Britt, C. v. Britt, C. ( 2015 )


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  • J. S76014/14
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    CHRISTINE G. BRITT                       :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                    :
    :
    CHRISTOPHER B. BRITT,                    :             No. 898 WDA 2014
    :
    Appellant        :
    Appeal from the Order, May 20, 2014,
    in the Court of Common Pleas of Erie County
    Civil Division at No. 15286-2010
    BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 10, 2015
    Appellant, Christopher B. Britt (“Husband”), appeals from the order
    dated May 20, 2014, that granted appellee, Christine G. Britt’s (“Wife”)
    petition for special relief in this divorce dispute.    After careful review, we
    reverse and remand.
    The relevant facts and procedural history of this case are as follows.
    On November 18, 2010, Wife filed for divorce against Husband. On June 15,
    2012, Wife filed her affidavit of consent to divorce, followed by Husband on
    October 8, 2012. On October 10, 2012, the parties entered into a Marital
    Settlement Agreement (“the Agreement”). The Agreement was incorporated
    into the parties’ October 12, 2012 divorce decree. The subject of this appeal
    concerns a paragraph that directed Husband to transfer the fixed amount of
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    $42,000 from his Erie Insurance 401(k) Savings Plan to Wife by tax-free
    rollover. Specifically, Paragraph 9 of the Agreement provided as follows:
    9.    HUSBAND’S    ERIE            INSURANCE        401(K)
    SAVINGS PLAN
    Husband agrees to transfer to Wife via a
    Qualified Domestic Relations Order the sum of
    $42,000.00 from his Erie Insurance 401(k)
    Savings Plan. This transfer will take place so
    as to constitute a tax free rollover. Counsel for
    Wife shall prepare the Qualified Domestic
    Relations Order relating to Husband’s Erie
    Insurance 401(k) Savings Plan.
    Paragraph 11 of the Agreement addressed the parties’ insurance
    policies and pension plans as follows:
    11.   INSURANCE POLICIES AND PENSION RIGHTS
    Unless and except as otherwise provided
    herein, each of the parties agrees that the
    other, after execution of this Agreement, shall
    have the right to make any changes in his or
    her respective insurance policies, including, but
    not limited to, change of his or her beneficiary,
    increasing or decreasing the coverage amount,
    or cancellation of such policies. Except as
    provided for herein, each party releases any
    rights he or she may have in the vested
    pension and/or retirement rights of the other.
    Following the execution of the Agreement, Husband requested Wife to
    allow    him    to   transfer   to   her    the    entirety   of   his   Transamerica
    Diversified 401(k) account so he could access the Erie Insurance account in
    order to purchase a home with his new wife. On November 26, 2012, Wife
    agreed to Husband’s request. Because the parties did not know the exact
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    balance of the Transamerica Diversified Account at that time, they agreed
    that in the event the Transamerica account balance exceeded $42,000, Wife
    was to pay Husband the amount by which the account exceeded $42,000. If
    the Transamerica Diversified Account balance fell short of $42,000, Husband
    was to pay Wife the difference.
    For reasons not entirely clear, the matter stagnated for over a year.
    When Wife’s counsel submitted the first draft of the Qualified Domestic
    Relations Order (“QDRO”), Wife raised a claim that she should have a share
    of any post-separation increase in value of the Transamerica Diversified
    Account beyond the $42,000 she originally agreed to accept. Husband did
    not agree with Wife’s claim that she was entitled to any increase in the value
    of the account.
    On March 12, 2014, Wife filed a petition for special relief claiming that
    Husband had not complied with an oral agreement on the distribution of a
    retirement account to her. A hearing was scheduled for May 5, 2014. The
    parties and counsel appeared. On May 20, 2014, the trial court entered an
    order determining that the parties had reached an oral agreement modifying
    their written Agreement, and awarded Wife a share of the post-separation
    increase in Husband’s Transamerica Diversified Account, in addition to the
    $42,000 rollover provided in the Agreement.
    Husband filed a timely appeal on June 2, 2014; and on June 10, 2014,
    the trial court issued a Rule 1925(b) order.        Husband filed his initial
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    Rule 1925(b) statement on June 30, 2014, reserving the right to amend
    upon receipt of the May 5, 2014 transcript.     The transcript was filed on
    July 17, 2014, and the trial court issued its opinion on July 22, 2014.
    Husband filed an amended Rule 1925(b) statement on August 4, 2014.1
    Husband raises two issues for our consideration:
    1.    Did not the trial court err in awarding [Wife] a
    share of the post separation earnings of
    [Husband’s] retirement account in that there is
    no record evidence to support the decision?
    2.    Did not the trial court err in determining that
    the parties created an oral modification to the
    written marital settlement agreement that
    granted [Wife] a share of post separation
    increase in value in the retirement plan?
    Husband’s brief at 5. We will address these issues together.
    We review a trial court’s decision to grant special relief in a divorce
    action under an abuse of discretion standard:
    Judicial discretion requires action in conformity with
    law on facts and circumstances before the trial court
    after hearing and consideration. Consequently, the
    court abuses its discretion if, in resolving the issue
    for decision, it misapplies the law or exercises its
    discretion in a manner lacking reason. Similarly, the
    trial court abuses its discretion if it does not follow
    legal procedure.
    Prol v. Prol, 
    935 A.2d 547
    , 551 (Pa.Super. 2007) (citation omitted).
    1
    We note Husband had not been granted permission to file an amended
    Rule 1925(b) statement. However, the issues raised in his timely June 30,
    2014 Rule 1925(b) statement are preserved.
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    Husband argues that the trial court erred when it refused to hear
    testimony or receive any evidence at the May 5, 2014 hearing, and instead
    used its “equitable powers” to modify the Agreement. We have reviewed the
    transcript contained in the certified record, and Husband is correct that the
    trial court declined to hear testimony from either Husband or Wife at the
    May 5th hearing. Wife’s counsel spoke of a “side deal” the parties allegedly
    made “outside of counsel in November of 2012” that called for Wife to get an
    increased amount. (Notes of testimony, 5/5/14 at 10, 12, 15.) Husband’s
    counsel strongly disagreed with Wife’s counsel’s statements and pointed out
    that on November 19, 2012, a proposed addendum to the Agreement was
    sent to Wife’s counsel which provided for $42,000 from the Transamerica
    Diversified Account as opposed to the Erie Insurance 401(k) Savings Plan.
    (Id. at 8.) A year passed before Wife’s counsel responded with the request
    that Wife receive the increased value of the account above the original
    $42,000.   (Id. at 8-9.)   According to Wife’s counsel, the Transamerica
    Diversified Account’s value had increased to $58,000. (Id. at 9.)
    The trial court explained its decision to award Wife an amount beyond
    $42,000 as follows:
    The crux of the parties’ agreement was [Wife] was to
    receive the account, and was to ultimately end up
    receiving a net value, at that time, of $42,000.00,
    after either reimbursing [Husband] for any
    “overpayment” or receiving a supplemental payment
    from [Husband] for any “underpayment.”          The
    account was never transferred. The account grew in
    value. The Court exercised its equitable powers
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    in resolving the dispute which subsequently
    arose with regard to the increase in the value
    of the Diversified account.
    Trial court opinion, 7/22/14 at 52 (emphasis added).
    Husband maintains the trial court erred when it attempted to justify its
    decision by referring to its equity powers.       In support of his position,
    Husband cites to Section 3105 of the Divorce Code which provides as
    follows:
    § 3105. Effect of agreement between parties
    (c)   Certain    provisions     not   subject    to
    modification.--In the absence of a specific
    provision to the contrary appearing in the
    agreement,    a   provision   regarding   the
    disposition of existing property rights and
    interests between the parties, alimony,
    alimony pendente lite, counsel fees or
    expenses shall not be subject to modification
    by the court.
    23 Pa.C.S.A. § 3105(c). See also Stamerro v. Stamerro, 
    889 A.2d 1251
    ,
    1258 (Pa.Super. 2005) (when enforcing an agreement, the court must
    ascertain the intent of the parties and it cannot modify or vary the
    agreement unless there is “conclusive proof” of fraud, misrepresentation, or
    duress, or the agreement provides for judicial modification); Brower v.
    Brower, 
    604 A.2d 726
    , 731 (Pa.Super. 1992) (the terms of a marital
    2
    We note the trial court’s order granting Wife’s petition for special relief is
    vague in determining an actual dollar amount: “[Wife] shall also pay to
    [Husband] a pro rata share of any growth on said difference (the difference
    being the amount by which the account exceeded $42,000.00 as of
    November 26, 2012) to the date of transfer.”
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    settlement agreement cannot be modified by a court in the absence of a
    specific provision in the agreement providing for judicial modification).
    Our review indicates the parties may have attempted to modify their
    agreement to provide Wife with a different source of funds than set out in
    the Agreement; however, the record does not support any agreement by the
    parties that Wife would get more than the specific amount of $42,000.
    Additionally, the parties’ Agreement contained a specific paragraph
    regarding modification. Specifically, Paragraph 18 provides:
    18.   MODIFICATION
    No modification or waiver of any of the terms
    hereof shall be valid unless in writing and
    signed by both parties. No waiver of any
    breach hereof or default hereunder shall be
    deemed a waiver of any subsequent breach or
    default of the same or similar nature.
    Based on this provision, any modification was to be in writing and signed by
    both parties. Accordingly, any alleged “side deal” between the parties was
    required to be in writing and signed by the parties in order to properly
    modify the Agreement.
    Based on this record, the parties have not modified the Agreement and
    the trial court had no authority to change the Agreement for them.
    Therefore, we reverse the order of the trial court and remand for
    proceedings consistent with this Memorandum. Jurisdiction relinquished.
    Order reversed. Case remanded. Jurisdiction relinquished.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/10/2015
    -8-
    

Document Info

Docket Number: 898 WDA 2014

Filed Date: 2/10/2015

Precedential Status: Precedential

Modified Date: 4/17/2021