appellee. Appellant was also to relinquish custody of the parties' minor children to appellee. In return, appellee was to pay the remaining indebtedness of a 1979 Volkswagen Rabbit and convey the title to appellant. Appellee was also to assume full payment on the couple's other bills. Under the terms of the agreement, appellant waived all of her rights concerning alimony. Both parties complied with the terms of the agreement.

On May 10, 1983, appellant filed for a divorce and alleged that the Marriage Settlement Agreement was voidable because she had entered into it under duress. Appellant claims that appellee threatened her with a gun a week or two before signing the agreement, thus placing her in fear of bodily harm.

Appellant also questions the agreement's validity by claiming that, because she was not represented by counsel, she failed to understand the provisions of the agreement. Additionally, appellant denies that a full disclosure was given of appellee's assets. We are now faced with deciding the validity of the Marriage Settlement Agreement.

Because we find appellant's fourth issue, regarding full and fair disclosure, to be meritorious, we will discuss only that aspect of the case, and need not address the remaining five issues raised on appeal.

In these types of cases, the trial court is the sole determiner of the fact of the record, Lowenschuss v. Lowenschuss, 327 Pa. Super. 120, 475 A.2d 127 (1984); Estep v. Estep, 326 Pa. Super. 404, 474 A.2d 302 (1984), and, absent an abuse of discretion, the Superior Court will not usurp the trial court's fact-finding function. Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983). Thus, our scope of review is limited to determining whether the trial court abused its discretion in finding the Marriage Settlement Agreement to be valid and binding. Estep, supra.

[ 369 Pa. Super. Page 508]

The validity of a postnuptial separation agreement depends upon the presence of one of two elements: (1) a reasonable provision for the claiming spouse; or (2) a full and fair disclosure of the other's worth. In re Estate of Geyer, 338 Pa. Super. 157, 487 A.2d 901 (1985). These factors must be considered in view of the circumstances on the date of the agreement, not in hindsight. In re Estate of Vallish, 431 Pa. 88, 244 A.2d 745 (1968); In re Kester's Estate, 486 Pa. 349, 405 A.2d 1244 (1979).

In discussing the burden of proof required in this type of case, the Supreme Court of Pennsylvania has stated that:

The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the . . . spouse at the time of the Agreement made neither (a) a reasonable provision for the intended spouse, nor (b) a full and fair disclosure of his (or her) worth. (Emphasis in original). (Citations omitted).

Estate of Friedman, 483 Pa. 614, 626, 398 A.2d 615, 621 (1978). In the case sub judice, the trial court admitted that, under the agreement, appellant did not fare as well as did appellee. Additionally, as stated in the recitation of facts, it is clear that appellant lost a great deal, including her home, her children and her right to alimony, and gained her car along with freedom from certain bills. Thus, we find the reasonableness of the agreement to be questionable, leaving us to determine whether a full and fair disclosure had been made.

In the instant case the opinion of the trial court states that there was nothing in the testimony or evidence to support an allegation that appellee failed to fully and fairly disclose his worth at the time the agreement was entered into. We must take exception to that statement. The record shows that appellee freely admitted that he never disclosed to appellant the amount of his earnings from a second source of income.

The testimony arose in response to direct ...


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