J-A26009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANA L. NEWBY,                                IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

DAVID D. NEWBY,

                          Appellant                 No. 427 MDA 2014


               Appeal from the Order Entered February 27, 2014
                 In the Court of Common Pleas of York County
                    Civil Division at No(s): 2012-FC-847-15


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 15, 2014

     David D. Newby (“Husband”) appeals from the February 27, 2014

order denying his petition seeking enforcement of a marriage settlement

agreement (“MSA”). Specifically, he asked the court to order Dana L. Newby

(“Wife”) to pay him his one-half share of the equity in the marital home.

After review, we reverse and remand for proceedings consistent herewith.

     The following facts are relevant to our disposition. The parties entered

into an MSA dated and effective November 8, 2011.                The parties

subsequently divorced on January 20, 2012, but the MSA did not merge into

the decree.    Article 1 § 1.01(a) of the MSA governed the couple’s marital

home, and provided in pertinent part:

     (a)      107 Meadow Hill Drive, Windsor Township, York County,
              Pennsylvania
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          (i) VALUATION: At the time this Agreement was
          prepared, David and Dana believed that the fair
          market value of this real property and residence was
          equal to or less than the principle (sic) balance of
          their mortgage and home equity loan. David and
          Dana elected not to have the value of this real
          property and residence determined at the time this
          Agreement was prepared. Instead, the value of this
          real property and residence shall be determined by
          sale or appraisal at a later time.         Pending the
          distribution of this real property and residence as set
          forth below, neither David nor Dana shall do or allow
          anything that would reduce the fair market value of
          this real property and residence.

          (ii) OWNERSHIP: David and Dana owned this real
          property and residence at the time this Agreement
          was signed. Neither Dana nor David shall transfer
          any interest in this real property and residence other
          than through the distribution or alternate distribution
          described below.

                      ....



          (v) DISTRIBUTION: David and Dana share a goal of
          holding this real property and residence for a period
          of about two years while they pay down their
          mortgage and home equity loans (and hope that
          market conditions increase the value of their home)
          to a point where this real property and residence
          may be sold without incurring a significant financial
          loss. Exactly two years after David and Dana sign
          this Agreement (sooner if both David and Dana
          agree) this real property and residence shall be listed
          for sale with a Realtor. It shall remain listed for sale
          through a Realtor until sold. The marketing goal
          shall be a prompt sale for an amount sufficient to
          pay all expenses of sale. Any and all net proceeds of
          sale, and any escrow refunds, shall be distributed
          promptly between David and Dana in equal shares.
          Any closing costs, short sale fees, and sums required
          to be paid at time of settlement to complete sale and
          transfer marketable title shall be paid promptly by

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          David and Dana in equal shares—however under no
          circumstances shall this real property and residence
          be listed or sold for an amount that would require
          either David or Dana to pay more than five thousand
          dollars ($5,000) out of pocket to complete the sale
          (the only exception being if either Dana or David
          expressly agrees to pay more than this amount in
          order to obtain a prompt sale).

          (vi) ALTERNATE DISTRIBUTION: After the two year
          “holding period” mentioned in the preceding
          subsection of this agreement, Dana or David may
          “buy out” the other’s interest. The buyout amount
          shall be one-half of the equity (appraised value at
          that time minus remaining balance of the mortgage
          and home equity loans at that time). The expense
          of the appraisal shall be paid by whomever is
          buying-out the other person’s share. The buyout
          payment shall be paid no later than ninety (90)
          days after notice of intention to buy out the other’s
          interest is given.       After receiving the buyout
          payment, the person whose interest is being bought
          out shall vacate this real property and residence
          within thirty (30) days of payment or sixty (60)
          days of notice of buyout (whichever is more). The
          deed to this real property and residence shall be
          transferred to the person who is buying-out the
          other’s interest, but not until the person whose
          interest is being bought out is completely removed
          from all legal liability on the mortgage and home
          equity loans. Additionally, the person who buys out
          the other’s interest in the home shall promptly pay
          the other a portion of any excess proceeds of sale of
          this real property and residence as follows:

               1. If this real property and residence is
               sold within one year of the buyout
               payment mentioned above, fifty percent
               (50%) of any portion of net proceeds
               from sale that exceed the equity per
               appraisal mentioned above.


               ....


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Marital Settlement Agreement, 11/8/11, at 2-5. The MSA also provided that

the agreement could be modified only in a writing signed and acknowledged

by the parties before a notary public and that the agreement was not subject

to modification by the court. Id. at § 6.03(a) and (b).

     The following facts were developed at the February 6, 2014 hearing on

Husband’s petition seeking specific enforcement of the MSA’s provisions

regarding the parties’ marital home. The parties continued to reside in the

marital home and share the expenses even after the divorce decree was

entered.   In February or March of 2013, they discussed the sale of the

house, or alternatively, one staying in the house and buying out the other.

Husband told Wife that a real estate agent whom he consulted estimated

that their home would sell for a price between $209,000 and $220,000, and

that they likely would have to pay up to $10,000 in closing costs.     When

Husband subsequently advised Wife that he did not want to stay in the

house, Wife sought refinancing in her name alone. The house appraised at

$300,000, a fact that Wife did not communicate to Husband. The mortgage

payoff was $214,203.35.

     At settlement on April 24, 2013, Wife paid off the existing liens on the

property with the proceeds of a new loan for $201,465, and $20,756.65 in

cash, most of which she obtained from her parents. Husband executed the

deed transferring his one-half interest in the marital home to Wife.    That

night, Husband asked Wife for his share of the equity in the house. Wife told

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him he would not be getting anything since he decided to abandon the

property. Husband subsequently moved out of the property in June 2013,

and sought specific enforcement of the MSA in January 2014.

      At the hearing, Wife introduced the settlement sheet, the signed deed,

and a second appraisal of the marital home dated January 2014,

retrospectively valuing the property as of March 2013 at $255,000. It was

her position that, although there was equity in the property, Husband was

entitled to nothing.   Alternatively, if the court were to determine that she

owed him half the equity in the home, the amount should be based on the

second estimate of $255,000, rather than the bank’s appraisal of $300,000.

      The trial court credited Wife’s testimony and concluded, “Husband

waived or relinquished the right to now compel Wife to buy out his interest

in the marital residence based on the bank refinancing appraisal. If Husband

thought he was due money pursuant to the MSA because Wife got an

appraisal to refinance, he could have voiced his claim. He did not have to

sign the deed as he did.” Trial Court Opinion, 4/30/14, at 7. Furthermore,

the court found that there was nothing to gain from the settlement as Wife

was required to contribute an additional $20,000 in cash to refinance the

home.

      Husband timely appeals and presents three questions for our review:

      1. Did the trial court err as a matter of law and abuse its
         discretion in determining that Appellant (hereinafter



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         “Husband”) waived his right to payment of one-half of the
         equity in the marital real estate?

      2. Did the trial court err as a matter of law and abuse its
         discretion by modifying the terms of the parties’ marital
         settlement agreement?

      3. Did the trial court err as a matter of law and abuse its
         discretion by “interpreting” the parties’ agreement as well as
         their conduct so as to effect a waiver of the “buyout”
         provisions of their marital settlement agreement?

Appellant’s brief at 7.

      We review the trial court’s decision refusing to enforce the MSA for an

error of law or an abuse of discretion. Tuthill v. Tuthill, 763 A.2d 417, 419

(Pa.Super. 2000). The marital settlement agreement at issue, which did not

merge into the divorce decree, "survives as an enforceable contract [and] is

governed by the law of contracts.” Morgan v. Morgan, 2014 PA Super 176

(Pa.Super. 2014). Since contract interpretation is a question of law, we are

not bound by the trial court’s interpretation. Stamerro v. Stamerro, 889

A.2d 1251, 1257 (Pa.Super. 2005). Our standard of review is de novo and

the scope of our review is plenary. Kripp v. Kripp, 849 A.2d 1159, 1164

n.5 (Pa. 2004).     However, we are bound by the trial court's credibility

determinations. Wade v. Huston, 877 A.2d 464 (Pa.Super. 2005).

      There is no dispute that the MSA provided the marital home would be

sold after two years, or earlier if the parties agreed, and the equity split

equally between Husband and Wife. Alternatively, one party could buy out



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the other by paying one-half of the appraised value after satisfying any

amounts owing on the mortgages. Wife maintained, however, that Husband

told her he wanted out. She “understood that to mean that he wanted to

move out, and that if I could get the refinance, that the house was mine.”

N.T., 2/6/14, at 29.

      Husband maintains that he and Wife discussed the options: selling the

house and splitting the proceeds, and one person staying in the house and

buying out the other. Wife ultimately decided to refinance and stay in the

home. Husband contends first that he did not waive his right to share in the

equity of the marital home and that his conduct did not evidence any intent

to modify the MSA.      Furthermore, Husband claims that any waiver or

modification to the MSA had to be in writing to be enforceable. Moreover,

Husband maintains that the fact that he signed the deed and did not

demand payment at the settlement did not constitute waiver of his right to

the equity in the home under the MSA.       According to the MSA, Wife had

ninety days from the date she indicated her intent to buy out Husband to

pay him his one-half of the equity in the house.

      Wife’s position is that Husband waived his right to the equity in the

marital home by his conduct or, alternatively, that his signature on the deed

at settlement constituted a sufficient writing to modify the MSA terms, and

that his release from liability on the mortgages was sufficient consideration

for the transfer of the property.   She also claims that a refinancing and a


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buyout are two different things, and that there were no proceeds to

distribute to Husband at settlement.

     The standard of enforceability of a contractual agreement is clear:

"[a]bsent fraud, misrepresentation, or duress, spouses should be bound by

the terms of their agreements."        Crispo v. Crispo, 909 A.2d 308, 313

(Pa.Super. 2006) (quoting McMahon v. McMahon, 612 A.2d 1360, 1363

(Pa.Super. 1992)) (citations omitted). Thus, the trial court may interpret a

marital settlement agreement like 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.”      Bianchi v. Bianchi, 859 A.2d 511, 515

(Pa.Super.2004). As with contracts generally, the court must ascertain the

intent of the parties when interpreting a contractual agreement.     Kripp,

supra at 1163.      When the language of such an agreement is clear and

unambiguous, this Court need only examine the writing itself to give effect

to the parties’ understanding.    Lang v. Meske, 850 A.2d 737, 739-41

(Pa.Super. 2004).

     Our Supreme Court reiterated in Nicolella v. Palmer, 248 A.2d 20,

23 (Pa. 1968), however, that “[p]arties to an agreement may rescind or

abandon it.”   This can be demonstrated by parol evidence.      Wagner v.

Graziano Const Co., 136 A.2d 82, 84 (Pa. 1957). Even where the written

contract prohibits a non-written modification, our High Court held in

Wagner that it may be modified by subsequent oral agreement. Proof of


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oral modification of a written contract may be expressed in words or inferred

from the acts and declarations of the parties. However, “where the writing

contains an express provision that it constituted the entire contract between

the parties and should not be modified except in writing, the party seeking

to show subsequent oral modification in the agreement must prove it by

clear, precise, and convincing evidence, as in cases where fraud, accident, or

mistake is alleged.”   Nicolella, supra at 23; see also Empire Props. v.

Equireal, Inc., 674 A.2d 297 (Pa.Super. 1996) (an agreement prohibiting

non-written modification may be modified by a subsequent oral agreement if

the parties' conduct clearly shows an intent to waive the requirement that

amendments be in writing).

      We have reviewed the record and conclude that it does not support the

trial court's determination that Husband waived or abandoned his claim to

one-half of the equity in the marital home. Wife’s initial waiver claim was

based on Husband’s statement, “I want out ASAP.”        N.T., 2/6/14, at 27.

Mindful that the trial court believed Wife’s version of the events, and

deferring to that credibility determination as we must, Wade, supra, we fail

to see how this statement constitutes the clear, precise, and convincing

evidence that Husband waived or abandoned his equity interest in the

property. Nor do we find waiver based on Husband’s alleged failure to tell

the settlement company about the MSA or provide a copy. Husband was not

dealing with the settlement company and had no obligation to assert a claim


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at settlement. Wife was contractually obligated under the MSA to pay him

within ninety days of declaring her intention to buy him out. At the time of

settlement, that ninety-day period had not run.        It is undisputed that

Husband made a demand for his share of the equity in the home the night of

the settlement and Wife refused that request.

      Nor do we agree that Husband’s execution of the deed was legally

sufficient to constitute a written modification of the MSA.         The MSA

contemplated that one spouse could buy out the other. Upon being relieved

of financial obligation, the selling spouse was required to execute the

documents necessary to facilitate that transfer. Husband’s signature on the

deed was consistent with his contractual obligations under the MSA, not

evidence of any modification to that agreement.

      Furthermore, we find no merit in Wife’s position, adopted by the trial

court, that the refinancing of the property and Husband’s signing of the deed

transferring his rights in the property to Wife was not a buyout as that term

was used in the agreement. Refinancing was the means to effectuate the

buyout and fully consistent with the alternate distribution option in the

agreement. Husband, upon being relieved of financial responsibility for liens

on the property, was required to execute the deed to transfer the property

to Wife. The MSA only provided for two means of disposing of the property:

sale to a third person or a buyout by one of the spouses. In addition, the

parties agreed that neither could “transfer any interest in this real property


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and residence other than through the distribution or alternate distribution”

set forth in the MSA. MSA, at Article 1 § 1.01(a)(ii). The disposition was

entirely consistent with the alternate distribution provisions of the MSA, with

the exception that Wife refused to pay Husband his one-half share of the

equity.

      Nor do we find support for the trial court’s conclusion that since there

was nothing to distribute to Husband, he was not entitled to anything. The

MSA provided that Husband was entitled to one-half of the equity in the

home, as determined by an appraisal, minus the outstanding liens on the

property. The bank’s appraisal reflected a value of $300,000; liens totaled

$214,203.35.    Thus, there was approximately $85,000 in equity in the

property, one-half of which belonged to Husband.        Wife’s failure to seek

and/or secure sufficient funds to satisfy both Husband’s share of the equity

and the liens does not relieve her of the contractual obligation to pay

Husband.      Thus,   we   conclude   that Husband is entitled to      specific

performance of the MSA regarding disposition of the marital home.

      The record contains two appraisals of the property, one obtained by

the bank at the time of the refinancing, and the other secured by Wife in

anticipation of litigation and retrospectively valuing the property at the time

of the sale. The MSA expressly provides that an appraisal at the time of the

buyout or sale would determine the parties’ one-half shares of the equity.

Only one appraisal was obtained at the time of the buyout, that being the


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bank’s $300,000 appraisal. There was discussion, but no firm resolution, of

whether settlement costs1 should be borne equally by Husband and Wife

under the MSA’s alternate disposition provisions. We find that the MSA does

not so provide.      Finally, Husband made a claim for attorneys’ fees in the

amount of $1,500 pursuant to Section 6.06(c) of the agreement, which the

trial court refused since he was unsuccessful below.

       Hence, we reverse and remand. We direct the court to award Husband

$42,398.32 for his one-half equity share in the marital home and his counsel

fees in litigating this matter.

       Order reversed. Case remanded for further proceedings in accordance

with this adjudication. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014



____________________________________________


1
  The HUD-1 Settlement Statement was introduced into evidence as Wife’s
Exhibit 3. While it reflects that $8,018.30 was due from Borrower at
settlement, $4,743.72 of those settlement costs consisted of Borrower’s
initial deposit for escrow of homeowner’s insurance, property and school
taxes, and $3,465.00 for the mortgage insurance premium.



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