J-S33005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT J. PANEK,                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DIANA PANEK,

                            Appellee                  No. 59 MDA 2017


              Appeal from the Order Entered December 8, 2016
            In the Court of Common Pleas of Lackawanna County
       Domestic Relations at No(s): 16-DRO-0250 PACES NO. 004115837


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 01, 2017

        Robert J. Panek (Husband) appeals from the order entered on

December 9, 2016, that denied his exceptions to a master’s report.          The

order also concluded that Husband’s and Diana Panek’s (Wife) agreement

entitled “Marital Separation Agreement” (Agreement) was a valid and

enforceable post-nuptial agreement that barred spousal support and

alimony. After review, we affirm.

        In Husband’s brief, he sets forth the following eight issues for our

review:

        I. Whether the [c]ourt erred finding that the “Marital Settlement
        [sic] Agreement” signed by the parties was a valid agreement as
        Pennsylvania does not recognize legal separation pursuant to the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S33005-17


     Pennsylvania Divorce Code, 23 Pa.C.S.[] §§ 3301(c) and
     3301(d)?

     II. Whether the [c]ourt erred as a matter of law and abused its
     discretion in finding that the “Marital Settlement [sic]
     Agreement” signed by the parties was not a separation
     agreement but instead an enforceable postnuptial agreement?

     III. Whether the [c]ourt erred as a matter of law and abused its
     discretion in finding that the “Marital Settlement [sic]
     Agreement” was valid despite [Husband’s] contention that he
     was under duress at the time of execution of the Agreement?

     IV. Whether the [c]ourt erred as a matter of law and abused its
     discretion in finding that the “Marital Settlement [sic]
     Agreement” was valid despite [Husband’s] contention that [Wife]
     misrepresented the permanency and terms and conditions of the
     Agreement to him at the time of execution of the Agreement?

     V. Whether the [c]ourt erred as a matter of law and abused its
     discretion in finding that the “Marital Settlement [sic]
     Agreement” was valid despite [Husband’s] contention that he
     was coerced into signing the Agreement by [Wife]?

     VI. Whether the [c]ourt erred as a matter of law and abused its
     discretion in finding that the “Marital Settlement [sic]
     Agreement” was valid despite [Husband’s] contention that he did
     not understand the terms and conditions of the Agreement?

     VII. Whether the [c]ourt erred as a matter of law and abused its
     discretion in finding that the “Marital Settlement [sic]
     Agreement” was valid despite [Husband’s] contention that the
     Agreement is not compliant with and is invalid and nonbinding in
     conjunction with the laws and rules of the Commonwealth of
     Pennsylvania?

     VIII. Whether the [c]ourt erred as a matter of law and abused
     its discretion in finding that the “Marital Settlement [sic]
     Agreement” was a legally binding contract?

Husband’s brief at 9-10.




                                  -2-
J-S33005-17



      Initially, we must comment on the inadequacies of Husband’s brief.

Although Husband has listed eight separate issues that he submits for this

Court’s review, he has not complied with Pa.R.A.P. 2119(a), which states

that “[t]he argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part … the

particular point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.” Rather, Husband merely provides four

pages of argument in which he purports to address all eight issues.

Moreover, he has not included any citations to case law to support his

positions relating to his arguments.

      Due to the failure to abide by the rules of appellate procedure,

Husband’s appeal could be dismissed. However, following our review of the

certified record, the briefs of the parties, the applicable law, and the well-

reasoned analysis provided by the Honorable Julia K. Munley of the Court of

Common Pleas of Lackawanna County in her opinion dated February 2,

2017, we conclude that Judge Munley has correctly disposed of the issues

presented.   Accordingly, we adopt her opinion as our own and affirm the

order on that basis.

      Order affirmed.




                                       -3-
J-S33005-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2017




                          -4-
                                                                                                                                                                 Circulated 05/18/2017 12:35 PM




         ROBERT J. PANEK,                                                                                        IN THE COURT OF COMMON PLEAS
                     Plaintiff                                                                                       OF LACKAWANNA COUNTY

         vs.                                                                                                                    CIVIL ACTION - LAW

         DIANA PANEK,                                                                                                           PACSES 004115837
                   Defendant                                                                                                    16-DR0-0250
         ... ......... ................. . ... ...................................... .......................................
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                                                                                                     OPINION

                            This Court issued an Order dated December 8, 2016 regarding Defendant's

         exceptions to the Master's Report in the above-referenced matter. An Appeal was filed and

      the opinion in support of that Order is now ripe and as such, is addressed below on this 2nd

     Jay of February, 2017.
     0
r-:b
3 ™1UNLEY, J.
0(/)
oZ
<( O            I.                      FACTUAL AND PROCEDURAL                                                      HISTORY
~~
~ ~                         Robert J. Panek ("HusbancP') and Diana Panek ("Wife") were marriedon June 27,

~ ~992 in Scranton, Pennsylvania. The parties separated in June 2014. No divorce action has
..:, w
     ~een initiated to date.
     0
                            On June 23, 2014 the parties signed and had notarized a five (5) page document

     entitled "Marital Separation Agreement" (hereinafter "Agreement"). See Master's Hearing

     Transcript, ("H.T.") 6/6/2016, p. 11. The Agreement contained the following paragraph:

                                              5.01. ALIMONY/SPOUSAL SUPPORT. Neither party shall
                                              receive any alimony and/or supposal (sic) support from the
                                              other party.

     See Agreement, attached as Exhibit B to Brief in Opposition of Plaintiffs Exceptions to
     Support Order, 10/30/2016.

                        By way of background, Husband filed a Complaint seeking spousal support on

     March 18, 2016, which was dismissed by Court Order dated April 27, 2016. Husband
appealed that dismissal on May 6, 2016, and a Master, s hearing was held on June 6, 2016

before Kathryn A. Karam, Esquire, Master in Support (hereinafter "Master'}        After a de

novo hearing, the Master found that the parties had entered into a valid separation agreement

baning both parties from claiming spousal support. The Master recommended dismissal

after finding that Husband waived his right to support under a valid contract he previously

entered into with Wife. See Master's Findings of Fact and Conclusions of Law, 9/22/2016.

         At the Master's hearing, Husband testified that he did not ask for the Agreement to

be drafted, which Husband claimed was done by Wife's uncle, Paul Smith, Esquire. H.T. at

10. Husband testified that the Agreement included provisions regarding division of

property, custody, child support, medical and dental insurance coverage for Husband, taxes,

debts of the parties, alimony, spousal support, pensions, financial accounts and life

insurance policies, full disclosure, and right to live separate and apart. Id. at 11. Husband

identified his signature on the document. Id.

         When asked ifhe knew what he was signing, Husband replied, "[n]ot exactly- I just

wanted to leave and get away from her. I thought it would be legal. I figured I trusted her.

She took care of the bills for 20 years. I didn't think she was going to set me up to kill me."

Id. at 12.

         Additionally, Husband testified that he did not have an attorney review the

Agreement. Id. When asked how the idea of the Agreement originated, Husband replied

that he wanted something so he "wouldn't get in trouble with the bank on our mortgage."

Id. at 14, 22-23. Husband admitted that the Agreement removed his name from the marital

home, and that he understood that this was permanent. Id. at 29.




                                                2
        The testimony indicates that since he entered into the Agreement, Husband reaped its

 benefits and abided by the conditions of the Agreement until December 2015.           Id. at 24-25.

 At that time, Husband's girlfriend broke up with him and he was having a difficult time. Id.

Further, Husband agreed that he told Wife around that time period that he wished he had not

given up on their marriage and needed money to live. Id. at 25.

        Husband testified that he makes $26,000.00 per year as a Dupont Borough

Supervisor, and had been so employed for two (2) years. Id. at 27. Currently, Husband

stated that he works thirty-six (36) hours per week, but may work more during the winter

months if he has to plow roads. Id. at 32. Husband holds a Class D license for heavy

equipment certification. Id. at 29-30. Husband also previously earned $40,000.00 per year

driving a dump truck and working 60 to 65 hours, per his testimony.           Id. at 30. Husband

testified that to this day he still uses his Class D license. Id. at 31-32.

        Wife testified that her yearly income as of2015 was $47,028.00 as an employee of

Children and Youth Services of Luzerne County. Id. at 39. Wife, as of the time of the

hearing, continued to pay for Husband's medical and dental insurance as providecl in the

Agreement.    Id. at 44-45.

       Husband filed exceptions to the Master's Report. Additionally, Husband filed a

Brief in Support of Plaintiff's Exceptions to the Support Order on November 14, 2016.

Husband raised the following issues in his brief at the time:

                l)     That the Master erred in finding that the document
                signed by the parties was a valid agreement, as Pennsylvania
                does not recognize separation agreements.

                2)     That the Agreement is invalid as Husband was under
                duress at the time of execution of the agreement.




                                                  3
                  3)      That Wife misrepresented to Husband the permanency
                  of the Agreement.

                  4)        That Husband was coerced into signing the Agreement.

                  5)      That Husband did not understand        the terms and
                  conditions of the Agreement.

                  6)     That Wife misrepresented the terms and conditions of
                  the Agreement to Husband.

                  7)      That the Agreement is not compliant with the laws and
                  rules of the Commonwealth of Pennsylvania.

                 8)     That the Agreement was invalid and nonbinding in
                 conjunction with the laws and rules of the Commonwealth of
                 Pennsylvania.

          Oral arguments on Husband's exceptions were held before this Court on December

7, 2016 wherein Husband was ably represented by Thomas J. Killino, Esq. and Wife

appeared prose.        This Court entered an Order dated December 8, 2016 dismissing

Husband's exceptions and finding that the document was a valid and enforceable agreement.

See Court Order, 12/08/16.

    II.      DISCUSSION

          Under the laws of this Commonwealth, a master's findings are appealable by either

party and such appeal is a de novo review by the Court. Arcure v. Arcure, 281 A.2d 694,

695 (Pa. 1971). While a master's findings are not absolutely binding on the court, they are

entitled to significant weight. Moran v. Moran, 83 9 A.2d 1091, 1095 (Pa. Super. 2003 ).

Absent a clear showing that a master's recommendation is erroneous, the recommendation

should not be set aside. Mintz v. Mintz, 392 A.2d 747, 749 (1978).       "To set the

recommendation aside would be to undermine the master system and would be questionable

in light of the fact that the master heard and saw the witnesses." Id.



                                                  4
         Husband's exceptions are listed below and addressed in tum.

                 1) That the Master erred in finding that the document signed by the
                    parties was a valid agreement, as Pennsylvania does not recognize
                    separation agreement~

         Husband's assertion that Pennsylvania does not recognize separation agreements is

 in error, Pennsylvania does indeed recognize and enforce separation agreements. See In re

 Ray's Estate, 304 Pa. 421> 156 A. 64 (1931); Vaccarello v. Vaccarello, 563 Pa. 93, 757 A.2d

 909 (2000). An analysis of Pennsylvania law regarding the recognition of separation

 agreements, however, is not necessary. This Court finds that the Agreement was an

enforceable postnuptia1 agreement.

        The distinction between a separation agreement and a postnuptial agreement lies in

the intent of the parties. If the intent of the parties was to fully and finally settle their

respective property rights, the agreement is to be construed as a postnuptial agreement.

Makowski v. Makowski, 163 Pa. Super. 441, 62 A.2d 71 (1948).

        "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 was chosen

carelessly." Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa. Super. 2005). If intent is not

clear from the writing, "the court considers the parties' outward and objective manifestations

of assent, as opposed to their undisclosed and subjective intentions." Espenshade v.

Espenshade, 729 A.2cl 1239, 1243 (Pa. Super. 1999). "The court may take into consideration

the surrounding circumstances, the situation of the parties, the objects they apparently have

in view, and the nature of the subject-matter of the agreement." Stamerro, 889 A.2d at 1258

(Pa. Super. 2005).




                                                 5
        In this case, the Agreement itself is not at all ambiguous.   Rather, the language of the

2014 Agreement is quite clear in setting out the parties' intentions in entering into the

contract, that is to settle finally their respective property rights and duties and to be bound

by the provisions of the Agreement. The Agreement contains provisions distributing

property to Wife and property to Husband, which includes the marital home, three

automobiles, and a boat. Agreement at iJi! 3.00, 3.01. The Agreement also contains

provisions regarding Husband and Wife's respective pensions and prevents the other party's

receipt of a spouse's individual pension funds. Id at i1 s.01. The Agreement also provides

for Husband to remove his name from the parties' joint bank accounts. Id. at i[ 5.04.

Another paragraph of the Agreement establishes that Wife agrees to maintain Husband on

her medical and dental insurance coverage until the entry of a divorce decree. Id. at i! 5.03.

       The Agreement additionally reads in paragraph 2.02 as follows:

               "This Agreement shall survive any action for divorce and
               decree of divorce and shall forever be binding and conclusive-
               ----The adequacy of the consideration for all agreements herein
               contained is stipulated, confessed and admitted by the parties,
               and the parties intend to be legally bound."

Id. (emphasis added).

       This Court, in reviewing the plain language of the Agreement, finds that it is a valid

and enforceable postnuptial agreement.

       Further evidence of the parties' intentions was provided by Husband's testimony.

Husband testified regarding the transfer of the marital home, which Husband agreed was

permanent. H.T. at 28-29. Husband also testified to his continued enjoyment of health

insurance and dental coverage by Wife pursuant to the Agreement, and Wife's execution of




                                                6
the documents necessary for Husband to withdraw fonds from his 40 lK retirement fonds.

Id. at 11, 19, 23-24.

           The title of the Agreement herein is also not dispositive of the issue. In Vaccarello,

supra, the agreement in question was titled "Separation and Property Settlement

Agreement." 757 A.2d at 910. In reviewing the agreement in Vaccarello, the Pennsylvania

Supreme Court held, however, that the plain language of the agreement demonstrated that

the parties intended it to be a final settlement and determination of their respective property

rights, and as such, it was an enforceable postnuptial agreement. Here, this Court finds that

the Agreement in this case is a valid and enforceable postnuptial agreement for the same

reasons.

                  2) Thnt the Agreement is invalid ns Husband was under duress at the
                     time of execution of the agreement.

       It is well-established that the law of contracts governs marital settlement agreements.

Kripp v. Kripp, 578 Pa. 82, 90, 849 A.2d 1159, 1163 (2004) (citing Vaccarello, 757 A.2d at

914.) "[A]bsent fraud, misrepresentation, or duress, spouses should be bound by the terms

of their agreements." Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162,165 (1990);

Stoner v. Stoner, 572 Pa. 665, 819 A.2d 529 (2003). Therefore, if Husband can establish

that he was under duress at the time of execution, there would be grounds to invalidate the

Agreement. In this case, however, Husband has not pointed to anything on the record that

even remotely indicates that Husband was under duress.

       Duress is defined as:

                 "That degree of restraint or danger, either actually inflicted or
                 threatened and impending, which is sufficient in severity or
                 apprehension to overcome the mind of a person of ordinary
                 firmness .... Moreover in the absence of threats of actual harm



                                                  7
                there can be no duress where the contracting party is free to
                consult with counsel."

Adams v. Adams, 414 Pa. Super. 634, 607 A.2d 1116, 1119 (1992).

        The language of the Agreement and the signatures of the parties prove that the

parties carefully considered its provisions before entering into it. Paragraph 6.06 of the

Agreement is an acknowledgement and declaration that each patty, among other things,

entered into the contract voluntarily and gave careful and mature thought to the making of

the contract.

        None of the testimony presented by Husband establishes duress. Husband testified

that he wanted to leave the marriage and get away from Wife. H.T. at 12. He also testified

that he trusted Wife to handle matters since she took care of the couple's bills for twenty

(20) years. Id. Husband also testified that he "did not want to get into trouble," referring to

financial trouble over the couple's mortgage on the marital home. Id. at 12, 14. Without

more, Husband's duress argument fails.

        Also instructive is Lugg v. Lugg, 2013 Pa. Super 67, 64 A.3d 1109 (2013). In Lugg,

the appellant-wife attacked the validity of the parties' postnuptial agreement on the grounds

of duress. 64 A.3d at 1113. Appellant-wife's claim was that Appellee-husband subjected

her to daily badgering and, on· the date of execution of the agreement, to some one and one-

half hours of continual pressure and negotiations.   Id. at 1114.   This apparently caused the

Appellant-wife to "cave in" and sign the agreement. The Court rejected wife's claim,

holding that mere badgering, pressure and negotiations did not rise to the level of coercion

necessary to find duress. Id.

       Here, this Court finds nothing in the record to support Husband's claim of duress,

and so rejects Husband's argument that the Agreement should be invalidated on that basis.

                                                8
        Additionally> the Court takes cognizance that, as with any other contract, even a

voidable postnuptial agreement is subject to the doctrine of ratification.   Ratification results

if a party executing a contract under duress sits on his or her rights and reaps the benefits

flowing from it, or remains silent or acquiesces in the contract for any considerable length of

time after the party has the opportunity to annul or avoid the contract. National Auto

Brokers C01p. v. Aleeda Development Corp., 243 Pa. Super 101> 364 A.2d 470 (1976).

        Here, Husband reaped the benefits of the contract. Wife continues to pay for

Husband's medical insurance as contemplated under the Agreement, which was executed

almost two years before Husband's Complaint. H.T. at 23-24. As noted above> this Court

has been unable to find a scintilla of evidence in the record to support a finding of duress.

However, even if such evidence was present in this case, Husband's acceptance of the

benefits of the contract, his prolonged silence, and his previous failure to challenge the

contract for close to two years, indicates ratification of the Agreement by Husband.

               3) That Wife misrepresented to Husband the permanency of the
                  Agreement; and 6) that Wife misrepresented the terms and
                  conditions of the Agreement to Husband;

       Husband also argues that Wife misrepresented the permanency, as well as the terms

of conditions of the Agreement, which this Court will address together. As above-noted,

fraud or misrepresentation may be grounds to invalidate a postnuptial agreement. However,

nothing in the testimony or evidence presented at the Master's Hearing or during oral

argument indicates that Wife misrepresented anything to Husband.

       Husband testified at the Master's Hearing that he did not understand the Agreement

and did not know that it was definite: " ... and I thought it was somethingjust to get away

and not to be in trouble. I didn't think it was permanent." H.T. at 12. This testimony does



                                                9
not establish misrepresentation by Wife. There was no testimony that Wife did anything to

foster Husband's belief that the Agreement he was signing was temporary.

        The Agreement by its own terms clearly indicates that the Agreement was intended

to be permanent. The term: "forever be binding and conclusive on the parties" in paragraph

2.02 of the Agreement clearly and unambiguously indicates the permanent nature of the

Agreement. Paragraph 6.06 sets out that both parties were folly and completely informed as

to the facts relating to the subject matter of the agreement, that the parties had carefully read

each provision of the Agreement and understood each provision of the Agreement.

Husband also signed the Agreement before a notary, indicating that Husband was physically

free to object to signing, or to seek advice of counsel if he was uncertain of any of its terms,

       Even if there was evidence of misrepresentation by Wife in the record, a material

misrepresentation renders a marital settlement agreement voidable not void under general

contract principles. See In re Estate of Long, 419 Pa. Super. 389, 392, 615 A.2d 421, 422

(1992) (citing Germantown Mfg. Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985))

(prenuptial agreement). This Court thus rejects Husband's arguments of misrepresentation

based on the evidence of record.

               4) That Husband was coerced into signing the Agreement; and 5) That
                  Husband did not understand the terms and conditions of the
                  Agreement

       As with Husband's allegations concerning duress and misrepresentation, the Court

finds nothing in the record to support Husband's allegation of coercion. The same analysis

set forth above, including, but not limited to: a) the plain language of the Agreement

indicating the voluntary nature of Husband's signature; b) Husband's ability to seek legal




                                               10
 counsel; and c) Husband's ability to object to signing the Agreement, all militate against a

 finding of duress, fraud, misrepresentation, or coercion.

           Husband's arguments that he did not understand the terms and conditions likewise

 fail for the reasons addressed above.

                   7) That the agreement is not compliant with the laws and rules of the
                      Commonwealth of Pennsylvania; and 8) That the agreement was
                      invalid and uonbinding in conjunction with the laws and rules of the
                      Commonwealth of Pennsylvania

           Husband argues that the Agreement is illegal, but does not cite which "laws and

 rules" the Agreement violates.

           Under Pennsylvania law, "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). (West). As such,

. this Court finds that the Agreement is compliant with the laws and rules of the

Commonwealth of Pennsylvania

    III.      CONCLUSION

           For the reasons stated above, this Court also finds that the Agreement entered into by

the parties was and remains both valid and binding on the parties. Based on the foregoing,

this Court issued the Order dated December 8, 2016 dismissing Defendant's exceptions to

the Master's report.

                                         BY THIS COURT:




                                                 11
