J-A14002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH CRAIG FRANCZAK                         IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MARY E. FRANCZAK

                        Appellant                 No. 1892 MDA 2015


            Appeal from the Order Entered September 28, 2015
           In the Court of Common Pleas of Cumberland County
                    Civil Division at No(s): 2012-00717

JOSEPH CRAIG FRANCZAK                         IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MARY E. FRANCZAK

                        Appellant                 No. 2203 MDA 2015


                Appeal from the Decree November 24, 2015
           In the Court of Common Pleas of Cumberland County
                     Civil Division at No(s): 2012-717



BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 19, 2016

     In these consolidated appeals, Mary E. Franczak (“Wife”) appeals from

the November 30, 2015 divorce decree and the concomitant order denying




* Retired Senior Judge assigned to the Superior Court.
J-A14002-16



her exceptions to the equitable distribution of the marital estate that she

accumulated with Joseph Craig Franczak (“Husband”). We affirm.

       Husband and Wife married on August 14, 1982, and separated

between December 2008 and February 2009.1 On July 27, 2011, Husband

sent Wife a proposed property settlement agreement and encouraged her to

discuss the proposal with an attorney.           He later provided Wife a formal

accord that paralleled the July proposal in all relevant respects. 2 In addition

to Husband’s commitment to pay Wife’s expenses for five years, in lieu of

alimony, and 100 percent of Husband’s 401(k) benefits, Wife retained her

retirement account, automobile, and personal property.3 She also received

____________________________________________


1
   The precise date of separation is disputed. While Husband testified that
the parties separated during December 2008, Wife asserted that the
separation occurred approximately two months later on February 11, 2009.
The trial court found that the parties separated during 2008. See Trial Court
Opinion and Order, 9/28/15, at 1.
2
   Two small differences existed. The July proposal provided that Husband
would retain twenty-five percent of his 401(k) benefits and continue to pay
several of Wife’s household expenses for seven years. However, under the
September agreement, Wife received 100% of the 401(k) and five years of
of financial support. During the evidentiary hearings, Wife denied that she
ever received the July proposal.
3
   As it relates to the financial considerations in lieu of alimony, the
agreement provided:

       7. ALIMONY: Both parties acknowledge and agree that the
       provisions of this Agreement providing for equitable distribution
       of marital property are fair, adequate and satisfactory to them
       and are accepted by them in lieu of and in full and final
(Footnote Continued Next Page)


                                           -2-
J-A14002-16



the marital home and real estate in Enola, Pennsylvania. Husband retained

his personal property, three automobiles, a second parcel of land in Enola,

and a twenty-acre estate that he purchased following the parties’ separation.

      On September 13, 2011, the parties executed the property settlement

agreement before a notary public. Prior to signing the accord, Wife sought

the assistance of two attorneys;                 however, neither lawyer that she

approached was able to review the document or provide legal counsel. Wife

drove her own car to the appointment at the notary’s office, and upon

arrival, never stated any objections to signing the agreement at that time.

As it relates to the issue on appeal, in executing the accord, both parties

warranted that they disclosed “all assets of any nature whatsoever in which
                       _______________________
(Footnote Continued)

      settlement and satisfaction of any claims or demands that either
      may now or hereafter have against the other for support,
      maintenance or alimony. Husband and Wife further, voluntarily
      and intelligently, waive and relinquish any right to seek from the
      other any payment for support or alimony.

             ....

      27. UNDERLYING CONSIDERATION: In consideration of the
      above, Husband agrees to pay the mortgage and real estate
      taxes at 1064 Country Club Road, Camp Hill, Pennsylvania,
      together with the PP&L bill, the UGI bill, the home owners
      insurance and car insurance for the Wife for a period of five (5)
      years from the date of the execution of this Agreement. Beyond
      that five (5) year period, Wife shall be responsible for the
      mortgage and all other expenses as it relates to 1064 Country
      Club Road. In the event Wife decides to sell 1064 Country Club
      Road or transfer title to same, within the next five (5) year
      period, upon transfer, Husband's obligation shall cease.



                                            -3-
J-A14002-16



[they have] an interest, the sources and amount of the income of such party

of every type        whatsoever[.]”4           Separation and Property Settlement

Agreement, 9/13/11, at 5. Additionally, they confirmed “that they are aware

of the accounts of the other, the assets of the other, [and] the values of



____________________________________________


4
    The settlement agreement had two disclosure recitals:

        15. DISCLOSURE: Husband and Wife each represent and warrant
        to the other that he or she has made a full and complete
        disclosure to the other of all assets of any nature whatsoever in
        which such party has in interest, the sources and amount of the
        income of such party of every type whatsoever and of all other
        facts relating to the subject matter of this Agreement.

        The parties agree that Husband provided an itemization of
        marital assets and supporting documentation thereto unto Wife,
        which said documentation Wife has acknowledged receiving and
        having had the opportunity to review what sets forth the marital
        assets and the values thereto.

              ....

        31. DISCLOSURE: Husband and Wife agree that they are aware
        of the accounts of the other, the assets of the other, the values
        of those accounts and assets, as well as indebtedness of the
        respective parties. The parties execute this Agreement,
        expressly being familiar with all assets of said marriage, and
        further, both parties acknowledge that they have had sufficient
        time to explore all assets and values of all property owned
        individually and/or by and between the parties. Having done so,
        the parties fully agree that there has been a full disclosure of all
        assets, and the execution of this Agreement, intending to resolve
        all marital issues by and between the parties.

Separation and Property Settlement Agreement, 9/13/11, at 5-6, 8.



                                           -4-
J-A14002-16



those accounts and assets[.]”    Id. at 8.   The parties also agreed that the

accord would not be incorporated into any subsequent divorce decree.

      On February 8, 2012, Husband filed a divorce complaint that omitted

any reference to equitable distribution.     Wife countered with petitions to

appoint a divorce master to address the economic issues.               Invoking the

settlement agreement, Husband moved to strike the appointment of a

divorce master as well as Wife’s claims for equitable distribution.            Wife

disputed the validity of the agreement. She asserted that the accord was

executed    under     duress   and   based    upon      fraud     and    Husband’s

misrepresentation of, inter alia, the value of the 401(k) account that she had

been awarded.

      The   divorce   master   was   appointed,   and    at     the   conclusion   of

evidentiary hearings on January 29 and March 26, 2015, he issued a report

and recommendation upholding the validity of the settlement agreement.

Wife filed timely exceptions, which the trial court denied on September 28,

2015. Wife appealed that order, and subsequently appealed the November

24, 2015 divorce decree.

      She presents the following questions for our review:

      I.    Whether the trial court erred in upholding the property
      settlement agreement because Wife was not provided with full
      and fair disclosure of the value of Husband’s retirement accounts
      at the time the agreement was signed?




                                     -5-
J-A14002-16



       II.   Whether the trial court erred in upholding the property
       settlement agreement because Wife signed the agreement as a
       result of fraud, misrepresentation, and duress?

       III. Whether the trial court erred in not awarding wife
       equitable reimbursement alimony because the withdrawals by
       husband from the retirement accounts amounted to dissipation
       of a marital asset?

Wife’s brief at 4.5 We address these issues seriatim.

       Contract    law    governs     marital    settlement   agreements   that   are

incorporated but not merged into a divorce decree. Paroly v. Paroly, 876

A.2d 1061, 1063 (Pa.Super. 2005). Our Supreme Court explained,

       under the law of contracts, in interpreting an agreement, the
       court must ascertain the intent of the parties. Robert F. Felte,
       Inc. v. White, 451 Pa. 137, 302 A.2d 347, 351 (1973).

       In cases of a written contract, the intent of the parties is the
       writing itself. If left undefined, the words of a contract are to be
       given their ordinary meaning. Pines Plaza Bowling, Inc. v.
       Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958). When the
       terms of a contract are clear and unambiguous, the intent of the
       parties is to be ascertained from the document itself. Hutchison
       v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390
       (1986).

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004).

       Additionally, “a court's order upholding the agreement in divorce

proceedings is subject to an abuse of discretion or error of law standard of

review.” Paroly, supra at 1063. As we explained in Paroly, “[a]n abuse of

____________________________________________


5
 As Wife does not challenge the validity of the divorce decree, we affirm the
decree without further discussion.



                                           -6-
J-A14002-16



discretion is not lightly found, as it requires clear and convincing evidence

that the trial court misapplied the law or failed to follow proper legal

procedures.”    Id. Stated simply, “[w]e will not usurp the trial court's

factfinding function.” Id. Similarly, we will not revisit the reasonableness of

a marital settlement agreement to determine its validity.        Id. at 1065.

Instead, “Absent fraud, misrepresentation, or duress, spouses should be

bound by the terms of their agreements.” Id. (quoting Simone v. Simone,

581 A.2d 162, 165 (Pa. 1990)).

      Where, as here, “an agreement provides that full disclosure has been

made, a presumption of full disclosure arises.”      Simone, supra at 167.

However, a spouse can rebut this presumption with clear and convincing

evidence of fraud or misrepresentation. Id. As we succinctly summarized in

Paroly, supra at 1067, “Distilled, [the] case law provides that[,] where the

circumstances indicate that a spouse has knowledge of the general value of

the couple’s assets, an agreement will be upheld, especially where . . . the

agreement recites that full and fair disclosure was made.”

      Wife does not dispute the agreement’s disclosure provisions or contend

that she was denied the ability to verify the balance of the 401(k) or seek

the advice of counsel before signing the agreement.      Instead, the crux of

Wife’s argument is that, notwithstanding the disclosure recitals, Husband

failed to provide a full and fair disclosure of the balance of his 401(k)

account as of the date that the agreement was executed. She contends that

                                     -7-
J-A14002-16



Husband had knowingly liquidated the retirement accounts almost entirely

during 2009 and failed to disclose that fact to her when he proposed to give

her the account as part of the marital settlement.

      The following facts are relevant to this issue.     Husband is in the

mortgage business and worked for several financial institutions. Near to the

parties’ separation, but more than two and one-half years before the

settlement agreement, Husband accepted a position with Chase Bank

earning a guaranteed annual salary of $360,000, a significant increase from

his prior position as a loan officer with Susquehanna Bank. In anticipation of

his new position, he purchased his current residence on twenty acres of

farmland on Heisers Lane in Carlisle, Pennsylvania for $675,000. In order to

secure the property, Husband withdrew $482,461.28 from his 401(k)

retirement account for a cash payment of approximately $400,000 and

mortgaged the remaining $275,000.      He intended to replenish the 401(k)

account within ninety days in order to avoid the harsh tax consequences.

Unfortunately for Husband, the employment opportunity did not come to

fruition, and he    returned to   his prior   position earning $90,000 at

Susquehanna Bank. Without the increased income, Husband was unable to

obtain a mortgage through the Veterans Administration and repay the

money to the retirement accounts. He apparently was unwilling to sell his

newly-acquired property to replenish the account. Husband initially omitted

the income from the joint federal tax return that he filed with Wife, but he

                                    -8-
J-A14002-16



subsequently notified the Internal Revenue Service (“IRS”) about the

discrepancy. After discovering the prohibited withdrawals, the IRS imposed

penalties   and   interest.   During   May   2013,   Husband   paid    the   IRS

$319,834.19.      Wife was granted innocent spouse status for husband’s

misfeasance.

     Wife asserts that at the time of the 2011 accord, she believed that the

401(k) had an estimated worth of $700,000 based upon her review of an

earlier statement and Husband’s prior account of its value.           In reality,

however, by 2009, the combined balance of the three investment accounts

that formed the 401(k) was approximately $480,000, and Husband

disgorged all but approximately $7,000 from the accounts in order to

purchase his residence.       Wife maintains that, when she executed the

agreement and agreed to accept the 401(k) as part of the property

settlement, she was unware that Husband had depleted it. She denied that

Husband told her that he used the 401(k) to purchase his home and adds

that she did not discover the IRS investigation of Husband’s withdrawals

until after she executed the agreement.      Finally, she contends that, when

she asked Husband how he paid for the Heisers’s Lane estate, he repeatedly

deflected the discussion regarding the source of the funds and simply told

her that it “was under water.” N.T., 1/29/15, at 65-67. Hence, Wife asserts

that, since she had no knowledge that the accounts had been depleted, she

presented clear and convincing evidence to set aside the settlement

                                       -9-
J-A14002-16



agreement, notwithstanding the fair disclosure recitals that affirmed her

awareness of the asset’s value when she signed the accord.

     In response to Wife’s accusations of fraud, Husband testified that Wife

knew that he liquidated the 401(k). He stated that he informed her of the

source of the funds that he used to purchase the property and that one

discussion in his driveway during January or February 2010 included a third

party, Bev Masland.      He also discussed with Wife the adverse tax

consequences of his actions.   Husband denied that he ever informed Wife

that the 401(k) exceeded $500,000 and testified that Wife had access to the

401(k) statements, which came to the marital residence, and she never

requested that he provide her with copies of the statements.        Husband

further explained that, had he replenished the $480,000 that he depleted

from the 401(k), he would not have agreed to give Wife the account because

an award of that sum would be completely incongruous with the remainder

of the agreement in light of the property Wife received and his commitment

to provide her continued financial assistance until 2016. Husband explained,

“It would have been way out of line.    I tried to get the numbers where I

thought [it] was quite equitable . . . given the difference in income.” N.T.,

1/29/15, at 22.   He continued, “if that money would have been there, it

would have been a totally different arrangement.” Id. As of the date of the

accord, the 401(k) had a balance of several thousand dollars. Id.




                                   - 10 -
J-A14002-16



       After considering the foregoing evidence, the trial court determined

that the property settlement agreement unambiguously provided that full

and fair disclosure had been provided and that Wife failed to overcome the

presumption of disclosure by clear and convincing evidence. Specifically, the

trial court made a credibility determination in favor of Husband and against

Wife, reasoning, “Collectively, the testimony and circumstances indicate that

[Wife] knew that the retirement accounts had been used to purchase the

home and therefore contained minimal funds.”6           Trial Court Opinion,

9/28/15, at 5. Upon review of the certified record, we cannot view the trial

court’s decision as an abuse of discretion.

       The agreement recited that disclosures had been made, and in light of

the credibility determinations rendered by the trial court, the presumption of

disclosure is insurmountable in this case. While Wife protested that she was

never informed that Husband depleted the 401(k), the certified record does

not sustain Wife’s allegations of misrepresentation.   In fact, the testimony

and exhibits introduced during the evidentiary hearing support Husband’s
____________________________________________


6
   Wife denied that she received notice from the IRS during 2011 and
asserted that she did not know of the IRS investigation until the summer of
2012, approximately one year after she executed the property settlement
agreement. See N.T. 1/29/15, at 43. While the record supports the trial
court’s finding that Husband told Wife of the tax consequences of the
withdrawals at least one year prior to the agreement, insofar as the IRS did
not provide formal notice of its inquiry until January 2012, the record also
supports Wife’s testimony that she did not receive the IRS notice until after
she executed the settlement agreement. See id. at 45; Exhibit 3.



                                          - 11 -
J-A14002-16



assertions that, while he may not have initially informed Wife of his plan to

utilize his 401(k) retirement account as a short-term funding source to help

finance his post-separation acquisition of real estate, he informed her in

2010 of the adverse tax consequences of those withdrawals. Moreover, the

certified record belies Wife’s testimony that she reviewed a statement prior

to August 2011 and observed that the account totaled close to $700,000.

Recall that Husband introduced into evidence financial statements that

demonstrated the combined value of the 401(k) to be approximately

$480,000 before he admittedly depleted it during December 2009. Husband

failed to replenish the 401(k) at any point, and the IRS investigation and

subsequent penalties bolster Husband’s rendition of the events. Indeed, two

of the three retirement accounts were closed as a result of the withdrawals

and the third was left with a balance of $7,870.45.      All of this verifiable

evidence gives lie to Wife’s bare contentions that she observed a $700,000

balance in the account “at one time” and her purported reliance upon

Husband’s alleged assertion during 2011 that “it’s all there” in response to

her inquiries to whether the 401(k) would be close to one million dollars.

N.T., 1/29/15, at 39.

      As we are bound by the trial court's credibility determinations that are

supported by the certified record, we will not disturb the court’s findings in

favor of Husband. Mackay v. Mackay, 984 A.2d 529, 533 (Pa.Super. 2009)

(“with regard to issues of credibility and weight of the evidence, this Court

                                    - 12 -
J-A14002-16



must defer to the trial judge who presided over the proceedings and thus

viewed the witnesses first hand.”).   Furthermore, insofar as the trial court

found that Wife knew that the 401(k) had been significantly depleted and

knew the value of the remaining assets forming the marital estate, this case

is unlike Ebersole v. Ebersole, 713 A.2d 103 (Pa.Super. 1998), and

Mormello v. Mormello, 682 A.2d 824 (Pa.Super. 1996), two decisions that

Wife cites in support of her position. See Ebersole, supra (availability of

financial records is insufficient to satisfy full and fair disclosure when

agreement did not recite a full and fair disclosure, refer to property values,

or enumerate marital assets); Mormello, supra (contrary to disclosure

proviso, evidence established that Wife was unaware of value of marital

estate). No relief is due.

      Wife’s second issue alleges fraud in the inducement and duress based

upon the circumstances of the agreement’s execution.      This argument has

two components.     First, Wife reiterates Husband’s alleged concealment of

the fact that he depleted $480,000 from his 401(k).       We addressed this

contention, supra, and discerned no basis to overturn the trial court’s

credibility determination. We do not revisit this argument herein.

      The second component of Wife’s claim asserts that she would not have

executed the property settlement but for Husband’s misrepresentation that

the couple would remain married despite the agreement and that the accord

was a legal maneuver to protect their marital estate from the potential

                                    - 13 -
J-A14002-16



consequences of a criminal investigation.          Presumably, Wife believed that

Husband’s criminal liability was tied to his financial resources. Specifically,

Wife alleges that Husband told her that he was under investigation for

bribing a judge of the Court of Common Pleas in Perry County. 7 She also

contends that the couple maintained an intimate relationship during the

summer of 2011, that she believed Husband, and that he entreated her to

sign the agreement in order to protect their future together. Wife described

the manner in which Husband informed her about the alleged crime and his

plan to avoid the consequences of his criminal conduct. She relayed,

              One night we were sitting in his couch watching TV and he
       was telling me . . . that I needed to sign it or we needed to do
       this and that he was sorry for what he had done to get us into
       this trouble [for] bribing the judge, and he was in trouble with
       this investigator[.] . . . He sat on the couch telling me this,
       bawling his eyes out, saying he may go to jail and and I said,
       Craig, I will stick with you and he said, I will wrap myself around
       a tree before I ever go to jail. It will kill my mother. Those were
       his exacts words.

N.T., 1/29/15, at 37-38.          Wife did not understand how the settlement

agreement would help Husband avoid criminal liability, but she believed

Husband and signed the agreement to protect their assets if he did go to jail

for bribery. Id. at 40.
____________________________________________


7
  There is no evidence that Husband actually bribed a judge, and at this
point, Wife does not assert that Husband was involved in any crime.
Instead, Wife contends that she believed Husband’s yarn about bribing a
judge and signed the settlement agreement as a result of that
misrepresentation.



                                          - 14 -
J-A14002-16



      In support of her allegations of duress, Wife introduced text messages

that she characterized as evincing Husband’s haste to execute the

agreement in anticipation of the bribery investigation.         Those missives

include an August 29, 2011 text that Wife received at 11:34 a.m., “I have

the new docs[.]        [W]e need to get these filed we cannot afford the

exposure[.]”    N.T., 1/29/15 at Exhibit 12.       Husband followed up that

message at 10:51 p.m. that night, “I am sorry I wish it was different I did

what I did and can’t undo it[,] there [is] too much at stake to not do it[.]”

Id. The following day, Husband texted, “[Why] don’t [you] come down after

[eight.] We can talk. I have an idea[.] [B]attery dying [and no] charger[.]

[I]f [you] [are] there[,] I will see you then[.]” Id. Finally, on the evening

of September 6, 2011, one week prior to the settlement agreement,

Husband    implored,    “Just   sign   the   agreement   so   [you]   don’t   lose

everything[.] [Y]ou don’t have the courage to deal with her so let her win[.]

I will deal with her.” Id.

      Wife asserts that the texts demonstrate Husband’s misrepresentation

regarding his alleged bribery of a trial court judge. She contends that the

purpose of the misrepresentation was to induce her into signing the accord,

which she thought was a legal gambit to protect their joint assets from

seizure.   Wife continues that, despite the unambiguous language of the

property settlement agreement that a no-fault divorce was imminent, the

parties were still romantically involved, and Husband assured her that the

                                       - 15 -
J-A14002-16



purpose of the agreement was to protect their future together rather than

divide the property in a divorce. She contends that she believed Husband’s

story and felt that signing the agreement was the only option.

     Husband counters that Wife’s fanciful allegation of his alleged bribery

scheme is unsubstantiated by documentary evidence or corroborating

testimony.    He further asserts that, even if Wife could establish that he

knowingly made a material representation with the intent of inducing her to

sign the agreement, Wife cannot rely upon the purported misrepresentation

where, as here, she had sufficient opportunity to discover the truth about

the bizarre bribery yarn but failed to do so. Indeed, as Husband observed,

Wife neglected to make any effort to obtain documentation that would

substantiate any aspect of her claim.

     The salient legal principle follows:

     In order to void a contract due to a fraudulent
     misrepresentation, the party alleging fraud must prove, by clear
     and convincing evidence: (1) a representation; (2) which is
     material to the transaction at hand; (3) made falsely, with
     knowledge of its falsity or recklessness as to whether it is true or
     false; (4) with the intent of misleading another into relying on it;
     (5) justifiable reliance on the misrepresentation; and (6)
     resulting injury proximately caused by the reliance. All of these
     elements must be present to warrant the extreme sanction of
     voiding the contract.

Porreco v. Porreco, 811 A.2d 566, 570-71 (Pa. 2002) (citation omitted).

     In rejecting Wife’s contention, the trial court determined that the

record did not support her assertion that Husband crafted the falsehood in



                                    - 16 -
J-A14002-16



order to coerce her into signing the agreement.                 Essentially, the court

reasoned,     albeit   implicitly,   that      Husband   did   not   make   a   material

representation with the intent of misleading Wife to act. Thus, Wife failed to

satisfy the test outlined in Porreco, supra, in order to invalidate an

agreement due to fraudulent misrepresentation. Again, the trial court made

a credibility determination in favor of Husband, and since the record

supports that determination, we will not disturb it. Mackay, supra, at 533.

        Finally, having sustained the trial court’s credibility determinations, we

reject Wife’s related claim that the trial court erred in declining Wife’s

request for equitable reimbursement alimony based upon Husband’s alleged

dissipation of the 401(k) account.8            Moreover, as the trial court accurately

stated, “even if the agreement is voided, there is no reason to believe that

[Wife] would be entitled to additional funds.              Given the assets actually

available to the parties, the agreement provided [Wife] with substantial

financial benefits.”     Trial Court Opinion, 9/28/15, at 6.          Recall that Wife

accepted Husband’s agreement to pay her mortgage, real estate taxes,

utility bills, auto and home owner’s insurance, for a period of five years from

the date of the accord.         The certified record demonstrates that Husband

fulfilled this obligation. In light of these financial benefits that Wife received


____________________________________________


8
    This claim was listed as Wife’s third question presented for review.



                                            - 17 -
J-A14002-16



in addition to the division of marital property, we find no basis to disturb the

trial court’s determination that equitable alimony is not warranted.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




                                     - 18 -
