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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JACK J. COLE                             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   v.                    :
                                         :
LAURA M. COLE,                           :         No. 1330 WDA 2017
                                         :
                        Appellant        :


               Appeal from the Order Entered August 17, 2017,
               in the Court of Common Pleas of Fayette County
                     Civil Division at No. 812 of 2015 G.D.


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 12, 2018

     Laura M. Cole (“Wife”) appeals from the August 17, 2017 order

entered in the Court of Common Pleas of Fayette County that denied that

part of her motion to enforce the parties’ October 21, 2015 marital

settlement agreement (“executed MSA”)1 wherein she requested that the

trial court order appellee Jack J. Cole (“Husband”) to pay her certain funds

that she claims that she is entitled to under the executed MSA. After careful

review, we reverse.

     The trial court set forth the following:

           The parties were divorced on March 31, 2016, after
           entering into [the executed MSA on] October 21,
           2015. On July 10, 2017, [Wife] filed her [m]otion to
           [e]nforce [executed MSA], arguing that she is

1When referring to a marital settlement agreement, we will abbreviate it as
“MSA.”
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          entitled to funds from the “house account[,”]
          identified in paragraph 11(a) of the [executed MSA].

          At the hearing on [Wife’s] [m]otion, this [c]ourt
          accepted the following stipulations by the parties:
          (1) On April 8, 2015, the amount of $25,460.01 was
          the balance of the parties’ “[h]ouse [a]ccount”; and
          (2) [t]he total amount of $5,652.22[2] was taken
          from the “[h]ouse [a]ccount” for the May and June
          house payments. (There were other stipulations;
          however, only the two mentioned herein are relevant
          to the issue on appeal.)

          The parties’ [executed MSA] includes the following
          provision:

          11.   Checking Savings Accounts.

                a)   Accounts in Husband’s name
                     only    and    Joint   Accounts.
                     Except for the joint “house
                     account”       described       in
                     Paragraph 13(c) herein, Wife
                     does, by these presents, set
                     over and assign to Husband
                     any right, title or interest she
                     may have in and to any
                     checking      and/or     savings
                     accounts    titled    solely   in
                     Husband’s name or in the
                     name of Husband and Wife,
                     including but not limited [to]
                     the accounts in Community
                     Bank and First Niagra Bank;
                     and Wife does, by these
                     presents, waive and relinquish
                     any right, title or interest she
                     may have in and to the same.




2 We note that the record reflects that the parties stipulated that the
mortgage payments totaled $4,652.22. (Notes of testimony, 8/15/17 at
8-9.)


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            Although   Paragraph     11(a)   of   the   parties’
            [executed MSA] references Paragraph 13(c), the
            [executed MSA] is devoid of Paragraph 13(c), and
            Paragraph 13 addresses the issue of Disclosure and
            makes no reference to a “house account[.”] In fact,
            there is no other provision in the parties’
            [executed MSA that] references a “house account[.”]

Trial court opinion, 11/7/17 at 1-2 (emphasis omitted).

      The record reflects that the parties entered into an oral MSA on

April 8, 2015 (“oral MSA”). The record further reflects that on May 6, 2015,

Husband filed a petition for special relief to confirm the parties’ oral MSA,

among    other   things.     In   that   petition,   Husband   memorialized   his

understanding of the parties’ oral MSA. With respect to the house account

that is the subject of this appeal, Husband memorialized his understanding

of the parties’ intentions regarding its distribution as follows:

            The “[h]ouse [a]ccount” at Community Bank which
            contained approximately $24,500.00 was to be
            disposed of as follows[:] $10,000.00 applied to the
            mortgage on the marital home, $5,000.00 to [Wife’s]
            closing costs upon her refinancing the mortgage on
            the marital home and the balance to be given to
            [Wife] to defray [Wife’s] expenses until [Husband]
            begins paying [Wife] $1,000.00 per month by way of
            alimony beginning January 2016.

Husband’s “petition for special relief to confirm [oral MSA] and to stay

[Wife’s] claim for spousal support,” 5/6/15 at 3, ¶ 5(s).

      On June 11, 2015, the trial court conducted a hearing on Husband’s

petition for special relief. On June 30, 2015, the trial court entered an order

granting Husband’s petition and directing Husband’s counsel to “prepare and



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provide to [Wife’s] Counsel [an MSA] which reflects the terms of the parties’

[oral] agreement, as set forth in the Petition.” (Order of court, 6/30/15

(emphasis added).)     The trial court also ordered Wife to execute the

agreement within 20 days of Husband’s presenting it to Wife.       (Id.)   The

record further reflects that although Wife initially refused to sign the MSA

that the trial court ordered Husband to draft, the parties did execute the

MSA on October 21, 2015.

     Following entry of the parties’ divorce decree on March 31, 2016, Wife

appealed to this court, challenging the enforceability of the oral MSA.3 Cole

v. Cole, No. 606 WDA 2016, unpublished memorandum (Pa.Super. filed

April 24, 2017).   Specifically, Wife argued that “the trial court erred as a

matter of law by upholding an agreement that was not in writing and

executed by the parties.”      (Id. at 5.)   On appeal, a panel of this court

determined that the parties entered into an enforceable oral MSA and

affirmed the divorce decree.

     On July 17, 2017, Wife filed a motion to enforce the executed MSA

wherein she alleged, with respect to the house account, that Husband

liquidated the house account, diverted the funds to his own use, and failed

to relinquish $25,460.01 to her as required under the executed MSA.


3 We note that entry of the parties’ divorce decree rendered the trial court’s
June 30, 2015 order enforcing the oral MSA a final, appealable order. See
Sneeringer v. Sneeringer, 876 A.2d 1036, 1038 (Pa.Super. 2005) (finding
that “interim matters in divorce actions do not become final until a divorce
decree is entered.”).


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(Wife’s motion to enforce the executed MSA, 7/17/17 at 2, ¶ 5.)              On

August 15, 2017, the trial court conducted a hearing on Wife’s motion to

enforce the executed MSA. During that hearing, the parties stipulated that

on April 8, 2015, which was the date on which the parties agreed to the

terms of the oral MSA, the balance of the house account was $25,460.01.

(Notes of testimony, 8/15/17 at 7-8.)        After that stipulation, Husband’s

counsel stated that because the purpose of the account was for the benefit

of the house, Husband should receive credit for two mortgage payments that

totaled $4,652.22. (Id. at 8.) The parties then stipulated that two mortgage

payments were made from the house account in the total amount of

$4,652.22.   (Id. at 8-9.)    Outside of Wife’s testimony affirming that she

heard the stipulations regarding the house account, Wife’s counsel elicited

no other testimony concerning the house account or how the parties

understood that it was to be distributed.

      Thereafter, the trial court entered the August 17, 2017 order that

denied Wife’s motion to enforce the executed MSA with respect to the house

account, which is the subject of this appeal. On September 5, 2017, Wife

filed a motion to reconsider the August 17, 2017 order pursuant to

Pa.R.Civ.P. 1930.2(b),    which    permits    an   aggrieved    party   in    a

domestic-relations matter to file a motion for reconsideration in accordance

with Pa.R.A.P. 1701(b).      On September 15, 2017, Wife filed a notice of




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appeal to this court.4     On September 19, 2017, the trial court entered an

order that denied Wife’s motion for reconsideration.        On October 3, 2017,

the trial court ordered Wife to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). Wife timely complied. The trial

court then filed its Pa.R.A.P. 1925(a) opinion.

      Wife raises the following issues for our review:

            [1.]     Whether the trial court abused its discretion in
                     failing to award a marital bank account to Wife,
                     based upon an ambiguity, when the law of the
                     case, as well as a stipulation as to value of the
                     account at [the] time of trial, clearly
                     designated that the account be distributed to
                     Wife[?]

            [2.]     Whether the trial court’s decision in failing to
                     award the marital account to Wife, thereby
                     resulting in a total distribution of the account
                     to Husband rather than an equitable
                     distribution of the account, is contrary to the
                     divorce code’s stated goal of economic justice
                     as set forth in 23 Pa.C.S. § 3102(a)(6)[?]

Wife’s brief at 4.

      Our standard of review is well settled:

            When interpreting [an MSA], 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 [an MSA], we must decide whether the


4 We note that pursuant to Pa.R.Civ.P. 1930.2, where a trial court does not
grant a motion for reconsideration in a domestic-relations matter within
30 days of the filing of such a motion, the time for filing a notice of appeal to
this court runs as if the motion for reconsideration had never been presented
to the trial court. Pa.R.Civ.P. 1930.2(b).


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           trial court committed an error of law or abused its
           discretion.

                 “[J]udicial discretion” requires action in
                 conformity with law on facts and
                 circumstances before the trial court after
                 hearing and due consideration.        Such
                 discretion is not absolute, but must
                 constitute the exercises of sound
                 discretion. This is especially so where,
                 as here, there is law to apply.         On
                 appeal, a trial court’s decision will
                 generally not be reversed unless there
                 appears to have been an abuse of
                 discretion or a fundamental error in
                 applying correct principles of law. An
                 “abuse of discretion” or failure to
                 exercise sound discretion is not merely
                 an error of judgment. But if, in reaching
                 a conclusion, law is overridden or
                 misapplied, or the judgment exercised is
                 manifestly unreasonable or lacking in
                 reason, discretion must be held to have
                 been abused.

           In re Deed of Trust of Rose Hill Cemetery Ass’n
           Dated Jan. 14, 1960, 590 A.2d 1, 3 (Pa. 1991)
           (internal citations omitted).      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.

Stamerro v. Stamerro, 889 A.2d 1251, 1257-1258 (Pa.Super. 2005)

(footnote, quotation marks, and some citations omitted).

     We also note that:




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            In Pennsylvania, we enforce property settlement
            agreements      between husband    and    wife   in
            accordance with the same rules applying to contract
            interpretation. . . .

            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, 739-740 (Pa. Super. 2004) (internal

citations omitted; citation omitted).

      Here, in denying Wife’s motion to enforce the executed MSA with

respect to the house account, the trial court concluded that

            [p]erhaps the denial of Wife’s motion did in fact
            result in an inequitable distribution. However, Wife’s
            request for enforcement was simply not supported
            by the evidence presented at the hearing. The trial
            court could not make the giant leap that Wife was
            entitled to receive a certain amount from the “house
            account” when there was absolutely no testimony
            whatsoever to support her claim.

Trial court opinion, 11/7/17 at 4-5.

      The record, however, demonstrates that the trial court determined the

intent of the parties with respect to the distribution of the funds contained in

the house account prior to the hearing on Wife’s motion to enforce the

executed MSA. The record reflects that the trial court conducted a hearing

on Husband’s petition to confirm the oral MSA on June 11, 2015.          During

that hearing, Husband’s then-attorney Michelle Kelley testified that the

parties met with her on April 8, 2015, in order to enter into an agreement to


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divide their marital assets. (Notes of testimony 6/11/15 at 7-8.) The record

further reflects that Husband set up the house account in the names of both

Husband and Wife in order to help Wife stay in the marital home until she

was able to refinance the mortgage and until Husband began paying Wife

alimony.    (Id. at 51-53.)      The record also reveals that Husband

acknowledged that $10,000 of the money in the house account was to be

used to pay down the principal on the marital residence, which residence

was to be distributed to Wife; approximately $5,000 was to pay for Wife’s

closing costs to refinance the mortgage on the marital residence; and that

Wife could draw down the remainder of the funds in the house account to

defray house-related expenses. (Id. at 53; see also Husband’s “petition for

special relief to confirm [oral MSA] and to stay [Wife’s] claim for spousal

support,” 5/6/15 at 3, ¶ 5(s).)    Attorney Kelley also testified that her

understanding of the parties’ oral MSA with respect to the house account

was that after Wife refinanced the mortgage on the marital residence, any

balance remaining in the house account was to be distributed to Wife. (Id.

at 44.)

      The record also demonstrates that following the June 11, 2015 hearing

on Husband’s petition to confirm the oral MSA, the trial court entered an

order requiring that Husband cause an MSA to be drafted that reflected,

among other things, that the house account contained $24,500 and that

$10,000 should be applied to the mortgage on the marital home,



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$5,000 should be applied to Wife’s closing costs upon her refinancing the

mortgage on the marital home, and the balance should be distributed to

Wife to defray Wife’s expenses until Husband begins paying Wife $1,000 per

month by way of alimony beginning January 2016.                    (See order of court,

6/30/15 requiring that Husband draft an MSA to reflect the parties’

agreement as set forth in Husband’s petition to confirm the oral MSA; see

also Husband’s “petition for special relief to confirm [oral MSA] and to stay

[Wife’s] claim for spousal support,” 5/6/15 at 3, ¶ 5(s) setting forth

disposition of house account.)          We reiterate that on appeal of the parties’

divorce decree, a panel of this court affirmed the enforceability of the oral

MSA. Cole, No. 606 WDA 2016.

      In this appeal, the trial court concluded that the executed MSA created

“an ambiguity as to the parties’ intended distribution of the ‘house

account[.]’”     (Trial court opinion, 11/7/17 at 3.)              At the outset, and

notwithstanding the fact that the trial court’s June 30, 2015 order resolved

any ambiguities regarding the distribution of the house account, any

ambiguity should have been construed against Husband who drafted the

court-ordered provision. See Lane v. Commonwealth, 954 A.2d 615, 619

(Pa.Super.     2008)     (reiterating    that    “any   contractual    ambiguities   are

construed      against   the   drafter    of    the   provision”   (citation   omitted)).

Additionally, the trial court denied Wife’s request for enforcement of the

executed MSA and distribution of the house account funds to her because



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“there was absolutely no testimony to support her claim” at the August 15,

2017 hearing on Wife’s motion to enforce the executed MSA.            (Trial court

opinion, 11/7/17 at 5.)

     In her motion to reconsider the August 17, 2017 order, as well as her

brief to this court, Wife argues that the law of the case requires that the

house account be distributed to her. The “law of the case” doctrine:

           refers to a family of rules which embody the concept
           that a court involved in the later phases of a litigated
           matter should not reopen questions decided by
           another judge of that same court or by a higher
           court in the earlier phases of the matter. Among the
           related but distinct rules which make up the law of
           the case doctrine are that: (1) upon remand for
           further proceedings, a trial court may not alter the
           resolution of a legal question previously decided by
           the appellate court in the matter; (2) upon a second
           appeal, an appellate court may not alter the
           resolution of a legal question previously decided by
           the same appellate court; and (3) upon transfer of a
           matter     between     trial   judges   of  coordinate
           jurisdiction, the transferee trial court may not alter
           the resolution of a legal question previously decided
           by the transferor trial court.

           The various rules which make up the law of the case
           doctrine serve not only to promote the goal of
           judicial economy (as does the coordinate jurisdiction
           rule) but also operate (1) to protect the settled
           expectations of the parties; (2) to insure uniformity
           of decisions; (3) to maintain consistency during the
           course of a single case; (4) to effectuate the proper
           and streamlined administration of justice; and (5) to
           bring litigation to an end.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (internal

citations omitted).   “The rule of the ‘law of the case’ is one largely of



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convenience and public policy, both of which are served by stability in

judicial decisions, and it must be accommodated to the needs of justice by

the discriminating exercise of judicial power.” Commonwealth v. Barnes,

167 A.3d 110, 121 (Pa.Super. 2017) (en banc) (citation omitted).

      Here, the law of the case doctrine does not apply because the trial

court did not reopen questions decided by this court or by a court of

concurrent jurisdiction.   Specifically, in Wife’s appeal to this court of the

divorce decree wherein a panel of this court determined that the oral MSA is

enforceable, this court did not remand for further proceedings and the trial

court did not subsequently alter this court’s decision regarding the

enforceability of the oral MSA. Additionally, there was no subsequent appeal

in this case wherein this court altered its previous determination regarding

the enforceability of the oral MSA. Finally, because the Honorable Linda R.

Cordaro has presided over this case in the trial court since Husband filed his

complaint in divorce on April 27, 2015, Judge Cordaro did not alter the

resolution of a legal question previously decided by a court of concurrent

jurisdiction.

      In this case, however, the trial court altered the resolution of a legal

question that the trial court itself had previously decided. Specifically, the

trial court previously determined that Husband’s petition to confirm the

oral MSA accurately reflected the parties’ intentions with respect to the

distribution of their marital assets, including their intentions regarding the



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distribution of the house account.    After making this factual determination

following the June 11, 2015 hearing on Husband’s petition to enforce oral

MSA, the trial court ordered Husband to draft an MSA for execution that

reflected the terms of the parties’ oral agreement as set forth in Husband’s

petition to confirm the oral MSA which, among other things, provided that

the house account was to be used to pay the mortgage down and to pay

Wife’s closing costs to refinance the mortgage, with the remainder to be

distributed to Wife. While paragraph 11(a) of the MSA clearly excludes the

house account as a joint account to be distributed to Husband, it was

Husband’s responsibility to draft paragraph 13(c) to reflect the parties’

agreement with respect to the distribution of that account, as the parties

stipulated, as the trial court accepted, and as the trial court directed in its

June 30, 2015 order.      Despite its June 30, 2015 order, the trial court

subsequently determined that while the terms of the executed MSA were

ambiguous, that Wife then failed to prove that the parties intended that the

house account be distributed to her and, as such, permitted Husband’s

liquidation of the account. Under these circumstances, while the law of the

case doctrine does not apply, the goals of the law of the case doctrine are,

at the very least, instructive. Specifically, Wife had settled expectations with

respect to the house account that require protection; the trial court’s

decisions regarding distribution of the house account must be uniform in

order to effectuate those expectations; the decisions rendered in this single



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divorce action by Judge Cordaro require consistency; in this case, as in all

cases, justice must be administered and effectuated; and this litigation must

come to an end.

      We have carefully reviewed the record in this case and are constrained

to find that the trial court abused its discretion when it entered the

August 17, 2017 order denying Wife’s motion to enforce the executed MSA

with respect to the house account based on the trial court’s determination

that Wife failed to prove her entitlement to those funds.   The trial court’s

June 30, 2015 order adopted the terms of the parties’ oral MSA as set forth

in Husband’s petition to confirm the parties’ oral MSA which sets forth the

parties’ agreement as to the distribution of the house account for Wife’s

ultimate benefit.   As such, Wife was not required to prove the parties’

intentions with respect to the distribution of the house account at the

hearing on her motion to enforce the executed MSA simply because the trial

court had already determined the parties’ intentions. Therefore, we reverse

the August 17, 2017 order and remand with instructions consistent with this

memorandum.5

      Order reversed.     Case remanded with instructions.       Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/12/2018




5Our disposition of Wife’s first issue on appeal renders Wife’s second issue
on appeal moot.


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