J-A23015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ANDREA FIORE                            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DANIEL FIORE                            :
                                         :
                    Appellant            :    No. 20 WDA 2019


            Appeal from the Order Entered, December 18, 2018,
               in the Court of Common Pleas of Erie County,
                  Civil Division at No(s): No. 10559-2015.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                   FILED NOVEMBER 08, 2019

      Appellant Daniel Fiore (Husband) appeals the trial court’s denial of his

petition to enforce the marriage settlement agreement (MSA) against Appellee

Andrea Fiore (Wife). We affirm.

      The parties reached a comprehensive and final division of all assets and

debts related to their marriage when they entered into an MSA on February

5, 2018. Notably, the parties’ created their MSA by holding an on-the-record

dialogue with counsel, and then used the 19-page transcript as the final

memorialization of their agreement. The MSA was incorporated into, but it did

not merge with, the February 12, 2018 divorce decree.

      The instant dispute involves the distribution of three assets: a real

estate property; a 2005 Formula 400 SS power boat; and a 2007 Nissan Titan

pickup truck. Specifically, the parties agreed that Wife would receive the real
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estate if she could refinance the note encumbering it. They further agreed

that they would equally divide the net proceeds from respective sales of the

boat and the truck.

        On September 5, 2018, Husband filed a petition to enforce the parties’

MSA, claiming Wife failed to perform several of her obligations. He sought the

following relief: first, to compel the sale of the jointly-owned real estate;

second, to reallocate the proceeds from the sale of the parties' boat; and third,

to reallocate the proceeds from the sale of the parties' truck. Husband also

sought to recover the attorney fees that he expended seeking enforcement.

        Following two days of testimony, the trial court denied the requested

relief by order dated December 18, 2018. Regarding Wife's failure to refinance

the mortgage by August 31, 2018 (and list it for sale thereafter), the court

found that the parties orally agreed to an extension of time while the bank

considered Wife’s loan application. The specific issues involving the boat and

the truck turned on whether the MSA authorized Wife to deduct from the net

proceeds the expenses that she incurred to prepare the properties for sale.

The court found that the costs were necessary and constituted “costs of sale”

per the terms of the MSA. In reaching its decisions, the court considered the

testimony of John Pursell, a mechanic who consulted with the parties

regarding both the boat and the truck. Because the court found Wife did not

breach the terms of the MSA, the court declined to award Husband attorney

fees.   Husband filed this timely appeal.

        Husband raises nine issues for our review:

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     1. Whether the trial court committed an error of law and/or an
     abuse of discretion when it failed to enforce the marital settlement
     agreement as written in order to effectuate the parties' intent
     when they entered into it?

     2. By giving wife credit for repairs whether the trial court reformed
     and modified the parties' agreement in her favor thereby
     committing an error of law and/or an abuse of discretion in
     contravention of 23 Pa.C.S.A. §3105?

     3. Whether the trial court committed an error of law and/or an
     abuse of discretion when it found that the parties orally modified
     their marital settlement agreement when the evidence did not
     support such a finding?

     4. Whether the trial court committed an error of law and/or an
     abuse of discretion when it reviewed wife's efforts to comply with
     the terms of the marital settlement agreement on a "good faith
     effort" basis when that term was not included in the parties'
     agreement?

     5. Whether the trial court committed an error of law and/or an
     abuse of discretion when it allowed for the "cost of repairs" to be
     deducted from sales proceeds when that term was not included in
     the parties' agreement?

     6. Whether the trial court committed an error of law and/or an
     abuse of discretion when it found that the truck repairs were
     necessary and the remaining proceeds from the sale of the pick-
     up truck were $2,374.73 when the evidence did not support such
     findings?

     7. Whether the trial court committed an error of law and/or an
     abuse of discretion when it found that the boat repairs were
     necessary and totaled $11,236.26 when the evidence did not
     support such findings?

     8. Whether the trial court committed an error of law and/or an
     abuse of discretion when it permitted John Pursell to testify as an
     expert witness in contravention of the Pennsylvania Rules of
     Evidence?




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      9. By failing to enforce the parties' marital settlement agreement
      whether the trial court committed an error of law and/or an abuse
      of discretion when it failed to find that wife breached the
      agreement and correspondingly failed to award counsel fees?

Husband’s Brief at 6-7.

      For ease of disposition, we address Father’s claims as they relate to each

property (the real estate, the boat, and the truck) before addressing his

ancillary issues.

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

settlement agreement if the agreement is not merged into a divorce decree.

Bennett v. Bennett, 168 A.3d 238, 245 (Pa. Super. 2017) (citation omitted).

The standard of enforceability of a contractual agreement is clear:

“absent fraud, misrepresentation, or duress, spouses should be bound by the

terms of their agreements.” See id. (citation omitted). An abuse of discretion

is not lightly found, as it requires clear and convincing evidence that the trial

court misapplied the law or failed to follow proper legal procedures. See Lugg

v. Lugg, 64 A.3d 1109, 1110 n.1 (Pa. Super. 2013). We will not usurp the

trial court’s fact-finding function. Id.

      Husband claims that when Wife initially failed to secure refinancing on

a jointly owned real estate property, she had no choice but to list the property

for sale.

      The MSA provided:

            In the event Wife is unable or unwilling to refinance within
            100 days, [sic] list the property for sale with a multi-list
            realtor. Wife will make application for refinance within 30
            days of today’s date to remove husband’s name from the


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         primary mortgage encumbering the property.       Wife shall
         refinance the property by August 31, 2018.

MSA at 4.

      Instantly, Wife applied for a loan to refinance within the designated

timeframe, but the application was still pending at the time of the August 31,

2018 deadline.   At the hearing, Wife claimed that she and Husband orally

agreed that she would have more time to complete the refinancing process.

We note here that by the second day of testimony on November 14, 2018, a

bank granted her application and Wife successfully refinanced. Still, Husband

argued that Wife was in breach and sought an order forcing her to sell.

      In the context of marriage settlement agreements, we have said that

even an agreement prohibiting non-written modification may be modified by

subsequent oral agreement if the parties’ conduct clearly shows the intent to

waive the requirement that the amendments be made in writing. See Fina v.

Fina, 737 A.2d 760, 764 (Pa. Super. 1999). To that end, an oral modification

of a written contract must be proved by clear, precise and convincing

evidence. Id. (citation omitted).

      Instantly, the MSA anticipated that Wife’s refinance application could

take extra time. The MSA provided:

         There is no default if [the parties] waive any part of the
         agreement. [I]f [Wife] does not refinance within the time
         period allowed…and [Husband] say[s] that’s ok, that doesn’t
         mean [Wife] doesn’t refinance totally, it just means
         [Husband is] okay allowing that to go a little longer.

MSA at 16.


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      Per the MSA, the parties explicitly anticipated that Wife’s ability to

secure a loan may be subject to conditions beyond her control. Wife testified

that the parties entered into the very type of oral modification suggested by

the MSA; i.e., if Wife bore the expense of paying the current mortgage while

attempting to secure a new loan and if she was diligent in her endeavor, then

Husband would not proceed with enforcement while the bank considered

Wife’s application. Wife also provided evidence, in the form of a message to

Husband’s attorney, referencing such an oral agreement.

      The court found Wife’s testimony to be credible. Husband argues that

the court’s reliance on Wife’s credibility constituted an abuse of discretion.

Contrary to Husband’s assertion, credibility is an important factor, because

testimony is evidence. And by the time the court heard the second day of

testimony, Wife had successfully refinanced the property. “Since matters of

credibility are for the trial court, we are bound by the court’s finding of fact[.]”

See Fina, 737 A.2d at 765 (citations omitted). The court concluded that such

evidence was clear, precise, and convincing.           We discern no abuse of

discretion. Husband’s claims concerning the Wife’s refinancing are without

merit.

      Next, we consider those appellate issues linked to the sale of the parties’

boat. Husband claims that Wife violated the MSA when she deducted from

the net proceeds those expenses she incurred preparing the boat for sale. The

MSA provided:




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      In the event the boat is sold, the net proceeds shall be divided
      equally between the parties, that being sale prices less regular
      cost of sale, including commission and the outstanding debt, and
      the parties shall share the net proceeds equally.

MSA at 14.

      The MSA referenced the outstanding debt as being “approximately

$95,000.” Id. at 13. The actual debt was $95,949.32. Although both parties

had an obligation to sell the boat, Husband left this onerous task to Wife when

Husband essentially abandoned the vessel in a parking lot after Wife was

unable to meet him with the keys. Wife prepared the boat for sale by having

it cleaned and detailed, services to which Husband consented. Wife found a

buyer who traveled from Michigan to retrieve the boat only to discover that

the boat would not start. She then incurred a bank fee when she was forced

to return the prospective buyer’s deposit. To determine why the boat would

not run, the parties hired their mechanic, John Pursell, who, after consulting

other mechanics, discovered that the boat’s motor and computer were in need

of repair. Mr. Pursell testified that Husband told him to repair the boat:

         Q. Did you speak to [Husband] about the repairs that
         needed to be done on this boat?

         A. Yes. When I spoke to him about [boat mechanic John]
         Montgomery he says, John, go ahead and do what you got
         to do, I respect your judgment, and that’s where we left it.
         That was the last time I spoke to him.

N.T., 10/9/18, at 66.

      The total cost of repairs and expenses were $11,236.36. The boat sold

for $123,000. After deducting the outstanding debt, and the cost of repairs


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and expenses, the net proceeds were $15,814.32, which the parties divided

equally. The trial court determined that the term “cost of sale” encompassed

the costs Wife incurred to fix the boat’s motor and prepare it for sale.

      In reviewing this decision, we are not without guiding precedence. In

Friia v. Friia, 780 A.2d 664 (Pa. Super. 2001), a parties’ settlement

agreement specified that the spouses would split the proceeds of a sale of

property “after payment of all liens, encumbrances, brokerage fees, taxes and

other costs of sale.” Friia, 780 A.2d at 668-669. There, we held:

         The parties’ use of the phrase ‘cost of sale’ establishes their
         intent to limit items of expense deductible from the gross
         proceeds to those necessary to sell the property. Thus,
         the phrase ‘of sale’ operates as a broad limitation on the
         purpose for which deductible expenses might be incurred.

Id., at 669 (emphasis added).

      Instantly, we similarly conclude the parties’ use of the term “cost of

sale” incorporates those expenses necessary to effectuate the sale of the boat.

Wife contends that the boat needed to be repaired if she was going to be able

to sell it while it was encumbered with debt. For support, she points to the

first buyer’s interest, who was set to purchase the boat until he discovered it

was not seaworthy. We note further that the second, eventual buyer naturally

required proof that the boat was free and clear of the bank lien. The only way

to discharge the lien was to sell the boat for more than the parties’ owed. To

do that, Wife had to repair it.




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       Because Husband takes issue with the repair costs, we can assume it

was Husband’s view that Wife should have found a buyer who would purchase

a broken boat for at least $95,949.32, or the amount of outstanding debt. But

because Husband was dissatisfied with his ultimate payout (one half of

$15,814.32), we can assume further that Husband thought Wife should have

found a buyer who would purchase the broken boat for more than

$111,763.64 (a sum that would reflect his current net proceeds). Considering

that the refurbished boat sold for $123,000, we are tempted to speculate

that no such buyer exists. But we need not do so, because the court believed

Mr. Pursell’s testimony that Husband sanctioned the repair costs. Arguably,

Husband implicitly approved of Wife’s decision-making when he abandoned

the boat in a parking lot, leaving Wife to effectuate the sale as she saw fit.1

Ultimately, Husband’s argument fails because he explicitly agreed to the

repairs in order to secure a second buyer.

       Husband also seems to make hay out of the fact that not all of the

expenses, totaling $11,236.36, were technical repairs relating to the motor

and computer. Some expenses related to preparing and effectuating the sale.

Regardless, the court determined that these expenses were costs “of sale” in

that they were necessary to the sale. See Friia, supra. This determination


____________________________________________


1 We note that Husband offered no appraisal of the boat in its unrepaired
condition. Arguable, his net proceeds would have been less if Wife sold the
boat in the condition he left it in the parking lot. Indeed, there may not have
been any profit at all for such a sale.

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was not an abuse of discretion. Husband’s claims pertaining to the boat are

without merit.

      We turn now to those issues involving the sale of the parties’ truck. Like

the boat, the pertinent issue here is whether the MSA authorized Wife to

deduct the costs of repair from the sale’s net proceeds.

      The MSA provides:

         During the marriage, the parties acquired a Nissan pickup
         truck, which is in joint name. The parties agree that
         [H]usband will deliver the pickup truck to [a designated car
         lot] within ten days of today’s date. It will be listed for sale
         by [W]ife’s family. They will handle the sale and title and
         transfer. Both parties will sign any titles necessary to
         effectuate the sale and transfer to a bona fide third party.
         Each party will receive 50 percent of the net proceeds. Net
         proceeds is defined as sale price less any normal and regular
         costs of sale. The balance is the proceeds.

MSA at 8.

      Wife testified that neither party wanted the truck, which was titled in

Wife’s name but always driven by Husband. Wife testified she did not even

know where the truck was until Husband told her it was in storage. When

Wife retrieved the vehicle in order to sell it, she discovered that it was also in

poor condition. The seats were torn up, there was garbage and Husband’s

personal effects in the cab, the front headlight was broken and the front

bumper was dented from striking a deer. The rear bumper and tailgate were

also damaged.     Wife was aware that Husband struck a deer, but she was

unaware that he never bothered to repair the truck.




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      At the hearing, Husband admitted that he received a $3,000 insurance

check for the accident involving the deer, which he pocketed instead of

repairing the truck. Apart from the cosmetic state of the vehicle, Mr. Pursell

testified it was unsafe to drive or sell. The truck was no longer registered,

inspected, or insured. The brakes did not work. Mr. Pursell determined that

total cost of completely repairing the truck would be around $4,000, but such

a cost would prohibit any tentative return on the sale. Nevertheless, some

repairs were made; the truck was detailed to make it presentable so that it

could be sold at auction. Wife expended $2,500 on the body from the deer

accident and at least another $370 to detail the car.       Initially, the truck

received no bids at auction. The truck was evidently placed in the “as is” lane,

and an eventual buyer came forward who needed the truck to tow a four-

wheeler he just purchased.     Remarkably, the truck sold for $5,600.     After

deducting the cost of repairs, there was a profit of $2,373.73.

      Husband argument is twofold, which we discuss in turn. First, Husband

argues that because Wife seemingly forgot to seek admission of the repair bill,

the court could not consider the costs. Although Wife did not ask to admit the

repair bill (which had been marked as an exhibit), both Mr. Pursell and Wife

testified in detail about the expenses incurred to repair the truck. The court

was within its discretion to deny Husband’s petition based upon their

testimony alone.

      In his second argument, like he claimed with the boat, Husband

maintains that the cost of repairs should not have been considered “costs of

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sale.” His argument fails here too. The court determined that the cost of

repairs were necessary to sell the truck. The record supports this conclusion.

      The parties foresaw costs necessary to effectuate the sale of the truck.

Husband clearly possessed personal knowledge, which he evidently did not

reveal to Wife when they negotiated the MSA, that the truck was in need of

significant repair. Although Wife was aware he damaged the truck in 2015,

she was unaware that the truck remained damaged and certainly unaware

that Husband received $3,000 from the insurance company. While Husband

may have contemplated that truck would be sold “as is,” ample testimony

revealed that that was not an option. Even the repaired truck received no

bids at auction. The truck only sold because a buyer happened to need a truck

for one specific job. We conclude that Husband’s issues regarding the truck

are similarly meritless.

      In addition to his primary contentions involving the house, the boat, and

the truck, Husband raises several ancillary issues that are readily disposable.

First, Husband argues that the trial court utilized the wrong legal standard in

reaching its decision. Specifically, Husband takes issue with the court’s finding

that Wife acted in good faith. The court cited Giant Food Stores, LLC v. THF

Silver Spring DEV., L.P., 959 A.2d 438, 447-448 (Pa. Super. 2008) for the

proposition that every contract imposes a duty of good faith and fair dealing

on the parties in the performance of the contract. We have also observed the

duty of each party to act in good faith in the context of marriage settlement




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agreements. See, e.g., Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa.

Super. 2005).

      Here, the trial court’s observation that Wife operated in good faith was

entirely appropriate to its decision. However, the case did not turn on this

finding. The trial court specifically found that the parties orally modified the

MSA to allow Wife an extension to secure refinancing; the court further

determined that the costs to prepare the boat and truck for sale were

necessary “costs of sale” per the language in the MSA. As we discussed above,

none of those determinations constituted abuses of discretion.

      Next, Husband alleges the court improperly admitted expert testimony

from Mr. Pursell, who was not a qualified expert per Pa.R.E. 702. Although

the court referred to Mr. Pursell as an expert in passing when addressing the

order of the witnesses, it is clear that the court did not consider Pursell’s

testimony to be “expert” as contemplated by the Pennsylvania Rules of

Evidence.   Moreover, Husband objects only to that part of Mr. Pursell’s

testimony regarding whether the truck sold for a reasonable price and whether

the boat could be sold before it was repaired. On these points, Mr. Pursell’s

opinion is irrelevant. The first sale of the boat fell through, because it needed

repairs. Similarly the truck, even after it was repaired, still failed to get a

single bid at auction; it only sold by happenstance. From these facts alone,

the court could properly infer that the repairs were necessary to effectuate

the sale of both items.




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       In his a final issue, Husband seeks attorney fees. Because the court

determined that Wife did not breach the MSA, the court determined that no

fees were due. That logic stands.

       Based on the forgoing reasons, we conclude that the trial court did not

abuse its discretion when it denied Husband’s petition to enforce the parties’

MSA.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2019




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