J-S25028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS A. MANSMANN                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JONI B. MANSMANN

                            Appellee                 No. 1738 WDA 2014


                Appeal from the Decree filed September 24, 2014
              In the Court of Common Pleas of Washington County
                     Domestic Relations at No: 193 DR 2013


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 30, 2015

        Thomas A. Mansmann (Thomas/Appellant) appeals from the divorce

decree filed on September 24, 2014 in the Court of Common Pleas of

Washington County that made final the trial court’s April 22, 2014 order

dismissing his exceptions to a hearing officer’s recommendation and upheld

the November 22, 2002 prenuptial agreement entered into with his ex-wife,

Joni Mansmann (Joni/Appellee). Upon review, we affirm.

        The facts gleaned from the record reveal that Thomas and Joni met in

July of 2002.        Both were previously married and divorced.      Almost

immediately after meeting, Thomas moved in with Joni in a townhome she

owned. When discussions between the parties turned to marriage, the need
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S25028-15


for a prenuptial agreement became part of the conversation.          Notes of

Testimony (N.T.) Support Hearing, 10/28/13, at 39.

       The parties planned a November 27, 2002 Florida wedding.            On

November 22, the day before Thomas and Joni were to fly to Florida for the

ceremony, the parties signed a prenuptial agreement that included, inter

alia, the following language:

       WHEREAS, the parties hereto intend and desire to define that
       property which each brings to the marriage, to the end that such
       property shall be designated and set apart as the separate and
       individual property of each of the respective parties hereto; and

                                       ***

       WHEREAS, the parties hereto have discussed their property
       rights with each other and have made such disclosures of their
       respective assets to one another as the parties have deemed
       desirable; and

       WHEREAS, the real and/or personal property which each of the
       parties hereto intends to be designated and set apart as his
       and/or her separate and individual property, is set forth in
       Exhibits “A” and “B,” which Exhibits “A” and “B” are attached
       hereto and made a part hereof;[1]

       NOW, THEREFORE, in consideration of their aforesaid
       forthcoming marriage to each other, and in consideration of the
       foregoing recitals and of the mutual covenants and agreements
       hereinafter contained, and intending to be legally bound hereby,
       the parties hereto hereby mutually covenant and agree as
       follows:
____________________________________________


1
  Exhibit “A” lists Joni’s “separate and individual property” as “1) Marital
Residence and Real Estate located at 279 Murrays Lane, Pittsburgh,
Pennsylvania 15324; 2) Mellon Financial 401K Plan; and 3) H&R Block Roth
IRA.”   Exhibit “B” lists Thomas’ “separate and individual property” as
“NONE.”



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                                 ***

     10.    Each of the respective parties hereto further hereby
     warrants and acknowledges that he and/or she is, at present,
     self-supporting, and/or that he/she has been gainfully employed
     during his/her adult life, and does not, in the future, wish to
     have any alimony, support, or any other like payment from the
     other party hereto. Therefore, both [Thomas] and [Joni] hereby
     expressly and voluntarily release all right to receive any alimony,
     support, or any other like payment from the other party, in the
     event that the parties shall either separate and/or become
     divorced, and regardless of the grounds for the separation
     and/or divorce.

     11. Each party hereto hereby acknowledges and affirms that
     he/she has made a true, correct, and complete representation of
     his/her financial status, and of all of the debts and/or obligations
     for which he/she presently is responsible, to the other party
     hereto, and each party hereby further covenants and agrees that
     all such debts and/or obligations will be, and will forever remain,
     the sole and complete responsibility of the party presently
     responsible therefor. . . .

Prenuptial Agreement, 11/22/02, at (unnumbered pages) 1-2 and 5.

     The parties later separated and Joni initiated divorce proceedings in

August 2012.    The divorce action continued though 2013 with the focus

primarily on custody of the parties’ two children. In the meantime, Thomas

filed a complaint seeking spousal support. By interim order entered April 16,

2013, the trial court dismissed the support complaint without prejudice

based on the waiver of support language contained in Paragraph 10 of the

prenuptial agreement. Following Thomas’ request for de novo consideration,

a support hearing was held on June 10, 2013.         On June 15, 2013, the




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hearing officer issued his findings and recommendations, dismissing Thomas’

complaint based on the waiver language of the prenuptial agreement.

       Thomas filed timely exceptions to the hearing officer’s findings and

recommendations, claiming the prenuptial agreement was invalid because he

entered into it under duress. By order dated September 16, 2013, the trial

court granted Thomas’ exceptions and remanded the case to the hearing

officer for a hearing on the validity of the prenuptial agreement, noting it

was incumbent upon the hearing officer to ask whether Thomas could offer

any testimony or evidence to support his claim the agreement should be

invalidated.

       A hearing was conducted on October 28, 2013. At the conclusion of

the proceeding, the hearing officer recommended that the prenuptial

agreement be upheld and enforced. Thomas again filed exceptions raising

the issue of coercion.            Exceptions to Support Master’s Report and

Recommendation, 11/1/13.2 Those exceptions were entertained by the trial

____________________________________________


2
  After the time for filing exceptions, Thomas asserted a second basis for
setting aside the agreement, i.e., that Joni failed to provide sufficient
disclosure of assets.     Pennsylvania Rule of Civil Procedure 1910.12(f)
provides:

       Within twenty days after the date of receipt or the date of
       mailing of the report by the hearing officer, whichever occurs
       first, any party may file exceptions to the report or any part
       thereof, to rulings on objections to evidence, to statements or
       findings of facts, to conclusions of law, or to any other matters
       occurring during the hearing. Each exception shall set forth a
(Footnote Continued Next Page)


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court at a hearing on April 21, 2014. By order entered the following day,

the trial court dismissed Thomas’ exceptions, stating:

      [T]his [c]ourt does not find that [Thomas] was coerced into
      signing the pre-nuptial agreement.      This is because of the
      exchange between [Thomas] and the hearing office[r]. The
      hearing officer asked [Thomas], “Your testimony is if all of
      [Joni’s] debts had been listed on Exhibit A, you would not have
      signed the agreement?” [Thomas] responded, “And her assets,
      absolutely everything. I may or may not have, sir.” Therefore,
      this [c]ourt finds [Thomas] incredible when he contended in his
      exceptions that he was coerced into signing the agreement.

      As for the issue of failure to provide sufficient disclosure, this
      [c]ourt finds that [Thomas] did not properly raise the issue. His
      exceptions were timely filed but only address the issue of
      coercion.     The first time [Thomas] mentioned full and fair
      disclosure was in his brief, which was filed January 7, 2014. This
      was 46 days after the exceptions were due, which was
      November 22, 2013. [Thomas] did not request any extension
      for the filing of exceptions on the issue of full and fair disclosure.
      Permitting [Thomas] to argue this issue would otherwise make
      the “procedural time requirement of Rule 1920.55[-2] would be
      rendered a nullity.” Sipowicz v. Sipowicz, 517 A.2d 960, 962
      (Pa. Super. 1986).[3]
                       _______________________
(Footnote Continued)

      separate objection precisely and without discussion. Matters
      not covered by exceptions are deemed waived unless,
      prior to entry of the final order, leave is granted to file
      exceptions raising those matters. If exceptions are filed, any
      other party may file exceptions within twenty days of the date of
      service of the original exceptions.

Pa.R.C.P. 1910.12(f) (emphasis added).

3
  We note that the trial court cites Sipowicz, which refers to Pa.R.C.P.
1920.55-2 and its waiver of matters not raised in timely exceptions. Rule
1920.55-2 applies to exceptions from a master’s report in a divorce
proceeding while Rule 1910.12(f), with language mirroring Rule 1920.55-2,
applies to exceptions from a hearing officer’s report in support proceedings.
(Footnote Continued Next Page)


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Trial Court Order, 4/22/14, at 1-2 (references to notes of testimony

omitted).

      Thomas filed a notice of appeal from the April 22, 2014 order. This

Court quashed the appeal as an interlocutory order prior to entry of a final

decree of divorce, citing Campbell v. Campbell, 516 A.2d 363 (Pa. Super.

1985) and Fried v. Fried, 501 A.2d 211 (Pa. 1985).          On September 24,

2014, the trial court entered a final divorce decree.     This timely appeal

followed.

      Thomas presents three issues for our consideration:

      1. Did the Trial Court err in failing to find that [Thomas] signed the
         Pre-Nuptial Agreement under duress?

      2. Did the Trial Court err in ruling that [Thomas] waived his right to
         argue that Joni had not made a full and fair disclosure of her assets
         at the time of presenting him with the Pre-nuptial Agreement?

      3. Did Joni fail to make a full and fair disclosure of her assets at the
         time of presenting him with the Pre-nuptial Agreement?

Appellant’s Brief at 2.

      This Court has stated:

      [P]renuptial . . . agreements are contracts and are governed by
      contract law.       Moreover, a court’s order upholding the
      agreement in divorce proceedings is subject to an abuse of
      discretion or error of law standard of review. An abuse of
                       _______________________
(Footnote Continued)

This Court has likewise recognized that the failure to preserve a matter in
timely-filed exceptions in support matters results in waiver.    See, e.g.,
Miller v. Bistransky, 679 A.2d 1300, 1302 (Pa. Super. 1996).



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      discretion is not lightly found, as it requires clear and convincing
      evidence that the trial court misapplied the law or failed to follow
      proper legal procedures. We will not usurp the trial court’s
      factfinding function.

Paroly v. Paroly, 876 A.2d 1061, 1063 (Pa. Super. 2005) (quoting Holz v.

Holz, 850 A.2d 751, 757 (Pa. Super. 2004) (internal citations omitted)).

      In his first issue, Thomas argues that the trial court erred in

concluding Thomas was not under duress when he signed the prenuptial

agreement five days prior to his wedding. “Absent fraud, misrepresentation,

or duress, spouses should be bound by the terms of their agreements.”

Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990).                  As Thomas

recognizes, this Court has “long defined duress 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." Appellant’s Brief at 5 (quoting Adams v. Adams, 848

A.2d 991, 993 (Pa. Super. 2004) (citations omitted)).

      At the October 28, 2013 support hearing, Thomas explained:

      [T]here was a time frame . . . that I was given this and a notary
      that had to be done by 3:00 on the 22nd. We were wheels up in
      a couple days going to Miami to get married. The timeline in
      order to do this, there wasn’t enough sufficient time with the
      holiday, a weekend, plus the fact that we were going. I was
      asked to either sign this, get it notarized or my daughter, who
      was with us from a previous marriage would be sent home and I
      would not be able to get married.          We’ll call this all off.
      Reluctantly, I look back, and I signed it, and here we are today.
      I did not ever in any shape or form think that I would be in this
      position right now with Joni.      We were looking forward to
      starting our life, but I was rushed and forced into signing it or
      we’re not getting married. I trusted Joni.

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N.T. Support Hearing, 10/28/13, at 9-10.       The hearing officer then asked

Thomas if there was any other coercion involved, other than the time

constraint to which he testified. Thomas responded:

      That’s pretty - - nothing physically in terms of that. I don’t think
      that’s necessary, that the either/or, sign this or don’t get
      married. I wanted to marry this lady. We were in love and we
      were looking forward to start - - we had kind of a pecking order
      in place. We were going to start a family. We were heading to
      Florida. Graciously accepted my daughter and made us part of
      this union, and we had plans set up to go and get married. I
      don’t want to say I would have signed anything. I have some
      intelligence, but when you’re playing with my heart like that and
      forcing, you know, something of that nature, again, reluctantly
      authorized this, not knowing we would be here today.

Id. at 10-11.

      At the conclusion of the October 28, 2013 proceeding, the hearing

officer issued findings of fact addressing, inter alia, Thomas’ claims of

duress, stating:

      [Thomas] appears to be convinced that he was unlawfully
      coerced by [Joni’s] insistence that the marriage would not take
      place in the event he did not sign the agreement. This was not
      unlawful coercion as [Joni] had every right to insist upon such an
      agreement and [Thomas] had every right to refuse to sign the
      same.

      Under these circumstances, [Thomas] has failed to meet his
      burden of proof by clear and convincing evidence that he was
      unlawfully coerced into signing the agreement and/or that the
      prenuptial agreement was not valid.

Findings of Hearing Officer, 10/29/13, at 3.

      At the April 21, 2014 hearing on Thomas’ exceptions, his counsel

repeated the duress argument, offering the timeline and the lack of time to

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seek review in support of a finding of duress. Joni’s counsel countered that

the only “duress was that he wanted to get married. . . . He was free to say

no, I will not sign it. He was free to enter into an Agreement, which he did,

and by entering into that Agreement, he is now bound by that Agreement.”

N.T. Exceptions Hearing, 4/21/14, at 5.

      The trial judge rejected Thomas’s duress argument in its order entered

the following day, in which he ordered that Thomas’ exceptions be dismissed

and the hearing officer’s recommendation become a final order of court.

Trial Court Order, 4/22/14, at 1. Mindful of this Court’s definition of duress

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," see Adams, 848 A.2d at 993,

we conclude the trial court did not abuse its discretion or commit error of

law by rejecting Thomas’ duress argument. Appellant’s first issue fails for

lack of merit.

      In his second issue, Thomas contends the trial court erred in finding

waiver of his claim that Joni failed to make a full and fair asset disclosure in

the prenuptial agreement. As noted above, Thomas filed timely exceptions

to the hearing officer’s October 29, 2013 recommendation that Thomas’

spousal support complaint be dismissed. In his exceptions, Thomas raised

the issue of coercion. However, he did not mention the issue of full and fair




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disclosure before raising it in his brief filed on January 7, 2014, well beyond

the deadline for filing exceptions.

         Thomas counters the trial court’s finding of waiver by suggesting “the

issue of full and fair disclosure is subsumed within the issue of duress.”

Appellant’s Brief at 7. He asserts he attempted to prove duress “by pointing

to two elements:       [Joni’s] presentment of the agreement when Appellant

had very little time to look the terms over, and [Joni’s] omission from the

document of a necessary attachment, fully listing her assets.”        Id. at 7-8

(underscoring in original).

         Thomas does not offer any legal authority to support his novel theory.

Joni, by contrast, directs us to this Court’s decision in Sipowicz, in which

this Court held that untimely exceptions under Rule 1920.55(a) are waived.

“[O]therwise the procedural time requirement of Rule 1920.55 would be

rendered a functional nullity.” Id., 517 A.2d at 962. As noted above, see

n. 3, this Court has likewise recognized that waiver results from the failure

to preserve a matter in timely-filed exceptions under Rule 1910.12(f) in

support cases.        Miller, 679 A.2d at 1302.      Because Thomas failed to

preserve an exception regarding full and fair disclosure, we agree with the

trial court’s determination that the issue is waived. Thomas’ second issue

fails.

         Even if it were not waived, the full and fair disclosure issue—raised in

the third issue presented in Thomas’ brief—would not afford Thomas any


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relief. In that third issue, Thomas complains Joni failed to make a full and

fair disclosure of her assets, rendering the agreement invalid.      We cannot

agree.

       In his brief, Thomas provides an excerpt from Porreco v. Porreco,

811 A.2d 566 (Pa. 2002), which instructs:

       [D]espite the prevailing theme in Simeone that the provisions
       of prenuptial agreements should be subject to no greater
       scrutiny than ordinary business contracts, we nevertheless
       continued the principle from our previous decisions that these
       agreements will only be enforced where the parties make a “full
       and fair” disclosure. In addition to preserving this vestige of our
       common-law caution towards the enforcement of prenuptial
       agreements, we affirmed that these agreements may be
       invalidated when fraudulently procured. “If an agreement
       provides that full disclosure has been made, a presumption of
       full disclosure arises.    If a spouse attempts to rebut this
       presumption through an assertion of fraud or misrepresentation
       then this presumption can be rebutted if it is proven by clear and
       convincing evidence.” Simeone, 525 Pa. at 403, 581 A.2d at
       167. Thus, in Simeone, we recognized two alternate bases for
       invalidating a prenuptial agreement: (1) any ground for voiding
       a contract under the common law (such as fraud); and (2)
       where a party fails to make “full and fair” disclosure of his or her
       own assets prior to entering the agreement.

Id. at 570 (internal citation omitted).4

       The 2002 prenuptial agreement signed by Thomas and Joni

indicates “the parties hereto have discussed their property rights with

____________________________________________


4
 See also Simeone, 581 A.2d at 167 (“It is well settled that this disclosure
need not be exact, so long as it is ‘full and fair.’ In essence therefore, the
duty of disclosure under these circumstances is consistent with traditional
principles of contract law.” (citations omitted)).



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each other and have made such disclosures of their respective assets

to one another as the parties have deemed desirable.”          Prenuptial

Agreement, 11/22/02, at (unnumbered page) 1.           Further, “the real

and/or personal property which each of the parties hereto intends to

be designated and set apart as his and/or her separate and individual

property, is set forth in Exhibits “A” and “B,” which Exhibits “A” and

“B” are attached hereto and made part hereof.” Id. And, finally,

      11. Each party hereto hereby acknowledges and affirms that
      he/she has made a true, correct, and complete representation of
      his/her financial status, and of all of the debts and/or obligations
      for which he/she presently is responsible, to the other party
      hereto, and each party hereby further covenants and agrees that
      all such debts and/or obligations will be, and will forever remain,
      the sole and complete responsibility of the party presently
      responsible therefor. . . .

Id. at (unnumbered page) 6.

      At the conclusion of the October 28, 2013 proceeding, the hearing

officer explained:

      In the present case, the [h]earing [o]fficer finds that the
      agreement is unambiguous and that [Joni’s] disclosure to
      [Thomas] was “full and fair” within the meaning of Pennsylvania
      law.      The agreement explicitly contains a provision
      acknowledging that full and fair disclosure has been made and
      there has been no refutation by [Thomas] of the accuracy of
      [Joni’s] disclosures except for minor deficiencies, e.g. checking
      and savings accounts of which [Thomas] was aware. There has
      been no showing the [Joni’s] disclosure did not sufficiently reveal
      her general financial circumstances and/or [that Thomas] was
      unable to obtain information regarding her estate. The parties
      lived together prior to marriage and [Thomas] was certainly
      aware of [Joni’s] financial circumstances.

Findings of Hearing Officer, 10/29/13, at 2.

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      We agree.      The prenuptial agreement provides that “disclosures of

their respective assets” have been discussed and made, and that “a true,

correct and complete representation” of financial status, including assets and

debts, has been made. Under Simeone and Porreco, a presumption of full

disclosure arises.   Thomas asserted he entered into the agreement under

duress, a notion we have rejected, but he clearly has not rebutted the

presumption of disclosure by clear and convincing evidence. Therefore, even

if not waived, Thomas is not entitled to relief on his third issue.

      Thomas has failed to demonstrate abuse of discretion or error of law in

the trial court’s rulings.   Therefore, we affirm the September 24, 2014

decree.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2015




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