Bennett, P. v. Bennett, P. ( 2017 )


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  • J-A24011-16
    
    2017 Pa. Super. 253
    PETER Y. BENNETT                                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    PAMELA A. BENNETT
    No. 428 EDA 2016
    Appeal from the Order January 19, 2016
    In the Court of Common Pleas of Bucks County
    Civil Division at No(s): 1995-60876-E
    BEFORE: BOWES, OTT AND SOLANO, JJ.
    OPINION BY BOWES, J.:                                  Filed August 4, 2017
    Peter Y. Bennett (“Husband”) appeals from the March 1, 2016 order
    imposing a constructive trust over a pension benefit that accrued during his
    marriage to Pamela A. Bennett (“Wife”).1 We reverse.
    Husband and Wife married on January 29, 1972 and divorced
    approximately twenty-three-and-one-half years later.      Two children were
    born of the marriage. In anticipation of the divorce, the parties executed a
    property settlement agreement to facilitate equitable distribution.      The
    agreement covered the various economic aspects of the divorce, including
    ____________________________________________
    1
    Technically, Husband receives two related pension benefits that he earned
    while working for the American Can Company and its successor, James River
    Corporation, for thirteen years during the marriage. For ease of discussion,
    we refer to the pensions as a single asset.
    J-A24011-16
    the distribution of marital assets and Husband’s assent to paying the marital
    liabilities, alimony, child support, and the children’s college expenses. As it
    relates to the present case, the accord provides:
    3. Legal Advice. Each of the parties acknowledges that he and
    she has had the opportunity to consult with independent legal
    counsel regarding the terms and provisions of this Agreement
    and his or her legal rights and obligations, and each party
    further acknowledges and accepts that this Agreement is, in the
    circumstances, fair and equitable, and that it is being entered
    into freely and voluntarily, and that the execution of this
    Agreement is not the result of any duress or undue influence.
    Each party has made a full and complete disclosure to the
    other of his and her entire assets and liabilities, and each
    is informed and familiar with the property, estate and
    assets, earnings and income of the other.
    ....
    6. Distribution of Property.
    (a) The parties acknowledge that they have previously sold
    and divided to their mutual satisfaction the proceeds from the
    sale of their former marital residence. Each party shall retain the
    proceeds from the sale thereof received by him and her free and
    clear of any claim of the other.
    (b) The parties have previously divided to their
    mutual satisfaction all items of tangible personal property,
    household furnishings, motor vehicles, bank accounts,
    investments, business interests, stocks, securities, retirement
    accounts, insurance policies and all other assets which, as
    between the parties, are or may be subject to equitable
    distribution, and each party does hereby release and relinquish
    any and all claims that either of them have or may have with
    respect to any property, property interest or asset.
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    Property Settlement Agreement, 4/21/95, at 3, 4-5 (emphases added).2
    Although the accord did not identify any specific marital assets or state
    the percentage basis that the assets would be divided, it listed the liabilities
    that Husband was solely responsible for repaying. Likewise, the agreement
    stipulated that the potential net proceeds from a possible lawsuit against
    Boise Cascade Corporation would be divided equally. During the evidentiary
    hearing, Wife testified that she requested fifty percent of the pension
    benefits because it was in keeping with the parties’ promise to split the other
    assets equally.
    The property settlement agreement was incorporated but not merged
    into the July 12, 1995 divorce decree. Approximately nineteen years later,
    on September 2014, Wife filed a petition to impose a constructive trust
    pursuant to 23 Pa.C.S. § 3505(d), which we reproduce infra. She averred
    that, in executing the property settlement agreement, Husband failed to
    make a full disclosure of the pension benefit that he earned during the
    ____________________________________________
    2
    Husband and Wife dedicate significant discussion in their briefs to whether
    the reference to “retirement accounts” in the property settlement agreement
    subsumed the pension benefit that Husband earned during the marriage.
    However, that issue is a diversion. Regardless of the semantics of whether a
    “pension benefit” equates to a “retirement account,” the asset is subject to
    the recital’s catch-all provision “all other assets . . . subject to equitable
    distribution[.]” Property Settlement Agreement, 4/21/95, at 4.
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    marriage.3     Wife requested the creation of a constructive trust as to the
    previously undisclosed marital asset, an accounting of the monthly benefits
    Husband received since the account entered pay status, and fifty percent of
    the marital value of past and future benefits.         She also requested counsel
    fees and the costs associated with drafting the Qualified Domestic Relations
    Orders (“QDRO”) needed to facilitate the future payment of her portion of
    the benefit.
    Husband filed preliminary objections in the nature of a demurrer based
    upon the position that the formation of a constructive trust pursuant to §
    3505(d) required, as a prerequisite, the filing of an inventory during the
    equitable distribution process, and, in the absence of that form, the
    statutory provision is inapplicable.             In addition, Husband leveled a
    preliminary objection to the petition based upon insufficient specificity
    insofar as Wife failed to assert that Husband secreted the pension’s
    existence when the agreement was formed.                After conferring with the
    attorneys, the trial court summarily overruled Husband’s preliminary
    objections and scheduled an evidentiary hearing on Wife’s petition.
    ____________________________________________
    3
    While there was no discussion regarding whether the pension benefit had
    vested prior to the date of separation, we observe that non-vested pensions
    are marital property subject to equitable distribution. Berrington v.
    Berrington, 
    598 A.2d 31
    , 34 (Pa.Super. 1991). Thus, it was an asset
    subject to disclosure/acknowledgment under the property settlement
    agreement.
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    The evidence adduced at the hearing revealed that Husband has a
    pension that entered pay status during October 2012. Since then, Husband
    has received a monthly benefit of $1,785.75, which calculates to an annual
    benefit of $21,429. Wife testified that she and Husband did not discuss the
    pension in anticipation of equitable distribution of their marital estate. 4
    Their discussions focused upon liquidating the marital residence, which was
    subject to encumbrances, and satisfying debts.                 She identified two
    conversations with Husband wherein both parties agreed that the only
    significant marital asset was the family home. Neither party mentioned the
    pension or retirement benefits that possibly accrued during the marriage.
    Wife did not assert that Husband mislead her or lied about the
    existence of the pension benefit.              Instead, she testified that she was
    unaware of the pension and believed that the home was the only asset to be
    divided. She received $1,100 from the sale of the property. In relation to
    her view of the marital estate, Wife stated, “I didn't think there was
    anything. I didn't think I was signing away anything. And with the house, it
    ____________________________________________
    4
    Wife presented the expert testimony of John McGovern, C.P.A., who stated
    that the parties received a $29,000 retirement distribution from an
    unidentified account during 1992. Mr. McGovern was unable to specify
    whether the source of the distribution was an IRA, 401(k), vested pension,
    or a combination of retirement plans. The only meaningful information to
    flow from the witness was that, approximately three years prior to the
    parties’ execution of the property settlement agreement, Husband and Wife
    both knew that some form of retirement income existed and withdrew at
    least a portion of it.
    -5-
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    was $1100; I left the marriage with $1100, a car and two part-time jobs[.]”
    N.T., 1/19/16, at 47.    Wife also testified that she believed the agreement
    was boilerplate and that the references to various assets did not apply to
    them. She explained, “I believed it was a template. I looked for the things
    that he and I agreed upon and made sure that they were [included] and
    signed it.” 
    Id. at 44.
    During his testimony, Husband countered, “we did, in fact, review the
    document [and] we were very comfortable with the fact that the assets
    weren't identified [and] the fact I was going to pick up all the outstanding
    liabilities[.]” 
    Id. at 71-72.
    He also testified that he believed Wife was aware
    of all of the marital assets.   He stated that Wife had knowledge of the
    pension in the past because, along with the increase in salary, he and Wife
    considered the pension benefit when Husband faced the decision whether to
    accept his position with American Can Company and, then having been
    promoted by its successor, whether to uproot the family from its hometown
    in Connecticut and move to Virginia. In addition, he surmised that the 1992
    distribution that Wife’s expert referenced was connected to a 401(k) plan
    that Husband contributed to when he worked for those entities. 
    Id. at 79,
    86-87.
    At the conclusion of the evidence, the trial court announced from the
    bench its decision to grant Wife’s petition for a constructive trust. The court
    entered a final order memorializing its decision on March 1, 2016. Husband
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    filed a timely appeal.5       His concise statement of errors complained of on
    appeal filed pursuant to Pa.R.A.P. 1925(b) leveled five issues 6, which he
    restates as follows:
    ____________________________________________
    5
    The notice of appeal was filed prematurely approximately two weeks after
    the close of the evidentiary hearing. However, Husband’s misstep was
    corrected on March 1, 2016, when the trial court entered a final order
    granting Wife’s requested relief. See Pa.R.A.P. 905(a)(5) (“A notice of
    appeal filed after the announcement of a determination but before the entry
    of an appealable order shall be treated as filed after such entry and on the
    day thereof.”).
    6
    The Rule 1925(b) Statement asserted the following issues:
    a. The Court abused its discretion and/or committed an error of
    law in granting Defendant's petition for a constructive trust over
    Husband's pension plans and awarding her 50% of the same on
    the basis that there was not a full and fair disclosure of the
    assets at the time of settlement despite Defendant's failure to
    allege fraud;
    b. The Court abused its discretion and/or committed an error of
    law in granting Defendant's petition for a constructive trust over
    Husband's pension plans and awarding her 50% of the same
    despite the existence of contractual language in the Marital
    Settlement Agreement indicating that full and fair disclosure was
    made and that Defendant was satisfied with her knowledge of
    the estate at the time of Agreement; that the parties' waived
    discovery; that the parties mutually released each other from
    any claims related to their rights under Pennsylvania's Divorce
    Code; that the parties had divided in advance of the Agreement
    all assets to their mutual satisfaction, and;
    c. The Court abused its discretion and/or committed an error of
    law in granting Defendant's petition for a constructive trust over
    Husband's pension plans and awarding her 50% of the same on
    the basis that Defendant overcame by clear and convincing
    evidence the presumption of disclosure and/or that Defendant
    (Footnote Continued Next Page)
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    J-A24011-16
    1.    Did the [t]rial [c]ourt err by granting a constructive trust
    pursuant to 23 Pa.C.S.A. § 3503(d) without establishing that
    [Husband] failed to disclose an asset as required by a general
    rule of the Supreme Court?
    2.    Did the [t]rial [c]ourt err by finding that [Wife] rebutted by
    clear and convincing evidence the presumption of full disclosure
    by [Husband]?
    3.    Did the [t]rial [c]ourt err by failing to affirm the terms of
    the parties’ Property Settlement Agreement?
    4.   Did the [t]rial [c]ourt err by applying its credibility
    determination as the standard for determining whether
    misrepresentation or fraud occurred in the execution for the
    Property settlement Agreement?
    Appellant’s brief at 4.
    Husband’s brief does not conform to Pa.R.A.P. 2119 insofar as he
    failed to divide the argument into sections that correspond with the four
    _______________________
    (Footnote Continued)
    did not have knowledge of the assets at the time the Agreement
    was executed.
    d. The Court abused its discretion and/or committed an error of
    law in granting Defendant's petition for a constructive trust over
    Husband's pension plans and awarding her 50% of the same by
    applying its determination as to the credibility of the parties to
    its determination as to the plain reading of the disclosure and
    waiver language set forth in the Agreement.
    e. The court abused its discretion and/or committed an error of
    law in granting Defendant's petition for a constructive trust over
    Husband's pension plans and awarding her 50% of the same by
    misapplying 23 Pa.C.S.A. § 3505(d) which applies only where
    there is a failure to disclose the assets as required by general
    rule of the Supreme Court.
    Husband’s Rule 1925(b) Statement, 2/3/16, at 1-2.
    -8-
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    issues he raised in his statement of questions involved.          Instead of
    complying with the procedural uniformity of Rule 2119, Husband identifies
    four overlapping arguments.     For example, rather than enumerating his
    arguments in correlation with the numerals used in the statement of
    questions presented, Husband lists his arguments alphabetically. Moreover,
    those arguments are in disorder.     Husband’s argument A is actually four
    interwoven assertions, and his remaining arguments in B, C, and D do not
    align with any numerical counterparts.        In addition, while addressing
    substantively different concerns, the arguments Husband identifies as B and
    D share an identical heading, “The Trial Court erred by Failing to Affirm the
    Parties Property Settlement Agreement.”     See Appellant’s brief at 20, 30.
    Finally, Husband’s argument D is a collection of various complaints, some of
    which are subsumed by issues three and four.          Although this Court is
    authorized to quash a nonconforming brief, Husband’s procedural missteps
    do not substantially impede our ability to perform appellate review, and we
    shall address the merits of the arguments that have been preserved for
    review   in   the   Rule   1925(b)   statement.      See    Pa.R.A.P.   2101;
    Commonwealth v. Adams, 
    882 A.2d 496
    , 498 (Pa.Super. 2005) (“Despite
    the numerous defects in Appellant's brief, we will address the one claim that
    we are able to review[.]”).
    As noted in his statement of questions presented, Husband raises
    several procedural challenges to the trial court’s application of 23 Pa.C.S. §
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    3505(d) under the facts of this case. However, since we ultimately find that
    the certified record does not sustain the trial court’s factual findings in
    support of Wife’s position that the constructive trust was warranted, we do
    not confront those arguments herein. Instead, we presume that § 3503(d)
    applies and address the effect of the recital in the property settlement
    agreement, wherein the parties acknowledged full and complete disclosure
    of assets.
    Section 3505(d) of Divorce Code, provides as follows:
    (d) Constructive trust for undisclosed assets.--If a party
    fails to disclose information required by general rule of the
    Supreme Court and in consequence thereof an asset or assets
    with a fair market value of $1,000 or more is omitted from the
    final distribution of property, the party aggrieved by the
    nondisclosure may at any time petition the court granting the
    award to declare the creation of a constructive trust as to all
    undisclosed assets for the benefit of the parties and their minor
    or dependent children, if any. The party in whose name the
    assets are held shall be declared the constructive trustee unless
    the court designates a different trustee, and the trust may
    include any terms and conditions the court may determine. The
    court shall grant the petition upon a finding of a failure to
    disclose the assets as required by general rule of the Supreme
    Court.
    23 Pa.C.S. § 3503(d).
    By its terms, § 3503(d) does not require a party to demonstrate that
    the failure to disclose an asset was deliberate or intentional. This is because
    the provision is triggered by a breach of a parties’ affirmative obligation to
    “disclose information required by general rule of the Supreme Court,” e.g.,
    an inventory under Rule 1920.33, which did not occur in this case.
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    However, mindful that parties to property settlement agreements are
    entitled to enforcement measures set forth in the Divorce Code, see
    § 3105(a), we find that the provision’s silence as to disclosure clauses did
    not preclude Wife from invoking this remedial provision.         Cf. Creeks v.
    Creeks, 
    619 A.2d 754
    (Pa.Super. 1993) (where husband failed to include
    asset in inventory pursuant to agreement’s disclosure clause, the breach
    triggers action for constructive trust).   Nevertheless, prior to granting the
    requested relief in the case at bar, the trial court was required to reconcile
    the pension benefit’s omission from the accord with Wife’s affirmative
    acknowledgment that she received full and complete disclosure and was not
    only informed of, but also familiar with, the marital estate.
    In Pennsylvania, the law of contracts governs a property agreement if
    the agreement is not merged into a divorce decree. Crispo v. Crispo, 
    909 A.2d 308
    , 313 (Pa.Super. 2006) (“property settlement agreements are
    presumed to be valid and binding upon the parties”). An agreement that is
    not merged, “stands as a separate contract, is subject to the law governing
    contracts and is to be reviewed as any other contract.” 
    Id. at 312-313.
    Our Supreme Court previously explained,
    under the law of contracts, in interpreting an agreement, the
    court must ascertain the intent of the parties. Robert F. Felte,
    Inc. v. White, 
    451 Pa. 137
    , 
    302 A.2d 347
    , 351 (1973). In
    cases of a written contract, the intent of the parties is the writing
    itself. If left undefined, the words of a contract are to be given
    their ordinary meaning. Pines Plaza Bowling, Inc. v.
    Rossview, Inc., 
    394 Pa. 124
    , 
    145 A.2d 672
    (1958). When the
    terms of a contract are clear and unambiguous, the intent of the
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    parties is to be ascertained from the document itself. Hutchison
    v. Sunbeam Coal Corp., 
    513 Pa. 192
    , 
    519 A.2d 385
    , 390
    (1986).
    Kripp v. Kripp, 
    849 A.2d 1159
    , 1163 (Pa. 2004).
    We review the trial court’s order upholding the agreement for an abuse
    of discretion. Lugg v. Lugg, 
    64 A.3d 1109
    , 1110 n.1 (Pa.Super. 2013). As
    we explained in Lugg, “[a]n 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.”    
    Id. Additionally, we
    will not
    usurp the trial court’s factfinding function.” 
    Id. In Simeone
    v. Simeone, 
    581 A.2d 162
    (Pa. 1990), our Supreme
    Court clarified the standards for determining the validity of marital
    settlement agreements and abolished the prior paternalistic approach to
    enforcement.        The   High   Court    announced     that   “Absent   fraud,
    misrepresentation, or duress, spouses should be bound by the terms of their
    agreements.” 
    Id. at 165.
         As the venerable Joann Ross Wilder, Esquire,
    couched the concept in Pennsylvania Family Practice and Procedure 5th,
    2002 at 96, “Parties are free to enter into bargains they later regret, and
    bad deals are as enforceable as good ones provided the agreement is free of
    fraud or duress.”
    As it relates to the case at bar, the Simeone Court admonished, “If an
    agreement provides that full disclosure has been made, a presumption of full
    disclosure arises.” 
    Id. at 167.
    Likewise, the Court explained, “If a spouse
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    attempts to rebut this presumption through an assertion of fraud or
    misrepresentation then this presumption can be rebutted if it is proven by
    clear and convincing evidence.” 
    Id. Thus, “Absent
    fraud, misrepresentation
    or duress, spouses should be held to the terms of their agreements.” 
    Lugg, supra
    at 1112; Stoner v. Stoner, 
    819 A.2d 529
    , 533 (Pa. 2003) (expressly
    rejecting approach which allows court to inquire into reasonableness of
    parties’ bargain). This Court subsequently explained, “an agreement is valid
    even if it does not contain financial disclosure itself and can be upheld if it
    merely recites that such disclosure has been made.” Paroly v. Paroly, 
    876 A.2d 1061
    , 1066 (Pa.Super. 2005). Indeed, “a full and fair disclosure in the
    property settlement agreement merely requires sufficient disclosure to allow
    the intended party to make an informed decision.” Busch v. Busch, 
    732 A.2d 1274
    , 1278 n. 5 (Pa.Super. 1999).
    Although this Court’s holding in 
    Lugg, supra
    concerned the waiver of
    disclosure rather than an acknowledgment of full disclosure, our reasoning is
    informative. In pertinent part, the Lugg Court addressed whether the trial
    court erred in denying a wife’s claim to set aside a property settlement
    agreement due to her husband’s failure to fully disclose assets when the
    agreement was executed.      In an attempt to circumvent the fact that she
    expressly waived economic disclosure, the wife argued that a person cannot
    waive disclosure if they do not know what was being waived. 
    Id. at 1112.
    The Court rebuffed that reasoning in light of the legislature’s adoption of 23
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    Pa.C.S. § 3106, which allows a party to waive economic disclosure in a
    prenuptial agreement, and our High Court’s prior reasoning in 
    Stoner, supra
    , that “pre-and post-nuptial agreements are to be similarly viewed.”
    
    Id. at 1112-1113.
       Thus, the Lugg Court held that parties to a property
    settlement agreement may waive full economic disclosure. 
    Id. at 1113.
    Specifically, the Court held, “[w]e must reject the assertion that economic
    disclosure cannot be waived because the party waiving disclosure does not
    know the extent of what is being waived.” 
    Id. at 1112.
    Instantly, the trial court employed reasoning similar to the wife in
    Lugg in an attempt to elevate Wife’s belated claim of lack of disclosure over
    her express assent that full and complete disclosure actually occurred and
    the acknowledgment that she was familiar with the marital estate.        The
    lynchpin of the trial court’s logic is that, notwithstanding Wife’s explicit
    recognition of full disclosure, she should be excused from that provision
    because she believed that she knew the extent of the marital estate when
    she signed the agreement.    Stated another way, the trial court concluded
    that Wife should not be bound by the disclosure recital because she was not
    actually familiar with all of the marital assets that she certified knowing
    about.   The trial court’s rationale conflicts with our analogous holding in
    Lugg that a party to an agreement can, in fact, waive economic disclosure
    even if they do not know the full extent of that waiver. Like the Lugg Court,
    we find herein that Wife cannot negate the recital affirming her knowledge of
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    the marital estate based upon a subsequent assertion that she did not know
    the full extent of the assets when she executed the certification.      Plainly,
    having acknowledged both the disclosure and her familiarity with the assets,
    absent clear and convincing evidence of Husband’s misconduct, Wife’s
    subjective belief regarding the nature and extent of the marital estate is
    irrelevant. Thus, we conclude that the disclosure recital applies herein, and
    absent clear and convincing evidence of fraud, duress, or misrepresentation
    to permit Wife to overcome the presumption of full disclosure, the recital is
    valid and enforceable.
    Next, we review the court’s determination that Wife sustained her
    evidentiary burden of establishing fraudulent misrepresentation.      Our High
    Court reiterated the elements misrepresentation as follows,
    In order to void a contract due to fraudulent misrepresentation,
    the party alleging fraud must prove, by clear and convincing
    evidence: (1) a representation; (2) which is material to the
    transaction at hand; (3) made falsely, with knowledge of its
    falsity or recklessness as to whether it is true or false; (4) with
    the intent of misleading another into relying on it; (5) justifiable
    reliance on the misrepresentation; and (6) resulting injury
    proximately caused by the reliance. All of these elements must
    be present to warrant the extreme sanction of voiding the
    contract.
    Porreco v. Porreco, 
    811 A.2d 566
    , 570-571 (Pa. 2002) (plurality) (internal
    citations omitted).
    Instantly, Wife did not expressly assert misrepresentation in her
    petition for a constructive trust or during her testimony regarding the
    parties’ discussion of the marital assets.      Nevertheless, the trial court
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    reasoned    that   Wife   was    uninvolved    with   Husband's    employment
    compensation beyond his salary, and therefore, she was unaware of the
    pension benefit that accrued during the marriage. Indeed, despite both the
    fact that Wife neglected to assert misrepresentation and the dearth of
    evidence to support its finding, the trial court went so far as to conclude that
    “Husband affirmatively told her that there were no other assets beyond the
    house considered in the Agreement.” Trial Court Opinion, 3/31/16, at 6.
    The record belies the trial court’s findings of fact. Wife did not present
    any evidence of fraud or misrepresentation. At most, Wife established that
    the parties did not discuss the pension and that Husband did not disclose it.
    However, in light of her evidentiary burden to rebut the presumption of
    disclosure, evidence that a potentially inadvertent or negligent omission may
    have occurred is woefully inadequate to establish fraud or misrepresentation
    that would negate Wife’s certification that she received full disclosure.
    Notwithstanding Wife’s failure to plead or prove misrepresentation
    under 
    Porreco, supra
    , the trial court concluded that Husband misled her
    about the marital assets. As noted, the court’s reasoning is founded upon a
    purported credibility determination in Wife’s favor.    However, the certified
    record cannot sustain the court’s finding that a meaningful credibility dispute
    existed.   In fact, the parties concur that the pension was not discussed
    before they executed the agreement, and Wife does not assert that Husband
    mislead her or misrepresented the marital estate. She simply testified that
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    she was unaware of the pension when she signed the recital certifying her
    familiarity with the assets. Thus, contrary to the trial court’s expression of
    rationale, this case does not turn upon a credibility determination regarding
    whether Husband made an express misrepresentation.7 The trial court erred
    in invoking the non-existent issue of credibility in order to compensate for
    Wife’s failure to adduce evidence of fraud or misrepresentation.
    Likewise, the record will not sustain the court’s conclusion that Wife
    adduced clear and convincing evidence of misrepresentation. The only
    evidence in the certified record that could conceivably support the trial
    court’s finding of misrepresentation are two of Wife’s responses during
    cross-examination. At one point, Wife responded to an inquiry by retorting,
    “in my book and from our conversation, there was nothing, and I had no
    reason to believe that he would not have mentioned [the pension].” N.T.,
    1/19/16, at 60.       Then, when asked whether she believed that Husband
    purposely withheld the information from her, she answered “it appears so.”
    
    Id. This evidence
    is neither clear nor compelling.     The first statement
    simply restates the fact that the asset was not discussed.         The latter
    response is a qualified suggestion that, in the absence of any other
    ____________________________________________
    7
    Any credibility dispute was limited to whether Wife had known of the
    pension in the past. However, regardless of whether Wife was completely
    unaware of the pension or had previously known of it and simply forgot
    when she executed the agreement, that issue is irrelevant to whether
    Husband intentionally mislead her.
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    acceptable explanation, Wife believed that Husband must have misled her.
    Both statements fail to reach the quantum of clear and convincing evidence
    of fraudulent misrepresentation that the High Court detailed in 
    Porreco, supra
    (fraud requires material false representation made with intent to
    mislead).
    In addition to the dearth of direct evidence to support the trial court’s
    conclusion that Husband misrepresented the marital estate or intentionally
    withheld    information   from    Wife    regarding        his   pension       benefit,   the
    circumstantial evidence favoring that finding is limited to what the trial court
    characterized as Husband’s evasiveness and argumentative answers during
    cross-examination.        However,   absent       direct    evidence     indicating       that
    Husband hid the asset or purposefully lied to Wife about its existence,
    Husband’s    demeanor      during    cross-examination           is   hardly     clear    and
    convincing evidence of fraud or misrepresentation.
    In sum, Wife failed to assert fraudulent misrepresentation, much less
    prove it by clear and convincing evidence, and the trial court’s purported
    credibility determination in her favor is ineffective.            The undisputed facts
    established that Husband and Wife did not discuss the pension prior to
    executing the agreement.         While the trial court speculates that Husband
    intentionally hid the asset from Wife, the evidence does not bear out that
    insinuation, and the trial court erred in relying upon a contrived credibility
    determination to negate Wife’s failure to satisfy her evidentiary burden of
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    J-A24011-16
    proving the requisite scienter to rebut the presumption that full disclosure
    occurred. See Colonna v. Colonna, 
    791 A.2d 353
    , 357 (Pa.Super. 2001)
    (rejecting wife’s contention that she was not fully aware of her statutory
    rights because, absent proof of material misrepresentation or fraud,
    reviewing court may not examine whether parties attained informed
    understandings of rights they were surrendering); Busch, supra at 1278
    n.5 (full and fair disclosure need only allow intended party to make informed
    decision).
    As the certified record does not support the trial court’s finding that
    Husband engaged in fraud or misrepresentation, the trial court erred in
    determining that Wife was not bound by the disclosure recital. Accordingly,
    we reverse the trial court order imposing a constructive trust over the
    pension benefits pursuant to § 3505(d).
    Order reversed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/4/2017
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