The opinion
J-S30015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT R. ZANDROWICZ IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
AGNIESZKA M. ZANDROWICZ
Appellee No. 2269 EDA 2015
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.: FILED JUNE 21, 2016
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
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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
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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
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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
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CONSIDER TESTIMONY AND EVIDENCE THAT COULD HAVE
CLARIFIED THE SAME, ESPECIALLY GIVEN THE LACK OF
SPECIFICITY IN THE TERMS OF THE AGREEMENT?
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?
(Husband’s Brief at 16-18).1
As a preliminary matter, we observe:
Rule 1030. New Matter
(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.
* * *
Pa.R.C.P. 1030(a). Importantly, the list of affirmative defenses contained in
____________________________________________
1
For purposes of disposition, we have reordered Appellant’s issues.
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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).
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
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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,
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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
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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
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$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
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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
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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.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2016
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Circulated 05/25/2016 10:55 AM
COURT OF COMMON PLEAS OF MONROE COUNlY
FOR lY- THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
ROBERT ROMUALD ZANDROWICZ, No. 389 DR 2012
No. 2894 CV 2012
Plaintiff
vs.
AGNIESZKA MARIA ZANDROWICZ, PETITION TO ENFORCE
MARITAL PROPERTY
Defendant SETTLEMENT AGREEMENT
OPINION
This matter comes before us on Defendant's Petition to Enforce Marital
Property Settlement Agreement filed on November 13, 2014. The relevant facts
and procedural history are summarized as follows: Robert ("Husband") and
Agnieszka ("Wife")Zandrowicz were married on November 20, 1998. The
couple has two children born of the marriage. Having the intent to separate
and divide their property, the parties utilized an online form they found on
the internet and executed a Marital Property Settlement Agreement
("Agreement") on April 11, 2012. The parties also filed a monthly net income
calculation on April 20, 2012, which identified Wife's monthly income as
$700.00, and Husband's monthly income as $6,500.00. On July 31, 2012, the
Court issued a Divorce Decree, which incorporated, but did not merge the
parties' Agreement into the Decree.
On November 13, 2014, Wife filed the instant Petition to Enforce Marital
Property Settlement Agreement. Husband filed an Answer and New Matter to
Defendant's Petition to Enforce on December 12, 2014. Two hearings were
conducted on this matter- one on March 19, 2015 and a second one on May
21, 2015. After hearing on this matter and upon review of all pleadings filed,
we are now prepared to decide Wife's Petition.
DISCUSSION
It is well-established that agreements between married parties are
presumed to be valid. See In Re Ratoney's Estate, 277 A.Zd 791 (Pa. 1971). "The
determination of marital property rights through prenuptial, postnuptial and
settlement agreements has long been permitted, and even encouraged."
Laudig v. Laudiq, 425 Pa.Super. 228, 624 A.Zd 651, 653 (1993). The
Pennsylvania Divorce Code also recognizes the validity of marital agreements.
Section 3501 specifically provides that the definition of marital property does
not include "property excluded by valid agreement of the parties entered into
before, during or after the marriage." 23 Pa.CS.§ 350l(a)(2).
A postnuptial agreement is typically a contract entered into after
marriage by a husband and wife, generally involving the property or property
rights of the parties. Vaccarello v. Vaccarello, 757 A.2d 909, 911 (Pa. 2000). A
postnuptial agreement differs from other types of marital agreements in that
it generally resolves property rights definitively. Where spouses desire to
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"settle and determine their respective property rights finally and for all time,
[their agreement] should be construed as a postnuptial agreement." Id.
(internal citations omitted). Moreover, liability under a postnuptial agreement
is not automatically terminated by reconciliation of the parties or subsequent
divorce. See Commonwealth ex rel. DiValerio v. DiValerio, 82 A.2d 687
(Pa.Super. 1951).
Postnuptial agreements are considered as contracts, and as such, are
governed by contract law. Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162,
16 S (1990). Generally, the principles that govern antenuptial agreements are
also applicable to postnuptial agreements. Lugg v. Lugg, 64 A.3d 1109 (Pa.
Super. 2013). Spouses should be bound by the terms of their agreement unless
there is a finding of fraud, misrepresentation, or duress. See McMahon v.
McMahon, 612 A.2d 1360, 1363 (Pa.Super. 1992).
In the case sub judice, Husband raises several challenges to the
enforcement of the marital settlement agreement. First, Husband argues that
Wife failed to commence an action to enforce the property settlement
agreement for approximately two and a half years after the execution of the
agreement, and thus the current action is barred by the doctrine of laches.
Laches is the failure to assert a right for an unreasonable and unexplained
length of time. See Patten v. Vose, 590 A.2d 1307, 1309 (1991). It is based on
"some change in the condition or relation of the parties which occurs during
3
[a] period [that] the complainant unreasonably failed to act." Id. A party
claiming the benefit of the doctrine of laches must demonstrate prejudice due
to lapse of time. Beaver v. Penntech Paper Co., 307 A.2d 281 (Pa. 1973). It is
important to be mindful of the fact that laches will not be imputed by the
mere passage of time, but requires an evaluation of all circumstances of a
particular case. Lindenfelser v. Lindenfelser, 119 A.2d 87, 88 (Pa. 1956)(internal
citations omitted).
Husband asserts the defense of laches due to the delay on Wife's part to
file an action to enforce the property settlement agreement. Husband argues
that Wife had resided in the formal marital home from the time the property
settlement agreement was executed until she filed the current petition to
enforce. During this period, Husband contends that he paid the bills relating
to the residence, which included the mortgage and the utility bills, and also
provided food and other items to the household. Husband claims that if Wife
is entitled to receive spousal maintenance for this period of time, he will be
severely prejudiced. Furthermore, Husband argues that Wife had access to
Husband's bank accounts and could have utilized these funds to retain
counsel and pursue this action sooner.
We find that Husband has failed to prove the necessary elements to
successfully assert the defense of laches. The parties testified that following
their decision to separate, they knowingly remained in this living arrangement.
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Wife testified that she remained in the marital residence, had access to
Husband's bank accounts, maintained the household, and cared for the
parties' children. Husband, on the other hand, testified that he provided
financial support for the benefit of the household and his children, and the
living arrangement provided him convenient and easy opportunity to spend
time with his children. We find that Husband failed to demonstrate any
prejudice suffered by knowingly remaining in this protracted period of
cohabitation with Wife.
Second, Husband argues that the property settlement agreement should
be dismissed based on equitable estoppel. Husband contends that he entered
into the property settlement agreement relying on Wife's assurances that his
spousal maintenance and child support obligations would not change.
Husband further argues that he would not have entered into this agreement
knowing that his spousal and child support obligation would be different than
$2,659.00 per month.
Equitable estoppel arises when a party by acts or representations
intentionally or through culpable negligence, induces another to believe that
certain facts exist and the other justifiably relies and acts upon such belief, so
that the latter will not be prejudiced if the former is permitted to deny the
existence of such facts. Straup v. Times Herald, 423 A.2d 713, 720 (Pa.Super.
1980). "[Elquitable estoppel is a doctrine of fundamental fairness intended to
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preclude a party from depriving another of a reasonable expectation when the
party inducing the expectation knew or should have known that the other
would rely to his detriment upon that conduct." Id. Thus, the essential
elements of equitable estoppel are inducement and justifiable reliance on that
inducement. The inducement may be by words or by conduct and the reliance
must be exhibited by a change in condition either by act or forbearance that
causes a disadvantage to the one induced. Novelty Knitting Mills, Inc. v. Siskind,
457 A.2d 502, 503-04 (Pa. 1983). The party asserting estoppel has the burden
of proving the elements by clear, precise, and unequivocal evidence. Blofsen v.
Cutaiar, 333 A.2d 841, 844 (Pa. 1975).
We find Husband's argument to be without merit. The parties testified
that following their decision to separate and in an effort to save counsel fees,
they obtained a blank property settlement agreement from the Internet.
Husband and Wife both testified that they read the form together; discussed
the relevant terms and provisions they wanted to include; and Husband
populated the blank form according to their mutual agreement. Husband has
failed to prove by clear, precise and unequivocal evidence that Wife induced
Husband into this agreement by promising that his spousal and child support
obligations would remain constant. It is important to note the doctrine of
equitable estoppel does not apply where the complainant's actions appear to
be a result of his own will or judgment rather than a product of what the
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other party did or represented. The action must be induced by the other
party's conduct or representation. Here, Husband's mistaken understanding of
his spousal and child support obligations does not appear to be induced by
any representation on Wife's part, but rather stems from Husband's own
judgment.
Third, Husband argues that the agreement should not be enforced due
to Wife's negligent misrepresentation. Husband asserts that Wife
misrepresented to Husband that his spousal and child support payments
would total $2,659.00 per month and would not change. Following the
discussion and analysis cited above, we find that this argument must also fail.
In order to prove negligent misrepresentation, a plaintiff must show (1)
a misrepresentation of a material fact; (2) the representor must either know of
the misrepresentation, must make the misrepresentation without knowledge
as to its truth or falsity or must make the representation under circumstances
in which he ought to have known of its falsity; (3) the representor must intend
the representation to induce another to act on it; and (4) injury must result to
the party acting in justifiable reliance on the representation. Gibbs v. Ernst,
647 A.2d 882, 890 (Pa. 1994). As stated above, Husband cannot prove that
Wife misrepresented that Husband's monthly financial obligations would
remain constant.
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Alternatively, Husband argues that the property settlement agreement
must be voided due to mutual mistake of fact. Husband contends that the
parties entered into the agreement under the mistaken assumption that child
support cannot be modified. Further, Husband notes that neither party had
the benefit of counsel in reviewing and drafting the agreement, and that the
agreement itself, which they obtained online, did not notify the parties that
child support could be modifiable.
The doctrine of mutual mistake of fact serves as a defense to the
formation of a contract and occurs when the parties to the contract have "an
erroneous belief as to a basic assumption of the contract at the time of
formation which will have a material effect on the agreed exchange as to
either party." Bianchi v. Bianchi, 859 A.2d 511, 516, n.3 (Pa.Super. 2004). To
obtain reformation of a contract because of mutual mistake, the moving party
is required to show the existence of the mutual mistake by evidence that is
clear, precise and convincing. Buqen v. New York Life Insurance Co., 184 A.2d
499, 500 (Pa. 1962).
We find that Husband failed to satisfy his burden of proving a mutual
mistake of fact that would permit reformation of the Agreement. The
Agreement does not contain any language pertaining to the modifiability of
the spousal and child support payment obligations. At the time of the contract
formation, the parties simply did not contemplate or address the modification
8
of these payments. Further, we note that regardless of the understanding of
either party as to modifiability, a court is not precluded by the terms of a
property settlement agreement from increasing the amount of child support
provided for in the agreement. Millstein v. Millstein, 457 A.2d 1291 (Pa.Super.
1983). Thus, even if Husband could prove the existence of the mutual mistake
regarding modifiability of child support payments, it would be immaterial.
Fourth, Husband argues that Wife materially breached the Agreement by
filing a domestic relations action seeking an increase in child support.
Husband argues that the Agreement does not provide for the modification of
child support, and thus, Wife's action is a material breach of the Agreement.
As stated above, a court is not precluded by the terms of a property .
settlement agreement from increasing child support obligations. See McGough
v. McGough, 522 A.2d 638, 640 (1987). Further, Wife's action did not breach
any provision in the agreement, as there are no provisions that prevent either
party from seeking modification. In fact, Husband also filed a petition seeking
child support on October 3, 2014. We will not imply a missing provision in the
contract when it is unclear "that an [such] obligation is within the
contemplation of the parties at the time of the contracting or is necessary to
carry out their intentions." See Slater v. Pearle Vision Center, Inc., 546 A.2d .
676, 679 (Pa.Super. 1988). Thus, Husband's argument must fail.
9
In the instant Petition to Enforce the Property Settlement Agreement,
Wife requests the Court to enforce the Property Settlement Agreement and
direct Husband to (1) pay spousal maintenance or alimony to Wife in
accordance with the Agreement; and (2) pay child support to Wife in
accordance with the Agreement. We will address each of Wife's arguments in
turn.
It is the intent of the parties that governs the interpretation of the
agreement. Zlotziver v. Zlotziver, 49 A.2d 779 (Pa. 1946). In Pennsylvania, the
standards for interpreting contracts are well-settled:
"When interpreting the language of a contract, the
intention of the parties is a paramount consideration. In
determining the intent of the parties to a written agreement, the
court looks to what they have clearly expressed, for the law does
not assume that the language of the contract was chosen
carelessly. When interpreting agreements containing clear and
unambiguous terms, we need only examine the writing itself to
give effect to the parties' intent."
Melton v. Melton, 831 A.2d 646, 653-54 (Pa.Super. 2003) (citing Profi.t Wize
Marketing v. Wiest, 812 A.2d 1270, 1274 (Pa.Super. 2002)). However, when the
agreement is ambiguous and the intentions of the parties are not clear from
the agreement itself, the court may take into account attendant circumstances
to determine the parties' intent. Osial v. Cook, 803 A.2d 209, 213 (Pa.Super.
2002). When an essential term is missing from the contract, the court may
imply such a term "only when it is necessary to prevent injustice and it is
10
abundantly clear that the parties intended to be bound by such term." Kaplan
v. Cablevision of Pennsylvania, Inc., 671 A.2d 716, 720 (Pa.Super. 1996).
Applying our well-settled principles here, the parties' Agreement evinces
a clear and unambiguous intent on both parties to determine and settle their ·
respective property rights finally and for all time. The parties also intended to
be legally bound by the terms of the Agreement. Under Paragraph 7, the
Agreement states:
"The Plaintiff [Husband] shall pay spousal maintenance to the
other party in the amount of $1,500.00 per month, beginning on
06/30/2012 to terminate after 84 months or on the death or
remarriage of the payee, whichever comes first."
A plain reading of this provision reveals the parties' intent to have Husband
pay to Wife spousal maintenance in the amount of $1,500 for 84 months
subject to termination upon Wife's death or remarriage. Despite the fact that
the parties did not obtain the benefit of counsel while drafting this agreement,
we will not assume that the parties chose their words carelessly. Furthermore,
in ascertaining the intent of the parties to a contract, "tt is their outward and
objective manifestations of assent, ~s opposed to their undisclosed and
subjective intentions, that matter." Inqressia Construction Company, Inc., v.
Walsh, 486 A.2d 478, 483 (1984). We find that Paragraph 7 contains clear and
unambiguous language, which directs Husband to pay for spousal
maintenance. As Wife is still alive and has not remarried, we find Paragraph 7
to be valid and enforceable. Husband's testimony at the hearing held in this
11
matter supports our finding on this issue as Husband, himself, testified that it
was his understanding under the terms of their agreement that he was
required to pay Wife child and spousal support for 84 months commencing as
of the date Wife moved out of the former marital residence.
The Agreement also contains a valid and enforceable child support
provision, which was properly modified following the parties' petitions. Under
the Agreement, Paragraph 10 provides: "Plaintiff [Husband] shall pay support
in the amount of $1,159 per month for the support and care of the parties' .
minor children." There is no provision concerning modification. In October of
2014, both parties filed petitions for child support. Following a support
conference held on December 8, 2014, a support order was issued, which
assessed Wife's monthly net income as $2,362.22 and Husband's monthly net
income as $12,265.47. The support order directed Husband to pay $2,068.00
in child support and $206.00 in arrears. As previously discussed, agreements
between Husband and Wife concerning child support do not preclude the
Court from increasing the amount. See McGough, supra.
Accordingly, we enter the following ORDER.
12
COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA
ROBERT ROMUALD ZANDROWICZ, No. 389 DR 2012
No. 2894 CV 2012
Plaintiff
vs.
AGNIESZKA MARIA ZANDROWICZ, PETITION TO ENFORCE
MARITAL PROPERTY
Defendant SETTLEMENT AGREEMENT
ORDER
AND NOW, this 24th day of June, 2015, upon consideration of
Defendant's Petition to Enforce Marital Property Settlement Agreement, and
after hearing conducted on this matter, IT IS ORDERED as follows:
1. Plaintiff is directed to pay Defendant spousal maintenance arrears
in the amount of $51,000.00 within the next twelve months;
2. Plaintiff is directed to immediately begin paying spousal
maintenance in accordance with the parties' agreement, by paying
$1,500.00 per month, his first payment to occur June 30, 2015;
3. Plaintiff is directed to pay Defendant child support arrears in the
amount of $32,452.00, which arrears shall be paid at the rate of
$1,500 per month until paid in full.
13
4. Plaintiff's future spousal maintenance payments, including
arrears, be payable through a wage attachment to be enforced by
the Domestic Relations Section.
cc: Kevin A. Hardy, Esq. .,
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Brandie J. Belanger, Esq.
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