J-A15028-17

                              2017 PA Super 255

ERIC M. BIENERT                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

SUZANNE S. BIENERT


                         Appellant                  No. 1738 MDA 2016


           Appeal from the Decree Entered September 29, 2016
             In the Court of Common Pleas of Centre County
                     Civil Division at No(s): 2014-1098

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY SOLANO, J.:                            FILED AUGUST 07, 2017

      Appellant, Suzanne S. Bienert (“Wife”), appeals from the final decree

of divorce dated September 29, 2016. She specifically challenges an order

denying a petition that she filed in June 2016 to void a Marital Property

Agreement (“the Agreement”) that she signed with Husband, Eric M. Bienert

(“Husband”) just before the parties filed for divorce. Wife contends that the

trial court abused its discretion in denying the petition without holding an

evidentiary hearing. For the following reasons, we affirm.

      The parties married on April 1, 1995. On March 1, 2014, Wife and

Husband separated, and Husband drafted the Agreement using a form that

he found on the Internet and that Husband and Wife then jointly revised.
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Excerpt from Tr. of Hrg., 8/28/15, at 2.1 The Agreement allocated marital

property between the parties; among other things, Wife would receive the

parties’ boat and Husband would receive their former marital residence.

Agreement at 3-5. Although the Agreement was signed during the parties’

separation, it stated,

       It is agreed and understood that this Agreement finally settles all
       rights of the parties and the property jointly or individually
       owned by the parties, and that this Agreement, and the
       enforceability thereof, is not contingent upon either party or both
       parties being granted a divorce on any grounds. However, if
       either or both parties are granted a divorce on any grounds, the
       parties agree that this Agreement shall be made a part thereof
       and that such decree or judgment shall not conflict with the
       terms hereof except to the extent disapproved by the Court.

Id. at 13. The parties signed the Agreement on March 20, 2014. Id. at 17.

       On March 26, 2014, Husband filed a Complaint in Divorce, and the

parties simultaneously filed the Agreement with a request that the court

incorporate it into its final decree of divorce.   The trial court entered the

Agreement as an order on March 27, 2014.

       On December 15, 2014, Wife filed a petition for alimony pendente lite.

Wife was represented by counsel at that time. In her petition, Wife argued

that the Agreement did not cover alimony pendente lite and thus did not bar

her from receiving such a recovery. Wife’s Pet. for Alimony Pendente Lite,

12/15/14, at 3. Husband asserted that the Agreement was a complete and

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1
  It appears that only excerpts from this hearing were transcribed and
included in the record.


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J-A15028-17


final settlement of all rights and obligations of the parties and that Wife was

thereby barred from receiving alimony pendente lite. Notably, Wife did not

argue at any time with respect to her petition that the Agreement was

invalid for any reason; her only argument pertained to whether the

Agreement, by its terms, applied to alimony payments. See id.

      On February 18, 2015, the trial court denied Wife’s petition. Trial Ct.

Op., 2/18/15, at 4. The court held that Wife was precluded from obtaining

alimony pendente lite or spousal support from Husband under the terms of

the Agreement, which, the court concluded, was intended to be a final

settlement of all claims arising from the parties’ marriage, including any

support obligations.     Id. at 3-4.    The court observed, “Absent fraud,

misrepresentation, or duress, spouses should be bound by the terms of their

agreements.”   Id. at 2, quoting Stackhouse v. Zaretsky, 900 A.2d 383,

386 (Pa. Super. 2006).

      After the trial court denied Wife’s counseled petition for alimony

pendente lite, Wife’s counsel withdrew his appearance and Wife began

representing herself. Acting pro se, Wife filed multiple petitions to enforce

the Agreement, including petitions seeking title to the boat and other items

allocated to her in the Agreement. Specifically, in April 2015, Wife sought to

enforce the Agreement by filing a Petition to Request Property Cash

Settlement, a Petition to Retrieve Personal Property, and a Petition to

Request Cash Settlement.       All of these petitions were based on the


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J-A15028-17


Agreement and therefore necessarily were premised on the view that the

Agreement was valid and enforceable.2 The court deferred ruling on Wife’s

petitions.

        On May 20, 2015, Husband filed a petition to hold Wife in contempt for

violating the Agreement by failing to remove the boat and other items from

the former marital residence and by failing to execute a deed to transfer title

to the residence to Husband. Husband’s Pet. for Contempt, 5/27/15. In her

Answer to Paragraph 3 of Husband’s petition, which alleged Wife’s duties

under the Agreement, Wife, acting pro se, averred: “Agreed that the Marital

Property Agreement was signed into effect on March 20, 2014, (while the

Defendant was under duress because the Plaintiff had the Defendant sign

the [Agreement] immediately after Defendant was sentenced in court for

three felonies — charged with one misdemeanor).”3            Wife’s Answer to

Husband’s Pet. for Contempt, 6/1/15, ¶ 1.        Wife’s averment was her first

mention of duress in connection with the Agreement, but even in that

pleading, Wife made no claim that the Agreement was invalid, and, instead,


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2
  In addition to the petitions themselves, Wife filed several pleadings in
support of her petitions that also were based on enforcement of the terms of
the Agreement. See, e.g., Wife’s Sur-Answer to Husband’s Answer to Wife’s
Petition to Request Property Cash Settlement, 5/29/15; Wife’s Sur-Answer
to Husband’s Answer to Wife’s Petition to Request Cash Settlement of
$3,753.33, 6/1/15; Wife’s Petition: Emergency Request to Resolve Wife’s
Petition to Request Property Cash Settlement, 6/18/15.
3
    Wife was sentenced for crimes in a separate matter not at issue here.


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J-A15028-17


she proceeded to make arguments based on the Agreement in the rest of

her answer. See id. at ¶ 5.

      Eight days later, on June 9, 2015, Wife, again acting pro se, filed her

own petition seeking to hold Husband in contempt for violating the

Agreement. She alleged that Husband had failed to provide Wife with the

title to the boat. Wife’s Pet. for Contempt, 6/9/15.

      On August 28, 2015, the court held a hearing on the pending petitions.

During the hearing, Wife, acting pro se, made various arguments to avoid

the terms of the Agreement on grounds of mistake, misrepresentation, or

duress. She contended that she thought the Agreement applied only to her

separation, and not to her divorce. Excerpt from Tr. of Hrg., 8/28/15, at 2-

3.   She referenced the court’s statement in its February 18, 2015 opinion

denying her petition for alimony pendente lite that agreements should be

enforced “absent fraud, misrepresentation, or duress” and complained that

her counsel had failed to raise such issues with the court at the time the

alimony issues were litigated. Id. at 4-5. Wife argued that there was fraud,

misrepresentation, and duress because Husband “took me to sign [the

Agreement] on the same day that I was charged with three felonies” and

worked out the Agreement with his girlfriend while Wife “was in rehab.”   Id.

at 6-7.

      The trial court heard Wife’s arguments and permitted her to place

them on the record. See Excerpt from Tr. of Hrg., 8/28/15, at 7-10. The


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J-A15028-17


court held, however, that it was too late to challenge the Agreement

because the court had already based decisions in the case on the

Agreement, which had not previously been challenged. The court stated:

      [T]here is an agreement that you entered into. At the time the
      only thing that was challenged by you and your attorney was the
      alimony pendente lite. The Court does have an opinion. The
      Court has relied on this. All your other petitions rely on the fact
      that it is a valid agreement, everything.

      So any kind of contract that you enter into, once it's entered into
      and it’s determined to be valid, you can’t then go back later and
      have like a second or third bite at the apple and say, well, this is
      other stuff that wasn’t considered.

      . . . When you brought up your issues with the settlement
      agreement that alimony pendente lite, you didn't raise anything
      about fraud, misrepresentation, duress, or anything like that at
      that time. That’s why this law [the reference in the February 18,
      2015 opinion to an absence of “fraud, misrepresentation, or
      duress”] is in here because it wasn't raised.

      . . . So the Court made a ruling and part of the ruling is that . . .
      there was no allegation of fraud, misrepresentation, or duress.

      . . . [W]e're bound by the same agreement, the settlement
      agreement, and the fact that if there was an issue, you or your
      attorneys at the time should have raised it when you raised your
      other issues.

Id. at 4-5, 7.

      On September 2, 2015, after hearing the arguments from both parties

and reviewing the parties’ filings, the trial court entered an order granting

the three pro se petitions filed by Wife in April 2015 and stating that “any

outstanding petitions and motions in this matter which are not addressed in

this Order are hereby dismissed.”      Trial Ct. Op., 9/2/2015, at 5-6.       The




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J-A15028-17


outstanding (and thereby dismissed) petitions included both Husband’s and

Wife’s petitions for contempt.

        On March 16, 2016, Wife retained new counsel to represent her in

these proceedings. Then, on June 9, 2016, Wife filed a counseled petition to

void the Agreement.          In that Petition, Wife alleged that Husband used

duress, misrepresentation, and fraud to induce her to sign the Agreement.

Wife’s Pet. to Void Marital Property Agreement, 6/9/16, at 3.4 On June 13,

2016, the trial court entered an order denying Wife’s petition. The order

read:

        [Wife’s] Petition to Void Marital Property Agreement is DENIED
        without a hearing. The Court held the parties’ Marital Property
        Agreement to be valid and enforceable in its February 18, 2015
        Opinion and Order, and therefore the issue has been ruled upon.

Order, 6/13/16. Id.5




____________________________________________
4
   Specifically, Wife’s petition alleged that Husband took advantage of the
stress that she faced as a result of her alcoholism and depression, as well as
the criminal charges that had been filed against her, to prevent her from
hiring an attorney and understanding the scope of the Agreement. Wife’s
Pet. to Void Marital Property Agreement, 6/9/16, at 3-4. Wife further
alleged that, despite the Agreement’s language, Husband told her that the
Agreement would apply only to the parties’ separation and not to their
divorce.     Id. at 4.     Wife claimed that her misunderstanding of the
Agreement’s scope should cause the Agreement to be declared void on the
basis of a mutual mistake of fact. Id.
5
 Wife appealed the June 13, 2016 order on July 8, 2016. This Court issued
an order directing Wife to show cause as to why that appeal should not be
quashed as having been taken from an interlocutory order. On September 9,
2016, Wife filed a praecipe to discontinue that appeal without prejudice.


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J-A15028-17


      On September 29, 2016, the trial court entered a final decree in

divorce.   Order, 9/29/16.       On October 19, 2016, Wife filed this timely

appeal, in which she raises a single issue: “Did the trial court abuse its

discretion in denying Appellant’s Petition to Void Marital Property Agreement

without a hearing?” Wife’s Brief at 4.

      Our standard of review is to determine whether the trial court abused

its discretion.   Simmons v. Simmons, 723 A.2d 221, 222 (Pa. Super.

1998). A finding of abuse of discretion “requires proof of more than a mere

error in judgment, but rather evidence that the law was misapplied or

overridden, or that the judgment was manifestly unreasonable or based on

bias, ill will, prejudice or partiality.” See id.

      On appeal, Wife argues that the trial court erred by precluding her

from presenting evidence that would show that (1) she signed the

Agreement against her will, and (2) a mutual mistake of fact existed in the

formation of the Agreement, either of which would render it void.         Wife’s

Brief at 20. Wife claims that the trial court’s action contravened the public

policy and intent of the Divorce Code to effectuate economic justice between

parties who are divorced or separated.         Id.   In support of her argument,

Wife relies on this Court’s decision in Foley v. Foley, 572 A.2d 6 (Pa. Super.

1990). According to Wife, the Court in Foley vacated a divorce decree after

it found that the wife in that action had been denied a fair trial and that, as a

result of intimidation by her husband, did not have a full opportunity to


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J-A15028-17


litigate economic claims during her divorce. Wife’s Brief at 26 (citing Foley,

572 A.2d at 10).        Wife argues that, under Foley, she has been unfairly

denied an evidentiary hearing and the opportunity to establish facts to prove

that she signed the Agreement under duress. Wife’s Brief at 27.

       Husband points out that Wife cites no legal authority requiring a court

to hold a hearing on every petition or requiring the court to hold a hearing

under the circumstances at issue here.             Husband’s Brief at 4.   Husband

contends that Wife is barred from obtaining relief by the equitable doctrine

of unclean hands6 and by the Pennsylvania Supreme Court’s holding in

Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990). Husband construes

Simeone as holding that a spouse is bound by the terms of her agreement,

regardless of whether she read and understood the contract or whether the

contract was reasonable or a good bargain. Husband’s Brief at 4-5 (citing

Simeone, 581 A.2d at 165-66).                  Wife responds that Simeone is not

applicable because it addressed the validity of a prenuptial agreement,

rather than a marital property agreement, and it did not address the duress

and mistake issues raised by Wife in the instant case. Wife’s Reply Brief at

1-2.


____________________________________________
6
 The doctrine of unclean hands derives from the equitable maxim that “he
who comes into equity must come with clean hands.” Jacobs v. Halloran,
710 A.2d 1098, 1103 (Pa. 1998). It “closes the doors of a court of equity to
one tainted with inequitableness or bad faith relative to the matter in which
he seeks relief.” Id.


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J-A15028-17


       We conclude that the trial court did not abuse its discretion in denying

Wife’s June 9, 2016 petition to declare the Agreement void.        By the time

Wife filed that petition, the court had already made several rulings based on

the Agreement, including its February 18, 2015 ruling denying Wife’s request

for alimony pendente lite. Several of the court’s rulings were with respect to

petitions filed by Wife to enforce the Agreement. With this history, the trial

court did not err in holding that Wife’s June 2016 petition to void the

Agreement came too late.

       The trial court referenced the doctrine of res judicata in explaining its

decision, see Excerpt from Tr. of Hrg., 8/28/15, at 6, 9-10, and Husband

defends the result under the doctrine of unclean hands. We think the more

apt legal principles are those of law of the case and equitable estoppel.7

       The law of the case doctrine “expresses the practice of courts

generally to refuse to reopen what has been decided.” Messenger v.

Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.).               The doctrine is

composed of a collection of rules that “not only [] promote the goal of

judicial economy . . . but also operate (1) to protect the settled expectations

of the parties; (2) to insure uniformity of decisions; (3) to maintain

consistency during the course of a single case; (4) to effectuate the proper

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7
  “As an appellate court, we may uphold a decision of the trial court if there
is any proper basis for the result reached; thus we are not constrained to
affirm on the grounds relied upon by the trial court.” Generation Mortg.
Co. v. Nguyen, 138 A.3d 646, 651 (Pa. Super. 2016) (citation omitted).


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J-A15028-17


and streamlined administration of justice; and (5) to bring litigation to an

end.”     Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995), citing

Joan Steinman, Law of the Case: A Judicial Puzzle in Consolidated and

Transferred Cases and in Multidistrict Litigation, 135 U. Pa. L. Rev. 595, 604-

05 (1987).

        The Supreme Court of Pennsylvania has embraced this doctrine most

specifically with respect to adherence to prior decisions in the same case by

a higher court or by another judge of coordinate jurisdiction.         See Starr,

664 A.2d at 1331-32. But, as the secondary authority on which the Court

relied in Starr explains, the considerations that underlie the doctrine also

strongly weigh in favor of adherence by a trial judge to a decision by that

same judge earlier in the case:

        [L]aw of the case doctrine . . . saves both litigants and the
        courts from duplications of effort. If permitted to argue and
        brief the same issue repeatedly during the course of the same
        litigation, some litigants would be indefatigable in their efforts to
        persuade or to wear down a given judge in order to procure a
        favorable ruling. Such use of clients’ finances, legal counsels’
        time and energy, and judicial resources is wasteful from a
        systemic perspective.

Steinman, at 603; see also Williams v. Runyon, 130 F.3d 568, 573 (3d

Cir. 1997) (“[a]lthough it is often said that the law of the case doctrine does

not limit the power of trial judges to reconsider their prior decisions, . . . the

court must take appropriate steps so that the parties are not prejudiced by

reliance on the prior ruling”). Therefore, although the trial court here was

not barred by the law-of-the-case doctrine from reconsidering its prior

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J-A15028-17


rulings regarding the Agreement and its validity, it acted appropriately in

deciding to adhere to those prior rulings to maintain the consistency and

uniformity of its decisions that law-of-the-case principles favor. As we have

stated, “Once a matter has been decided by a trial judge the decision should

remain undisturbed, unless the order is appealable and an appeal therefrom

is successfully prosecuted.”    Golden v. Dion & Rosenau, 600 A.2d 568,

570 (Pa. Super. 1991) (discussing rulings by different trial judges). “As a

general proposition, [a court] should not revisit questions it has already

decided.”   Pa. State Ass'n of County Comm'rs v. Commonwealth, 52

A.3d 1213, 1230 (Pa. 2012) (referring to reconsiderations by Supreme

Court).

     In this same vein, the doctrine of judicial estoppel also furthers

consistency and uniformity in decision-making. Under this doctrine, “a party

to an action is estopped from assuming a position inconsistent with his or

her assertion in a previous action, if his or her contention was successfully

maintained.” Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super.

2010) (citation omitted).      Judicial estoppel “appl[ies] with equal if not

greater force when a party switches positions within the same action.”

Ligon v. Middletown Area Sch. Dist., 584 A.2d 376, 380 (Pa. Cmwlth.

1990).    The purpose of judicial estoppel is “to uphold the integrity of the

courts by preventing parties from abusing the judicial process by changing




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J-A15028-17


positions as the moment requires.” Gross v. City of Pittsburgh, 686 A.2d

864, 867 (Pa. Cmwlth. 1996).

       In Ligon, the plaintiff brought an action against the defendant school

district and a contractor performing renovations for the school district.

Ligon, 584 A.2d at 379. The plaintiff settled with the school district, but the

issue of the school district’s liability nevertheless went to the jury for

apportionment of liability between the school district and the contractor. Id.

After the jury returned a verdict against the school district in an amount

exceeding that of the settlement, the plaintiff asserted that the school

district was immune from suit and that the contractor should be solely

responsible for the jury's award. Id. The court held that the plaintiff was

estopped from taking that position in light of its prior arguments in the case

and that it could not change its position merely “because it suited [plaintiff]'s

interest.” Id. at 380.8

       Like the plaintiff in Ligon, Wife has taken inconsistent positions

regarding the validity of the Agreement throughout the divorce proceedings.

Wife initially sought to enforce the Agreement, as evidenced by her filing of

multiple petitions to receive property and payment in accordance with its
____________________________________________
8
  The court opined: “Not since Joan dePlucelle in Shakespeare’s Henry VI,
Part I, attempted to defend herself from a capital charge by proclaiming
herself a virgin and then, seeing that that particular defense was unlikely to
prevail, informed the judge that she was with child, has anyone argued a
judicial point with a more breathtaking lack of concern for consistency.”
Ligon, 584 A.2d at 379.



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terms. Wife was successful in several of these petitions, including her April

2015 petitions to request a property cash settlement, retrieve personal

property, and request a cash settlement. Then, in June 2016, after retaining

new counsel, Wife changed her position and petitioned to void the

Agreement. Husband argues that Wife’s change in positions suggests that

she may have found the Agreement to be disadvantageous over time. Wife

is judicially estopped from changing her position merely because it “suited

[her] interest.” Ligon, 584 A.2d at 380; see also Starr, 664 A.2d at 1331;

Golden, 600 A.2d at 570.

      We conclude that the trial court did not abuse its discretion in adhering

to its initial conclusion that the parties’ Agreement is valid and enforceable

and in refusing to permit Wife to seek invalidation of the Agreement after

she successfully advanced arguments in favor of the Agreement throughout

the case.   We also conclude that it did not err in denying Wife’s latest

Petition to Void the Marital Property Agreement without holding a hearing on

the petition.

      Wife’s argument that a hearing was required under              Foley is

misplaced. This is not a case where Wife had no opportunity to challenge

the Agreement.    She could have raised her objections to the Agreement’s

validity in the early proceedings before the trial court, when the Agreement

was asserted by Husband as a basis to deny her request for alimony

pendente lite.   Indeed, she claims to have raised her doubts about the


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J-A15028-17


Agreement’s validity with her counsel at that time; nevertheless, for

whatever reason, neither Wife nor her counsel claimed that the Agreement’s

invalidity was a ground to reject Husband’s argument, and her request for

alimony was denied on the basis of the Agreement’s terms.    It was not until

half a year had passed before Wife raised the validity question, after many

other petitions had been litigated on the assumption that the Agreement was

valid. The trial court heard Wife’s arguments at length during its August 28,

2015 hearing on Wife’s pending petitions, and it then rejected her effort to

have the Agreement held invalid because she raised the issue too late. The

trial court did not abuse its discretion in doing so.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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