J-A20034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LORI ERB                                        IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

DAVID ERB

                         Appellant                   No. 3397 EDA 2014


              Appeal from the Order Entered November 7, 2014
               In the Court of Common Pleas of Bucks County
                 Domestic Relations at No.: A6-06-62964-D


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 26, 2015

      David Erb (“Husband”) appeals the November 7, 2014 order in which

the trial court found that he had violated the parties’ property settlement

agreement (“PSA”) and ordered him to pay damages and counsel fees to

Lori Erb (“Wife”). We affirm.

      The trial court summarized the factual and procedural history of the

case as follows:

      [T]he parties were married on September 16, 1995, separated
      on August 27, 2006, and Wife filed for divorce on September 6,
      2006. A Master’s conference was held on August 16, 2010, and
      the Master issued her Report on September 2, 2010. Both
      parties filed a Motion for a Hearing De Novo on or around
      September 16, 2010, and after a series of hearings held over
      three days, [the trial court] entered a Decree and Order with an
      accompanying Memorandum Opinion on September 26, 2012,
      granting the parties’ divorce, equitably distributing their assets,
      and denying Wife’s petitions for alimony and counsel fees.
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       On October 24, 2012, Husband filed a Notice of Appeal to the
       Superior Court of Pennsylvania from [the] September 26, 2012
       Equitable Distribution Order. Husband apparently wished to
       retain the marital home rather than relinquish it to Wife in
       accordance with that order. On November 26, 2012, pursuant to
       [the] Order of November 5, 2012, Husband filed a Statement of
       Matters Complained of on Appeal. In response, [the trial court]
       filed a Supplemental Opinion on December 19, 2012, but the
       appeal was subsequently withdrawn by Husband, and
       discontinued by order of the Superior Court of Pennsylvania on
       May 30, 2013.

       While that matter was on appeal, Husband and Wife, through
       their counsel, reached an apparent resolution to their dispute in
       the form of an undated property settlement agreement . . .
       which was filed with the [trial court] on October 4, 2013. The
       [PSA] was then incorporated into the parties’ Divorce Decree by
       a Court Order entered on March 7, 2014. Under their [PSA],
       Wife still retained the marital home and Husband received the
       commercial property. The [PSA] also contained provisions for
       the award of various home items to each of the parties. In
       accordance with the [PSA], Husband, who had been living in the
       marital home, moved out in July of 2013, and Wife moved in
       approximately one week later, on August 1, 2013.

       On September 23, 2013, prior to the actual filing of the [PSA]
       with the [trial court], Wife filed a Petition for Contempt, alleging
       that Husband had violated the [PSA] either by removing items
       from the home that he was not entitled to, or damaging other
       items left at the property. As a result, three days of hearings
       were conducted, after which [the trial court] found Husband in
       violation of the [PSA] and on November 7, 2014, entered [an]
       Opinion and Order.[1]

       As explained in that Opinion, [the trial court] found Husband had
       violated the [PSA] by removing or damaging items that [the trial
       court] considered to be fixtures of the marital residence, and
____________________________________________


1
      Wife styled her petition as a petition for contempt, but she also sought
enforcement of the PSA. The trial court made no finding of contempt,
although it determined that Husband was in violation of the PSA and
enforced the agreement. Therefore, we treat the underlying action as one
for enforcement of an agreement.



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     [the trial court] accordingly ordered Husband to reimburse Wife
     for those items.      Specifically, [the trial court] found that
     Husband impermissibly removed a landscaped stone fire pit,
     pond fountain/aerator, pole barn propane heater and tank,
     central vacuum system equipment, and window treatments. In
     addition, [the trial court] awarded Wife reimbursement for
     necessary plumbing repairs and replacement of the HVAC
     system and swimming pool heater and chlorinator, and [the trial
     court] awarded Wife counsel fees of $3,500.          As a result,
     Husband was directed to pay Wife a total of $34,546.05. [The
     trial court] did not award Wife her requested reimbursement for
     windows she replaced in the residence or for any outdoor
     furnishings and furniture that had not been specifically identified
     in the [PSA].

     On December 4, 2014, Husband filed the Notice of Appeal to the
     Superior Court of Pennsylvania from [the] Order of November 7,
     2014.

     On December 8, 2014, [the trial court] ordered Husband to file a
     statement of errors complained of on appeal pursuant to
     Pa.R.A.P. 1925(b).

Trial Court Opinion (“T.C.O.”), 2/5/2015, at 1-3. Husband timely filed a Rule

1925(b) statement on December 26, 2014. The trial court then filed a Rule

1925(a) opinion.

     Husband raises four issues before this Court:

     1. Did the trial judge abuse her discretion and err by awarding
        [Wife] damages for the replacement of the Central Vacuum
        System, the HVAC System, and the Swimming Pool
        Heater/Chlorinator?

     2. Did the trial judge abuse her discretion and err by awarding
        [Wife] damages for items that, under the terms of the [PSA]
        between the parties could have been removed by [Husband]?

     3. Did the trial judge abuse her discretion and err by awarding
        [Wife] counsel fees when [Husband] did not violate the terms
        of the [PSA] between the parties?




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J-A20034-15


      4. Did the trial judge have such bias against [Husband] that the
         decision of the lower court should be reversed and remanded
         for a new hearing with another Judge?

Husband’s Brief at 4 (issues reordered for ease of discussion).

      The first two issues deal with the trial court’s enforcement of the PSA.

We discuss them together.

      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.

      “[J]udicial discretion” requires action in conformity with law on
      facts and circumstances before the trial court after hearing and
      due consideration. Such discretion is not absolute, but must
      constitute the exercises of sound discretion. This is especially so
      where, as here, there is law to apply. On appeal, a trial court’s
      decision will generally not be reversed unless there appears to
      have been an abuse of discretion or a fundamental error in
      applying correct principles of law. An “abuse of discretion” or
      failure to exercise sound discretion is not merely an error of
      judgment. But if, in reaching a conclusion, law is overridden or
      misapplied,     or   the   judgment    exercised   is   manifestly
      unreasonable or lacking in reason, discretion must be held to
      have been abused.

      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.

Stamerro v. Stamerro, 889 A.2d 1251, 1257-58 (Pa. Super. 2005)

(citations and quotation marks omitted).




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       Husband argues that the weight of the evidence did not support the

trial court’s findings that the HVAC system, the central vacuum system, and

the pool chlorinator were damaged and needed to be replaced.              Husband

contends that only Wife’s testimony supported this finding and that Wife

offered no evidence from the repair contractors to corroborate her

testimony. Husband maintains that Wife has manufactured these claims to

get Husband to pay for upgrades to the marital residence.                 Husband

contends that the fire pit and the pond aerator were not listed as property

that Wife was to retain pursuant to the PSA. Husband argues that, because

those items were not listed, he could not have violated the PSA by taking

them. Husband’s Brief at 9-15, 17-19.

       The trial court explicitly found Wife’s testimony to be credible. Opinion

and Order (“Order”), 11/7/2014, at 1.            The trial court found that many of

the items removed by Husband were not included in the list in the PSA, but

that they, specifically the fire pit, pond fountain/aerator, and central vacuum

system,2 were fixtures that were not to be removed from the property. Id.

at 2-3. The trial court also found that Wife was to receive the property in

the same condition as when she left the marital residence, except for normal

wear and tear.       The court determined that Husband did not do so and



____________________________________________


2
     Other items, such as the fireplace screen and the heater from a barn,
have not been contested by Husband in this appeal.



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J-A20034-15



therefore, had to reimburse Wife for damages to the HVAC system and the

pool chlorinator.3 Id. at 7-9.

       We have identified the categories of personal property connected to

real property as follows:

       Chattels used in connection with real estate can fall into one of
       three categories. First, chattels that are not physically attached
       to realty are always personalty. Second, chattels which are
       annexed to realty in such a manner that they cannot be removed
       without materially damaging either the realty or the chattels are
       always fixtures. The third category consists of those chattels
       that are physically connected to the real estate but can be
       removed without material injury to either the land or the
       chattels. When a chattel falls into the third category, its status
       as a fixture or as personalty depends upon the objective intent
       of the [owner] to permanently incorporate [the] chattel into real
       property, as evidenced by the proven facts and surrounding
       circumstances entered into evidence.

Lehmann v. Keller, 684 A.2d 618, 621 (Pa. Super. 1996) (citations

omitted).

       Discussing fixtures, our Supreme Court has said:

       A fixture is by definition an improvement to real property. The
       general test used in determining when an article of personalty is
       a fixture has three components: (1) the relative permanence of
       attachment to realty; (2) the extent to which the chattel is
       necessary or essential to the use of the realty; and (3) the
       intention of the parties to make a permanent addition to the
       realty.

                                        *      *   *

____________________________________________


3
      Again, Husband has not contested the plumbing repairs for which he
had to reimburse Wife.



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J-A20034-15


       The considerations in making such a determination may include:
       the degree to which and manner in which the object is attached
       to real property, the ease of removing the object, whether the
       object may be removed without damaging the real property, how
       long the object has been attached to the real property, whether
       the object is necessary or essential to the real property, and the
       conduct of the party and whether it evidences an intent to
       permanently attach the object to the reality.

Noll by Noll v. Harrisburg Area YMCA, 643 A.2d 81, 87-88 (Pa. 1994)

(citations omitted).       Further, “[a] fixture is an article in the nature of

personal property which has been so annexed to the realty that it is

regarded as part and parcel of the land.”         Smith v. Weaver, 4 665 A.2d

1215, 1218 (Pa. Super. 1995).

       At the various hearings, Wife and Husband provided testimony

regarding those items that the trial court considered to be fixtures.       Wife

testified and provided photographs of the fire pit that was installed in 2006.

Notes of Testimony (“N.T.”), 4/8/2014, at 36. The fire pit was built upon a

foundation that had been dug into the ground.            Id. at 41.   When Wife

returned to the house, the fire pit had been dug up and removed. Id. at 46.

Wife provided an estimate for the cost of rebuilding the fire pit from the

landscaper who initially built it.        Id. at 52.   Husband admitted that he

removed concrete benches and boulders from the fire pit to make a fire pit

at his new house. N.T., 5/22/2014, at 20, 114.4 Husband stated that his
____________________________________________


4
     Husband also admitted to taking numerous other items from the house
that Wife believed should have been left, including: a pool umbrella, N.T.,
5/22/2014, at 69; an outdoor dining table, id. at 71; outdoor chairs, id. at
(Footnote Continued Next Page)


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J-A20034-15



daughter asked him to put in a fire pit at the new house, even though she

had only used it at the old house once or twice. Id. at 20-21, 130-31.

      Wife testified to the initial cost of the pond aerator. N.T., 4/8/2014, at

53-54. Wife testified that she replaced the aerator to get rid of the algae

that had grown in the pond. N.T., 10/6/2014, at 73. Husband also admitted

that he took the pond aerator. N.T., 5/22/2014, at 25. Husband did not use

it at his new house, because the pond there was too shallow for the aerator.

Id. at 115-16.

      Given the testimony that the trial court found to be credible and the

photographic evidence, it is clear that the fire pit was a fixture because it

was annexed to the property.            The pond aerator, while not affixed to the

property, was “necessary or essential to the use of the realty” because it

was required for the use and maintenance of the pond.            See Noll, supra.

Therefore, we find no abuse of discretion or error of law in the trial court’s

conclusion that Husband should reimburse Wife for the removal of these

items.




                       _______________________
(Footnote Continued)

74; two chaise lounges, id. at 74-75; an outdoor heater, id. at 75-77; two
Adirondack chairs, id. at 78-79; three wrought-iron benches, id. at 79-80; a
picnic table, id. at 80; a child’s bench, id. at 83; a concrete bird bath, id. at
84; a decorative outdoor well pump and surrounding brick work; id. at 84,
86; and a bolted-in fireplace screen, id. at 87. Husband returned the
fireplace screen to Wife between the first and second hearings. Id. at 87-
88. These items are not disputed in this appeal.



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J-A20034-15



      Husband also challenges the repair       costs for the HVAC, pool

heater/chlorinator, and the central vacuum system.

      Wife testified that the air conditioning did not work when she moved

back into the house.    N.T., 4/8/2014, at 112.      Soon after, the heating

system did not work either.    Id. at 116.   Wife testified that after getting

estimates, she intended to replace the HVAC system. Id. at 131. Husband

testified that both systems were working when he left the house.        N.T.,

5/22/2014, at 90.

      Wife testified that the pool was working when she left the house. N.T.,

4/8/2014, at 66.     When she returned to the house, the heater and

chlorinator were not working and the pool would not function without them

being replaced. Id. at 66. Husband also took equipment that was needed

for the pool. Id. at 68. Husband testified that the pool chlorinator worked

while he was in the house, but that he did not open the pool the year that

Wife moved in because he knew he was leaving.        N.T., 5/22/2014, at 35,

37-38. Husband said that the heater also worked in the year prior to him

leaving.   Id. at 41.   Husband denied the allegation that he took pool

equipment. Id. at 46-48.

      Wife testified that the central vacuum system worked when she left

the house.    N.T., 4/8/2014, at 77.   When she returned, the system and

motor did not run and the vacuum heads, hoses, and wall mounts were

missing from the house. Id. at 77-78. Wife provided a receipt for the cost

of repairing the system and replacing some of the equipment.       Id. at 79.

                                    -9-
J-A20034-15



Husband testified that the system worked when he left. N.T., 5/22/2014, at

52. Husband admitted that he took one hose, a set of vacuum heads, and

some other equipment to use at his new house. Id. at 54-56.

      Where, as here, the trial evidence amounts to a he-said/she-said

situation, the trial court’s credibility determination controls. The trial court

found that Wife was credible. T.C.O. at 11. Although Husband testified that

the items were working when he left, the trial court concluded that his

testimony “suggested at the very minimum that he could not assert with

complete assurance that those items were trouble-free and in working order

when he left the residence. . . .” Id. at 12-13. Therefore, the trial court

found that Husband had violated the provision of the PSA that required him

to turn the house over to Wife in the same condition that it was in when Wife

left. Id. at 11. The record supports these conclusions and we find no abuse

of discretion.

      Husband next contends that the trial court erred in awarding Wife

counsel fees. He argues that, because he did not breach the PSA, no fees

should have been awarded. Husband’s Brief at 19.

      The trial court awarded counsel fees pursuant to a provision in the PSA

stating that, if the PSA were breached, the breaching party would be

responsible for reasonable counsel fees. Order at 10. Finding that Husband

had violated two provisions of the PSA, the trial court awarded counsel fees

to Wife. Id. Because we have affirmed the trial court’s findings with regard




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J-A20034-15



to those provisions, we also conclude that the trial court did not err or abuse

its discretion in awarding counsel fees pursuant to the PSA.

      Finally, Husband contends that the trial judge was biased and that this

Court should grant a new hearing with a new judge. Husband asserts that

the trial judge demonstrated bias by noting that Husband had appeared

before the court for forty-five hearings between December 13, 1991 and

October 6, 2014.    Husband argues that those hearings included hearings

between Husband and his first wife, and have no relevance to the instant

proceedings. Finally, Husband notes that he could not have sought recusal

of the trial judge prior to this appeal because the reasons for recusal, i.e.

trial court’s comments, and therefore, the bias, were not revealed until the

trial court issued its order. Husband’s Brief at 15-17.

      Our Supreme Court has held:

      [A]s appellate tribunals, we are bound to resolve only those
      issues properly preserved for our review. In order to preserve
      an issue for appeal, a litigant must make a timely, specific
      objection at trial and must raise the issue on post-trial motions.
      Issues not preserved for appellate review cannot be considered
      by an appellate court even though the alleged error involves a
      basic or fundamental error. Additionally, in resolving those
      issues properly before us, we may only look to the record
      prepared in the trial court.

Reilly by Reilly v. Se. Pennsylvania Transp. Auth., 489 A.2d 1291, 1296

(Pa. 1985) (footnote omitted).

      The statement Husband now objects to is: “[The trial court has] had a

total of 45 hearings involving [Husband] in Family Court between December


                                    - 11 -
J-A20034-15



13, 1991 and October 6, 2014.” Order at 2 n.3. That footnote was to this

statement: “Paragraph 6(e) [of the PSA] has to be given a reasonable

interpretation, especially in light of the history of this situation.” Id. at 2.

Husband alleged that he could not raise the issue of the judge’s bias in the

trial court because the judge did not reveal any bias, specifically the

statement about the number of hearings Husband has been involved in, until

the order was issued.    However, at the October 6, 2014 hearing, the trial

court judge said:

      And, by the way, my law clerk, before he left, for me did do a
      docket search and he found that I have had 45 hearings
      involving the Erbs. Now I’m not sure -- I’d have to look at his
      list, because it goes back to ’91, whether he included for the 45
      the ones for the first custody which would not involve, as a
      litigant, [Wife].

N.T., 10/6/2014, at 11. Husband made no objection or motion for recusal

when the trial judge made this comment. A recusal motion must be decided

by the trial court judge. See Chadwick v. Caulfield, 834 A.2d 562, 571

(Pa. Super. 2003) (“[The decision regarding whether a judge can decide a

case fairly and impartially and without the appearance of impropriety] is a

personal and unreviewable decision that only the jurist can make. Where a

jurist rules that he or she can hear and dispose of a case fairly and without

prejudice, that decision will not be overruled on appeal but for an abuse of

discretion. In reviewing a denial of a disqualification motion, we recognize

that our judges are honorable, fair and competent.”).        Husband has not




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provided the trial court the opportunity to pass upon this motion and,

therefore, he has not preserved this issue for our review.

      The judge’s comment, while relevant to demonstrate her familiarity

with the case and the parties, was perhaps ill-advised.      Nonetheless, a

review of the record demonstrates that the parties received a fair and

impartial hearing.   See Reilly, 489 A.2d at 1300 (stating that, when the

denial of a recusal motion is appealed, “the record is before the appellate

court which can determine whether a fair and impartial trial were had. If so,

the alleged disqualifying factors of the trial judge become moot.” (emphasis

in original)).   Therefore, had the issue been preserved, it would not be

meritorious.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2015




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