J-S15017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANGELA M. BOTZ                                 IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOHN P. BOTZ III

                            Appellant              No. 1604 MDA 2014


             Appeal from the Order Entered on September 8, 2014
               In the Court of Common Pleas of Lebanon County
                       Civil Division at No.: 2011-20769


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                            FILED APRIL 17, 2015

       John P. Botz III (“Husband”) appeals the September 8, 2014 order

that denied his motion to enforce a marriage settlement agreement (“MSA”).

We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

       Angela M. Botz [“Wife”] and Husband were married on August
       29, 2007. Wife filed for Divorce on October 19, 2011. On
       [October 9, 20111], the parties entered into a [MSA]. On June
       21, 2013, Wife filed a Petition to Enforce the Marriage
       Settlement Agreement. A Hearing was scheduled for August 6,
       2013. On July 22, 2013, a Motion to Withdraw the Petition was
       granted by the [trial c]ourt as the parties had reached a
       resolution prior to the scheduled hearing.
____________________________________________


1
     The parties executed the MSA on October 9, 2011. It was docketed on
February 21, 2012 and incorporated, but not merged, into the February 22,
2012 divorce decree.
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     On May 12, 2014, Husband filed a Petition to Enforce the
     Marriage Settlement Agreement.              Specifically, Husband
     claim[ed] that according to the terms of the [MSA], Wife agreed
     that the proceeds from the sale of a marital property were to [be
     used to] pay off a line of credit. The [MSA] was originally
     drafted by Husband’s attorney. The parties negotiated through
     their respective attorneys and came to a final agreement. The
     final draft of the [MSA] contained the following provision:

        HUSBAND and WIFE agree to sell the Mifflin County real
        estate for the best price obtainable and, after payment of
        any sales and transfer costs, and payment of any
        outstanding liens, the remaining proceeds shall be applied
        to the line of credit owed to Northwest Bank. If there are
        any remaining proceeds after payment of the line of credit,
        the proceeds shall be divided equally between HUSBAND
        and WIFE.

     Marital Settlement     Agreement,    dated   October    9,   2011,
     paragraph 9.

     On September 22, 2011, prior to the parties signing the [MSA],
     Husband’s parents had paid off in full the line of credit specified
     in the [MSA]. At the time, Husband was aware that his parents
     were paying off the line of credit owed to Northwest Bank, but
     Wife claim[ed] that she was not aware of this fact. The [MSA] is
     dated October 9, 2011 and was signed by both parties.
     Husband’s mother signed as witness for Husband.

     In his Petition to Enforce, Husband avers that he and Wife are
     equally responsible for reimbursing his parents for this payment
     under the terms of the [MSA]. The Mifflin County real estate
     was sold on October 25, 2013 for $45,000.00. The proceeds of
     the same in the amount of $43,339.50 were placed in escrow by
     agreement of the parties pending resolution of Husband’s
     Petition to Enforce the Marriage Settlement Agreement.         A
     hearing was held before [the trial c]ourt on June 24, 2014.

Trial Court Memorandum and Order (“T.C.M.”), 9/8/2014, at 2-3.

     On September 8, 2014, the trial court denied Husband’s motion. On

September 24, 2014, Husband filed a timely notice of appeal. The trial court




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ordered, and Husband timely filed, a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).

      Husband raises one issue on appeal: “Did the lower court err and/or

abuse its discretion in denying [Husband’s] Petition to Enforce Marital

Settlement Agreement by failing to properly consider the intention of the

parties, thereby resulting in an unintended windfall to [Wife?]” Husband’s

Brief at 4.

      Our standard of review is well settled:

      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),
      appeal granted in part, 853 A.2d 1011 (Pa. 2004). 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.

         “[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, 590 A.2d 1, 3 (Pa. 1991) (internal citations omitted).
      “Because contract interpretation is a question of law, this Court
      is not bound by the trial court’s interpretation.” Chen, supra at


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     360. “Our standard of review over questions of law is de novo
     and to the extent necessary, the scope of our review is plenary
     as [the appellate] court may review the entire record in making
     its decision.” Kripp v. Kripp, 849 A.2d 1159, 1164 n.5 (Pa.
     2004). However, we are bound by the trial court’s credibility
     determinations. Wade v. Huston, 877 A.2d 464 (Pa. Super.
     2005).

Stamerro v. Stamerro, 889 A.2d 1251, 1257-58 (Pa. Super. 2005)

(footnote and some citations omitted; citations modified).

     We also note that:

     In Pennsylvania, we enforce property settlement agreements
     between husband and wife in accordance with the same rules
     applying to contract interpretation. . . .

     It is well-established that the paramount goal of contract
     interpretation is to ascertain and give effect to the parties’
     intent. When the trier of fact has determined the intent of the
     parties to a contract, an appellate court will defer to that
     determination if it is supported by the evidence.

     When construing agreements involving clear and unambiguous
     terms, this Court need only examine the writing itself to give
     effect to the parties[’] understanding. The court must construe
     the contract only as written and may not modify the plain
     meaning of the words under the guise of interpretation. When
     the terms of a written contract are clear, this Court will not
     rewrite it or give it a construction in conflict with the accepted
     and plain meaning of the language used. Conversely, when the
     language is ambiguous and the intentions of the parties cannot
     be reasonably ascertained from the language of the writing
     alone, the parol evidence rule does not apply to the admission of
     oral testimony to show both the intent of the parties and the
     circumstances attending the execution of the contract.

Lang v. Meske, 850 A.2d 737, 739-40 (Pa. Super. 2004) (quoting Osial v.

Cook, 803 A.2d 209, 213-14 (Pa. Super. 2002)) (citations omitted).




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       Husband asserts that the MSA is not ambiguous.         Instead, Husband

argues that the parties intended to sell the Mifflin property, satisfy the line of

credit, and then split the remaining proceeds of the sale. Husband contends

that the trial court disregarded the intent of the parties in deciding that

Husband and Wife did not need to reimburse Husband’s parents after they

paid off the line of credit.   Therefore, Wife would receive an unintended

windfall.   Husband’s Brief at 9-11.

       Wife agrees that the MSA was not ambiguous. Wife argues that the

MSA is clear that the Mifflin property would be sold and then costs of sale,

liens, and the Northwest Bank line of credit would be paid before the parties

split the remainder.    Wife asserts that she was unaware that Husband’s

parents paid off the line of credit before the MSA was signed and that

Husband signed the MSA knowing that the line of credit had been paid off

without telling her. Wife argues that the MSA only contemplates paying the

Northwest Bank line of credit and does not speak to paying a personal loan

or reimbursement to Husband’s parents.              Because the MSA is not

ambiguous, Wife contends that the court cannot re-write the contract to

include a clause for reimbursement to Husband’s parents.          Wife’s Brief at

6-9.

       The trial court found that the MSA was unambiguous. The trial court

determined that the MSA contemplated paying costs and fees of sale,

outstanding liens, and the Northwest Bank line of credit prior to the

distribution of the proceeds. T.C.M. at 4. The trial court reasoned that the

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line of credit no longer existed and that the MSA contained no provision for

repaying Husband’s parents. The trial court found that Husband knew the

line of credit was retired prior to finalizing the MSA.   Id.   The trial court

found, and the record supports, that Wife was unaware that the line of credit

was paid prior to signing the MSA.         Id.; Notes of Testimony (“N.T.”),

6/24/2014, at 8. Husband’s counsel prepared the MSA. Id. at 16, 24.

      Neither party argues that the MSA is ambiguous.           We agree and

therefore, are bound by the plain language of the MSA. Lang, supra. The

MSA clearly delineates the debts that are to be paid from the proceeds of the

Mifflin property.    Those debts do not include any personal liability or

reimbursement to Husband’s family. Further, Husband was the only party to

the MSA who was in a position to know that the line of credit listed in the

provision no longer existed. Husband’s attorney drafted the MSA. Husband

could have requested that his attorney update the MSA to reflect a loan from

Husband’s parents.      He chose not to do so.   Because the language of the

MSA is unambiguous, we may not look beyond the document to examine

Husband’s intention.     We cannot re-write the MSA or “modify the plain

meaning of the words under the guise of interpretation.” Lang, 850 A.2d at

740. Therefore, the trial court did not err in denying Husband’s motion.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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