J-A22018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN MASTRONARDO                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    MARY ANGELA MASTRONARDO

                             Appellee                 No. 377 EDA 2017


               Appeal from the Order Entered December 22, 2016
              In the Court of Common Pleas of Montgomery County
                    Domestic Relations at No(s): 2011-12245


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 22, 2018

        Appellant John Mastronardo (“Husband”) appeals from the order,

entered in the Court of Common Pleas of Montgomery County, granting Mary

Angela Mastronardo’s (“Wife”) petition for contempt of the parties’ Property

Settlement Agreement (“PSA”), ordering Husband to pay Wife’s counsel fees

and denying Husband’s counter-petition in contempt. We affirm.

        The parties were married in 1991. Husband filed a complaint for divorce

on May 5, 2011, and the court entered a divorce decree on April 4, 2013.

During the marriage, Husband created the Mastronardo Family Trust (“the

Trust”) for the benefit of the parties’ two children, who are now the adult


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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beneficiaries of the Trust. The Trust holds title to the parties’ condominium

located in Boca Raton, Florida (“the Condo”).1

       On March 12, 2013, the parties signed the PSA, which set forth the

terms of their property division; the PSA was incorporated into, but not

merged with, the April 4, 2013 divorce decree, and it included provisions with

respect to the Condo. PSA, 3/12/13, ¶ 1(a). In particular, the PSA provided

that the Condo could not be encumbered, mortgaged or sold without notice to

and consent of the parties’ children. The PSA reads, in part:

       4.     Florida Condo

       (a)    The parties acknowledge that the [Condo] is part of, and
              subject to, the provisions of the [Trust] dated April 24,
              2007. It is understood by the parties that, by its own terms,
              the trust is irrevocable.

       (b)    Wife shall resign her position as Trustee of the [Trust] in
              accordance with Section Ten[]B. of the Trust document.
              Wife shall submit her written resignation to the Trust within
              seven (7) days of the execution of this Agreement.

                                          ****

       (d)    The parties agree that the condo shall remain in trust
              for the parties’ children, Maria and John, according to
              the terms of the Trust Agreement, and that the
              property shall not be encumbered, mortgaged or sold
              unless both children agree and in accordance with the
              terms of the Trust Agreement. The parties’ children,
              Maria and John, shall have access to, and the
              enjoyment of, the property.


____________________________________________


1 The Condo was purchased by Husband’s brother and gifted to Husband for
the benefit of the parties’ children. N.T. Hearing, supra at 17.

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        (e)   The parties agree that all of the provisions of this
              Section shall be enforceable in the Montgomery
              County Court of Common Pleas notwithstanding the
              location of the Condo and artwork in Florida.

                                          ****

        20.   Miscellaneous

        (c)   This Agreement contains the entire understanding of the
              parties relating to their rights and obligations, and is binding
              on the parties, their successors, assigns, heirs, executors,
              administrators, and personal representatives. Any prior oral
              or written agreements between the parties are merged into
              and superseded by this Agreement.

PSA, 3/12/13, at 2 (emphasis added).

        On June 28, 2016, Wife filed her petition for contempt. She claimed

Husband violated the PSA by obtaining a mortgage on the Condo without

notice to the parties’ children. Husband filed a counter-petition for contempt,

claiming Wife used a marital credit card, with Husband’s name as primary

cardholder, without his knowledge or permission, and that Wife’s delinquent

payments adversely affected his credit. Husband also claimed “Wife

maintained a secret brokerage account that was not disclosed at equitable

distribution.” Appellant’s Brief, at 10.

        At the contempt hearing, Husband stipulated that Kenneth R. Schuster,

as Trustee, took out a mortgage on the Condo in the amount of $375,000.

The mortgage was signed on March 17, 2016 and recorded on March 28, 2016.

Mortgage, 3/17/16; N.T. Hearing, 12/13/16, at 14-15.2 The mortgagee was
____________________________________________


2   The promissory note secured by the mortgage provides:



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a private person, and the term was for fifteen years at an interest rate of 10%.

Id. at 28. The loan amount was $375,000, with a provision that the amount

of the mortgaged loan could increase to $750,000. Id. at 15-16. Husband’s

counsel explained that the Trust grants permission for Husband “to use this

money if he needed to use it [b]ut he has to get consent of the beneficiaries

. . . the parties’ adult children.” Id. at 17.

        Wife testified that when she found out about the mortgage, she

contacted the children and they indicated to her that they had had no prior

notice of the mortgage. Id. at 19. At the hearing, Husband produced signed

consents from both children; the consents, however, were dated July 9, 2016,

over one year after the mortgage was taken and eleven days after Wife had

filed her petition for contempt. Id. at 23-25. See Letter from Husband’s

Attorney to Wife’s Attorney, 7/20/16.3           The “consent forms” are notarized


____________________________________________




        10. Future Advances. For the purposes permitted by applicable
        law and upon the request of the Borrower(s), Lender, at Lender's
        option, prior to the release of this Mortgage, may make further
        advances so that the total amount so increased may equal up to
        Seven Hundred Fifty Thousand Dollars ($750,000.00) hereunder
        with interest thereon, which advances shall be secured by this
        Mortgage and evidenced by promissory notes stating that said
        notes with such increased amount are secured by this Mortgage.

    Mortgage, 3/17/16.
3 The letter, from Cynthia Bashore, Esq., to Carolyn R. Mirabile, Esq., reads,
in part:




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statements from the parties’ adult children, dated July 9, 2016, stating that

each gives “permission to the Trustee, Kenneth R. Schuster, to obtain a

mortgage secured by the condominium . . . in the amount of $375,000.” There

is no indication in the consents that the children were consulted or consented

to the encumbrance prior to the mortgage date.

       Additionally, Wife’s attorney read into the record the letter she sent to

Husband’s attorney on August 22, 2016, asking for documentation that the

mortgage would be paid off in the event of Husband’s death, to confirm

Husband’s indication of such at a prior court conference. The letter states:

       During the conference with Judge Coonahan, you indicated your
       client has “taken care of the situation” in which if he passes away,
       the loan against the Florida condo will be paid off. Please provide
       the documentation which indicates the loan will be paid off upon
       his death. It is also my understanding a new Trust Agreement
       has been signed. Pursuant to the [PSA], the Condo was to remain
       in trust for the children. Please provide a copy of the full Trust
       Agreement confirming the Condo is in trust for the children.

N.T. Hearing, 12/13/16, at 30-31. Wife testified that she was never provided

with a copy of the new Trust Agreement, and there was no response to the

August 22, 2016 letter. Id. at 31.



____________________________________________


       Dear Ms. Mirabile: On June 28, 2016 you filed a Petition for
       Contempt on behalf of your client, the gravamen of which relates
       to claims that my client obtained a mortgage on the Boca Raton
       condo without the parties’ children’s permission, and purported
       violation of the trust Agreement. Enclosed please find a duly
       executed written consent for the mortgage. Please have your
       client withdraw her frivolous Petition forthwith.


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     Following the contempt hearing, the Honorable Arthur R. Tilson entered

an order finding Husband in contempt. The court’s order also states:

     Husband is prohibited from further encumbering, mortgaging,
     selling, or otherwise interfering with the Condo[.]

     Paragraph ten “10” of the Mortgage Note dated March 18, 2016
     shall be amended so that no further monies shall be borrowed
     against the Boca Raton property. Said amended note shall be
     recorded forthwith and verification of same shall be provided
     within twenty (20) days.

     Husband shall provide verification of ownership of two life
     insurance policies naming the children as beneficiaries as well as
     confirmation of annual premiums being paid on a yearly basis.
     Proof of said life insurance policies and payment shall continue
     until said mortgage is paid off. Proof of annual premiums being
     paid shall include the front and back of the cancelled check for the
     full premium amount within five (5) days of payment.

     Husband shall provide a true and correct copy of the Mastronardo
     Family Trust as well as any amendments including but not limited
     to those which authorize the transfer of the Trustee to Kenneth R.
     Schuster.

     Wife shall be entitled to Attorneys’ Fees in the amount of
     $7,550.00 plus 3.5 additional hours at $360.00 per hour for a total
     of $8,810.00.

Order, 12/21/16.     The court also denied Husband’s counter-petition for

contempt against Wife. Husband filed a motion for reconsideration, which was

denied, and a timely notice of appeal and Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. Husband raises the following issues for our

review:

          1. Did the trial court abuse its discretion when it found
             Husband in contempt of the Property Settlement Agreement
             and ordered him to pay Wife’s attorney’s fees, when



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              Husband acted in conformity with the terms of the Trust
              Agreement in obtaining the mortgage?

           2. Did the trial court commit an error of law by relying upon
              evidence outside of the Property Settlement Agreement to
              ascertain its meaning?

           3. Did the trial court have jurisdiction to modify the terms of
              the parties’ Property Settlement Agreement in its December
              21, 2016 order finding Husband in contempt, or commit an
              error of law when it changed the terms of the parties’
              Property Settlement Agreement?

           4. Did the trial court abuse its discretion when it precluded
              from evidence statements from the parties’ adult children
              and Husband’s Trust attorney, which were not offered for
              their truth, but rather to show Husband’s state of mind and
              belief that he complied with the Property Settlement
              Agreement and the Trust when he had the Trust obtain the
              mortgage on the Condo?

           5. Did the trial court abuse its discretion when it dismissed
              Husband’s counterclaim and amended counterclaim after
              uncontested evidence was presented showing that Wife
              made charges on a marital credit card and became
              delinquent on payments after the parties divorced; and that
              wife maintained a brokerage account during the marriage in
              her own name, which she failed to disclose at equitable
              distribution?

Appellant’s Brief, at 5-6.4

        At the hearing, Husband argued that the children’s consent was obtained

prior to the March 17, 2016 mortgage date, and that the subsequent written

consent forms, dated July 9, 2016, were only obtained in response to Wife’s

contempt petition “as evidence of the consent that he had already obtained[.]”

N.T. Hearing, 12/13/16, at 49. Husband testified as follows:


____________________________________________


4   We have re-ordered and consolidated the issues raised for ease of discussion.

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       Q:    John, first, did you obtain your children’s consent or did you
       speak with your children prior to taking out the mortgage that
       we’re talking about today?

       A:     Yes, I did. I approached them with the idea that, quite
       frankly, when I was released from prison in December and I
       started working here in January in the insurance company -- we
       do other things besides insurance -- I was given an opportunity
       to buy into a portion of a business, so I explained that to both my
       children and really I particularly was addressing my daughter in
       regards to this. My son as well, of course. My daughter suffered
       and does suffer from bipolar disorder. She’s now gone through
       two jobs in three years. So it was my idea that if I did establish
       an ownership in the business, an insurance business, and because
       I’m a convicted felon,5 I cannot write insurance. My daughter,
       and maybe down the line my son can come and work in the
       business and for all the referrals I’m giving other people in the
       office, I can give to them and they can get licensed and my
       daughter can make a living and she can also at the same time be
       under my wing. So yes, I did approach them both and I told them
       what my plans are[.]

                                   ****

       Q:    []After you had discussions with your daughter and your son
       with respect to your plans about obtaining a mortgage and then
       buying into a business so they can work there in the future and
       build a family business, what did you do? Did you get the
       mortgage or not?

       A:   Not at that time. What I did, I consulted two people, Ken
       Schuster, who was the executor of the trust. And Ken referred

____________________________________________


5 Husband testified that he was a convicted felon, charged with bookmaking,
money laundering and Racketeer Influenced and Corrupt Organizations
(RICO) violations, and that he had served eight months in jail. N.T. Hearing,
12/13/16, at 73, 76-77, 86. On cross-examination, Husband acknowledged
that under the terms of his probation, he is precluded from incurring “new
credit charges or opening additional lines of credit.” Id. at 109-10. Husband
also acknowledged that under the terms of his probation he “shall not
encumber or liquidate his interest in any assets unless the proceeds are to be
used in payment of defendant’s fine obligation.” Id. at 111. Husband also
reiterated, however, that he does not “have an interest in any property.” Id.

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        me to Walter Weir. Walter is the actual attorney who wrote the
        trust[.]

                                    ****

        Q:    After you spoke with the attorneys, John, what did you do?

        A:   The trust was now in a position – I asked – I told my kids
        what had to be done and what was necessary. I had to get their
        consent. And at that point, the trust made the loan, not me.

                                   ****

        Q:    And it was put in progress after you spoke with your children
        and the two attorneys, correct?

        A:   Right. . . . We had an in-house attorney here and I had a
        document drawn up with respect [--] stating that if something did
        happen to me, the company would pay the trust loan.

                                   ****

        Q:   So is that document called Addendum to Funding Partner
        Agreement?6


____________________________________________


6   This document reads, in relevant part:

        X. Contingencies upon Death or Demise:
        In the event of the death, demise, or incapacitation of Partner with
        such event resulting in the liquidation of Partner’s available
        principal balance, plus accrued interest, the proceeds of that
        liquidation will be disbursed to the Partner, the Partner’s estate,
        or to Partner’s beneficiary. However, prior to any funds being
        disbursed to the Partner, the Partner’s estate, or to Partner’s
        beneficiary, any funds available for distribution under the terms
        of this section must first be used to pay on the mortgage of the
        Partner’s primary residence, with said primary residence being
        2800 South Ocean Boulevard, Suite 5-F, Boca Raton, Florida.
        Partner, Partner’s estate, or Partner’s beneficiary shall not be
        entitled to any disbursement of the funds under the terms of this
        section unless and until the mortgage balance on Partner’s
        primary residence has been paid in full.



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       A:     Yes[.]

Id. at 60-67.

       Husband also testified that he had told Wife that if she did not withdraw

her petition for contempt, he would cancel his life insurance policies, stop

paying the children’s medical bills and health insurance and stop giving the

children money. Id. at 112. Finally, he also stated that he told his children

“the exact same thing.” Id.

       In his first two issues, Husband argues the trial court abused its

discretion when it found him in contempt of the PSA and ordered him to pay

Wife’s attorney’s fees, and that the court erred in relying on evidence outside

the PSA to ascertain its meaning. We find each of these claims meritless.

       Our review of contempt orders is governed by an abuse of discretion

standard. Hyle v. Hyle, 868 A.2d 601 (Pa. Super. 2005). A trial court abuses

its discretion when its findings are not supported by the record, and/or there


____________________________________________


Addendum to Funding Partner Agreement Between Innovative Dealership
Solutions and John Mastronardo, 7/15/16. The Funding Partner Agreement
and Addendum were both signed by Husband and Henry Nemanich, the Chief
Executive Officer of Innovative Dealership Solutions. Wife testified that she
knew Nemanich, that he was a friend of Husband’s, that he had sold two one-
million dollar life insurance policies to Husband (children were beneficiaries),
that he is the same person that Husband is in his insurance business with, and
that she has personal knowledge that Nemanich is no longer a licensed broker
in Florida as a result of “misappropriated funds from clients that he has
accounts totaling three million dollars.” Id. at 118-19.     Husband testified
that Nemanich “only does brokerage accounts. He does not do insurance.”
Id. at 127. He clarified that “Ted Taddei is the one who wrote my insurance
policy[.]” Id.


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has been a capricious disbelief of the credible evidence. This Court will reverse

only upon a plain abuse of discretion. Id.

      Parties to a marriage settlement agreement may enforce their

agreement under the Divorce Code. Section 3105 of the Divorce Code, “Effect

of agreement between parties” states, in part:

      (a) Enforcement.—A party to an agreement regarding matters
      within the jurisdiction of the court under this part, whether or not
      the agreement has been merged or incorporated into the decree,
      may utilize a remedy or sanction set forth in this part to enforce
      the agreement to the same extent as though the agreement had
      been an order of the court except as provided to the contrary in
      the agreement.

23 Pa.C.S. § 3105.    Section 3502(e) describes the powers of the trial court

to enforce an agreement between the parties:

      (e) Powers of the court.—If, at any time, a party has failed to
      comply with an order of equitable distribution, as provided for in
      this chapter or with the terms of an agreement as entered into
      between the parties, after hearing, the court may, in addition to
      any other remedy available under this part, in order to effect
      compliance with its order:

         (1) enter judgment;

         (2) authorize the taking and seizure of the goods and
         chattels and collection of the rents and profits of the real
         and personal, tangible and intangible property of the party;

         (3) award interest on unpaid installments;

         (4) order and direct the transfer or sale of any property
         required in order to comply with the court's order;

         (5) require security to insure future payments in compliance
         with the court's order;

         (6) issue attachment proceedings, directed to the sheriff or
         other proper officer of the county, directing that the person

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         named as having failed to comply with the court order be
         brought before the court, at such time as the court may
         direct. If the court finds, after hearing, that the person
         willfully failed to comply with the court order, it may deem
         the person in civil contempt of court and, in its discretion,
         make an appropriate order, including, but not limited to,
         commitment of the person to the county jail for a period not
         to exceed six months;

         (7) award counsel fees and costs;

         (8) attach wages; or

         (9) find the party in contempt.

23 Pa.C.S. § 3502(e) (emphasis added).

      Here, the parties specified in their PSA that it was “understood and

agreed by the parties that this [PSA] may be enforced by the Court.” PSA,

3/12/13, at ¶ 17(a). It is clear from our reading of the PSA and the testimony

from the contempt hearing that the parties intended the trust to be

irrevocable, that the trust property was for the benefit of the adult children

and that the parties intended that the property not be “encumbered,

mortgaged or sold” unless both children consent. PSA, 3/12/13, at ¶ 4(d).

Husband seeks to redefine the concept of consent. He argues that the PSA

does not “require that the children provide their consent prior to the property

being encumbered.” Husband’s Brief, at 13. He claims that consent obtained

after-the-fact is, nonetheless, consent. It is not. As the trial court clarified,

the written consent forms do not prove that the mortgage was procured with

the consent of the children; the forms prove only, assuming authentication,




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that the children indicated their agreement after the mortgage was obtained.7

Id. at 47-50.        To the extent that Husband argues in his motion for

reconsideration that in fact he obtained consent prior to the Trust taking out

the mortgage on the Condo, the trial court found Husband’s testimony not

credible. Hyle, supra.

       The court’s findings are supported in the record.         We conclude,

therefore, that the court did not abuse its discretion in finding that Husband’s

act of mortgaging the Condo without the prior consent of the parties’ adult

children was in violation of the PSA. Hyle, supra. Moreover, the court was

authorized to award Wife counsel fees. See PSA, 3/1/13, at ¶ 17(b); see

also 23 Pa.C.S. § 3502(e)(7).

       Further, Husband’s argument that the court erred in looking beyond the

language of the PSA to determine its meaning is meritless.           It is well-

established that the paramount goal of contract interpretation is to ascertain

and give effect to the parties' intent. Lyons v. Lyons, 585 A.2d 42, 45 (Pa.

Super. 1991). 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. Id.

____________________________________________


7 As stated in note 3, supra, the “consent forms” are dated July 9, 2016, and
simply state that the adult children give “permission to the Trustee, Kenneth
R. Schuster, to obtain a mortgage secured by the condominium . . . in the
amount of $375,000.” There is no indication in the consents that the children
were consulted or consented to the encumbrance prior to the mortgage date.
Moreover, neither of the adult children testified as to the authenticity of the
forms.

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      Here, the court properly heard testimony from both Husband and Wife.

The trial court found Wife’s testimony credible, and, as stated above, found

Husband’s testimony not credible. See Mackay v. Mackay, 984 A.2d 529,

533 (Pa. Super. 2009) (this Court must accept findings of trial court that are

supported by competent evidence of record; with regard to issues of credibility

and weight of evidence, this Court must defer to trial judge who presided over

proceedings and thus viewed witnesses first hand). The court concluded that

Wife’s interpretation of the term consent was consistent with the objective

meaning of word and term “consent,” and consistent with the objective

interpretation of what the parties intended that term to mean in the context

of their agreement. This determination, too, is supported by the record. See

Osial v. Cook, 803 A.2d 209, 214 (Pa. Super. 2002) (“A contract is

ambiguous if it is reasonably susceptible of different constructions and capable

of being understood in more than one sense[;] when acting as the trier of fact,

the court also resolves relevant conflicting parol evidence as to what was

intended by the ambiguous provisions, examining surrounding circumstances

to ascertain the intent of the parties.”).

      Husband next argues that the court was without jurisdiction to modify

the terms of the PSA. Whether the trial court had jurisdiction to modify the

terms of the parties PSA is a question of law. As such, our standard of review

is de novo, and our scope of review is plenary. See Annechino v. Joire, 946

A.2d 121, 123 n.3 (Pa. Super. 2008).




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      A [settlement] agreement incorporated but not merged into the
      divorce decree survives the decree and is enforceable at law or
      equity. A settlement agreement between spouses is governed by
      the law of contracts unless the agreement provides otherwise.

         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, 1257–58 (Pa. Super. 2005)

(citations and quotations omitted). See also Kraisinger v. Kraisinger, 928

A.2d 333, 339 (Pa. Super. 2007) (when interpreting marital settlement

agreement, trial court is sole determiner of facts; absent abuse of discretion,

we will not usurp trial court's fact-finding function).

      When construing agreements involving clear and unambiguous terms,

this Court need only examine the writing itself to give effect to the parties’

understanding. Creeks v. Creeks, 619 A.2d 754, 756 (Pa. Super. 1993).

The court must construe the contract only as written and may not modify the

plain meaning of the words under the guise of interpretation. Id. When the

terms of a written contract are clear, this Court will not re-write it or give it a

construction in conflict with the accepted and plain meaning of the language

used. Id.

      Here, the PSA specified that the court “shall retain the right to enforce

the provisions and the terms of this [PSA], but not to modify it. Id. at ¶

1(b) (emphasis added). Husband contends that the court modified the plain



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meaning of the PSA, and that the PSA “does not require written authority from

the children nor does it require that the children provide their consent prior to

the property being encumbered.” Appellant’s Brief, at 13.

      First, the court did not determine, nor did Wife argue in her petition for

contempt, that prior written consent was required. Husband provided what

he believed proved subsequent written consent in response to Wife’s petition

for contempt.    The court simply determined that the PSA required prior

consent of the adult children and that Husband had not established that.

Husband did not present the testimony of the adult children to prove that they

did, in fact, agree to the mortgage. Contrary to Husband’s claim of error, the

court did not modify the PSA; it merely interpreted the contractual language.

      In this same argument, Husband claims that the court modified the PSA

by imposing upon him, in its contempt order, additional restrictions and

conditions. In particular, Husband claims the court modified paragraph 4(d)

of the PSA, which permitted Husband to “encumber, mortgage or sell the

[Condo] with consent of the parties’ adult children and in accordance with the

terms of the Trust,” PSA, 3/12/13, at 4(d), when it ordered that: “Husband is

prohibited from further encumbering, mortgaging, selling, or otherwise

interfering with the Condo[.]”   Order, 12/21/16.

      Husband is correct that the court’s order does impose restrictions and

additional responsibilities on Husband. However, the Divorce Code grants the

courts full “equity power and jurisdiction” necessary to carry out the purpose

of the statute. Section 3323(f) of the Divorce Code provides:

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      Equity power and jurisdiction of the court.—In all
      matrimonial causes, the court shall have full equity power and
      jurisdiction and may issue injunctions or other orders which
      are necessary to protect the interests of the parties or to
      effectuate the purposes of this part and may grant such
      other relief or remedy as equity and justice require against
      either party or against any third person over whom the court has
      jurisdiction and who is involved in or concerned with the
      disposition of the cause.

23 Pa.C.S. § 3323(f) (emphasis added).

      Under section 3323(f), the trial court is authorized to enter orders

requiring either party to act or refrain from acting as equity and justice

require.   “[T]he parameters of the enforcement authority the General

Assembly intended to give the trial courts,” are ascertained “by considering

the occasion and necessity for the enactment and the object the Legislature

sought to attain in the statute.” Annechino v. Joire, 946 A.2d at 123. As

this Court noted in Annechino, the purpose of the 1988 amendments to

Divorce Code was to extend remedies, sanctions and vehicles of enforcement

to agreements covering certain matters ancillary to divorce. Id. at 124. In

sum, the court’s enforcement powers are broad; the trial had equitable power

and jurisdiction to tailor its order to protect the purpose and intent of the

parties’ agreement. 23 Pa.C.S. § 3323(f).

      Wife testified that it was the parties’ intent to eventually bestow the

Condo to the children, free and clear of any encumbrances. The court, as

stated above, found Wife’s testimony credible, and structured its order to carry

out that purpose.      We agree with the trial court that, under these

circumstances, where it is clear that the parties intended that the Condo

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remain free and clear of encumbrances for the children’s benefit, and where

Husband is in contempt of that agreement, “equity and justice” require the

order restricting Husband’s ability to further encumber the Trust property.

See id.; see also 23 Pa.C.S. 3502(e)(5) (allowing trial court to require party

to provide security); 23 Pa.C.S. § 3502(d) (“[w]here it is necessary to protect

the interest of a party, the court may also direct the purchase of, and

beneficiary designations on, a policy insuring the life or health of either

party.”); 23 Pa.C.S. § 3105(a) (parties to agreement regarding matters within

jurisdiction of court under Divorce Code may use remedy or sanction set forth

in Divorce Code to enforce agreement to same extent as though agreement

had been order of court).     Husband has overlooked the courts continuing

jurisdiction and broad equity and enforcement powers, 23 Pa.C.S. § 3323(f),

as well as the legislative intent in promulgating the amendments to the

Divorce Code, “which include effectuating economic justice between the

parties and insuring a fair and just settlement of the parties’ property rights.”

Annechino, 946 A.2d at 123 (citing 23 Pa.C.S. § 3102). Having acted within

the confines of the Divorce Code, we conclude that the trial court's resolution

of this issue is not an abuse of discretion. Annechino, supra; cf. Foley v.

Foley, 572 A.2d 6 (Pa. Super. 1985) (court retains equitable authority after

divorce decree is entered to intercede upon petition to address economic

injustice).

      Next, Husband argues the trial court abused its discretion when it

precluded his testimony that the parties’ adult children verbally consented

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with respect to the mortgage and his testimony as to what the Trust attorney

stated. Wife’s counsel objected, and the trial court properly sustained the

objections as hearsay.       See Pa.R.E. 801(c) (defining “hearsay” as “a

statement that (1) the declarant does not make while testifying at the current

trial or hearing; and (2) a party offers in evidence to prove the truth of the

matter asserted in the statement.”).

      Admission of evidence is within the sound discretion of the trial court

and a trial court's rulings on the admission of evidence will not be overturned

absent an abuse of discretion or misapplication of law. Schuenemann v.

Dreemz, LLC, 34 A.3d 94, 100–101 (Pa. Super. 2011). An abuse of discretion

is not merely an error of judgment, but if in reaching a conclusion the law is

overridden   or   misapplied,   or   the   judgment    exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record, discretion is abused. Id.

      Here, Husband claims his statements as to what the parties’ adult

children told him were not offered to prove the truth of the matter asserted,

but rather were offered to prove his state of mind. He also contends that his

testimony as to what the Trust attorney told him was also offered to prove his

state of mind. Husband argues these statements proved that he believed he

had complied with the terms of the PSA. This claim is meritless.

      At the contempt hearing, the sole issue before the court was that of the

adult children’s consent. Whether Husband subjectively believed that he had

done all that was necessary to comply with the parties’ agreement was not at

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issue and was, therefore, irrelevant. We find no error or abuse of discretion.

Schuenemann, supra.

      Finally, Husband argues the court erred in dismissing his counter-

petition for contempt; he claims that Wife, in violation of the terms of the PSA,

obtained a credit card in his name without his knowledge.      See PSA, supra

at ¶ 11(c). The court heard testimony from both Husband and Wife on this

issue. Wife testified that Husband was standing right next to her when she

completed the application and, despite Husband’s testimony otherwise, the

court determined that Wife’s testimony that she has been making monthly

payments on the credit card and has not asked Husband to pay the credit card

was credible. Hyle, supra. As such, the court’s finding that Wife was not in

contempt and the dismissal of Husband’s counterclaim for contempt was not

an abuse of discretion. Id.

      Order affirmed.

      Judge Platt joins the Memorandum.

      Judge Bowes files a Concurring and Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/18

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