J-A26003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 RUTHE MARLENE ROMANI                  :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 DOMENIC A. ROMANI                     :
                                       :
                   Appellant           :   No. 262 WDA 2019
                                       :
                                       :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 CHRISTINE ROMANI-RUBY, JESSICA        :
 ROMANI, AND TRACY ROMANI              :

            Appeal from the Decree Entered January 16, 2019
  In the Court of Common Pleas of Indiana County Civil Division at No(s):
                          No. 10849 CD 2011


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY SHOGAN, J.:                      FILED FEBRUARY 3, 2020

     Domenic A. Romani (“Husband”) appeals from the final divorce decree,

which incorporated the terms, provisions, and conditions of a marital

settlement agreement entered into with Ruthe Marlene Romani (“Wife”), and
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rendered appealable prior determinations pertaining to equitable distribution.1

We affirm.

       The trial court set forth the history of this case as follows:

              [Wife] and [Husband] married on June 2, 1990 in Creekside,
       Pennsylvania. [Wife] filed a Complaint in Divorce on May 4, 2011.
       [Husband] then filed a Petition to Determine Rights Pursuant to
       an Agreement [(“the 1989 Agreement and 1990 Addendum”)], or
       in the Alternative, to Invalidate a Prenuptial Agreement filed on
       June 17, 2011. [Husband] then filed a Petition Raising Economic
       Claims on August 29, 2011. Most relevant to the present issue,
       [Husband] filed a Motion for Clarification … on September 30,
       2011, setting forth [Husband’s] position regarding the request to
       invalidate the 1989 Agreement and 1990 Addendum, signed by
       both parties.

             The Honorable Judge Carol Hanna issued an Opinion and
       Order of Court on March 16, 2012 addressing the validity of the
       1989 Agreement and 1990 Addendum. The 1989 Agreement was
       signed by [Wife] and [Husband] and dated July 28, 1989 and the
       1990 Addendum was signed by [Wife] and [Husband] and dated
       June 1, 1990. Judge Hanna determined that there was a mutual
       mistake as to the inclusion of Paragraphs 7 and 12 of the 1989
       Agreement and struck those two paragraphs. Paragraph 7 sets
       forth the parties’ rights to respective estates and Paragraph 12
       sets forth restrictions on alimony claims. Judge Hanna found that
       the rest of the 1989 Agreement and 1990 Addendum were valid
       and enforceable.

             By a September 1, 2016 Order of Court, the parties agreed
       to have [a] Master hear arguments, receive briefs and make a
       report and recommendation regarding the issue of whether the
       1989 Agreement and 1990 Addendum excludes the increase in
       value of premarital assets. By Order of Court dated October 18,
____________________________________________


1 We note that the caption in this matter contains the names of Christine
Romani-Ruby, Jessica Romani, and Tracy Romani (collectively “Interveners”),
who are the step-grandchildren of Husband. Interveners filed a petition to
intervene on July 21, 2015, and the trial court granted the petition and added
their names to the caption by order entered August 20, 2015. Although their
names remain in the caption, Interveners are not participants in this appeal.

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       2016, the parties further agreed to have [a] Master hear
       arguments, receive briefs and make a report and recommendation
       regarding the issue of whether the agreements exclude property
       that was acquired during the marriage in the parties’ sole and
       separate names. Matthew G. Simon, Esquire served as the
       Divorce Master and filed his Report and Recommendation with the
       Court on March 8, 2017.

Trial Court Opinion, 9/21/17, at 1-2.

       Husband filed exceptions to the Master’s report.    On September 21,

2017, the trial court issued an order accepting the Master’s report and denying

Husband’s exceptions.2

       Wife filed another request for appointment of a master to address the

equitable distribution of a jointly owned piece of property.     However, on

January 3, 2019, the parties signed a waiver of notice of entry of a divorce

decree, affidavits of consent, and a marital settlement agreement. The final

divorce decree was entered on January 16, 2019.




____________________________________________


2The decision of September 21, 2017, was authored by Senior Judge Joseph
Nickleach.



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       Husband filed this timely appeal.3 Husband and the trial court4 complied

with Pa.R.A.P. 1925.

       Husband presents the following issues for our review:

       I. Where persons enter into a co–habitation agreement and those
       persons later marry one another, can the co-habitation agreement
       operate to exclude property acquired during the marriage from
       becoming “marital property” as defined under Chapter 35 of the
       Pennsylvania Divorce Code? 23 Pa.C.S.A § 3501(a).

       II. Where persons enter into a co–habitation agreement and those
       persons later marry one another, can the co-habitation agreement
       operate to exclude the increase in value of nonmarital property
       during the marriage from becoming “marital property” as defined
       under Chapter 35 of the Pennsylvania Divorce Code? 23 Pa.C.S.A
       § 3501(a).

Husband’s Brief at 8. Husband argues that “the trial court erred in holding

that a co-habitation agreement entered into by the parties prior to marriage


____________________________________________


3 Wife has filed an “application to quash appeal for reasons appearing of
record,” claiming that Husband’s challenge to the September 21, 2017 order
accepting the master’s report is untimely and should be quashed. However,
no appeal could have been taken until entry of a final decree in divorce. Fried
v. Fried, 501 A.2d 211 (Pa. 1985) (holding that challenges to equitable
distribution are interlocutory and unappealable until entry of a final decree in
divorce). See also Sneeringer v. Sneeringer, 876 A.2d 1036 (Pa. Super.
2005) (holding that orders upholding marital agreements are no longer
appealable during the pendency of a divorce action). Accordingly, we deny
Wife’s motion to quash.

      We further note that Wife included in her motion to quash an argument
that Husband “has waived any appealable issues that may have been raised
by signing the Marital Settlement Agreement and Waiver of Consent.”
Application to Quash, 4/2/19, at 5, ¶15. We will address the issue of waiver
in the body of this Memorandum.

4Judge Thomas M. Bianco authored the decision in compliance with Pa.R.A.P.
1925(a).

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could operate to waive the parties[’] right to equitable distribution (a) of

property acquired during the marriage and (b) of the increase in value during

the marriage of nonmarital property.” Id. at 17 (capitalization omitted).

      Before we address Husband’s issues on appeal, we must first consider

whether he has waived his right to present those challenges. Wife notes that

the marital settlement agreement dated January 3, 2019, which was filed with

the waiver of notice and affidavit of consent, settled completely and finally all

economic and other rights and obligations between the parties, therefore

resulting in waiver of the claims on appeal. Wife’s Brief at 29-34; Application

to Quash, 4/2/19, at 5 ¶ 15. We are constrained to agree.

      In the context of an equitable distribution of marital property, a trial

court has the authority to divide the award as the equities presented in the

particular case may require. Mercatell v. Mercatell, 854 A.2d 609, 611 (Pa.

Super. 2004).

            Our standard for reviewing awards of equitable distribution
            is well settled. The trial court has broad discretion in
            fashioning such awards, and we will overturn an award
            only for an abuse of that discretion. To assess whether the
            trial court abused its discretion, we must determine
            whether the trial court misapplied the law or failed to follow
            proper legal procedure.        Further, we measure the
            circumstances of the case against the objective of
            effectuating economic justice between the parties and
            achieving a just determination of their property rights.

Hayward v. Hayward, 868 A.2d 554, 557-558 (Pa. Super. 2005) (citations

omitted).




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      “It is well-established that the law of contracts governs marital

settlement agreements.”      Vaccarello v. Vaccarello, 757 A.2d 909, 914

(2000) (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004)); Stamerro

v. Stamerro, 889 A.2d 1251, 1259–1260 (Pa. Super. 2005).              Our courts

observe the following principles in reviewing a trial court’s interpretation of a

marital settlement agreement:

      Because contract interpretation is a question of law, this Court is
      not bound by the trial court’s interpretation. Our standard of
      review over questions of law is de novo and to the extent
      necessary, the scope of our review is plenary as the appellate
      court may review the entire record in making its decision.
      However, we are bound by the trial court’s credibility
      determinations.

            When interpreting a marital settlement agreement, the trial
      court is the sole determiner of facts and absent an abuse of
      discretion, we will not usurp the trial court’s fact-finding function.
      On appeal from an order interpreting a marital settlement
      agreement, we must decide whether the trial court committed an
      error of law or abused its discretion.

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

omitted).

      We have also reiterated this Court’s limited role in interpreting contracts

such as property settlement agreements between spouses:

            A court may construe or interpret a consent decree as
            it would a contract, but it has neither the power nor
            the authority to modify or vary the decree unless
            there has been fraud, accident or mistake.

                                       * * *

            It is well-established that the paramount goal of
            contract interpretation is to ascertain and give effect

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            to the parties’ intent. When the trier of fact has
            determined the intent of the parties to a contract, an
            appellate court will defer to that determination if it is
            supported by the evidence.

      Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004) (internal
      citations omitted) (quoting Osial v. Cook, 803 A.2d 209, 213–
      214 (Pa. Super. 2002)). Further, where, as here, the words of a
      contract are clear and unambiguous, the intent of the parties is to
      be ascertained from the express language of the agreement itself.
      Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa. Super.
      2004).

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

      Our review of the certified record reflects that, on January 3, 2019, the

parties entered into a marital settlement agreement. Record Entry 151. The

text of the marital settlement agreement provides, in pertinent part, as

follows:

                                 WITNESSETH

                                     * * *

            WHEREAS, Husband and Wife are desirous of settling
      completely and finally the economic and other rights and
      obligations between each other; and

            NOW, THEREFORE, in consideration of the mutual covenants
      contained herein, and intending to be legally bound hereby, the
      parties agree as follows:

                          I. GENERAL PROVISIONS

                                     * * *

      H. Mutual Releases: Except as otherwise provided for in this
      Agreement:

            1. Each party hereby releases and forever discharges
            the other and the estate of the other for all purposes

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          from and all rights and obligations which either has or
          at any time hereafter may have for past, present or
          future support or maintenance, alimony, alimony
          pendente lite, equitable distribution, counsel fees,
          costs, expenses, and any other right or obligation,
          economic or otherwise, whether arising out of the
          marital relationship or otherwise, including all rights
          and benefits under the Pennsylvania Divorce Code of
          1980, its supplements and amendments, as well as
          under any other law of this or any other jurisdiction.

          2. Each party hereby releases and forever discharges
          the other and his or her heirs, executors,
          administrators, assigns, property and estate from any
          and all rights, claims, demands or obligations arising
          out of or by virtue of the marital relationship of the
          parties or otherwise, whether now existing or
          hereafter arising. The above release shall be effective
          regardless of whether such claims arise out of any
          former or future acts, contracts, engagements or
          liabilities of the other or by way of dower, courtesy,
          widow’s or widower’s rights, family exemption or
          similar allowance, or under the intestate laws, or the
          right to take against the spouse’s will, or the right to
          treat a lifetime conveyance by the other as
          testamentary, or all other rights of a surviving spouse
          to participate in a deceased spouse’s estate, whether
          arising under the law of Pennsylvania, any state,
          Commonwealth or territory of the United States, or
          any other country.

          Except for any cause of action for divorce which either
          party may have or claim to have, each party gives the
          other by the execution of this Agreement an absolute
          and unconditional release and discharge from all
          causes of action, claims, rights or demands
          whatsoever, in law or equity, which either party ever
          had or now has against the other. The parties agree
          to execute the necessary documents to finalize their
          divorce including but not limited to an Affidavit of
          Consent, Waiver of Notice and Verification of Social
          Security    Number,     simultaneously     with     this
          Agreement.


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                                   * * *

                       II. EQUITABLE DISTRIBUTION

                                   * * *

     H. Separate Assets: Except as otherwise set forth in this
     Agreement, each party shall retain as his or her separate assets
     and all property that is to be titled in his or her name or now in
     his or her possession. The party not having title to or possession
     of any particular asset hereby waives and releases any and all
     claim therein, and acknowledges that hereafter the party having
     title to or possession of a separate asset is the sole and exclusive
     owner thereof. With respect to his or her separate assets, each
     party agrees to indemnify and hold the other harmless from any
     liability, cost or expense with respect to such separate assets.

                                   * * *

                     IV. MISCELLANEOUS PROVISIONS

     A. Waiver or Modification to be in writing: No modification or
     waiver of any of the terms of this Agreement shall be valid unless
     in writing and signed by both parties and not waiver of any breach
     or default of this Agreement shall not be deemed a waiver of any
     subsequent breach or default of the same or similar nature.

                                   * * *

     I. Contract Interpretation: For purposes of contract interpretation
     and resolving any ambiguity herein, the parties agree that this
     Agreement was prepared jointly.

                                   * * *

     K. BINDING EFFECT OF AGREEMENT: HUSBAND AND WIFE EACH
     REPRESENT THAT THEY HAVE CAREFULLY READ THIS
     AGREEMENT AND THAT THE CONTENTS HEREOF ARE KNOW[N]
     TO THEM, THAT THEY ARE ENTERING INTO THIS AGREEMENT OF
     THEIR OWN FREE WILL AND VOLUNTARILY, AND NOT AS A
     RESULT OF DURESS, INTIMIDATION OR OTHER ACTION BY THE
     OTHER PARTY. THIS AGREEMENT AND ALL OF THE TERMS AND
     CONDITIONS HEREIN SHALL INURE TO THE BENEFIT OF AND
     SHALL BE BINDING UPON THE PARTIES HERETO, THEIR

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      RESPECTIVE   HEIRS,   EXECUTORS,                ADMINISTRATORS
      SUCCESSORS AND ASSIGNS.

Marital Settlement Agreement, 1/3/19, at 1, 2-3, 4, 6, 7 (capitalization in

original).

      The language of the marital settlement agreement set forth above is

clear and unambiguous. Pursuant to the agreement, both parties have waived

any appealable issues regarding equitable distribution.     Specifically, under

Section I, paragraph H, the parties have mutually released each other with

regard to multiple claims, the most pertinent to this matter being the equitable

distribution issues. Id. at 2-3. Moreover, at Section II, paragraph H, the

agreement sets forth a specific provision governing the equitable distribution

of separate assets, which are the subject of this case. Id. at 4. Hence, by

signing the unambiguous marital settlement agreement on January 3, 2019,

Husband waived his challenges set forth in this appeal. Accordingly, there are

no issues appropriate for our review.

      Wife’s Application to Quash denied. Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2020


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