J-A35020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD P. HASER,                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CAROLINE HASER, N/K/A CAROLINE
JENNER,

                        Appellant                   No. 78 WDA 2015


                 Appeal from the Order December 15, 2014
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD 11-006647-006


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED JANUARY 20, 2016

     This is an appeal from an order interpreting a consent decree in a

matter of equitable distribution. We affirm.

     Appellant, Caroline Haser, now known as Caroline Jenner (“Wife”) and

Appellee, Edward P. Haser (“Husband”) were married on March 19, 2005,

and separated on August 25, 2010. Husband filed a divorce complaint on

March 22, 2011, and Wife filed an answer, counterclaim, and petition raising

economic claims.   Following lengthy discovery, the parties entered into a

consent decree of equitable distribution (“Consent Decree”) that resolved the

outstanding economic claims. The trial court approved the Consent Decree

on May 31, 2013.

     The trial court summarized the pertinent history as follows:
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            Husband is one of the owners of Reinsfelder Inc.
     [(“Reinsfelder”)], a trucking company. Wife is the owner of Kuke
     Lease LLC [(“Kuke”)], a trailer leasing company. On April 5,
     2006, Kuke Lease LLC purchased four 2003 Manac steel flat
     trailers for $51,560. On April 10, 2006, the parties signed an
     Equipment Lease in which Kuke Lease LLC, Lessor, leased the
     four Manac trailers to Reinsfelder, Inc., Lessee. Reinsfelder is to
     pay $100 per week per trailer, payable every four weeks. Lessor
     is responsible for the maintenance and repair of the trailers.
     Paragraph 4 of the Equipment Lease provides as follows:

           4. The Lessor agrees to deliver to the Lessee the
           named equipment in good order and condition;
           maintain the same in good working condition, furnish
           all necessary oil, fuel, tires, misc. parts and repairs
           for the operation of said equipment and to pay other
           expenses incident to such operations.

            The parties were unable to agree on provisions in the
     Consent Decree and Equipment Lease relating to the four
     trailers. Paragraph 7 of the Consent Decree provides as follows:

           7. Husband has agreed to purchase the four (4)
           2003 Manac flat trailers for the fair market value.
           Parties will agree upon an appraiser and Husband
           will pay the costs of the same. Husband will pay
           Wife within thirty (30) days the fair market value of
           the trailers as determined by the appraiser. Pending
           the transfers of the trailers, the lease payments will
           be made, so long as Wife does not unreasonably
           withhold her agreement to an appraiser.

     When the parties separated, Husband planned to buy the trailers
     from Wife and he obtained appraisals from two different
     companies. The first appraisal valued the trailers at $2,750
     wholesale and $4,000 retail. The second appraiser valued them
     at $3,500 wholesale and $6,500 retail. Wife refused to accept
     either, and suggested that Husband retain Daniel Horgas of
     Industrial Appraisal Company. Husband contacted Industrial
     Appraisal Company to make arrangements for the appraisal.
     Husband became concerned after several conversations with Mr.
     Horgas that the company did not have the necessary experience
     and expertise to appraise the trailers. In the interim, the trailers
     needed repairs to keep them operational. Husband had one


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     trailer repaired at a cost of $9,544. Due to the high cost of
     repairs and a concern that Wife would not reimburse him, he did
     not have the other three repaired. Husband stopped making
     lease payments after June of 2013.

            Wife filed a Petition to Enforce, and on November 7, 2013,
     the [c]ourt ordered Husband to get an appraisal from Industrial
     Appraisal Company and to pay Wife $8,000 in back lease
     payments. Industrial Appraisal placed a value of $29,425 on the
     four trailers. Husband offered to pay this amount to Wife, less
     the $9,544 in repair costs. Wife refused and filed a Petition to
     Enforce Consent Decree. The [c]ourt scheduled an expedited
     conciliation but was unable to resolve the issue. The [c]ourt set
     the matter for a hearing on July 23, 2014. The parties were
     unable to present their evidence in the time allotted and a
     second day of trial was scheduled for November 24, 2014. On
     August 25, 2014, Husband presented a Motion requesting that
     he be permitted to sell the trailers. By that time, they had
     expired license plates, registrations and needed repairs. The
     Motion was granted and Husband was permitted to sell the
     trailers and place the proceeds in escrow. In September of
     2014, Husband corresponded with Wife’s counsel asking for the
     titles. Wife changed counsel and Husband filed a Motion for
     Contempt to get the titles so he could sell the trailers.

           At the hearing, Wife contended that Husband was
     responsible for repairs under the Equipment Lease, and was
     required to make lease payments under the Consent Decree
     regardless of their condition. Husband contended that Wife is
     responsible for keeping the trailers operational under the
     Equipment Lease and that he should not have to make lease
     payments after the trailers were no longer roadworthy. Both
     parties sought counsel fees based on the other’s refusal to abide
     by their agreements. On December 15, 2014, the [c]ourt issued
     an [o]rder requiring Husband to pay Wife the full-appraised
     value of the trailers in accordance with the Consent Decree. The
     [c]ourt found that Wife was responsible for the repairs and that
     Husband did not have to pay rent for the months that the trailers
     were not operational. The net result was that Husband owed
     Wife $23,681. Both requests for attorneys’ fees were denied.

Trial Court Opinion, 3/31/15, at 3–5. Wife timely appealed, and Wife and

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

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      Wife raises the following issues on appeal:

         1. Did the Trial Court err in failing to consider and rule upon
            the parties’ Consent Decree of Equitable Distribution that
            was clear and unambiguous regarding the issue of the
            trailers and the leasing thereof?

         2. Was [W]ife responsible for the maintenance of the trailers
            and, therefore, the cost for repairs?

         3. Should [H]usband be found responsible for making the
            rental payments for the trailers when he was obligated to
            pay rent under the Equipment Lease and Consent Decree
            of Equitable Distribution?

         4. Should [W]ife be awarded counsel fees and expenses for
            successfully enforcing the Consent Decree of Equitable
            Distribution, which provided for payment of counsel fees
            and expenses?

Wife’s Brief at 4.

      “It is well-established that the law of contracts governs marital

settlement agreements.”     Vaccarello v. Vaccarello, 757 A.2d 909, 914

(2000) (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004));

Stamerro v. Stamerro, 889 A.2d 1251, 1259–1260 (Pa. Super. 2005).

Our courts observe the following principles in reviewing a trial court’s

interpretation of a marital settlement agreement:

      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.

             When interpreting a marital settlement agreement, the
      trial court is the sole determiner of facts and absent an abuse of

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      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) (citation

omitted).

      We have also reiterated this Court’s limited role in interpreting

contracts such as property settlement agreements between spouses:

            A court may construe or interpret a consent decree
            as it would a contract, but it has neither the power
            nor the authority to modify or vary the decree unless
            there has been fraud, accident or mistake.

                                       * * *

            It is well-established that the paramount goal of
            contract interpretation is to ascertain and give effect
            to the parties’ intent. When the trier of fact has
            determined the intent of the parties to a contract, an
            appellate court will defer to that determination if it is
            supported by the evidence.

      Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004) (internal
      citations omitted) (quoting Osial v. Cook, 803 A.2d 209, 213–
      214 (Pa. Super. 2002)). Further, where . . . the words of a
      contract are clear and unambiguous, the intent of the parties is
      to be ascertained from the express language of the agreement
      itself. Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa.
      Super. 2004).

Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

      Wife first asserts that the trial court incorrectly relied upon and

interpreted the Equipment Lease to deduct the cost of repairs Husband made

to one trailer and to prematurely end the lease payments for three of the

trailers prior to their sale.   Wife’s Brief at 11.   Wife argues that because


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paragraph seven of the Consent Decree is unambiguous, it should be

interpreted and enforced as a contract without reference to the Equipment

Lease.   Wife maintains alternatively that even if this Court concludes that

the trial court correctly interpreted the Equipment Lease as obligating Wife

to make repairs, the evidence shows that the lease “should have been

reformed to obligate” Husband to make repairs “under the doctrine of

mutual mistake.”    Wife’s Brief at 12.    She contends that the trial court

should have enforced the unambiguous language of the Consent Decree,

“which provided that [Husband] was to purchase the trailers for the value of

the appraisal and to continue making lease payments until the purchase

occurred.” Wife’s Brief at 13.

      Husband counters that the trial court properly looked to the Equipment

Lease in addition to examining the Consent Decree. Husband’s argument on

this issue essentially is a restatement of the trial court’s findings. Husband’s

Brief at 12–14.

      The trial court found the Consent Decree to be clear and unambiguous

regarding Husband’s obligations with respect to selling the trailers, and it

ordered Husband to pay the trailers’ full appraised price. We find no error

on the part of the trial court in considering the parties’ pre-existing

Equipment Lease. The Consent Decree did not address, exclude, or alter the

Equipment Lease; it merely provided that Husband was to buy the trailers

from Wife at the appraised value and pay the Equipment Lease pending the


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transfer.   In the absence of any specific case law compelling Wife’s

contention, we reject her suggestion that the trial court was obligated to

consider the Consent Decree in a vacuum, without examining the relevant

Equipment Lease.

      Wife next assails the trial court’s finding that Wife, as lessor, was

responsible for the maintenance and repairs of the trailers. Wife’s Brief at

14.   She acknowledges that under the terms of the equipment Lease, the

lessor is responsible for repairs, and it was undisputed that Wife did not

maintain the trailers. Id. Wife argues, however, that the Equipment Lease

was created by mutual mistake. Id. Wife contends that while it refers to

Husband’s company, Reinsfelder, as Lessee and Wife’s company, Kuke, as

Lessor, many of the Equipment Lease’s provisions described duties of the

Lessor that, in fact, were fulfilled by Husband’s company, Reinsfelder, the

lessee. Thus, Wife sought reformation of the entire Equipment Lease under

the doctrine of mutual mistake, “because the parties committed a mutual

mistake as to the terms lessor and lessee in the provisions of the Equipment

Lease.” Id.

      Relatedly, Wife contends that paragraph four of the Equipment Lease,

which required the “Lessor” to be responsible for all maintenance and

repairs, actually referred to Husband. Wife’s Brief at 16. Wife acknowledges

signing the Equipment Lease with the designations of Kuke as Lessor and

Reinsfelder as Lessee. However, she suggests that the actions of the parties


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throughout the lease and the wording of the lease itself demonstrate that

the parties intended that Husband was the Lessor for the purpose of

paragraph four of the Equipment Lease.          Therefore, Wife asserts that

Husband was responsible for the costs of the repairs. Id. at 20.

      Husband responds that Wife’s argument requires this Court to consider

only the Consent Decree and not the parties’ pre-existing Equipment Lease,

which provided that Wife’s company, Kuke, leased the trailers to Husband’s

company, Reinsfelder, and required Wife, as the Lessor, to maintain the

trailers in working order.   Husband’s Brief at 17.   Husband asserts that it

was undisputed that Wife did not maintain the trailers.         Id.   Husband

contends that the net effect of Wife’s position “would have Husband pay the

appraised price for the trailers plus all the repair costs and continue to make

lease payments on trailers he could not use because Wife did not abide by

the terms of the [Equipment] Lease to maintain the trailers. . . .” Id.

      The trial court noted that Wife acknowledged that under the terms of

the Equipment Lease, Lessor is responsible for repairs. Trial Court Opinion,

3/31/15, at 6. Moreover, it stated that Wife did not take issue with the cost

or necessity of the repairs. Id. The trial court maintained that according to

Wife, there is no other way that the Equipment Lease, which refers to the

Lessor as “he” throughout, makes sense. Thus, in response to Wife’s effort

to have the Equipment Lease equitably reformed under the doctrine of

mutual mistake, the trial court relied on Giant Food Stores, LLC v. THF


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Silver Spring Development, LP, 959 A.2d 438 (Pa. Super. 2008), and

Zurich American Ins. Co. v. O’Hanlon, 968 A.2d 765 (Pa. Super. 2008).

The trial court held:

            Husband testified that the Equipment Lease was a
      standard lease used in the industry.          The Lease places
      responsibility on Lessor as owner to keep the equipment in good
      repair and operational.      He acknowledged that during the
      marriage he often paid for repairs without seeking
      reimbursement from Wife. According to Husband, there was
      plenty of money available and everything came out of the same
      pocket, so it made no difference. However, Husband was not
      mistaken regarding which party was responsible for the repairs
      under the Equipment Lease. The Court agrees that some of the
      provisions cited by Wife make more sense if Husband bore the
      responsibilities attributed to the Lessor. However, paragraph
      4[,] which requires the Lessor to deliver the equipment in good
      working condition[,] is not one of them.          Moreover, Wife
      carefully reviewed the document before signing, as is evident in
      the changes she made and initialed to Paragraph 3 relating to
      insurance. Wife failed to meet her burden of coming forward
      with clear and convincing evidence entitling her to reformation of
      the Equipment Lease.

Trial Court Opinion, 3/31/15, at 6–7 (emphasis added).

      Mutual mistake will afford a basis for reforming a contract.    Zurich,

968 A.2d at 770. In determining whether a mutual mistake occurred, the

court should consider, “the subject matter, the apparent object or purpose of

the parties and the conditions existing when it was executed.” Voracek v.

Crown Castle USA Inc., 907 A.2d 1105, 1108 (Pa. Super. 2006). Mutual

mistake exists “only where both parties to a contract are mistaken as to

existing facts at the time of execution.” Zurich, 968 A.2d at 770. To obtain

reformation of a contract because of mutual mistake, the moving party is


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required to show “the existence of the mutual mistake by evidence that is

clear, precise and convincing.”    Id. (citing Holmes v. Lankenau Hosp.,

627 A.2d 763, 767–768 (1993) (citations and quotation marks omitted)).

      A reformation of a written instrument is a matter of equity.         See

Evans v. Marks, 218 A.2d 802, 805 (Pa. 1966).          Courts sitting in equity

“have the power to reform a written instrument where there has been a

showing of fraud, accident or mistake.” Id. (citation omitted). Further, “[a]

mutual mistake is 1.    A mistake in which each party misunderstands the

other’s intent . . . . 2. A mistake that is shared and relied on by both parties

to a contract.”   Regions Mortg., Inc. v. Muthler, 889 A.2d 39, 41 (Pa.

Super. 2005) (citation and internal quotation marks omitted). “[E]vidence

of a mistake must be clear and convincing.”       Jones v. Prudential Prop.

and Cas. Ins. Co., 856 A.2d 838, 844 (Pa. Super. 2004).           “It is a well-

known general rule that where parties have come to a mutual understanding

as to the terms to be embodied in a proposed written contract or

conveyance, and the writing executed is at variance with that understanding,

it will be reformed to express their intention.” Broida, in Own Right and

For Use of Day v. Travelers' Ins. Co., 175 A. 492, 493–494 (Pa. 1934)

(citations omitted).

      We agree with the trial court that some of the provisions cited by Wife

“make more sense” if Husband bore the responsibilities attributed to the

Lessor. Trial Court Opinion, 3/31/15, at 7. Like the trial court, however, we


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conclude that paragraph four, which requires the Lessor to deliver the

equipment in good working condition, is not one of them. Significantly, it is

clear that Wife carefully reviewed the Equipment Lease, as is evidenced by

her alteration of paragraph three. Answer to Defendant’s Petition to Enforce

Consent Order of Equitable Distribution, Equipment Lease, Exhibit B, at ¶ 3.

As Wife failed to meet her burden of providing clear and convincing

evidence, Jones, 856 A.2d 838, the trial court did not err or abuse its

discretion in concluding that Wife is not entitled to reformation of the

Equipment Lease.

      In issue three, Wife continues her argument that there was a mutual

mistake and that Husband, not Wife was obligated to maintain and repair

the trailers. Wife’s Brief at 21. Thus, she suggests Husband owed $31,600

for rent, not $11,800 as determined by the trial court.         Id.      In the

alternative, in the absence of mutual mistake and conceding that she was

obligated to repair the trailers, Wife suggests that because Husband paid for

repairs before the parties’ separation, despite the absence of any obligation

for him to do so, the rental cost remained his debt.        Id. at 22.     Wife

maintains that assuming she was responsible under both the Equipment

Lease and the Consent Decree for repairing the trailers, the trial court erred

by ceasing the lease payments prior to Husband providing notice of the

defects on October 17, 2013, the date of a letter from Husband’s counsel to

Wife’s counsel describing the trailers’ condition. Id.


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       Husband responds that because the trial court found that the

provisions of the Equipment Lease were clear and unambiguous, “the

question turns on why did the Trial Court allow lease payments from

Husband to terminate as of August, 2013 and how is that supported by the

facts and law.” Husband’s Brief at 20. Husband asserts that the trial court

correctly determined that Husband proved that Wife did not maintain the

trailers in good condition and that three of the trailers were not operational.

Husband asserts that the trial court correctly found that Wife’s failure to

perform under the Equipment Lease was a valid defense to Husband’s

obligation to make lease payments. He cites Wayda v. Wayda,1 576 A.2d

1060 (Pa. Super. 1990), for the proposition that the trial court may use

equitable distribution to enforce an agreement or otherwise achieve equity in

light of an agreement and the spouses’ conduct.

       In addressing this issue, the trial court noted that according to the

Equipment Lease, the Lessor is to deliver the equipment in good order and

condition and maintain it in good working condition.      Trial Court Opinion,

3/31/15, at 7; Answer to Defendant’s Petition to Enforce Consent Order of

Equitable Distribution, Equipment Lease, Exhibit B, at ¶ 4.      Wife did not

maintain the equipment in good working condition.       After August of 2013,

only one of the trailers was operational. The trial court found that Husband
____________________________________________


1
  As Wife notes in her reply brief, Husband incorrectly titles this case as
Wayden v. Wayden. Wife’s Reply Brief at 3.



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removed the other three trailers out of service because he could not afford

the costly repairs and determined that “Husband’s obligation to pay rent for

the trailers necessarily depended on being able to use them in his trucking

business.”    Trial Court Opinion, 3/31/15, at 7.     The record supports this

conclusion. N.T., 7/23/14, at 19–22, 51–59, 83–86; N.T., 11/24/14, at 81.

Because the trial court agreed that Husband should not be obligated to make

payments for trailers that were not usable due to their condition, it held that

Husband’s obligation was to pay $400 per week through August, and $100

per month thereafter. Id. We do not find this conclusion by the trial court

was an abuse of discretion or error of law; thus, we reject Wife’s claim.

       Finally, Wife avers that she sought counsel fees and expenses for her

efforts to enforce the Consent Decree pursuant to paragraph seventeen of

the Consent Decree.2 Wife’s Brief at 24. She contends that the trial court

____________________________________________


2
    Paragraph seventeen provides as follows:

       17. It is expressly stipulated that if either party fails in the due
       performance of any of his or her obligations with the exception
       of unreimbursed medical expenses, under this Agreement, the
       other party shall have the right, at his or her election, to sue for
       damages for breach thereof, to sue for specific performance and
       to seek any other legal remedies as may be available. In the
       event that such action is resolved in whole or in part in favor of
       the non-defaulting party, either by Court proceedings or
       settlement–the defaulting party shall reimburse the non-
       defaulting party his or her counsel fees, costs and expenses
       incurred by the non-defaulting party in any such action or
       proceeding to compel performance hereunder.

(Footnote Continued Next Page)


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effectively modified the parties’ agreement when it refused to award her

counsel fees. In support, Wife submits that matters within the divorce code

are enforceable as an order of court, citing 23 Pa.C.S. § 3105(a), and she

maintains that provisions in such an agreement for counsel fees are not

modifiable absent a specific provision to the contrary, citing 23 Pa.C.S. §

3105(c).   In addition, Wife cites to Creeks v. Creeks, 619 A.2d 754 (Pa.

Super. 1993), contending that where a property settlement agreement had a

similar provision providing for counsel fees in the event of a breach, this

Court reversed the trial court’s determination that the parties had not

breached their settlement agreement and remanded to the trial court to

determine the full amount of counsel fees for the wife’s efforts to enforce the

agreement, including the cost of the appeal. Id. at 757–758.

      Wife asserts that the trial court incorrectly relied on 42 Pa.C.S. §

2503(7), which provides for payment of counsel fees as a sanction when a

party engages in dilatory, obdurate, or vexatious conduct.      Wife suggests

instead, that her claim for counsel fees is not related to Husband’s conduct
                       _______________________
(Footnote Continued)

            Should either party unsuccessfully sue for specific
      performance or damages for the breach of this Agreement, the
      party initiating the unsuccessful suit for specific performance or
      damages for breach of this Agreement shall pay the reasonable
      legal fees and costs for any services rendered by the attorney
      representing the party who has successfully defended said action
      as well as any other attendant expenses relative to said
      successful defense of said action or proceeding.

Consent Decree, 5/31/13, at ¶ 17.



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but to her own efforts to enforce the Consent Decree, and is based solely on

paragraph seventeen of the Consent Decree. Wife’s Brief at 27. Looking to

the plain language of the Agreement, Wife maintains that it provides for

counsel fees if enforcement proceedings must be brought, and she argues

that she is entitled to counsel fees under the terms of the agreement as the

prevailing party. Id. (citing Creeks, 619 A.2d at 757).

     Husband counters that Wife did not file her Petition to Enforce the

Marital Settlement Agreement with clean hands. He urges that Wife wanted

Husband to continue to make lease payments as well as purchase the

trailers, even though Wife caused the trailers “to be in such a state of

disrepair that they were not roadworthy—not worthy of continued lease

payments.” Husband’s Brief at 22. In addition, Husband suggests that Wife

refused to obey a court order requiring her to deliver the trailer titles to

Husband so he could look to recoup his losses.

     We agree with the trial court’s resolution of this issue. The trial court

acknowledged that counsel fees may be awarded as a sanction against

another participant for dilatory, obdurate, or vexatious conduct during the

pendency of a matter. 42 Pa.C.S. § 2503(7). It held:

     Both parties were equally within their rights, and equally at fault
     for their inability to settle their differences over the sale and
     lease of these trailers. The [c]ourt found in favor of Wife on the
     sale of the trailers, and in favor of Husband on the lease
     payments. The [c]ourt did not find that either party engaged in
     dilatory, obdurate, or vexatious conduct during the pendency of
     the matter.


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Trial Court Opinion, 3/31/15, at 8.

      Even considering paragraph seventeen of the Consent Decree, in light

of the trial court’s conclusions that both parties were within their rights and

equally at fault, and in light of its findings in favor of Husband and Wife on

separate, but intertwined issues, there was no “prevailing party.” The trial

court’s decision to deny counsel fees will be affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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