J-S27008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PHYLLIS M. HESS,                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RODNEY R. HESS,

                            Appellant                No. 1094 MDA 2015


                  Appeal from the Order Entered May 18, 2015
               In the Court of Common Pleas of Lancaster County
                       Civil Division at No(s): CI-08-06819


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 27, 2016

       Rodney R. Hess (“Husband”) appeals from the May 18, 2015 order

granting a petition to enforce filed by Phyllis M. Hess (“Wife”) and directing

Husband to pay Wife $12,000 for breach of their divorce agreement (“the

Agreement”) and $2,525 for her attorney’s fees. We affirm.

       The trial court summarized the history of this matter as follows:

             This matter commenced on June 23, 2008, when [Wife]
       filed for divorce from [Husband].      The parties eventually
       attended a divorce hearing before Special Divorce Master, Julia
       G. Vanasse on February 24, 2011. At the outset of the hearing
       the Master stated: “This is the time and place that was set for
       the hearing in the Hess versus Hess matter. And it is my
       understanding that the parties have arrived at an agreement
       between themselves in order to conclude this matter today, and
       we’re actually putting a full postnuptial agreement on the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S27008-16


     record.” (Trial Tr. p 2, 5–11, February 24, 2011.) Neither party
     has asserted that the Master inaccurately summarized the
     purpose of the hearing. An agreement was entered on that
     date.

           On September 24, 2014, after a family business court
     presentation and upon consideration of Wife’s Petition for
     Enforcement and Contempt of Divorce Agreement Dated
     February 24, 2011, the court scheduled a hearing. The hearing
     was held on April 16, 2015, and the Court issued an order on
     May 15, 2015.

                                  * * *

            Both Wife and Husband agree that Husband has not paid
     all of the money due to Wife under the parties’ Agreement (Trial
     Tr. p. 6–13, 51–52, April 16, 2015). At the time of the April 16,
     2015 hearing, Husband had not paid $12,000.00 of the equitable
     distribution portion of the Agreement and had missed three
     months of the alimony portion of the [A]greement. (Id. at 6–
     13). Husband testified that he did not knowingly and voluntarily
     enter into the Agreement (Id. at 24). At the time of the
     Agreement, Husband was not represented by counsel, and he
     testified that he did not understand that the alimony and
     equitable distribution portions of the Agreement were two
     separate things and that he would be responsible to pay both
     amounts to Wife in accordance with the Agreement. (Id. at 23–
     24, 43–44).

           Prior to the divorce master hearing, Husband did have an
     attorney and that attorney helped draft the language of the
     Agreement (Id. at 45).         Husband testified that he had
     representation until late 2010 (Id.). The court accepted his
     attorney’s Petition to Withdraw as Counsel on January 24, 2011.
     (See court’s January 24, 2011 Order.) Husband testified that he
     reads and writes in English and that he ran a successful business
     during the parties’ marriage (Trial Tr. p. 31, April 16, 2015).
     When the Agreement was read onto the record, the divorce
     master asked Husband if he had a chance to review portions of
     the Agreement with his prior counsel, if he heard and understood
     the terms, and if he voluntarily wished to enter into the
     Agreement, and Husband responded in the affirmative (Trial Tr.
     p. 10–11, February 24, 2011). At the conclusion of the April 16,
     2015 hearing, Wife withdrew the contempt portion of her

                                   -2-
J-S27008-16


     petition, asking the court to consider only the enforcement of the
     Agreement (Trial Tr. p. 57, April 16, 2015).          Neither side
     presented testimony to support the existence of fraud,
     misrepresentation, or duress when the parties entered into the
     Agreement. The court therefore found that a valid contract
     between Husband and Wife was formed on February 24, 2011,
     Husband and Wife are bound by contract principles found in
     Pennsylvania law, and Husband was in breach of the Agreement.
     (See court’s May 15, 2015 Order.)

Trial Court Opinion, 8/13/15, at 1–4.   Husband filed a timely appeal, and

both he and the trial court complied with Pa.R.A.P. 1925.

     Husband presents the following questions for our consideration:

     Is the failure of the trial court to address [Husband’s] claim of
     duress appealable error?

     Did the trial court err in that it placed too much emphasis on
     [Husband] having an attorney prior to the divorce master
     hearing?

     Did the trial court err in that it placed too little emphasis on
     [Husband’s] statement that his agreement was based only on his
     continuing to have the current income from his business?

Husband’s Brief at unnumbered 4.

     In Pennsylvania, we enforce settlement agreements between husband

and wife in accordance with the same rules applicable to contract

interpretation. Osial v. Cook, 803 A.2d 209, 213–214 (Pa. Super. 2002).

Thus, our review is guided by the following standards:

     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.

                                    -3-
J-S27008-16


              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) (citations

omitted). Furthermore:

       this Court must accept findings of the trial court that are
       supported by competent evidence of record, as our role does not
       include making independent factual determinations. In addition,
       with regard to issues of credibility and weight of the evidence,
       this Court must defer to the trial judge who presided over the
       proceedings and thus viewed the witnesses first hand.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (citation

omitted).

       Husband’s first issue concerns his defense of duress.1     According to

Husband, for “two and a half years [he] was badgered, humiliated and

falsely accused of hiding money;” he was “under huge stress;” his “business

was in harm’s way if [Wife’s] constant fraud allegations became public

knowledge;” and he “was not free to consult with counsel, as finances

prohibited it[.]”     Husband’s Brief at unnumbered 7–8 (internal quotation

marks omitted).        Husband argues that such testimony was evidence of

“duress,” which is defined as “the degree of restraint or danger, either

actually inflicted or threatened and impending, which is sufficient in severity
____________________________________________


1
   Husband raised the issue of duress in his statement of errors complained
of on appeal. Pa.R.A.P. 1925(b) Statement, 6/16/15, at ¶ 1.



                                           -4-
J-S27008-16


or apprehension to overcome the mind of a person of ordinary firmness.”

Id. at unnumbered 7 (quoting Adams v. Adams, 607 A.2d 1116, 1119 (Pa.

Super. 1992)).

      We note that the premise of Husband’s first question, as presented, is

flawed. The trial court did, in fact, consider his claim of duress:

      Duress is defined as: “That degree of restraint or danger, either
      actually inflicted or threatened and impending, which is sufficient
      in severity or apprehension to overcome the mind of a person of
      ordinary firmness. . . . Moreover, in the absence of threats of
      actual harm there can be no duress where the contracting part is
      free to consult with counsel.” Lugg v. Lugg, 64 A.3d 1109, 1113
      (Pa. Super. 2013) quoting Adams v. Adams, 607 A.2d 1116,
      1119 (Pa. Super. 1992) (disapproved on other grounds by
      Stoner v. Stoner, 819 A.2d 529 (Pa. Super. 2003)). Husband
      affirmed to the Divorce Master that his entry into the Agreement
      was both knowing and voluntary. While he retracted those
      affirmations at the April 16, 2015 hearing, the Court did not find
      his retractions credible. Further, Husband raised no claims
      of duress regarding his entry into the Agreement at the
      April 16, 2015 hearing.           He offered no testimony or
      evidence of any restraint or danger, either actual or
      threatened. While Husband may be displeased with the Court’s
      findings of fact that are contrary to his position, such displeasure
      alone is not sufficient to constitute reversible error.

Trial Court Opinion, 8/13/15, at 5–6 (emphasis supplied).

      Upon review of the certified record, we discern no basis on which to

disturb the trial court’s ruling. The record supports the trial court’s factual

finding that Husband offered no testimony or evidence of any restraint or

danger, either actual or threatened.     Indeed, Husband confirmed that he

heard and understood all of the terms of the agreement as they were placed

on the record; that he had an opportunity to review the legally binding


                                      -5-
J-S27008-16


language drafted by his attorney; and that he was voluntarily entering the

Agreement in lieu of a hearing.    N.T., 2/24/11, at 10–11.    The testimony

Husband did offer concerned financial hardships and the bitterness of

divorce, none of which prevented him from knowingly and voluntarily

executing the Agreement that his attorney helped to draft. Moreover, with

regard to credibility determinations, we defer to the trial judge who presided

over the proceedings. Mackay, 984 A.2d at 533. Husband’s first issue does

not warrant relief.

      We address Husband’s second and third issues in tandem because they

both challenge the weight of the evidence. We reiterate, “[W]ith regard to

issues of credibility and weight of the evidence, this Court must defer to the

trial judge who presided over the proceedings and thus viewed the witnesses

first hand.” Mackay, 984 A.2d at 533.

      Husband first argues that the trial court erred by placing too much

emphasis on the fact that Husband had an attorney before the February 24,

2011 hearing in front of the divorce master. Husband’s Brief at unnumbered

8. Husband asserts, “[T]he fact [Husband] had counsel prior to the hearing,

does not negate his inability to consult with counsel at the divorce master

hearing.” Id. at unnumbered 9. Next, Husband argues that the trial court

placed too little emphasis on Husband’s understanding that he was

financially responsible under the Agreement as long as he was “president of

[his] company” and could “meet these financial obligations.”       Husband’s


                                    -6-
J-S27008-16


Brief at unnumbered 9. Husband contends that “if [he] had counsel or at

least an opportunity to consult with counsel, such language would [not] have

made it into the [A]greement.” Id. at unnumbered 10.2

       For each of the issues, the trial court considered legal principles and

the terms of the Agreement.           Moreover, Wife and Husband each provided

testimony supporting their positions. N.T., 4/16/15, at 4–23, 23–55. The

trial court had the opportunity to observe both witnesses.        It gave less

weight to Husband’s testimony based on his retractions and improbable

assertions. Then, it rendered its opinion accordingly:

       A marriage settlement agreement is not void on grounds that a
       spouse did not consult with independent legal counsel prior to
       executing the agreement. Simeone v. Simeone, 581 A.2d 162
       (Pa. 1990). In this case however, Husband did have an attorney
       until late 2010. He admits that portions of the Agreement were
       actually drafted by this attorney, and Husband testified that he
       had a chance to discuss those portions with the attorney prior to
       the February 24, 2011 settlement hearing, even though Husband
       was unrepresented at that hearing. Not only did Husband have
       the acumen to run his own business, but he had the prior benefit
       of counsel regarding the Agreement. Both of these factors cause
       the Court to question Husband’s assertions at the June 2015
       hearing that he failed to understanding [sic] of the Agreement
       when he entered into it on February 24, 2011.

             Further, terms of a marriage settlement agreement are
       binding on a spouse without regard to whether those terms were
       fully understood by that spouse when the agreement was
       executed. Id. However, Husband affirmed to the Divorce Master
       that his entry into the Agreement was both knowing and

____________________________________________


2
   In violation of Pa.R.A.P. 2119(a), Husband does not cite any legal
authority in support of his weight arguments.



                                           -7-
J-S27008-16


      voluntary, and the Court did not find credible, his April 16, 2015
      testimony to the contrary.

                                   * * *

      At the February 24, 2011 divorce hearing Husband said, “I want
      to make it noted that as long as I am president of this company,
      I can meet these settlement obligations.” To which the Master
      replied, “. . . It is a binding agreement, so even if factors
      change, it’s not going to change the nature of the agreement.”
      (Trial Tr. p. 8, February 24, 2011). The Agreement does not
      contain a modification and waiver clause, requiring any
      modification or waiver to be formally executed. At no point does
      the Agreement contemplate that Husband can stop making
      payments simply because his circumstances change. The court
      found that the parties intended to be bound by the Agreement
      regardless of changes in circumstances.

Trial Court Opinion, 8/13/15, at 6–7.

      Upon review of the certified record, we conclude that the trial court’s

credibility and weight determinations are well supported. After hearing the

terms of the Agreement placed on the record, the divorce master stated:

“[B]ased on things as they stand right now, this was the parties’ agreement.

But we also discussed the fact that it is a binding agreement, so even if

factors change, it’s not going to change the nature of the agreement.” N.T.,

2/24/11, at 8. Additionally, Wife’s counsel explained, “Even if [Wife] were to

lose her job and her income would decline, if [Husband’s] company was to

increase its revenues or you were to win the Power Ball, this doesn’t change.

Your financial picture is frozen in time. This is a binding agreement, despite

the fact both of you had to give a little bit to get to where we are today.”

N.T., 2/24/11, at 9.   Husband affirmed that he heard and understood the


                                    -8-
J-S27008-16


terms of the agreement as they were placed on the record at the divorce

master’s hearing.    N.T., 2/24/11, at 10–11.      His subsequent attempt to

retract those statements was disingenuous. N.T., 4/16/15, at 47–49.

      Based on the certified record and the trial court’s well-reasoned

discussion set forth above, we will not disturb the trial court’s credibility and

weight conclusions, and we find no abuse of discretion or error of law. Thus,

we affirm the May 18, 2015 order granting Wife’s petition to enforce.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2016




                                      -9-
