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[U] Mayercheck v. Mayercheck

Superior Court of Pennsylvania

May 31, 2013



Appeals from the Decree Entered October 3, 2011, In the Court of Common Pleas of Westmoreland County, Domestic Relations Division, at No. 546 of 2002-D.




Joseph Mayercheck ("Husband") appeals from the final divorce decree entered by the trial court on October 3, 2011. Barbara J. Mayercheck ("Wife") filed a cross appeal from that same decree. After careful review, we affirm.

The record reflects this case's long and protracted history. The parties were married on November 23, 1985. Wife filed a divorce action in Westmoreland County on August 18, 1999. On January 5, 2000, Husband filed his own pro se complaint in divorce. On January 11, 2000, praecipes to withdraw the complaints in divorce were filed at both actions.

On May 23, 2000, Wife, pro se, again filed a complaint in divorce. Attached to the complaint was a document entitled "Distribution of Assets and Settlement Agreement, " also dated May 23, 2000, and containing notarized signatures of both parties.

On June 9, 2000, Wife filed a petition to withdraw the divorce petition and "Distribution of Assets and Settlement Agreement." In addition, the parties executed a document entitled, "Withdrawal of Assets, " also dated June 9, 2000.

On March 22, 2002, Wife, through counsel, filed a new complaint in divorce at No. 546 WDA 2002, with counts for alimony, alimony pendente lite, equitable property distribution, counsel fees, costs, expenses, insurance policies, and exclusive possession. Husband filed his own divorce complaint, which was ultimately dismissed in favor of proceeding with the action initiated by Wife at No. 546 WDA 2002.

On April 1, 2002, Husband, pro se, filed an answer and counterclaim to Wife's complaint. Husband's counterclaim included counts for alimony and equitable distribution, different than those included in the May 23, 2000 agreement.

Husband subsequently amended his counterclaim and filed various petitions. On February 14, 2003, Husband filed a petition to enforce the May 23, 2000 Agreement. A hearing was held on this motion on October 17, and November 3, 2003. The petition and the request for entry of a divorce decree were denied by order of court dated December 19, 2003.

Husband appealed the December 19, 2003 order. The appeal was quashed as interlocutory by order of this Court dated March 8, 2004.

By order dated February 16, 2005, Attorney H. Gervase Fajt was appointed as Master to hear the parties' divorce case. The first day of testimony was June 7, 2006. Testimony continued for twenty-three additional days with the final day of testimony being December 4, 2009. The issues before the Master included both Husband's and Wife's claims for divorce, equitable distribution, and counsel fees.

The Master filed his report and recommendation on December 17, 2010. The Master recommended the following: 1) No divorce decree be issued because neither party had filed an affidavit under 23 Pa.C.S.A. § 3301(c) or (d), or met their burden of proof on fault issues, and 2) no distribution of the parties' property be made. The report also provided for a contingent distribution of property in the event that the parties' divorce action was at issue. Master's Report, 12/17/10, at 73-76.

Wife subsequently filed an affidavit pursuant to 23 Pa.C.S.A. § 3301(d) on December 20, 2010. Husband filed a counter-affidavit on December 22, 2010.

Both parties filed exceptions to the Master's report and recommendation. The trial court ruled upon these exceptions by memorandum and order dated June 22, 2011. In that order, the court stated that, upon the filing of a praecipe to transmit the record, a final divorce decree would be entered.

On July 7, 2011, Husband filed three pleadings: a motion for leave to rescind acceptance of service and to strike the acceptance of service; a motion to strike affidavit; and a motion to dismiss the divorce action. By order dated August 24, 2011, the court denied all three motions. In response to Wife's motion for reconsideration, the court remanded the matter to the Master on September 14, 2011, to calculate the "percentage of distribution" of assets he intended to award to the parties.

An amendment to the Master's report was filed on September 29, 2011. The Master determined that the percentage of distribution was fifty-eight percent to Wife and forty-two percent to Husband. Based upon the Master's amendment, the court amended the June 22, 2011 order, making modifications in the values awarded to each party, awarding counsel fees to Wife, and entering a final divorce decree. Trial Court Order, 10/3/11.

On October 28, 2011, Husband filed a notice of appeal from the October 3, 2011 order. On November 15, 2011, Wife filed a cross appeal. Husband posted a supersedeas bond on December 30, 2011.

Husband presents the following issues for our review:
I. Did the Court err in denying Defendant's Petition to Enforce Distribution of Assets and Settlement Agreement dated May 23, 2000?
II. Did the Court err in entering the October 3, 2011 Order that Barbara J. Mayercheck, the Plaintiff, and Joseph Mayercheck, the Defendant, are hereby divorced from bonds of matrimony?
III. Did the Court err in accepting the Master's Distribution of 58% of marital assets to Wife and 42% the marital assets to Husband as modified by the October 3, 2011 Order of Court[]?

Husband's Brief at 6.

Wife counters the assertions by Husband and presents two additional claims for our review:

I. Did the lower court err in granting husband credits in the amount of $82, 740.00 against credit card debt assessed to him by the Master?
II. Did the lower court err in awarding husband a credit in the amount of $26, 040.00 for a baseball card collection and $27, 300.00 for a portion of jewelry owned by the parties?

Wife's Brief at 20.

Husband first argues that the trial court erred in denying his petition to enforce the May 23, 2000 agreement, entitled "Distribution of Assets and Settlement Agreement." Husband's Brief at 17. Husband maintains that the agreement was a postnuptial agreement, and not a separation agreement, and thus could not have been negated by the parties' reconciliation. Furthermore, Husband denies that the parties reconciled. Id. at 21 n.8, 26-27.

Our standard of review of marital agreements is as follows:
The determination of marital property rights through prenuptial, postnuptial and settlement agreements has long been permitted, and even encouraged. Both prenuptial and post-nuptial agreements are contracts and are governed by contract law. Moreover, 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 factfinding function.

Paroly v. Paroly, 876 A.2d 1061, 1063 (Pa. Super. 2005).

Where spouses desire to "settle and determine their respective property rights finally and for all time, [their agreement] should be construed as a postnuptial agreement." Vacarello v. Vacarello, 757 A.2d 909, 911 (Pa. 2000) (quoting Makowski v. Makowski, 62 A.2d 71, 72 (Pa. Super. 1948). "The subsequent reconciliation of the parties does not abrogate such a post-nuptial agreement." Wareham by Trout v. Wareham, 716 A.2d 674, 677 (Pa. Super. 1998) (quoting Commonwealth ex rel. DiValerio v. DiValerio, 82 A.2d 687, 688 (Pa. Super. 1951)).

A separation agreement, however, does not constitute, nor is it intended to constitute, "a full and final determination of the separate property rights of the parties." Wareham by Trout, 716 A.2d at 677. Black's Law Dictionary defines "separation agreement" as "[a]n agreement between spouses in the process of a divorce or legal separation concerning alimony, property division, child custody and support, and the like." Black's Law Dictionary, at 1369 (7th ed. 1999). When a divorcing husband and wife execute a contract which they intend to be contingent on their separation, such a contract is generally a "separation agreement." See In re Estate of Wagner, 159 A.2d 495, 499 (Pa. 1960); DiValerio, 82 A.2d at 688 (Pa. Super. 1951); Makowski, 62 A.2d at 73. Furthermore, a subsequent reconciliation of the parties will terminate the separation agreement. Vaccarello, 757 A.2d at 911 (citing In re Ray's Estate, 156 A. 64, 65 (Pa. 1931)).

Whether an agreement is a post-nuptial agreement or a separation agreement "depend[s] upon the intent of the parties as gathered from all of the facts." Vacarello, 757 A.2d at 911 (quoting Makowski, 62 A.2d at 72).

Additionally, marriage settlement agreements are governed by the law of contracts. Sorace v. Sorace, 655 A.2d 125, 127 (Pa. Super. 1995). As with any other contract, a court must first look to the clear and unambiguous language of the contract itself in order to interpret the parties' intention. Carosone v. Carosone, 688 A.2d 733, 735 (Pa. Super. 1997).

When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties' understanding. The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. When the terms of a written contract are clear, this Court will not rewrite it to give it a construction in conflict with the accepted and plain meaning of the language used.

Id. Further, "it is always competent for a party to a contract to establish that it was subsequently abandoned as shown by actions of the parties inconsistent with its continued existence." Vacarello, 757 A.2d at 914 (quoting DiValerio, 82 A.2d at 689).

With these tenets in mind, we begin our review of the language of the May 23, 2000 agreement. The May 23, 2000 Agreement begins with the following language:

WHEREAS, diverse unhappy differences, disputes and difficulties have arisen [b]etween the parties causing Wife and Husband to file a divorce action in the Court of Common Pleas of Westmoreland County, Pennsylvania at 952 of 2000-D, and it is the intention of the Wife and Husband to [l]ive separate and apart for the rest of their natural lives;

Distribution of Assets and Settlement Agreement, 5/23/00, at 1. The agreement proceeds to divide the marital assets. Id. at 1-15. This agreement was filed with the court along with the complaint in divorce. When the complaint in divorce was withdrawn, this agreement was also withdrawn. Thus, given all the facts, we agree with the trial court's finding that the parties' intent in preparing this agreement was to provide for the division of assets in anticipation of their separation and divorce.

Moreover, once the parties reconciled, they failed to comply with the terms of the agreement. Based on evidence presented at the evidentiary hearing, the trial court made the following findings:

First and foremost, the parties did not live separate and apart for the rest of their lives. Husband testified that they did, and he never intended to reconcile. … But the testimony is not credible. … According to Wife's testimony, which the Court finds credible, the parties reconciled fully. They began, again, to live together as husband and wife. They also obtained counsel, went on a cruise, and worked together, in his dental practice, (speaking of both locations as a whole), every day.
Second, they melded their finances just as they had done before. Contrary to the Agreement, which limited the amount of financial support that Husband would provide to Wife, the parties equally shared in the income from Husband's dental practice. That income paid all of the parties' expenses, including bills that Wife had incurred for her own purposes during the parties' separation.
Husband claimed that, in paying various expenses for Wife, he was only making the payments specified in the Agreement. Again, his claim is not credible. His payments went far and above what was specified in the Agreement. In addition, his payments would have continued without limit, as Wife received no salary or wages of her own. Although the parties maintained some separate credit card accounts, they were separate in name (or number) only. Husband paid all of the bills.
In addition, even though the Agreement indicated that no further debts were to be contracted in the name of the other party, the parties purchased additional property together, including investment property and a second dental practice. They also disposed of property, and went about their lives in the most conventional way, financially speaking. They filed joint tax returns and maintained a joint checking account.
By Husband's own account, most of the Agreement's provisions remain unfulfilled to this day.

Trial Court Opinion, 12/19/03, at 8-10. The parties' actions reflected their intent to no longer comply with the terms of the agreement after their period of separation. Thus, according to contract law, the terms of the contract were abandoned and the agreement was no longer enforceable. Vacarello, 757 A.2d at 914.

Also of import is the fact that neither party petitioned for enforcement of the agreement at the time of the subsequent divorce action. Despite the divorce action being filed in March 2002, Husband did not refer to the May 23, 2000 agreement until he raised it in his February 14, 2003 motion for emergency relief.

Accordingly, considering the above-referenced factors, we conclude that the May 23, 2000 agreement is a separation agreement and not a postnuptial agreement. Furthermore, we conclude that the trial court's determination that the parties did, in fact, reconcile is supported by evidence of record. As such, the May 23, 2000 agreement terminated upon the parties' reconciliation and was unenforceable.

Husband next argues that the trial court erred in entering the October 3, 2011 decree, divorcing the parties. Husband's Brief at 6. Husband maintains that the trial court did not have jurisdiction to enter the divorce decree. Id. at 40. Husband argues that he did not receive the requisite notice of intent to request entry of a divorce decree, pursuant to Pa.R.C.P. 1920.42(d), and therefore the divorce decree could not be entered. Id. at 48. Husband also argues the divorce decree was inappropriately entered because Wife failed to provide notice of intent to transmit the record. Id. at 49.

"Our standard of review in divorce actions is well settled. [I]t is the responsibility of this [C]ourt to make a de novo evaluation of the record of the proceedings and to decide independently of the...lower court whether a legal cause of action in divorce exists." Rich v. Acrivos, 815 A.2d 1106, 1107 (Pa. Super. 2003) (quotations omitted). However, "in determining issues of credibility, the [lower court's] findings must be given the fullest consideration for it was the [lower court] who observed and heard the testimony and demeanor of various witnesses." Frey v. Frey, 821 A.2d 623, 627 (Pa. Super. 2003) (quoting Jayne v. Jayne, 663 A.2d 169, 172 (Pa. Super. 1995)). "Subsection 3301(d)(1) provides that the court may grant a no-fault divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years." Id. at 627; 23 Pa.C.S.A. § 3301(d)(1).

Section 3301 of the divorce code provides, in relevant part, as follows:
§ 3301. Grounds for divorce (d) Irretrievable breakdown.--
(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in the affidavit.
(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.

23 Pa.C.S.A. § 3301(d).

Husband concedes that Wife filed an action for divorce under section 3301(c) and (d). Husband's Brief at 45 n.14. Wife filed an affidavit pursuant to section 3301(d), alleging a date of separation in excess of two years and represented that the marriage was irretrievably broken. Husband filed a counter-affidavit, denying the date of separation was February 23, 2002, as stated by Wife, and stating his opposition to entry of a divorce decree. Counter-affidavit, 12/22/10.[1]

The trial court issued an order dated June 22, 2011, directing that upon filing the praecipe to transmit the record, [2] the divorce decree would be granted. The trial court subsequently entered the divorce decree by order dated October 3, 2011, making the following finding:

[T]he parties having been separated for a period in excess of two years, and it appearing that [Wife] has submitted sufficient evidence to establish that the parties' marriage is irretrievably broken and that there is no chance of reconciliation, the Court hereby ORDERS that [Wife] and [Husband] are hereby divorced from the bonds of matrimony and this Order shall be entered as a Final Decree in Divorce.

Trial Court Opinion, 10/3/11, at 2.

While we do not have the benefit of the purported transcript, a review of the record supports the trial court's holding. Wife's affidavit indicates that the parties had been separated since February 23, 2002. Husband has maintained throughout these proceedings that the parties never reconciled after the divorce proceedings in May 2000. Therefore, regardless of the actual date of separation, it is clear that the parties were separated for at least two years prior to the trial court's entry of the divorce decree on October 3, 2011. Thus, evidence of record supports Wife's claim that the parties finally separated on February 23, 2002.

We must next consider whether the marriage is "irretrievably broken" as required under section 3301(d). The Divorce Code defines "irretrievably broken" as: "[e]strangement due to marital difficulties with no reasonable prospect of reconciliation." 23 Pa.C.S.A. § 3103.

In her affidavit, Wife states that the marriage is irretrievably broken. Wife's Affidavit pursuant to 23 Pa.C.S.A, 3301(d), 12/20/10, at 1. Supporting this assertion is the fact that Wife subsequently remarried. Husband also filed a complaint in divorce, in which he indicated his desire to end the marriage as well. Additionally, the acrimonious tone that pervades almost all of Husband's substantial pleadings and testimony, and the allegations hurled at Wife, further support the conclusion that the marriage is irretrievably broken. Accordingly, viewing the record in its entirety, we agree with the trial court's determination that the marriage was irretrievably broken. Consequently, the requirements of a divorce under 23 Pa.C.S.A. § 3301(d)(1)(ii) have been met.[3]

In his final issue, Husband argues that the trial court erred in accepting the Master's distribution of fifty-eight percent of marital assets to Wife and forty-two percent of the marital assets to Husband. Husband's Brief at 51. Husband sets forth a multitude of reasons why the distribution was inappropriate, including argument that the Master failed to take into consideration the eleven factors relevant to determining equitable distribution of marital property outlined by 23 Pa.C.S.A. § 3502(a). Husband's Brief at 51-62. We also note that the claims raised in Wife's cross-appeal are challenges to specific determinations of the equitable distribution award. Because these issues challenge the equitable distribution award, we shall address Husband's final issue and Wife's two issues together.

We are guided by the following:

A trial court has broad discretion when fashioning an award of equitable distribution. Dalrymple v. Kilishek, 920 A.2d 1275, 1280 (Pa. Super.2007). Our standard of review when assessing the propriety of an order effectuating the equitable distribution of marital property is "whether the trial court abused its discretion by a misapplication of the law or failure to follow proper legal procedure." Smith v. Smith, 904 A.2d 15, 19 (Pa.Super.2006) (citation omitted). We do not lightly find an abuse of discretion, which requires a showing of clear and convincing evidence. Id. This Court will not find an "abuse of discretion" unless the law has been "overridden or misapplied or the judgment exercised" was "manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence in the certified record." Wang v. Feng, 888 A.2d 882, 887 (Pa.Super.2005). In determining the propriety of an equitable distribution award, courts must consider the distribution scheme as a whole. Id . "[W]e measure the circumstances of the case against the objective of effectuating economic justice between the parties and achieving a just determination of their property rights." Schenk v. Schenk, 880 A.2d 633, 639 (Pa.Super.2005) (citation omitted).

Biese v. Biese, 979 A.2d 892, 895 (Pa. Super. 2009). Moreover, it is within the province of the trial court to weigh the evidence and decide credibility, and this Court will not reverse those determinations as long as they are supported by the evidence. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa. Super. 2003). We are also aware that "a master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties." Childress v. Bogosian, 12 A.3d 448, 455-456 (Pa. Super. 2011).

With regard to Husband's final claim, a review of the Master's report makes clear that the Master considered all of the factors outlined in 23 Pa.C.S.A. § 3502(a). Furthermore, in considering the distribution scheme as a whole, we conclude that the trial court and the Master measured the circumstances of the case against the objective of effectuating economic justice.

Wife claims, however, that the trial court erred in granting Husband credits in the amount of $82, 740.00 against the credit card debt assessed to him by the Master. Wife's Brief at 20. Wife acknowledges that it was the Master's intent to award Husband the assets of the dental practice and the associated liabilities. Id. at 21. Thus, the Master had directed Husband to pay the Wife's credit card debt incurred from purchasing dental supplies for Husband's dental practice. Wife maintains that the trial court destroyed this construct in its orders of June 22, 2011, and October 3, 2011, when it ordered that Husband pay the credit card debt in the total amount of $107, 173.77. Id. Wife maintains that this is not a proper translation of the Master's order because the trial court's dictate to pay the total amount is simply a sum of the amounts as of the date they were reported to the Master and fails to take into consideration that the credit card debts continued to accrue interest and penalties. Wife also argues that the trial court erred in holding that Husband would discharge his obligation by paying Wife the sum $24, 433.72 within sixty days, in light of the credit the trial court calculated. Id. at 22.

The Master's Report provides the following:

The Master makes the following recommendation to the Court in this matter:
B. To Defendant/Husband:
(15) Husband would individually pay off the full balance of the credit card debt of Wife, as follows, within three (3) years:
a. Citi Bank Account No. xx013 with a balance due of $21, 657.00, as of October 3, 2005;
b. Citi Bank Account No. xx530 with a balance due of $23, 455.00, as of October 3, 2005;
c. MBNA Account No. xx8431 with a balance due of $38, 122.18;
d. Fleet Account No. xx7212 having a balance due of $9, 037.00 on March 3, 2002;
e. Citi Mastercard Account No. xx7673 having a balance due of $5, 252.35 as of June 11, 2002; and
f. AT&T Universal Account No. xx6585 with a balance of $9, 650.24 as of January 18, 2002.

Master's Report, 12/17/10, at 75-76.

The trial court accepted this recommendation but subsequently sustained exceptions filed by Husband. As a result, the trial court first ruled on June 22, 2011, that Husband was responsible for $107, 173.77, an amount representing the total responsibility on the credit card debt. However, the trial court reduced that amount a short time later in its October 3, 2011 order, on the basis that Husband was due "credit" on other asset distributions, i.e., the baseball card collection and jewelry, as well as the Corvette. Trial Court Opinion, 10/3/11. As a result. Husband was directed that payment of $24, 433.72 to Wife, within sixty days, would discharge Husband's obligation to Wife on the credit card debt. After careful review of the record, we discern no error in the Master's decision to make Husband liable for the credit card debt, or in the trial court's award of credit, given the speculative value of the baseball card collection and stipulated value of the jewelry.

In summary, the May 23, 2000 agreement is unenforceable and the divorce decree was properly entered. Furthermore, the trial court did not abuse its discretion in fashioning the equitable distribution of the parties' assets.

Decree affirmed. Jurisdiction relinquished.

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