J-A19040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMIE SEMULKA,                           :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
ROBERT J. SEMULKA,                       :
                                         :
                 Appellant               :           No. 1302 WDA 2014

               Appeal from the Order entered on July 9, 2014
           in the Court of Common Pleas of Washington County,
                        Civil Division, No. 2008-5617

BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 31, 2015

     Robert J. Semulka (“Husband”) appeals from the Order enforcing the

divorce settlement agreement. We affirm in part and reverse in part.

     Husband married Jamie Semulka (“Wife”) on May 30, 1992.             The

parties have two adult children together, ages twenty-one and nineteen.

The parties separated, and Wife filed her first Complaint in divorce on March

21, 2006.1 On June 11, 2007, the parties entered into a divorce settlement

agreement (“Agreement”).       The Agreement provided, inter alia, that

Husband would pay Wife $40,000.00 by December 31, 2011,2 that Husband



1
  We note that Wife obtained new counsel in 2008, and subsequently filed a
second Complaint in divorce.
2
  The Agreement states that Husband shall pay Wife $5,000.00 in the first
year (2008-2009), $6,000.00 in the second year (2009-2010), and the
remaining balance by December 31, 2011. Agreement, 6/11/07, at 5
(unnumbered).
J-A19040-15

and Wife would share all costs of post-secondary education for their children,

and that the Agreement shall be incorporated, but not merged, with the

Divorce Decree that is entered. The Agreement provided that, if either party

breached the Agreement, the breaching party would compensate the non-

breaching party for any fees incurred throughout enforcement of the

Agreement.

      From December 2009 to November 2010, Husband moved into Wife’s

residence and the parties lived together. On March 10, 2011, a final Divorce

Decree was entered.     Subsequently, Husband failed to comply with the

terms of the Agreement by failing to make any payments to Wife, and Wife

filed a Petition to Enforce the Agreement on November 26, 2013. On July 9,

2014, the trial court issued an Order granting Wife’s Petition, and directing

Husband to pay Wife $40,000.00, 50% of their children’s post-secondary

education expenses in the amount of $15,232.21, and $2,213.75 in counsel

fees. Husband was directed to pay Wife the above amounts, or make other

payment arrangements with Wife, within ninety days of the Order.

      Husband filed a timely Notice of Appeal and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Husband raises the following questions for our review:

      I. Whether the [t]rial [c]ourt erred in not adopting the doctrine
      of abrogation, which would have found that the unexecuted
      payment terms of the [Agreement] were abrogated and no
      longer enforceable, when the parties reconciled and lived
      together for almost a year, from December of 2009 through
      November of 2010[?]


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      II. Whether the [t]rial [c]ourt erred in not following the law and
      the evidence presented that [Wife’s] failure to take action to
      enforce the [Agreement] over the course of more than six
      years[,] and her other words and actions[,] clearly established
      her intent to abandon the agreement and to waive [Husband’s]
      obligation to make payments[?]

      III. Whether the [t]rial [c]ourt erred in ordering [Husband] to
      pay for 50% of the parties’ children’s post-secondary education
      expenses, and did not compute the expenses correctly, when the
      Agreement states that: “Husband shall share all costs of post[-
      ]secondary education for all children with Wife.” Accordingly,
      [Husband] should only be responsible for 50% of the educational
      expenses actually paid for, out of pocket, by [Wife][?]

      IV. Whether the [t]rial [c]ourt erred in ordering [Husband] to
      pay for [Wife’s] counsel fees[,] when [Husband] never breached
      the Agreement; [Wife] waited over six years before bringing the
      [Petition to Enforce]; and where [Husband] had reasonable
      expectations at law and based on the facts that the [Agreement]
      had either been abrogated or modified by the words and actions
      of the parties, so that the payment terms were no longer subject
      to enforcement[?]

Brief for Appellant at 5-6.

      “The determination of marital property rights through settlement

agreements has long been permitted, and even encouraged.”          Adams v.

Adams, 848 A.2d 991, 993 (Pa. Super. 2004) (citation and ellipses

omitted); see also 23 Pa.C.S.A. § 3105. A property settlement agreement

must be treated as a separate and independent contract when it does not

merge with the Divorce Decree. McMahon v. McMahon, 612 A.2d 1360,

1363 (Pa. Super. 1990). “A marital settlement agreement between spouses

is governed by the law of contracts unless the agreement provides

otherwise.”   Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa. Super.


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2005) (citation and brackets omitted); see also Gaster v. Gaster, 703

A.2d 513, 515 (Pa. Super. 1997) (stating that where the settlement

agreement was not merged into the divorce decree, it is enforceable at law

or equity, and is governed by the law of contracts). Contract interpretation

is a question of law; therefore, our standard of review is plenary.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007).

      “[A] court must construe the contract only as written and may not

modify the plain meaning of the words under the guise of interpretation.”

Habjan v. Habjan, 73 A.3d 630, 640 (Pa. Super. 2013).                    “Where a

settlement agreement contains all of the requisites of a valid contract, a

court must enforce the terms of the agreement.”           Mastrioni-Mucker v.

Allstate Ins., 976 A.2d 510, 518 (Pa. Super. 2007).                 “Under ordinary

contract law, contracts are enforceable when parties reach [a] mutual

agreement, exchange consideration[,] and have set forth terms of their

bargain with sufficient clarity.”    Biddle v. Johnsonbaugh, 664 A.2d 159,

163 (Pa. Super. 1995). A binding agreement exists where all parties come

to a meeting of the minds on all essential terms of the agreement.

Mastrioni-Mucker, 976 A.2d at 518.

      In   his   first   claim,   Husband   contends   that   the    Agreement   is

unenforceable. Brief for Appellant at 16. Specifically, Husband argues that

Pennsylvania law should join other states and adopt the doctrine of

abrogation, which renders the unexecuted portion of a marital settlement



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agreement void when the parties reconcile. Id.         Husband claims that the

parties reconciled when Husband and Wife lived together for a brief period

beginning in 2009. Id. at 16-17. During this brief period, Husband asserts

he and Wife agreed that there was no need to enforce the Agreement. Id.

at 17. Husband argues that this Court should find the unexecuted portions

of   the   Agreement,   those   that   are   the   subject   of   Wife’s   Petition,

unenforceable based on this reconciliation. Id. at 19.

      Marital settlement agreements are classified as either separation or

postnuptial agreements. See Vaccarello v. Vaccarello, 757 A.2d 909, 911

(Pa. 2000). Whether an agreement is a postnuptial agreement depends on

the intent of the parties, as gathered from the language of the agreement.

See Carosone v. Carosone, 688 A.2d 733, 735 (Pa. Super. 1997). “Where

[the parties] desire to settle and determine their respective property rights

finally and for all time[, the agreement] should be construed as a postnuptial

agreement.” Vaccarello, 757 A.2d at 911; see also In re Fratoni Estate,

198 A.2d 507, 509 (Pa. 1964) (stating that a postnuptial agreement exists

where the document includes a “release and relinquishment of all rights or

claims of distribution”). Further, postnuptial agreements are not abrogated

by reconciliation of the parties. See Vaccarello, 757 A.2d at 915.3




3
 We note that separation agreements may be abrogated. See In re Ray’s
Estate, 156 A. 64, 66 (Pa. 1931) (stating that only separation agreements
may be abrogated by reconciliation of husband and wife).

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J-A19040-15

         Here, the Agreement provides that Husband and Wife intended to

completely settle all matters involving their real and personal property.

Agreement, 6/11/07, at 1 (unnumbered). The Agreement also provides that

Husband and Wife settle and relinquish all claims of equitable distribution,

maintenance of children between them, and their respective estates.      Id.

Husband and Wife agreed to relinquish all claims against any current or

future property of the other, and any claim against the estate of the other

party.    Id. at 3 (unnumbered).    Husband additionally agreed to pay Wife

$40,000.00 by December 31, 2011. Id. at 5 (unnumbered). Husband and

Wife agreed to share all costs of their children’s post-secondary education.

Id. at 6 (unnumbered). In the event that either party breached the terms of

the Agreement, the breaching party agreed to pay the attorney’s fees of the

non-breaching party, incurred in enforcing the Agreement. Id. at 10.

         Based on our review, we conclude that the Agreement is an

enforceable postnuptial agreement.       See Vaccarello, 757 A.2d at 909

(stating that a valid postnuptial agreement exists where the parties agree to

settle and relinquish their property rights, matters of support and alimony,

and where the parties relinquished their rights to each other’s estate); see

also id. at 910 (stating that a valid postnuptial agreement exists where the

agreement is a complete settlement of any and all claims); Wolfe v. Wolfe,

491 A.2d 281, 283-84 (Pa. Super. 1985) (stating that a valid postnuptial

agreement exists where husband promised to pay wife $25,000.00, and



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where wife retained title to a residence). Further, the Agreement was not

abrogated by the alleged reconciliation of Husband and Wife.             See

Vacarello, 757 A.2d at 915 (holding that a postnuptial agreement is not

abrogated by reconciliation).4 Thus, the Agreement is enforceable, and

Husband must comply with its terms.

     In his second claim, Husband contends that Wife intended to abandon

and modify the Agreement. Brief for Appellant at 24. Husband argues that

the reconciliation with Wife, coupled with her actions, demonstrated her

intent to abandon the Agreement. Id. Husband contends that during the

reconciliation period; Wife did not attempt to enforce any of the unexecuted

provisions of the Agreement.    Id. at 25-26.   Specifically, Husband asserts

that Wife did not seek the annual payments towards the $40,000.00 during

their reconciliation. Id. at 25. Also, Husband states that Wife did not notify

him of particular costs and details concerning his children’s post-secondary

education.   Id.   Husband claims that Wife orally modified the Agreement

when she allowed Husband’s monetary obligation outside of the Agreement

to lapse during their reconciliation. Id. at 27. Husband further claims that

Wife orally modified the Agreement when Wife did not take steps to enforce

the Agreement, and when Wife failed to enforce the Agreement during any


4
  Husband cites to numerous cases from other jurisdictions that allow for the
abrogation of postnuptial agreements. However, these cases are not binding
precedent in Pennsylvania. See Charlie v. Erie Ins. Exch., 100 A.3d 244,
254 n.11 (Pa. Super. 2014) (stating that other state’s decisions are not
binding precedent on this Court).

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J-A19040-15

of the litigation that followed the parties’ divorce.   Id. at 27.     Husband

additionally   asserts   that   Wife’s   statement   regarding   her   financial

independence demonstrated an oral modification of the Agreement. Id. at

28.

      A written contract may be orally modified, even when the agreement

only permits written modifications.      Somerset Cmty. Hosp. v. Allan B.

Mitchell & Assocs., 685 A.2d 141, 146 (Pa. Super. 1996). An agreement

may be modified with the assent of both contracting parties so long as the

modification is supported by consideration. Wilcox v. Regester, 207 A.2d

817, 821 (Pa. 1965). “[A]n oral modification of a written contract must be

proved by clear, precise and convincing evidence.” Fina v. Fina, 737 A.2d

760, 764 (Pa. Super. 1999).      The trial court has the burden of assessing

credibility of witnesses and weighing the evidence presented by both parties.

Id. at 765.

      At the hearing, Husband argued that the parties agreed to an oral

modification of the Agreement.      N.T., 12/16/14, at 106-07.    Wife argued

that she never agreed to orally modify the Agreement. Id. at 67. The trial

court found Wife’s testimony credible. See Trial Court Opinion, 9/15/14, at

5; see also Fina, 737 A.2d at 765 (stating that this Court is bound by the

trial court’s findings of fact and credibility determinations). We additionally

observe that the alleged oral modification does not provide a benefit to Wife

for relieving Husband of all payment obligations in the Agreement.         See



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Regester, 207 A.2d at 821 (stating that an oral modification must be

supported by consideration).     Based on our review of the record, we

conclude that Husband and Wife did not agree to an oral modification of the

Agreement by clear and convincing evidence.

      Further, the Agreement provides that neither party has to continually

demand performance of the terms in order to maintain the ability to enforce

the Agreement. See Agreement, 6/11/07, at 8. Thus, the record supports

the trial court’s finding that it was not Wife’s intention to abandon the

Agreement.    See Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998)

(stating that marital settlement agreements are subject to contract law, and

that the parties’ intentions must be ascertained from the document).

Accordingly, Husband’s second claim is without merit.

      In his third claim, Husband contests the amount of his shared portion

of his children’s post-secondary education expenses. Brief for Appellant at

30. Husband argues that, according to the Agreement, he is responsible for

fifty-percent of reasonable expenses actually incurred, out of pocket, by Wife

for their children’s post-secondary education needs.       Id.    Specifically,

Husband asserts that the trial court improperly calculated Wife’s expenses at

$30,464.41, and ordered him to pay $15,232.21 as his shared portion of the

expenses.    Id.   Husband argues that the exhibits used to calculate these

expenses reveal that Wife only paid $14,756.92, and that Husband only

owes Wife $7,373.46. Id. at 31. Further, Husband states that he should



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not be responsible for the total cost of the high-end computers that Wife

purchased, because they are not reasonable items for reimbursement. Id.

at 32.   Husband argues that he should only be responsible for $1,000.00

towards the computers, and that his total amount owed to Wife for their

children’s post-secondary education should be reduced to $6,799.75. Id.

     Under the Agreement, Husband agreed to share all costs of post-

secondary    education   for   the    children.   Agreement,   6/11/07,   at   6

(unnumbered). Based on this language, Husband is responsible for 50% of

the costs of the children’s post-secondary education, as they accrue.      The

Agreement does not limit Husband’s obligations to only those costs paid by

Wife. See id.

     Based upon our review of the record, there is a discrepancy with

regard to the total amount of college expenses, and neither party has

reached an agreement with respect to the total amount incurred. See N.T.,

12/16/14, at 23-48; see also Brief for Appellant at 31-33; Brief for Appellee

at 14-15.5    Thus, we reverse this portion of the Order and remand for

hearing to re-calculate, independent of any previously conducted calculation,

the post-secondary education costs.

     Finally, Husband argues that he should not be responsible for Wife’s

counsel fees in this matter. Brief for Appellant at 34. Husband asserts that

he did not breach the Agreement when he failed to make payments to Wife,

5
  It is unclear whether either Husband’s or Wife’s calculation of the total
post-secondary education costs is correct.

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based on legitimate legal excuses. Id. at 35. Specifically, Husband believed

that he reconciled with Wife, that Wife abandoned the Agreement, and that

Wife never notified him that payments were expected.            Id.   Further,

Husband asserts that Wife never provided him with any record of expenses

related to their children’s post-secondary education.   Id.   Husband argues

that he did not know what he owed Wife, and therefore, he did not breach

the Agreement. Id.

     Our review of the record reveals that any party found breaching the

Agreement is responsible for the attorney fees of the non-breaching party

incurred throughout enforcement of the Agreement.             See Agreement,

6/11/07, at 10 (unnumbered). Husband concedes that he did not make any

payments towards the $40,000.00 owed to Wife by December 31, 2011, nor

did he make any payments towards his share of children’s post-secondary

education expenses.     See Brief for Appellant at 35; see also N.T.,

12/16/14, at 95.      Based on these actions, Husband breached the

Agreement. See McMullen v. Kutz, 985 A.2d 769, 770 (Pa. 2009) (stating

that husband breached a marital settlement agreement when he promised to

pay wife, and failed to make the payment); see also Felix v. Giuseppe

Kitchens & Baths, Inc., 848 A.2d 943, 946 (Pa. Super. 2004) (stating that

a breach of contract occurred where one party in a settlement agreement

acknowledged their duty to pay the other party in the agreement, and failed

to make the payment). Thus, Husband is required to comply with the terms



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of the Agreement and pay Wife’s costs and fees incurred from enforcing the

Agreement.      See Agreement, 6/11/07, at 10 (unnumbered); see also

McMullen, 985 A.2d at 770 (stating that husband was responsible for

paying wife’s attorney’s fees when he breached the marital settlement

agreement, where the agreement provided that the “breaching party must

pay the attorney fees expended by the non-breaching party”). Accordingly,

the trial court did not err in awarding Wife the costs and fees that she

incurred in enforcing the Agreement. See id.

      Based on the foregoing, the Agreement is enforceable and Husband

must pay Wife $40,000.00, and attorney fees resulting from enforcement of

the Agreement. Husband must also share all costs of their children’s post-

secondary education.   However, we must reverse the portion of the Order

regarding the post-secondary education costs, and remand for further

proceedings to determine the appropriate amount.

      Order affirmed in part and reversed in part.    Case remanded for

further proceedings in accordance with this Memorandum.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




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