J-S94027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.B.                                                    IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

M.B.

                            Appellant                       No. 1076 MDA 2016


                       Appeal from the Order May 31, 2016
              in the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 2004-FC-40815


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                                  FILED MARCH 06, 2017

        M.B. (“Wife”) appeals from the order of May 31, 2016, denying her

petition for enforcement of the marital settlement agreement. Upon review,

we quash the appeal as interlocutory.

        We adopt the following statement of facts derived from the trial court

opinion, which in turn is supported by the record. See Trial Court Opinion

(TCO), 8/9/16, at 1-4. The parties were married on January 28, 1984. In

July 2004, T.B. (“Husband”) filed a complaint in divorce and claim for

equitable division of the property.            However, the parties never underwent

equitable distribution, and a final decree in divorce was never entered.



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*
    Former Justice specially assigned to the Superior Court.
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       Instead, the parties entered into a marital settlement agreement which

was not filed of record but provided for the disposition of marital property

and debt.     In relevant part, Wife agreed to assume credit card debt and

waive her right to the marital premises, and Husband agreed to pay Wife

lump sums each year from 2005 to 2009.             The agreement contained a

provision that no modification of the terms would be valid unless in writing,

signed by both parties. However, despite the agreement, Wife moved back

into the marital residence in 2005 and remained there for ten years.          In

return, Husband asked Wife to pay $450.00 per month in rent, which she did

not pay.

       On February 4, 2014, Wife filed a petition under Pa.R.C.P. 1920.15,

averring that the parties had attempted to reconcile, but the reconciliation

and marital settlement agreement had failed. Accordingly, Wife requested

equitable distribution of the marital property.1

       On February 11, 2016, Wife filed the instant petition to enforce the

November 2004 marriage settlement agreement, averring that Husband had

not made the lump sum payments required by the agreement. Wife argued

that because the agreement provided that modifications or waivers would


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1
   The trial court opinion states that Husband filed the petition for equitable
distribution, but the record reflects that it was Wife who filed said petition.
See Pa.R.C.P. 1920.15 Petition for Equitable Distribution, 2/14/14, at 1-2.
Other petitions for special relief, not relevant to the instant disposition, were
filed and withdrawn.



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not be valid unless in writing, Husband had no defense to her claim for the

$13,000.00 provided for by the agreement.             Husband filed an answer in

opposition and new matter denying that the parties had reconciled and

claiming he only allowed Wife to move into the house because she had

nowhere else to live.       Husband argued that the parties had modified their

agreement by their actions and that as a result of Wife’s failure to pay rent,

she owed Husband $57,150.00.

       The parties appeared before the court for argument and submitted

briefs on the merits of the petition.2         On May 31, 2016, the court denied

Wife’s petition, holding that it would be inequitable to grant Wife’s request.

       Wife timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.             The trial court issued a

responsive opinion.

       On appeal, Wife raises three questions for our review:

       I. Whether the trial court erred in not enforcing the marital
       settlement agreement provisions relating to the payments
       required to have been made to [Wife]?

       II. Whether the trial court erred in not enforcing the provision of
       the marital settlement agreement requiring a writing modifying
       the marital settlement agreement to be in writing and signed by
       both parties?



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2
  No request for transcript was filed.            See Statement Counsel Under
Pa.R.A.P. 904(c), 6/2/16, at 1.



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      III. Whether the trial court erred in not enforcing the marital
      settlement agreement provisions relating to the payments
      required to be made to [Wife]?

Wife’s Brief at 2-3 (unnecessary capitalization omitted, repetition of first and

third issues in original).

      Prior to addressing the merits of Wife’s appeal, we must determine the

appealability of the order, as questions concerning the appealbility of an

order go to the jurisdiction of this Court to hear the appeal and may be

raised sua sponte. Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super.

2003) (noting that during the pendency of divorce actions appeals related to

spousal support are interlocutory).             Here, although no formal petition to

quash has been filed, Husband avers that this is not a final order, as no

divorce decree has been entered. See Husband’s Brief at 7.

      “Under Pennsylvania law, an appeal may only be taken from an

interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P.

341), from a collateral order (Pa.R.A.P. 313), or from an interlocutory order

by   permission       (Pa.R.A.P.       31[2],   1311,   42    Pa.C.S.A.    §    702(b)).”

Radakovich v. Radakovich, 846 A.2d 709, 714 (Pa. Super. 2004)

(alteration in original).

      In her Statement of Jurisdiction, Wife baldly claims that the trial

court’s order is final and that this Court has jurisdiction over the appeal

pursuant    to   42    Pa.C.S.     §    742,    Pa.R.A.P.   301(a)(1),    and   Pa.R.A.P.




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342(b)(1).3 This assertion is incorrect. A final order is defined by the Rules

of Appellate Procedure as an order that disposes of all claims and of all

parties, or is entered as a final order pursuant to paragraph (c) of the rule.

See Pa.R.A.P. 341(c) (allowing the trial court to enter a final order as to one

or more but fewer than all of the claims and parties upon an express

determination that an immediate appeal would facilitate resolution of the

entire case).

       This Court has held that where a decree in divorce has not been

entered and ancillary claims remain unresolved, issues such as those

seeking special relief are interlocutory and unappealable.       See Mensch v.

Mensch, 713 A.2d 690, 691 (Pa. Super. 1998); see also Sneeringer v.

Sneeringer, 876 A.2d 1036, 1039 (Pa. Super. 2005) (noting that where a

decree of divorce has not been entered, orders involving marital settlement

agreements are not final orders).          Further, where such an order does not

result in an irreparable loss to the parties if review is postponed, such an

order is not a collateral order. Id. at 1040. Wife did not request to appeal

by permission pursuant to Pa.R.A.P. 1311. Here, the order is neither final

nor collateral and, accordingly, it is interlocutory and unappealable.


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3
  See 42 Pa.C.S. § 742 (providing this Court with exclusive appellate
jurisdiction of all appeals from final orders of the courts of common pleas);
Pa.R.A.P. 301(a)(1) (providing that no court order is appealable until it has
been entered upon the appropriate docket in the lower court); Pa.R.A.P.
342(b)(1) (defining, for purposes of the statute, the term “estate”).



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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/2017




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