Markovich, J. v. Markovich, L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JOANN MARKOVICH IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
LARRY MARKOVICH
Appellee No. 1219 WDA 2021
Appeal from the Order Entered September 23, 2021
In the Court of Common Pleas of Allegheny County
Family Court at No: FD20-009243-002
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED: JUNE 23, 2023
Appellant, Joann Markovitch (“Wife”), appeals from an order denying
her exceptions to a master’s report and recommendation to dismiss her
complaint against Appellee Larry Markovitch (“Husband”) seeking
enforcement of a post-nuptial agreement. The court agreed with the master
that the contract was unenforceable because it failed to state how long it
would remain in force. For the reasons given below, we conclude the court
erred by failing to infer a reasonable time of completion for the contract. We
vacate the order of dismissal and remand for further proceedings.
The parties married in 1968 and separated in 2013. Neither party has
filed a divorce action. Prior to the parties’ separation, they had financial
difficulties that forced them to file bankruptcy and lose their marital residence.
Thereafter, the parties rented a residence at 3210 Washington Pike in
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Bridgeville, their final marital residence before their separation. Husband
moved out of this residence, and Wife continues to live there.
On September 10, 2013, the parties signed a handwritten postnuptial
agreement before a notary which stated in full:
I agree to pay the rent at 3210 Washington Pike, Bridgeville, PA.
in the sum of $750.00.
It will be paid no later than the 1st of the month & deposited into
the account of [Wife].
Husband testified that he entered this agreement to “help [Wife].” N.T.,
3/21/22, at 22.
Husband made monthly payments to Wife of $750.00 in October,
November and December 2013. Between January 2014 and November 2015,
Husband made sporadic payments to Wife, including six payments of $750.00
and other smaller amounts. On July 22, 2014, Wife filed a complaint in
magisterial district justice court alleging that Husband failed to pay rent of
$150.00 in January 2014 and $500.00 in March 2014. On September 5, 2014,
the magisterial district justice entered judgment against Husband in the
amount of $650.00.1 After November 2015, Husband stopped making
payments altogether.
On December 7, 2020, Wife filed a complaint seeking enforcement of
the postnuptial agreement in the Civil Division of the Court of Common Pleas
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1 It does not appear that Husband appealed this judgment.
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of Allegheny County. The complaint alleged that following the September
2014 judgment in magisterial district justice court, Husband made a few
sporadic payments but for the most part ignored his contractual duty to pay
rent. The complaint further alleged that as of October 10, 2020, Husband
owed Wife a total of $55,332.20.2
One week after filing her complaint, Wife moved to transfer her action
from the Civil Division to the Family Court Division, and the court granted the
motion. The Family Court judge assigned to the case appointed a master to
hear the case, and the master, Jacqulyn Obara, Esquire, scheduled a hearing
for March 22, 2021.
On March 22, 2021, Wife appeared for the hearing with her attorney,
and Husband appeared pro se via telephone. Husband and Wife testified
during the hearing, but neither testified as to how long they intended the
postnuptial agreement to last. On April 16, 2021, the master filed a report
and recommendation, finding that Wife was entitled to recover nothing from
Husband. The master found the agreement too indefinite to enforce because
“there was no language regarding the duration of the obligation to pay $750
per month for rent, and no clear evidence of the parties’ intent as to duration.”
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2 Wife claims in her brief that Husband did not answer the complaint and
therefore is deemed to have admitted all averments in the complaint. The
notice to defend attached to Wife’s complaint, however, stated that Husband
was not required to file a written response to the complaint.
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Master’s Report, 4/16/21, at 7. The master also found that Wife was not
entitled to an award of attorney fees and expenses. On May 4, 2021, Wife
filed timely exceptions to the master’s report.3 On September 23, 2021, the
court denied Wife’s exceptions and entered the master’s report and
recommendation as a final order. Wife timely appealed from this order, and
both Wife and the court complied with Pa.R.A.P. 1925.
Wife raises two issues in this appeal, which we have re-ordered for the
sake of convenience:
1. The rulings of both the master and the trial court in the conduct
of this case were not supported by the law, and thus the result in
this case amounted to a miscarriage of justice.
2. Wife’s constitutional right to pursue her civil action against
husband was impermissibly burdened by the civil procedural rules
and the actions of judicial officers in her case, thus wife was
deprived of a fair trial.
Wife’s Brief at 11.
Wife contends that the trial court erred or abused its discretion in
accepting the master’s determination that Wife had no right of recovery
against Husband. The master recommended against enforcement of the
postnuptial agreement on the ground that it failed to specify how long
Husband was required to make monthly payments to Wife. The law provides,
however, that when a contract fails to include a date of completion, the court
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3 See Pa.R.Civ.P. 1920.55-2(b) (parties may file exceptions within twenty
days after master’s report and recommendations).
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should infer a reasonable period of time for completion. Thus, the trial court
erred by accepting the master’s recommendation not to enforce the
postnuptial agreement.
When interpreting a marital settlement agreement, “the trial court is the
sole determiner of facts and absent an abuse of discretion, we will not usurp
the trial court’s fact-finding function.” Chen v. Chen, 840 A.2d 355, 360 (Pa.
Super. 2003). 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). Furthermore,
the report of the master is entitled to great consideration in that
he has heard and seen the witnesses, and it should not be lightly
disregarded. It is advisory only, however, and the reviewing court
is not bound by it and it does not come to the court with any
preponderate weight or authority which must be overcome. The
reviewing court must consider the evidence, its weight and the
credibility of the witnesses, de novo. The Master’s report is not
controlling, either on the lower court or on the appellate court.
Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000).
Post-nuptial agreements such as the agreement herein
are to be reviewed under the same principles as pre-nuptial
[agreements] . . . Case law further demonstrates that a pre-
nuptial agreement is a contract and, therefore, is to be evaluated
under the same criteria as other contracts; absent fraud,
misrepresentation or duress, spouses should be held to the terms
of their agreements.
Lugg v. Lugg, 64 A.3d 1109, 1112 (Pa. Super. 2013).
The goal of contractual interpretation is to ascertain the intent of parties
at the time they entered the disputed agreement and to give effect to the
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agreement’s terms. Greene v. Oliver Realty, Inc., 526 A.2d 1192, 1194
(Pa. Super. 1987). We will find the parties’ agreement enforceable as a
contract “when the parties to it [] reach a mutual understanding, [] exchange
consideration, and [] delineate the terms of their bargain with sufficient
clarity.” Weavertown Transport Leasing, Inc. v. Moran, 834 A.2d 1169,
1172 (Pa. Super. 2003). The paramount goal of contract interpretation is to
ascertain and give effect to the parties’ intent. Laudig v. Laudig, 624 A.2d
651, 653 (Pa. Super. 1993) (construing postnuptial agreement). To construe
the parties’ intent, the court should examine the entire agreement and “may
take into consideration the surrounding circumstances, the situation of the
parties, the objects they apparently had in view and the nature of the subject
matter of the agreement.” Id.Greene makes the critical point that courts treat ambiguous
agreements differently than agreements that omit an essential term:
If an essential term is left out of the agreement, the law will not
invalidate the contract but will include a reasonable term. For
instance, if the parties do not specify price, a court will impose a
reasonable price which will usually be the item’s market value.
However, if the parties include the term but have expressed their
intention ambiguously, the court will not impose a reasonable
term and the contract may fail for indefiniteness.
Id., 526 A.2d at 1194.
Thus, when an agreement fails to include an essential term such as the
date for completion of an agreement, “the agreement is not vitiated; rather,
an agreement for a reasonable time will be inferred.” Cashdollar v. Mercy
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Hosp. of Pittsburgh, 595 A.2d 70, 76 (Pa. Super. 1991) (internal quotation
marks omitted); see also Scullion v. EMECO Industries, Inc., 580 A.2d
1356, 1359 (Pa. Super. 1990) (citing March v. Boyle, 530 A.2d 491, 494 (Pa.
Super. 1987)) (“when the exact period for which the parties intended to
contract is unable to be determined, an agreement for a ‘reasonable time’ will
be inferred”). Although we cannot locate any decisions applying the
reasonable time precept to postnuptial agreements, we find it applicable under
the principle that contract law applies to postnuptial agreements. Lugg, 64
A.3d at 1112.
To infer a reasonable time period, the court should apply the standards
articulated in Laudig to ascertain the parties’ intent. Specifically, the court
should infer how long the parties intended the contract to last by examining
the entire agreement, taking into account the surrounding circumstances, the
situation of the parties when the contract was made, the objects they
apparently had in view and the nature of the subject matter of the agreement.
Id., 624 A.2d at 653. In addition, the court can infer a reasonable time of
completion by taking into account the performance of the parties after the
agreement. This was precisely the point made by the decision cited in the
master’s report, RegScan, Inc. v. Conway Transportation Services, Inc.,
875 A.2d 332 (Pa. Super. 2005). RegScan instructs that
[i]f an essential term is left out of the agreement, the law will not
invalidate the contract but will include a reasonable term. For
instance, if the parties do not specify price, a Court will impose a
reasonable price which will usually be the item’s market value.
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However, if the parties include the term but have expressed their
intention ambiguously, the court will not impose a reasonable
term and the contract may fail for indefiniteness . . . Because
courts wish to effectuate the parties’ intentions, they may enforce
an indefinite contract if its terms have become definite as the
result of partial performance. One or both parties may
perform in such a way as to make definite that which was
previously unclear.
Id., 875 A.2d at 336-37 (emphasis added). Greene, which we have cited
above, makes the same point. Id., 526 A.2d at 1194.
In this case, the postnuptial agreement between the parties provided
that “I agree to pay rent at 3210 Washington Pike . . . in the amount of
$750.00,” and that rent “will be paid no later than the 1 st of the month” and
deposited into Wife’s account. There is no dispute that Husband was the payor
under this agreement. The agreement, however, failed to include an essential
term—the date of completion of the agreement (i.e., the number of months
Husband was required to pay rent). Under the precedents discussed above,
the master and the court should have inferred a reasonable date of
completion. Instead, they determined that the agreement was too ambiguous
to enforce. This was error.
The master concluded that the agreement was unenforceable because
there was no language in the agreement concerning its duration and no other
evidence relating to the parties’ intent concerning its duration. The master
wrote:
The plain reading of this language is that the agreement was to
pay a total of $750 in rent to be deposited no later than the first
of the month. While both parties signed the agreement, it can
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reasonably be inferred that Husband was to pay this sum given
that the money was to be deposited into Wife’s account. However,
there is no language indicating that the obligation is a per month
commitment. More significantly, perhaps, there is no language
indicating the duration of this obligation.
This plain reading compels a finding that the contract had been
completed, as Husband paid $750 in October 2013. However,
Wife alleges that the agreement meant that Husband has had an
obligation to pay her rent each month for the past ninety-one (91)
months. To determine the parties’ intent, this Master looked at
the parties’ subsequent performance and considered the
testimony offered. After signing the agreement, Husband sent
monthly payments to Wife for three months (i.e.—October,
November, and December 2013). Thus, this Master finds that
it was the intent of the parties that Husband would make
monthly payments in the amount of $750 per month to Wife
for her rent.
With regard to duration, Husband’s payments to Wife became
sporadic beginning in January 2014 and ultimately stopped
altogether in November 2015.4 The evidence set forth at the
hearing establishes that Husband paid a total of $6,300 from
October 2013 through November 2015. It is significant to note
that in the twenty-seven (27) months from the date the
agreement was signed until Husband’s last payment, Husband
made six (6) payments of $750 and the remaining payments were
made in varying increments. Husband’s testimony was that he
intended to “help her out,” and his actions support this testimony.
Wife did not specifically testify regarding her intent as to duration
of this agreement at the time it was signed. This Master finds it
difficult to believe that Wife truly intended this agreement to
extend to the present day given her lack of due diligence in
pursuing the claim. To the extent Wife intimated this in her
testimony, this Master finds it to lack credibility. Wife attempted
to enforce the agreement in 2014 at the Magistrate, and,
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4 The master also noted in the fact section of her report that Wife obtained an
uncontested judgment of $650.00 against Husband in magisterial district
justice court for missing payments in January 2014 and March 2014. Master’s
Report and Recommendation, 4/16/21, at 3. The master credited Husband’s
testimony, however, that he did not receive notice of the action before the
magisterial district justice.
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thereafter, did nothing. Given that there was no language
regarding the duration of the obligation to pay $750 per month
for rent, and no clear evidence of the parties’ intent as to duration,
this Master finds that the terms of the agreement are sufficiently
indefinite that the contract fails.
Master’s Report and Recommendation, 4/16/21, at 6-7. (Emphasis added).
The court accepted the master’s decision, stating:
While the parties’ testimony confirmed that they intended to
create a marriage settlement agreement, the agreement lacked
sufficiently clear terms to be enforceable. The Master identifies
pertinent case law governing sufficiency of terms in an agreement.
Upon review of the cited authority in application to this
agreement, this Court concurs that the parties lacked sufficiently
clear terms for enforcement including but not limited to how often
payment should occur and the length of time the agreement
should be in effect.
Opinion, 12/3/21, at 12.
We detect a number of errors in the foregoing analysis. First, and most
importantly, we disagree with the court’s (and the master’s) conclusion that
the agreement was unenforceable because it failed to specify “the length of
time the agreement should be in effect.” Opinion at 12; see also Master’s
Report at 6-7. Although the agreement did not specify a time of completion,
the law is clear that this does not render the agreement unenforceable.
Instead, when an agreement fails to include a time of completion, the court
must infer a reasonable time, Cashdollar, Scullion, by taking into account
the text of the agreement, the circumstances surrounding the agreement, the
situation of the parties when the contract was made, the objects they
apparently had in view, the nature of the subject matter of the agreement,
and the parties’ performance after the agreement. Laudig, RegScan. In this
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case, there were multiple pieces of evidence from which to infer a reasonable
time of completion, including: (1) the text of the agreement requiring Husband
to pay “rent . . . in the sum of $750.00” to Wife “no later than the 1st of the
month”; (2) Wife and Husband were separated, (3) Wife continued to live
alone in the marital residence, a rental property, and needed to pay rent every
month to retain her residence; and (4) following the agreement, Husband
made $6,300.00 in payments to Wife, including three monthly payments of
$750.00 in 2013 and six more payments between January 2014 and
November 2015. The master and trial court, however, failed to consider these
facts with respect to a reasonable time of completion. Their failure to take
these steps, and their decision simply to declare the agreement
unenforceable, runs afoul of the standards articulated in Cashdollar, Laudig
and RegScan.
Two other errors require discussion. The first is the court’s
misconstruction of the master’s report. The court “concur[red]” with the
master’s report that the agreement was unenforceable because the parties
failed to agree “how often payment should occur.” Opinion at 12. In fact, the
master concluded that the parties agreed how often payment would be made.
The master found that Husband agreed to make monthly payments of rent.
See Master’s Report at 6 (“it was the intent of the parties that Husband would
make monthly payments in the amount of $750 per month to Wife for her
rent”).
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Second, the master’s report suggests that she found the agreement
unenforceable because Wife requested enforcement of the agreement to the
present day. Master’s Report at 7 (“This Master finds it difficult to believe that
Wife truly intended this agreement to extend to the present day . . . To the
extent Wife intimated this in her testimony, this Master finds it to lack
credibility”). We observe that an agreement “will not be construed to create
a perpetual term unless the intention is expressed in clear and unequivocal
terms.” Hutchison v. Sunbeam Coal Corporation, 519 A.2d 385, 390 n.5
(Pa. 1986). The present agreement does not create a perpetual term; on the
contrary, it completely omits any mention of its length. We emphasize,
however, that the agreement’s failure to include a perpetual term does not
render it unenforceable. Instead, as discussed above, the court’s duty in this
circumstance is to infer a “reasonable time for completion.” Cashdollar, 595
A.2d at 76.
For these reasons, we reject the master’s recommendation and as
accepted by the court, that the parties’ agreement was unenforceable. The
master recommended and the court accepted that Husband would make
monthly payments in the amount of $750 per month to Wife for her rent.
What remains to be determined is for what period of time Husband will make
payments. We therefore remand this case to the trial court for it to infer a
reasonable time of completion, or in other words, to supply this essential term
considering the standards delineated above.
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In her next argument, Wife raises a series of complaints about various
procedures used during her case. First, she complains that the court violated
her constitutional right of access to the courts by requiring her to pay $500.00
to obtain a hearing before the master. We disagree.
To begin, we note that Wife did not file a petition to proceed in forma
pauperis or contend that she is financially incapable of paying this cost. Wife
concedes that the cost of commencing this action via complaint of $181.75 is
constitutional in order to maintain court operations. Wife’s Brief at 23. In
addition, Wife does not argue that the master’s fee is not authorized under
statute.
The only argument Wife advances is that imposition of a master’s fee is
unconstitutional under Article I, Section 11 of the Pennsylvania Constitution,
which provides in relevant part, “All courts shall be open, and every man for
an injury done him in his lands, goods, person or reputation shall have remedy
by due course of law, and right and justice administered without sale, denial
or delay.” Wife asserts that the court violated her rights under this provision
by assigning her case to a master, thus giving rise to the master’s fee, instead
of holding the evidentiary hearing itself. According to Wife, “if there are
insufficient judicial resources to permit judges to hear these cases, the burden
of financing the court’s operations should not be visited on family court
litigants, as opposed to litigants in the civil, criminal, and orphans court
divisions.” Wife’s Brief at 24. Although Wife believes that the use of masters
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in Family Court matters is inefficient, or that litigants in other divisions of the
court should pay higher costs, this hardly supports a claim that the court was
not “open” to her under Article I, Section 11 or that she was deprived of “[a]
remedy by due course of law.” Id. We cannot see any reason why the
master’s fee is unconstitutional under Article I, Section 11.
Next, Wife argues that Husband did not appear in person at the
evidentiary hearing, but the master permitted him to testify by telephone.
Wife also complains that the master forced Wife to produce Husband’s
telephone number, and the master then called Husband ex parte to allow him
to participate in the hearing. We do not see any objection by Wife on this
subject in the hearing transcript. Accordingly, this objection is waived.
Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1126 (Pa. 2000) (party
waives objection to perceived trial court error if she fails to raise timely
objection during trial). Even if Wife did not waive this argument, it is moot
in view of our decision to award a new evidentiary hearing.
Wife next argues that Husband waived all defenses by failing to file a
responsive pleading to her complaint. We disagree in that the notice to defend
attached to Wife’s complaint, states, “If you wish to defend against the claims
set forth in this Complaint, you may, but are not required to file in writing
with the court your defenses or objections.” Notice to Defend (emphasis
added).
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Finally, Wife argues that the court erred in denying her request for
attorney fees for enforcing the parties’ postnuptial agreement. We need not
address this objection in view of our decision to award a new evidentiary
hearing. Wife may raise her request for attorney fees on remand, and we
express no view on the merits of any such request at his time, except to note
that under the American Rule, applicable in Pennsylvania, a litigant cannot
recover counsel fees from an adverse party unless there is express statutory
authorization, a clear agreement of the parties, or some other established
exception. See Mosaica Charter Sch. v. Commonwealth, Dept’t of
Educ., 813 A.2d 813, 822 (Pa. 2002).
Order denying Wife’s exceptions to master’s report and recommendation
vacated. Case remanded for further proceedings in accordance with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2023
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