J-A27025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CRISTY CAUCHON LAKHMNA                           IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                          Appellee

                     v.

GAGANDEEP S. LAKHMNA

                          Appellant                 No. 984 EDA 2018


                Appeal from the Order Entered March 19, 2018
             In the Court of Common Pleas of Philadelphia County
               Family Court at No: 8517 September Term, 2012


BEFORE: BOWES, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                          FILED APRIL 24, 2019

     Appellant, Gagandeep S. Lakhmna (“Husband”), appeals from the March

19, 2018 order enforcing the parties’ rights under a postnuptial agreement.

We affirm.

     The trial court set forth the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

           The parties are a formerly married couple who were
     divorced on February 22, 2016. Prior to the entry of the divorce
     decree, they entered into a postnuptial agreement, dated October
     13, 2015, providing for resolution of claims for custody and
     support of their daughter […], alimony, and distribution of marital
     property. The postnuptial agreement was incorporated, but not
     merged, into the divorce decree entered on February 22, 2016.

          Pertinent to the real property at issue, the postnuptial
     agreement provided as follows:

             7.    PROPERTY DIVISION

             7.3   Real Estate Located at 1808 Spruce Street:
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             7.3.1.      1808 Spruce Street, Unit 3, Philadelphia PA
      (appraised value of $1.3 million) shall be transferred to [Appellee,
      Christy Cauchon Lakhmna (“Wife”)] in a fashion that minimizes
      the cost of the transfer. This property shall be transferred to
      [Wife] free and clear of any liens, mortgages, or encumbrances,
      with clear title and with a valid Certificate of Occupancy.
      [Husband] shall be responsible to arrange the transfer of title to
      [Wife] by October 26, 2015. Upon signing of this agreement, even
      prior to the transfer, [Wife] shall have exclusive decision making
      authority with regard to the current sale listing of this unit.

             7.3.2.       Upon bona fide sale of 1808 Spruce Street, Unit
      3, to a third party, the parties shall divide the net proceeds of 70%
      to [Wife] and 30% to [Husband]. Net proceeds shall be defined
      as customary costs of sale including, but not limited to, Realtor
      fees and transfer taxes. No other expenses or mortgages or
      expenses [sic] shall be allowable as a deduction to the sales price.
      [Wife] shall have sole discretion regarding the sale of the property
      including, but not limited to, choice of Realtor and listing or sale
      price. Should the property not be sold until after [Husband’s]
      death, [Husband’s] share of the proceeds shall be placed in a trust
      to [the parties’ daughter]. This property shall not be sold for less
      than the higher of the fair market value at the time of sale or
      $1,450,000.00.

      Postnuptial agreement, dated October 13, 2015, incorporated, but
      not merged, into the divorce decree entered on February 22,
      2016.

            Subsequently, in November of 2015, the parties amended
      Section 7.3.1. of the postnuptial agreement to allow for the
      placement of a $300,000 mortgage on 1808 Spruce Street, Unit 3
      (“Unit 3”) as collateral for paying off mortgages on other units in
      1808 Spruce Street. Husband was responsible for satisfying the
      $300,000 mortgage no later than April 15, 2016. The amendment
      contained language nearly identical as that used in the original
      postnuptial agreement, that “[Wife] has exclusive decision making
      with regard to the listing of this unit.”

Trial Court Opinion, 6/19/18, at 1-2.

      Subsequently, Wife took out a $329,000 mortgage on 1808 Spruce

Street, Unit 3 (“1808 Spruce”) to finance the purchase of a home at 1043 Oak


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Lane, Philadelphia, where Wife now resides. She decided to rent 1808 Spruce

rather than sell it.     Wife’s action spawned competing lawsuits.   Aware of

Husband’s dissatisfaction with her actions, Wife commenced this action on

February 20, 2018, pursuant to 23 Pa.C.S.A. § 3104,1 with an emergency

petition asking the family court to enjoin Husband from interfering with Wife’s

rights under the postnuptial agreement.          Wife believes the postnuptial

agreement does not require her to sell 1808 Spruce, and that nothing in the

agreement precluded renting it. On February 22, 2018, Husband filed a civil

action seeking, among other things, specific performance of the postnuptial

agreement. Husband believes the postnuptial agreement requires Wife to sell

1808 Spruce.



____________________________________________


1   Section 3104 provides:

       (a) Jurisdiction.--The courts shall have original jurisdiction in
       cases of divorce and for the annulment of void or voidable
       marriages and shall determine, in conjunction with any decree
       granting a divorce or annulment, the following matters, if raised
       in the pleadings, and issue appropriate decrees or orders with
       reference thereto, and may retain continuing jurisdiction thereof:

       (1) The determination and disposition of property rights and
       interests between spouses, including any rights created by any
       antenuptial, postnuptial or separation agreement and including
       the partition of property held as tenants by the entireties or
       otherwise and any accounting between them, and the order of any
       spousal support, alimony, alimony pendente lite, counsel fees or
       costs authorized by law.

23 Pa.C.S.A. § 3104 (West).



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       Wife filed an amended petition on March 2, 2018 and Husband answered

on March 16, 2018. On March 19, 2018, the trial court heard argument and

entered the order on appeal.2 The order reads as follows:

            This court exercises its jurisdiction pursuant to 23 Pa.C.S.
       §§ 3104, 3105 and 3223(F).

             [Husband’s] rights to the property at 1808 Spruce Street,
       Unit 3, Philadelphia, PA are limited to 30% of the net proceeds
       upon the sale of the property as provided in the post-nuptial
       agreement between the parties.

             [Husband] shall not interfere in any rental of the property
       at 1808 Spruce Street, Unit 3, Philadelphia, PA, or the refinancing
       of the property at 1043 Oak Lane, Philadelphia, PA.

Order, 3/19/18.

       In this timely appeal, Husband argues that the trial court erred in

construing the postnuptial agreement. He claims the postnuptial agreement

is ambiguous and that the court erred in not receiving evidence as to the

parties’ intent.3 He further argues that the March 19, 2018 order is ambiguous

and that it unfairly and unconstitutionally puts him out of court on his claims

under the postnuptial agreement. Husband’s Brief at 5-6.

       This case presents an issue of contract interpretation, inasmuch as the

family court construed the parties’ postnuptial agreement pursuant to its

jurisdiction under § 3104(a)(1). Our standard of review is de novo and our

____________________________________________


2 Husband’s civil suit is not before us, but the parties represent that the trial
court sustained Wife’s preliminary objections on June 19, 2018.

3  The agreement, at ¶ 19.1, provides that it was prepared jointly by the
parties and their attorneys.

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scope of review is plenary. Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d

510, 517-18 (Pa. Super. 2009), appeal denied, 991 A.2d 313 (Pa. 2010).

             The fundamental rule in interpreting the meaning of a
      contract is to ascertain and give effect to the intent of the
      contracting parties.    The intent of the parties to a written
      agreement is to be regarded as being embodied in the writing
      itself. The whole instrument must be taken together in arriving at
      contractual intent. Courts do not assume that a contract’s
      language was chosen carelessly, nor do they assume that the
      parties were ignorant of the meaning of the language they
      employed. When a writing is clear and unequivocal, its
      meaning must be determined by its contents alone.

            Only where a contract’s language is ambiguous may
      extrinsic or parol evidence be considered to determine the intent
      of the parties. A contract contains an ambiguity if it is reasonably
      susceptible of different constructions and capable of being
      understood in more than one sense. This question, however, is
      not resolved in a vacuum.        Instead, contractual terms are
      ambiguous if they are subject to more than one reasonable
      interpretation when applied to a particular set of facts. In the
      absence of an ambiguity, the plain meaning of the agreement will
      be enforced. The meaning of an unambiguous written instrument
      presents a question of law for resolution by the court.

Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d 1034, 1046

(Pa. Super. 2015) (emphasis in original).

      The parties’ postnuptial agreement is not a model of draftsmanship, but

we cannot accept Husband’s conclusion that it requires Wife to sell 1808

Spruce.   In ¶ 7.3.1, the post-nuptial agreement references a “current sale

listing.” In ¶ 7.3.2, however, it contemplates that a sale might not occur until

after Husband’s death. Husband would have us construe the agreement as

requiring a sale within a reasonable time, citing Field v. Golden Triangle

Broadcasting, Inc., 305 A.2d 689, 694 (Pa. 1973) (noting that where a


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contract does not specify a time for performance, performance must be

completed within a reasonable time). Husband claims that receipt of his 30%

share of the net proceeds within a reasonable time is necessary to make him

whole in terms of equitable distribution of the marital property. We cannot

accept that argument, given that ¶ 7.3.2 contemplates that a sale could occur

after Husband’s death. Nothing in the contract indicates that Husband is of

advanced age or terminally ill, and § 7.3.2 does not purport to apply in the

event of Husband’s accidental or tragic death before the completion of a sale.

Thus, the agreement left open the possibility that a sale of the property, if it

occurred at all, would take place at an indefinite time well into the future.

      Furthermore, as set forth in Ramalingam, we must consider the whole

contract in arriving at the parties’ intent.     Indeed, “a contract must be

interpreted to give effect to all of its provisions.” Commonwealth ex rel.

Kane v. UPMC, 129 A.3d 441, 464 (Pa. 2015).           We cannot interpret one

provision in a manner that would render another provision null.        Id.   The

postnuptial agreement provides that Wife will receive 1808 Spruce “free and

clear of any liens, mortgages, or encumbrances, with clear title[.]” The trial

court noted that such language is consistent with a fee simple absolute.     See

Trial Court Opinion, 6/19/18, at 6-7.       While the precise nature of Wife’s

interest in 1808 Spruce is not directly before us, we agree with the trial court

insofar as this language is not consistent with an enforceable obligation for




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Wife to sell the property. A contrary interpretation would render the “free and

clear…” provision null.

      Next, we observe that ¶ 7.3.1 provides that 1808 Spruce was appraised

at $1.3 million, but ¶ 7.3.2 precludes Wife from selling for less than $1.45

million or fair market value, whichever is higher.     Taken together, these

provisions contemplate a possible indefinite delay in the sale, in the event of

Wife’s inability to find a willing buyer at $150,000 above the appraised value.

Thus, the agreement’s reference to a “current” listing does not control the

outcome, inasmuch as there is no guarantee that a current listing would have

resulted in a successful sale. The agreement does not forbid Wife to take

1808 Spruce off of the market and relist it at some future date, as is evident

from the fact paragraphs 7.3.1 and 7.3.2 reference Wife’s unfettered decision-

making authority (excepting the final sales price) with respect to the listing

and sale of the property.

      Finally, we must reject Husband’s assertion that the postnuptial

agreement precluded Wife from encumbering 1808 Spruce, as she did to

finance the purchase of her current home. Husband claims the parties never

intended for Wife to hold onto the property and use it as her “piggy bank.”

Husband’s Brief at 22. To the contrary, ¶ 7.3.2 expressly provides that any

other mortgages on 1808 Spruce will not be deducted from the net proceeds

in the event of a sale. In essence, the postnuptial agreement provides that

the outstanding balance of the $329,000 mortgage —or any other money Wife


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borrows against 1808 Spruce—will come out of Wife’s 70% share of the

proceeds if and when she completes a sale. Husband will receive 30% of the

net proceeds, as defined in the postnuptial agreement, regardless of any

encumbrances Wife creates as owner of 1808 Spruce.

        In summary, we agree with the trial court’s conclusion that nothing in

the postnuptial agreement requires Wife to sell 1808 Spruce “within a

reasonable time.”       Several provisions of the contract unambiguously

contradict such a finding.     Furthermore, we agree with the trial court’s

conclusion that nothing in the postnuptial agreement precludes Wife from

renting 1808 Spruce. The trial court correctly found that Husband’s interest

is limited to 30% of the contractually defined net proceeds in the event of a

sale.

        If Husband intended otherwise, he could and should have insisted on

appropriate contractual terms. While we do not view the parties’ postnuptial

agreement as a model of draftsmanship, we cannot, under the guise of

contractual ambiguity, rewrite it in terms more favorable to Husband. Rather,

we must construe a contract to give effect to all of its terms. Husband would

have us read significant portions of paragraphs 7.3.1 and 7.3.2 out of the

contract. The law does not permit that result.

        Next, we consider Husband’s argument that the trial court’s order is

ambiguous and that it unfairly and/or unconstitutionally puts him out of court

and leaves him with no means of enforcing his rights under the postnuptial


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agreement. Husband cites no law in support of his argument that the order

is ambiguous, and the only prejudice he claims stemming from the trial court’s

order is his lack of success in the related specific performance action. In our

view, the order states, quite plainly and correctly, that Husband’s interest in

1808 Spruce is limited to a 30% interest in the net proceeds of a sale, if any,

and that he cannot prevent Wife from renting 1808 Spruce.

      Husband’s civil action is not before us, and therefore we express no

opinion on it. If it concludes with a final order adverse to Husband, he may

appeal. Whether the outcome of this action forecloses relief in Husband’s civil

action or any other proceeding will be a matter for another court to decide.

      Order affirmed.

      Judge McLaughlin joins this memorandum.

      Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/19




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