J-S37003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA A. BRENNER                                  IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                      v.

MICHAEL J. BRENNER

                             Appellant                  No. 2017 MDA 2016


            Appeal from the Order Entered November 15, 2016
            In the Court of Common Pleas of Lancaster County
                     Civil Division at No: CI-16-04938


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED AUGUST 15, 2017

     Michael J. Brenner (“Husband”) appeals from the November 15, 2016

order entered in the Court of Common Pleas of Lancaster County (“trial

court”) denying his petition to terminate alimony. Upon review, we affirm.

     Barbara A. Brenner (“Wife”) filed for divorce in November 26, 2007,

and a divorce decree was issued on November 9, 2009. On June 24, 2016,

Husband filed a petition to terminate alimony. Wife filed a response on July

14, 2016.     The trial court held a hearing on September 16, 2016, on

Husband’s petition.        Following briefs by the parties, the trial court denied

Husband’s petition on November 15, 2016. Husband filed a timely notice of

appeal on December 8, 2016.              On December 13, 2016, the trial court

ordered Husband to file a concise statement of errors complained of on
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appeal, which Husband complied with on January 3, 2017. The trial court

issued a Pa.R.A.P. 1925(a) opinion on February 3, 2017.

     The trial court summarized the factual history of the matter as follows.

            The parties were married on July 10, 1976, and separated
     around August 2007. They entered into a Postnuptial Agreement
     (“Agreement”) on October 19, 2009, pursuant to which
     [Husband] agreed to pay to [Wife] seven thousand seven
     hundred ninety-one dollars and fifty-eight cents ($7,791.58) per
     month in alimony (subsequently modified by the parties to seven
     thousand seven hundred seventy-nine dollars and eleven cents
     ($7,779.11) per month).         [Wife’s] attorney drafted the
     Agreement. [Husband], a sophisticated, successful and self-
     employed businessman with a college degree, chose to represent
     himself. [Husband] acknowledges that he had the opportunity to
     hire his own attorney before executing the Agreement but did
     not do so. He admitted that he understood what he signed. The
     Agreement, specifically section seven, permits either party to
     modify and/or terminate an alimony order if either party has
     changed circumstances of a substantial and continuing nature
     citing 23 Pa.C.S.A. § 3701 et seq. No specific date to terminate
     alimony based upon [H]usband’s retirement is identified in the
     agreement.

            [Husband] is sixty-three years old and wishes to retire
     sometime in the year 2017. In 2013, he married his business
     (Elite Staffing Services, Inc.) office manager. His income for
     2015 was approximately three hundred and fifty thousand
     dollars ($350,000) which consisted of his net profit from the
     business, approximately twenty-five thousand dollars ($25,000)
     in rental income, and approximately forty thousand to fifty
     thousand dollars ($40,000 - $50,000) that his wife earned. In
     2007, the years of separation, [Husband] earned approximately
     four hundred eleven thousand dollars ($411,000). [Husband]
     has faithfully paid [Wife] approximately ninety-six thousand
     dollars ($96,000) per year in alimony since separation.

           [Wife] is sixty-two years old and a college graduate. In
     addition to alimony payments, she receives a total of
     approximately twenty-one thousand dollars ($21,000) from a
     part-time receptionist position at Interiors Home and her pension
     as a retired Hempfield School District reading tutor. In 2015,

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      [Wife] received one hundred fourteen thousand three hundred
      sixty-six dollars ($114,366) of which ninety-three thousand
      three hundred forty-nine dollars ($93,349) was alimony. As a
      reading tutor, [Wife] usually earned between twenty-two
      thousand to twenty-five thousand dollars ($22,000-$25,000) a
      year. Consequently, [Wife’s] earnings as a reading tutor roughly
      equals her current income from part time receptionist work and
      her pension.

             [Husband’s] petition seeks to terminate his contracted
      alimony payments when he retires. He argues that with reduced
      income in retirement along with the obligation to support his
      new wife he will be unable to continue his alimony payments.
      [Husband] asserts that there is no date to terminate alimony in
      the Agreement because he did not when know [(sic)] he would
      retire. [Husband] contends that he believed the Agreement
      would allow him to retire and cease his alimony obligations as it
      was discussed by the parties prior to the execution of the
      Agreement.

            [Wife] on the other hand asserts that the parties never
      discussed [Husband’s] future retirement or its impact on his
      alimony obligations.    [Wife] testified that she would have
      pursued more of the marital assets when she entered into the
      Agreement if alimony payments had been limited in duration.
      She expected, and bargained for, perpetual alimony which would
      terminate only if she remarried or cohabitated. She contends
      neither she nor [Husband] has had a substantial change in
      circumstances since entering into the Agreement. She has been
      able to secure employment which together with her pension and
      alimony provides her with an income comparable to her pre-
      separation position and his income similarly has not changed.

Trial Court Opinion, 2/3/17, at 2-4 (capitalization and citations omitted).

      Husband asserts four claims on appeal, including multiple subparts,

which we quote verbatim.

      I.     Whether the trial court committed an abuse of discretion
            and erred in denying the petition to terminate alimony by
            finding that the [Agreement] in fact “specifically, permits a
            party to modify and/or terminate an alimony order if either
            party has changed circumstances of a substantial and


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           continuing nature citing 23 Pa.C.S.A. § 3701(e)” and failed
           to consider that:

           a. The Agreement itself only cites the Divorce Code;

           b. The [trial court] construed the Agreement against
              [Husband] in requiring that [Husband] must have the
              only substantial and continuing change in circumstances
              to warrant a modification or termination of alimony,
              while ignoring [Wife’s] substantial and continuing
              change in circumstances, namely her voluntary
              retirement/reduction in income;

           c. Failing to consider the testimony of the parties that
              neither party knew what circumstances would warrant a
              modification or termination in alimony, nor that neither
              party knew what the duration of the alimony would be,
              nor what the effect either party’s retirement would have
              on the alimony clause, making that term of the contract
              ambiguous;

           d. That the [trial] court failed to consider parole [(sic)]
              evidence to interpret the ambiguous term nor did the
              [trial] court consider the mutual mistake of the parties;

           e. That the [trial] court failed to consider that [Wife] was
              the drafter of the Agreement and that any ambiguous
              term should be construed against her?

     II.   Whether the trial court committed an abuse of discretion
           and erred in finding that “[Husband] asserts his desire to
           voluntarily retire next year and his remarriage three years
           ago are substantial and continuing changes in
           circumstances warranting the termination of his alimony
           payments” in that the [trial court] ignored evidence that:

           a. [Husband] is of age to retire and should not be forced
              to continue to work simply to provide alimony to [Wife];

           b. [Husband] will have difficulty saving for retirement
              while [Wife] continues to collect alimony, thereby
              preventing [Husband] from ever retiring; and

           c. [Wife’s] voluntary retirement is a change in
              circumstance that warrants termination or modification
              of alimony?

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        III.   Whether the trial court committed an abuse of discretion
               and erred in noting that “the Agreement is silent as to the
               duration of the alimony payments as well as the possibility
               of [Husband] retiring (voluntarily or involuntarily) and/or
               remarrying” but entered an order that has the unfair effect
               of interpreting the Agreement as containing a term of
               perpetual and indefinite alimony, which is unwarranted,
               unjust, and punitive against [Husband]?

        IV.    Whether the trial court committed an abuse of discretion
               and erred in failing to consider the alimony factors under
               Pa.C.S.A. [§] 3701(b), particularly in light of the fact that
               alimony is a secondary remedy that should only continue
               where economic justice requires because the needs of the
               receiving party have not been met, and the facts
               presented in this case show that [Wife] is financially
               stable, able to support herself and receive more than the
               total value of the marital estate at settlement, far beyond
               any distribution she would have receive [(sic)] without
               [Husband’s] alimony obligation?


Appellant’s Brief at 3-4.

        Preliminarily we note that Husband’s brief fails to comply with

Pa.R.A.P. 2111(b), 2114, 2115, 2116, 2118, and 2119(a). “[W]hen defects

in a brief impede our ability to conduct meaningful appellate review, we may

dismiss the appeal entirely or find certain issues to be waived.” In re R.D.,

44 A.3d 657, 574 (Pa. Super. 2012) (quoting Commonwealth v. Hardy,

918 A.2d 766, 771 (Pa. Super. 2007) appeal denied, 940 A.2d 362 (Pa.

2008)). However, we decline to find waiver in this matter. See Pa.R.A.P.

2101.

        Husband’s argument section is bereft of headings, as required by

Pa.R.A.P. 2119(a); however, Husband’s claims are intertwined and can be

summarized as the trial court abused its discretion when it denied his


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petition to terminate alimony because he remarried three years ago and

plans to retire in the near future.

      Section 3701(e) of the Divorce Code permits modification and

termination of an award for alimony.          See 23 Pa.C.S.A. § 3701(e).

Specifically,

      An order entered pursuant to this section is subject to further
      order of the court upon changed circumstances of either party of
      a substantial and continuing nature whereupon the order may be
      modified, suspended, terminated or reinstituted or a new order
      made. Any further order shall apply only to payments accruing
      subsequent to the petition for the requested relief. Remarriage
      of the party receiving alimony shall terminate the award of
      alimony.

Id.    Moreover, our standard of review for an alimony order is well

established; “we review only to determine whether there has been an error

of law or abuse of discretion by the trial court.” McKernan v. McKernan,

135 A.3d 1116, 1118 (Pa. Super. 2016) (quoting Dairymple v. Killshek,

920 A.2d 1275, 1278 (Pa. Super. 2007)) (additional citation omitted).

Further, to find the trial court abused its discretion, the trial court must have

“committed not merely an error of judgment, but [. . .] overridden or

misapplied the law, or [. . .] exercised judgment which is manifestly

unreasonable, or the product of partiality, prejudice, bias, or ill will as

demonstrated by the evidence of record.”        McKernan, 135 A.2d at 1118

(citations omitted).

      First, Husband argues that the Agreement is ambiguous as it does not

specifically mention his remarrying or retirement as changed circumstance of


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a substantial and continuing nature.    “Appellate arguments which fail to

adhere to [the Rules of Appellate Procedure] may be considered waived, and

arguments which are not appropriately developed are waived.       Arguments

not appropriately developed include those where the party has failed to cite

any authority in support of a contention.” Lackner v. Glosse, 892 A.2d 21,

29-30 (Pa. Super. 2006) (citations omitted).    Husband’s brief is bereft of

discussion and legal citation as to how the Agreement was ambiguous.

Thus, this argument is waived. Even if this argument was not waived, it is

meritless. The language of the Agreement provided that modification would

be available to either party in accordance with 23 Pa.C.S.A. § 3701, which

permits either party to petition to modify alimony upon the changed

circumstances of either party.    23 Pa.C.S.A. § 3701(e).    “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.

When the terms of a contract are clear and unambiguous, the intent of the

parties is to be ascertained from the document itself.” W.A.M. v. S.P.C., 95

A.3d 349, 353 (Pa. Super. 2014) (quoting Kripp v. Kripp, 849 A.2d 1159,

1163 (Pa. 2004)).   The trial court properly found that the Agreement was

unambiguous, as it clearly provides for any modifications or termination that

would be permissible under the Divorce Code. Thus, Husband’s claim fails.

     Next, we address the heart of Husband’s claim, namely that his new

marriage and potential future retirement constitute changed circumstances

of a substantial and continuing nature. “Alimony is based upon reasonable

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needs in accordance with the lifestyle and standard of living established by

the parties during the marriage, as well as the payor’s ability to pay.”

Balicki v. Balicki, 4 A.3d 654, 659 (Pa. Super. 2010) (quoting Teodorski

v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004).       It should be noted

that “case law clearly establishes that retirement can serve as the basis for

the changed circumstances of a substantial and continuing nature necessary

to modify an alimony award.”     Commonwealth v. McFadden, 563 A.2d

180, 183 (Pa. Super. 1989) (emphasis added). However, the law does not

mandate the termination of alimony upon a party’s voluntary retirement.

     In the matter sub judice, Husband has yet to retire, instead he merely

plans on retiring in the near future, and he has not set a definitive

retirement date.   Thus, this matter is at best, premature.       Moreover,

Husband failed to indicate a compelling reason for his future retirement,

including but not limited to, health issues, forced retirement, caring for

elderly relatives, etc.. See McFadden, 135 A.3d at 1118 (trial court did not

abuse its discretion in denying husband’s petition to terminate alimony when

husband voluntarily retired early, reducing his income, and that wife should

not be forced to apply for social security benefits); Lee v. Lee, 507 A.2d

862, 865 (Pa Super. 1986) (reversed for determining whether forced early

retirement constituted a substantial change); Com ex rel. Burns v. Burns,

331 A.2d 768, 771 (Pa. Super. 1974) (remanded for consideration of

husband’s retirement due to health reasons); see also Smedley v.

Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010) (“Voluntary retirement does

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not entitle an appellant ‘to a reduction in his support obligation’ rather ‘the

change in the appellant’s economic situation due to retirement merely allows

him an opportunity to demonstrate the need for a reduction.’”) (citation

omitted).

       Further, this Court finds Husband’s argument that “Husband cannot

possibly save for retirement, support his new wife, and continue his alimony

obligation to [Wife]” disingenuous when Husband testified to an income of

$350,000 in 2015, as well as other assets. See Appellant’s Brief at 17; N.T.

Petition to Terminate Alimony Hearing, at 30.     Moreover, Husband fails to

recognize that the law permits modification upon the showing of changed

circumstances of a substantial and continuing nature, it does not require a

modification. Upon review of the record and the law, we find the trial court

did not abuse its discretion when it denied Husband’s petition to terminate

alimony.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2017




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