J-A20014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT O'CONNOR                        :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                  Appellant            :
                                       :
            v.                         :
                                       :
JANICE O'CONNOR                        :
                                       :
                  Appellee             :        No. 1666 MDA 2016

           Appeal from the Decree Entered September 12, 2016
             In the Court of Common Pleas of Centre County
                    Civil Division at No(s): 2014-0011


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                 FILED NOVEMBER 21, 2017

     Appellant, Robert O’Connor (“Husband”), appeals from the divorce

decree entered in the Centre County Court of Common Pleas, specifically

challenging the order granting the petition of Appellee, Janice O’Connor

(“Wife”), to enforce a property settlement agreement. We affirm.

     The relevant facts and procedural history of this case are as follows.

The parties were married on July 1, 1978.     The parties’ primary marital

residence was in Boalsburg, Pennsylvania.     Husband, however, has not

resided full-time at the marital residence since 2001. Since approximately

2009, Husband has lived at the parties’ condominium in Arlington, Virginia.

Husband works at the National Science Foundation (“NSF”), a federal agency

in Washington, D.C.

     On December 22, 2013, Husband informed Wife he wanted a divorce.
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The following day, December 23, 2013, Husband provided Wife with a

document labeled “Divorce Ideas/Proposal,” which generally set forth

Husband’s suggestions and questions about alimony and dividing the parties’

assets. Husband retained counsel and filed a divorce complaint on January

2, 2014. Wife subsequently retained counsel.

     On April 15, 2014, the parties met without counsel and discussed a

property settlement agreement (“PSA”) Wife had drafted herself. The PSA

stated Wife would, as alimony, receive sixty-six percent (66%) of Husband’s

income and sixty percent (60%) of Husband’s consulting income. The PSA

provided the parties would later specify whether Wife would receive a

percentage of Husband’s gross or net income. The PSA specified Wife would

receive sixty-six percent (66%) of Husband’s retirement income and

required Husband to work until age 74. During the April 15th meeting, the

parties executed the PSA.   Husband did not consult with counsel before

signing the agreement. Later on April 15, 2014, Husband sent Wife an e-

mail asking her to reduce the percentage of income Husband owed Wife as

alimony under the PSA.

     On June 13, 2014, Wife filed a Petition to Enforce Property Settlement

Agreement. Husband filed an answer on July 29, 2014. Husband asserted

no new matter with affirmative defenses in response to Wife’s petition. The

court conducted hearings on Wife’s petition on July 29, 2014, and on August

13, 2014, during which Husband and Wife testified.


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     On July 29, 2014, Wife testified she drafted the PSA based on

Husband’s “Divorce Ideas/Proposals” document.       Wife stated the parties

discussed economic settlement conditions from December 23, 2013, until

April 15, 2014. Wife said when she met with Husband on April 15, 2014,

she told him she had given to her counsel an envelope containing

information disparaging to Husband. Wife noted if Husband caused anything

to happen to her, she intended counsel to give the envelope to the police,

Husband’s girlfriend, and Husband’s employer. Wife also stated she believed

she was entitled to sixty-six percent (66%) of Husband’s gross salary.

     On August 13, 2014, Husband testified when he drafted the “Divorce

Ideas/Proposals” document, he believed Pennsylvania had no alimony

requirement and Wife would receive fifty percent (50%) of his retirement

funds and income. Husband said he did not threaten Wife and there was no

history of domestic violence incidents between the parties.

     Husband explained Wife told him on April 15, 2014, she intended to

use information she had found on a computer at the marital residence to

blackmail Husband.   Husband said Wife told him she had provided several

blackmail documents to her attorney.      Husband testified Wife claimed she

had obtained an e-mail Husband wrote ridiculing a United States Senator, a

leader of critics of the NSF.   Husband added Wife said she found e-mails

demonstrating Husband used his NSF e-mail address to participate in a

NCAA men’s basketball pool and send personal correspondence to his


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girlfriend.   Husband stated Wife also claimed she had obtained gay club

entrance passes and a parking pass to a nude beach from the 1990’s.

      Husband testified Wife gave him 24 hours to review and sign the PSA.

Husband added Wife told him not to discuss the PSA with counsel or the

April 15th meeting.    Husband explained he signed the PSA for several

reasons: he feared Wife would make good on her threats to blackmail him if

he did not sign the PSA; he hoped the language in the PSA was so vague the

agreement would be unenforceable; and he believed the PSA terms were so

unfair as to render the PSA unenforceable.

      Husband testified he contacted his attorney about the PSA after he had

signed the agreement. Husband stated his attorney later contacted Wife’s

attorney to rescind his signature on the PSA. Husband said he believed Wife

was entitled to sixty-six percent (66%) of his net income under the PSA.

Husband explained if Wife received sixty-six percent (66%) of his gross

income, Husband would receive only $347 per month in income.              Both

parties testified they were aware on April 15, 2014, that the appraisal for the

marital residence had not yet been completed.

      On October 22, 2014, the trial court granted Wife’s Petition to Enforce

Property Settlement Agreement. Husband filed a motion for reconsideration

and a petition to stay enforcement of the PSA pending appeal on November

20, 2014. On March 24, 2015, the court denied Husband’s reconsideration

motion and granted Husband’s petition to stay enforcement of the PSA. On


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October 16, 2015, Wife filed an answer and new matter to the divorce

complaint.1 The court entered a divorce decree on September 12, 2016. On

October 5, 2016, Husband filed a timely notice of appeal and a voluntary

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

       Husband raises three issues for our review:

          WAS THE APRIL 15, 2014 TWO-PAGE DOCUMENT WITH
          SOME OF ITS TERMS HANDWRITTEN SO VAGUE THAT NO
          MEETING   OF   THE  MINDS   OCCURRED  BETWEEN
          [HUSBAND] AND [WIFE], AND THUS NO ENFORCEABLE
          CONTRACT EXISTS BETWEEN THE PARTIES?

          WAS A FULL AND FAIR DISCLOSURE OF THE PARTIES’
          FINANCIAL POSITIONS EVER MADE, AS IS REQUIRED FOR
          ANTENUPTIAL AGREEMENTS IN PENNSYLVANIA?

          DID [HUSBAND] SIGN THE TWO-PAGE DOCUMENT UNDER
          DURESS,   RENDING    THE   EXECUTED  DOCUMENT
          UNENFORCEABLE?

(Husband’s Brief at 4).

       Our review of a marital settlement agreement implicates the following

principles:

          A settlement agreement between spouses is governed by
          the law of contracts unless the agreement provides
          otherwise.

____________________________________________


1We observe the trial court entered an order on November 9, 2015, allowing
Husband to appeal from the October 22, 2014 order enforcing the PSA. On
December 8, 2015, Husband filed a notice of appeal from the October 22,
2014. On February 5, 2016, this Court sua sponte quashed Husband’s
December 8, 2015 appeal as interlocutory, because the trial court had not
yet entered a divorce decree and the November 9, 2015 order failed to
comply with Pa.R.A.P. 341(c).



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                                     *        *       *

           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 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.

        [Stamerro v. Stamerro,                889     A.2d   1251,   1257-58
        (Pa.Super. 2005)].

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa.Super. 2007) (some

internal citations and quotation marks omitted).

        [U]nder the law of contracts, the court must ascertain the
        intent of the parties when interpreting a contractual
        agreement. The standard of enforceability of a contractual
        agreement is also clear: absent fraud, misrepresentation,
        or duress, spouses should be bound by the terms of their
        agreements.     As such, a trial court may interpret a
        property settlement agreement as it would a contract, but
        it has neither the power nor the authority to modify or
        vary the decree unless there is conclusive proof of fraud or
        mistake.     Moreover, the long-standing law of this
        Commonwealth is that property settlement agreements are
        presumed to be valid and binding upon the parties.

        When construing agreements involving clear and
        unambiguous terms, a trial court need only examine the
        writing itself to give effect to the parties’ understanding. A

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         court may not modify the plain meaning of the words
         under the guise of interpretation. In addition, this Court
         must consider such contracts without reference to matters
         outside of the document, and we must ascertain the
         parties’ intentions when entering into the contract from the
         entire instrument. Also, the parties are bound without
         regard to whether the terms were read and fully
         understood and irrespective of whether the agreements
         embodied reasonable or good bargains.

Crispo v. Crispo, 909 A.2d 308, 313 (Pa.Super. 2006) (internal citations

and quotation marks omitted).

      Generally, a contract is enforceable if its terms are “certain and

explicit, not vague or indefinite.”   Potter v. Leitenberger Mach. Co., 70

A.2d 390, 392 (Pa.Super. 1950).       The language of a contract “should be

interpreted in the light of the subject matter, the apparent object or purpose

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

Arnold, 884 A.2d 316, 333 (Pa.Super. 2005), appeal denied, 587 Pa. 695,

897 A.2d 458 (2006).       “When the words of a contract are clear and

unambiguous, the meaning of the contract is ascertained from the contents

alone.” Chen v. Chen, 586 Pa. 297, 307, 893 A.2d 87, 93 (2006). “If left

undefined, the words of a contract are to be given their ordinary meaning.”

Kripp v. Kripp, 578 Pa. 82, 90, 849 A.2d 1159, 1163 (2004).             “In the

absence of an ambiguity, the plain meaning of the agreement will be

enforced.” Murphy v. Duquesne University Of The Holy Ghost, 565 Pa.

571, 591, 777 A.2d 418, 430 (2001).         “The meaning of an unambiguous

written instrument presents a question of law for resolution by the court.”


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Id.

      “Before a court will interpret a provision in…a contract in such a way

as to lead to an absurdity or make the…contract ineffective to accomplish its

purpose, it will endeavor to find an interpretation which will effectuate the

reasonable result intended.” Pocono Manor Ass’n v. Allen, 337 Pa. 442,

446-47, 12 A.2d 32, 35 (1940).        An agreement is valid “if the parties

intended to form a contract and there is a reasonably certain basis for giving

an appropriate remedy.”    Jeannette Paper Co. v. Longview Fibre Co.,

548 A.2d 319, 324 (Pa.Super. 1988), appeal denied, 522 Pa. 577, 559 A.2d

38 (1989).    Furthermore, if the “vagueness as to some terms was not so

overwhelming that it voided the basic understanding which was found to

exist between the parties” the contract is valid. Id. at 325.

      A postnuptial agreement requires a “full and fair disclosure of the

parties’ financial positions.” Stoner v. Stoner, 572 Pa. 665, 671, 819 A.2d

529, 532 (2003). The disclosure need not be precise, as long as it is “full

and fair.”   Simeone v. Simeone, 525 Pa. 392, 403, 581 A.2d 162, 167

(1990). Full and fair economic disclosure can be waived and such waiver is

enforceable absent a showing of “fraud, misrepresentation, or duress.”

Lugg v. Lugg, 64 A.3d 1109, 1113 (Pa.Super. 2013).

      “Economic duress renders a contract voidable.” Nat’l Auto Brokers

Corp. v. Aleeda Dev. Corp., 364 A.2d 470, 473 (Pa.Super. 1976). “[T]he

elements in the applicability of the doctrine of economic duress or business


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compulsion are that (1) there exists such pressure of circumstances which

compels the injured party to involuntarily or against his will execute an

agreement which results in economic loss, and (2) the injured party does not

have an immediate legal remedy.” Id. at 474. (citations omitted). “[T]here

can be no duress where the contracting party is free to come and go and to

consult with counsel before assuming…contractual obligations,” even if the

contracting party was surprised by negotiations and pressured into accepting

contractual obligations. Degenhardt v. Dillon Co., 543 Pa. 146, 155 n.4,

669 A.2d 946, 951 n.4 (1996).     See also Simeone, supra, at 404, 581

A.2d at 167 (holding no duress existed when plaintiff was able to consult

with legal counsel); Adams v. Adams, 848 A.2d 991, 994 (Pa.Super. 2004)

(holding divorce settlement agreement was valid, because no duress existed

when wife had opportunity to consult with counsel even though wife

experienced stress and anxiety during divorce process).

     Pennsylvania Rule of Civil Procedure 1030 provides as follows:

        Rule 1030. New Matter

        (a) Except as provided by subdivision (b), all affirmative
        defenses including but not limited to the defenses of
        accord and satisfaction, arbitration and award, consent,
        discharge in bankruptcy, duress, estoppel, failure of
        consideration, fair comment, fraud, illegality, immunity
        from suit, impossibility of performance, justification,
        laches, license, payment, privilege, release, res judicata,
        statute of frauds, statute of limitations, truth and waiver
        shall be pleaded in a responsive pleading under the
        heading “New Matter”. A party may set forth as new
        matter any other material facts which are not merely
        denials of the averments of the preceding pleading.

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           (b) The affirmative defenses of assumption of the risk,
           comparative negligence and contributory negligence need
           not be pleaded.

Pa.R.C.P. 1030. Rule 1032 reads in part:

           Rule 1032.       Waiver of Defenses.    Exceptions.
           Suggestion of Lack of Subject Matter Jurisdiction or
           Failure to Join Indispensable Party

           (a) A party waives all defenses and objections which are
           not presented either by preliminary objection, answer or
           reply, except a defense which is not required to be pleaded
           under Rule 1030(b), the defense of failure to state a claim
           upon which relief can be granted, the defense of failure to
           join an indispensable party, the objection of failure to state
           a legal defense to a claim and any other nonwaivable
           defense or objection.

Pa.R.C.P. 1032(a). Importantly, the list of affirmative defenses contained in

Pa.R.C.P. 1030(a) is not exclusive.      Falcione v. Cornell School District,

557   A.2d 425, 428        (Pa.Super. 1989).       “An affirmative    defense   is

distinguished from a denial of facts which make up a plaintiff’s cause of

action in that a[n affirmative] defense will require the averment of facts

extrinsic to the plaintiff’s claim for relief.” Id. at 428-29. “Failure to plead

an affirmative defense in compliance with [Pa.R.C.P.] 1030 results in waiver

of the defense.”      Werner v. Werner, 573 A.2d 1119, 1121 (Pa.Super.

1990), appeal denied, 527 Pa. 668, 593 A.2d 843 (1991); Pa.R.C.P.

1032(a).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Pamela A.


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Ruest, we conclude Husband’s issues merit no relief. The trial court opinions

comprehensively discuss and properly dispose of the questions presented.

(See Rule 1925(a) Opinion, filed October 17, 2016, at 1 unpaginated; Trial

Court Opinion, filed October 22, 2014, at 2-5) (finding: (1) parties

negotiated settlement of their marital estate from December 2013, when

Husband informed Wife he wanted to divorce, until April 2014; parties

intended PSA to settle their marital estate amicably; PSA specifies allocation

of real estate, alimony, retirement money, joint financial accounts, vehicles,

jewelry, family antiques, and inherited possessions; under circumstances,

parties’ intent was clear; (2) Husband waived full economic disclosure,

because he knew when he entered into PSA that appraisal of marital

residence was not complete; court will not question reasonableness of

Husband’s negotiation of agreement; (3) Wife’s purported actions do not

amount to economic duress; Husband testified Wife offered him 24 hours to

consult with counsel before signing agreement; Wife’s alleged conduct also

does not constitute traditional duress, because Husband alleged no threat of

physical harm; further, purported threats Wife made to Husband were not

impending; rather, Wife provided Husband 24 hours to discuss PSA with his

attorney; further, Husband signed PSA on same day; therefore, Husband

was not under “duress” to sign agreement).      The record supports the trial

court’s rationale.

      With respect to Husband’s specific complaints about the PSA, Husband


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failed to raise any affirmative defenses to Wife’s petition to enforce the PSA,

such as ambiguity, lack of full and fair disclosure, and duress. These claims

are affirmative defenses, which required Husband to aver facts extrinsic to

Wife’s petition in order to prevent enforcement of the PSA. See Falcione,

supra. Husband averred in his answer to Wife’s petition that the PSA was

ambiguous but did not explain what terms of the PSA were vague. See id.

Because Husband failed to raise his affirmative defenses in response to

Wife’s petition to enforce the PSA, the defenses are waived. See Werner,

supra. Accordingly, we affirm on the basis of the trial court’s opinions.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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