J-A12016-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

SHAWN I. McCORD,                        : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DEBORAH A. McCORD,                      :
                                        :
                 Appellant              : No. 1717 MDA 2014

           Appeal from the Order entered September 18, 2014,
                 Court of Common Pleas, Berks County,
                      Civil Division at No. 11 6215

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED MAY 05, 2015

     Deborah A. McCord (“Wife”) appeals from the order of court modifying

a term of the property settlement agreement between Wife and Shawn I.

McCord (“Husband”). For the following reasons, we affirm.

     The parties married in 1990. Husband filed for divorce in 2011. On

various occasions during the divorce proceedings, the parties attempted to

negotiate a settlement of their economic claims.      They were ultimately

successful and entered into a property settlement agreement at a settlement

conference before a divorce master on May 22, 2014.      Of relevance here,

paragraph three of the settlement agreement provided as follows:

           Husband is a railroad worker and as such, is entitled
           to a railroad pension. He will retain 100% of Tier I
           benefits at such time as he is entitled to receive the
           same.     Wife shall be entitled to receive 100%
           percent of Tier II benefits at such time as she is
           entitled to receive the same. Again, the parties shall
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            cooperate by executing any and all documents
            necessary so that each will receive the benefits to
            which they are entitled.

Agreement, 5/22/14, ¶ 3. This agreement was incorporated into the June

25, 2014 divorce decree. See Divorce Decree and Order, June 25, 2014.

      On July 10, 2014, Husband filed a petition to open and/or vacate the

divorce decree, alleging that the parties had operated under the mutual

mistake that the Tier II benefits comprised the “divorced spouse benefit”

provided for under the federal law governing railroad pensions; that he was

recently informed that the divorced spouse benefit was part of his Tier I

benefit; that the parties intended for Wife to receive only the divorced

spouse benefit from Husband’s railroad pension; and asking the trial court to

reform the property settlement agreement to reflect the parties’ intention.

Wife filed an answer to Husband’s petition and a counter-petition to open

and/or vacate the divorce decree, asking the trial court to extend the period

of time for which the parties agreed Wife would receive alimony. Following a

hearing, the trial court granted Husband’s petition and denied Wife’s

counter-petition.   It reformed paragraph three of the parties’ property

settlement agreement to provide essentially that Husband will receive 100%

of the Tier II benefits and Wife will receive only the divorced spouse benefit

portion of the Tier I benefits, to which she is entitled by law . This timely

appeal follows.

      Wife presents the following three issues for our review:



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            1. Whether the trial court erred by revising the
               settlement agreement of May 22, 2014 [] and
               awarding one hundred percent [] of Husband’s
               Tier I and Tier II railroad pension benefits to
               Husband?

            2. Whether the trial court erred by not considering
               all other relevant factors set forth in 23 Pa.C.S.A.
               § 3502(a) when it revised the agreement?

            3. Whether the trial court erred by denying Wife’s
               counter-petition to provide that Wife shall receive
               alimony until she reaches age sixty-two []?

Wife’s Brief at 5.

      Our standard of review requires us to consider whether the trial court

abused its discretion when ruling on Husband’s petition to open and/or

vacate the divorce decree. See Bingaman v. Bingaman, 980 A.2d 155,

157 (Pa. Super. 2009).      “Discretion is abused when the course pursued

represents not merely an error of judgment, but where the judgment is

manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will.” Id.

(citation omitted).

      Wife first argues that it was error for the trial court to revise paragraph

three of the parties’ agreement. As has long been established, and as Wife

recognizes, when a property settlement agreement is incorporated, but not

merged, into a divorce decree, “it stands as a separate contract, is subject

to the law governing contracts[,] and is to be reviewed as any other




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contract.”   Crispo v. Crispo, 909 A.2d 308, 312-13 (Pa. Super. 2006).

Thus,

             under 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.

Id. at 313 (internal citations omitted). More particularly, “the misconception

which avoids a contract is necessarily a mutual one, and a fact which

entered into the contemplation of both parties as a condition of their

assent”. Gocek v. Gocek, 612 A.2d 1004, 1006 (Pa. Super. 1992). “[T]o

obtain reformation of a contract because of mutual mistake, the moving

party is required to show the existence of the mutual mistake by evidence

that is clear, precise and convincing.” Id.

             The meaning of this requirement [for clear, precise
             and convincing evidence] is that plaintiff’s witnesses
             must be found to be credible, that the facts to which
             they testify are distinctly remembered and the
             details thereof narrated exactly and in due order,
             and that their testimony is so clear, direct, weighty,
             and convincing as to enable the jury to come to a
             clear conviction, without hesitancy, of the truth of
             the precise facts in issue. Furthermore, the evidence
             must be established by two witnesses of [sic] by one
             witness and corroborating circumstances.




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Easton v. Washington Cnty. Ins. Co., 137 A.2d 332, 337 (Pa. 1957)

(internal citation omitted).

      In this case, the trial court found that a mutual mistake existed as to

the nature and composition of Husband’s Tier I and Tier II pension benefits

at the time the parties agreed that Wife would receive 100% of Husband’s

Tier II benefits. Trial Court Opinion, 12/5/14, at 5. We find no error in that

determination. Husband testified that throughout the parties’ negotiations,

the parties understood that the railroad pension had a divorced spouse

benefit and that he consistently maintained that he would not give Wife any

portion of his pension beyond this divorced spouse benefit, which Wife was

entitled to by federal law. N.T., 9/9/14, at 11-12. Julie Marburger, Esquire,

an attorney who represented Husband at the May 22, 2014 settlement

conference, testified that during the settlement conference before the

divorce master, the bulk of the negotiations related to how to divide

Husband’s pension and 401(k) account. Id. at 26. She stated that at that

time, both parties were operating under the belief that the Tier II benefits

were the divorced spouse benefits. Id. at 27, 31. She further testified that

prior to that settlement conference, Wife’s counsel gave her an asset chart

designating the Tier II benefits as the divorced spouse portion to which Wife

was entitled.   Id. at 29.     Attorney Marburger also testified that she first

learned that the parties’ belief was mistaken when she call the pension




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administrator to find out what documents would need to be prepared to

effectuate the agreement. Id. at 28-29.

       Thus, not only did Husband establish the existence of the mutual

mistake with the testimony of two witnesses, which alone is sufficient to

meet the applicable standard, but he also produced documentary evidence in

the form of a document from Wife that also established the mutual mistake.

The facts to which Husband and Attorney Marburger testified were “distinctly

remembered and the details thereof narrated exactly and in due order,” see

N.T., 9/9/14, at 10-31, and the trial court found them credible; accordingly,

we find no error with the trial court’s determination that Husband

satisfactorily established the existence of a mutual mistake.    See Easton,

137 A.2d at 337.

       The only argument Wife presents to the contrary is the bald assertion

that her testimony was credible and that Husband’s evidence “[did] not rise

to the level of clear, precise and convincing evidence … .”     Wife’s Brief at

18.1   First, as an appellate court, we may not disturb the trial court’s

credibility determinations. Busse v. Busse, 921 A.2d 1248, 1256 (Pa.

Super. 2007). Second, as discussed above, we found no error in the trial


1
 Wife also argues that the trial court erred by admitting the asset chart into
evidence. Wife’s Brief at 17-18. The propriety of this evidentiary ruling is
not before us, as Wife did not raise such an issue in her statement of
matters complained of on appeal. See Lazarski v. Archdiocese of
Philadelphia, 926 A.2d 459, 463 (Pa. Super. 2007); Pa.R.A.P.
1925(b)(4)(vii).



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court’s determination that Husband’s evidence was sufficiently clear and

precise to meet the burden as articulated in Easton. Wife has provided no

substantive argument to the contrary, and so her challenge cannot succeed.

      Next, Wife argues that the trial court erred by not considering all of

the factors contained in 23 Pa.C.S.A. § 3502(a)2 when revising paragraph

three of the parties’ property settlement agreement.       Wife’s Brief at 19.

Wife provides no authority for the notion that where a court revises a

particular term of a property settlement agreement due to the existence of a

mutual mistake, it must re-evaluate the revised property settlement

agreement vis a vis the § 3502(a) factors.       In this case, the trial court

placed the parties in the position they anticipated and agreed to: that Wife

would receive only the portion of Husband’s railroad pension to which she

was entitled as his former spouse. This is the purpose of reformation of a

contract. Turner v. Hostetler, 3518 A.2d 833, 836 n.1 (Pa. Super. 1986)

(“[R]eformation … calls for the court to use its equitable powers … to reform

the contract[] to conform to the true intention of the parties, when, in fact,

that memorandum does not accurately reflect the prior intent of the

parties.”).   This is not a case of modification to an equitable distribution

award.    The parties created the terms of their property settlement; the

division of property was not the result of the trial court’s application of the


2
 This statute contains a list of eleven factors a trial court must consider
when formulating an equitable distribution award. 23 Pa.C.S.A. §3502(a);
Gates v. Gates, 933 A.2d 102, 105 (Pa. Super. 2007).


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statutory factors.   We cannot fathom why the trial court would need to

consider the § 3502(a) factors at this juncture, and Wife does not explain

the basis for her presumption to this effect.3

      Finally, Wife argues that the trial court erred in denying her counter-

petition to revise the settlement agreement to provide that Wife will receive

alimony until she is sixty-two. Wife’s Brief at 22.    The trial court denied

Wife’s request because it found that she failed to establish a mutual mistake

as to the duration of the alimony award. Trial Court Opinion, 12/5/14, at

32.   Wife disagrees, arguing that her testimony was sufficient to establish

that the parties intended for her to receive alimony until she became eligible

to receive railroad retirement benefits and that they were mutually mistaken

as to the age at which this would occur. Id. at 22-23. There is a glaring

problem with this argument, in that the only evidence of this alleged mistake

was Wife’s testimony. The law requires the testimony of two witnesses, or


3
   Notably, the only case law Wife cites in support of her argument on this
issue is to the effect that a trial court must consider the § 3502(a) factors
when fashioning an equitable distribution award. Wife’s Brief at 20 (citing
Gates, 933 A.2d at 105).

We further note the trial court’s statement that it did consider these factors
when it granted Husband’s request for relief. Trial Court Opinion, 12/5/14,
at 7-10.     Curiously, in doing so, it recognized that these factors are
applicable only to equitable distribution awards. Id. at 7, 9-10. As stated
above, we do not agree that the trial court was required to consider the §
3502(a) factors. However, where the result is correct, we may affirm the
trial court’s determination on any ground. See Frank v. Frank, 833 A.2d
194, 195 (Pa. Super. 2003). Accordingly, even though we disagree with this
aspect of the trial court’s process in reaching its determination, we
nonetheless affirm its ultimate conclusion.


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one witness coupled with corroborating circumstances, to establish a mutual

mistake. Easton, 137 A.2d at 337. Wife has failed to meet this standard. 4

The trial court therefore did not err in its determination.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2015




4
  Wife does not argue that there were circumstances to corroborate her
testimony, see Wife’s Brief at 22-23, and we will not formulate any such
argument on her behalf. Bombar v. West American Ins. Co., 932 A.2d
78, 93 (Pa. Super. 2007) (“This Court will not act as counsel and will not
develop arguments on behalf of an appellant.”).


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