J. A20007/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

GRANT H. WISE,                              :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                            Appellant       :
                                            :
                      v.                    :          No. 220 MDA 2019
                                            :
SUSAN J. WISE AKA SUSAN WEAVER              :


                Appeal from the Order Entered January 9, 2019,
               in the Court of Common Pleas of Lancaster County
                        Civil Division at No. CI-13-03038


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED FEBRUARY 25, 2020

      Grant H. Wise (“Husband”) appeals from the January 9, 2019 order

entered by the Court of Common Pleas of Lancaster County granting the

petition for special relief filed by Susan J. Wise, a/k/a Susan Weaver (“Wife”),

and entering judgment against Husband and in favor of Wife for past-due

alimony and attorney’s fees totaling $29,170. After careful review, we affirm.

      The procedural history of this case is as follows:         On April 4, 2013,

Husband filed a complaint in divorce. While their divorce was pending, both

parties executed a postnuptial agreement on April 8, 2013. Therein, Husband

agreed    to    pay        $2,500   per   month   in   spousal    support/alimony

pendente lite/alimony for 60 months. (Postnuptial agreement, 4/8/13 at 8.)

The obligation would terminate only on Wife’s death, remarriage, or
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cohabitation. (Id.) Upon the consent of both parties, the trial court entered

a divorce decree on August 2, 2013.1

        From the entry of the divorce decree through October 5, 2018, Wife filed

seven petitions for special relief in an effort to enforce the terms of the

postnuptial agreement. Over the course of this litigation, the trial court found

Husband to be in violation of the postnuptial agreement twice and in contempt

of court four times. The trial court also entered four judgments in favor of

Wife and against Husband totaling $75,228.75. The judgments were entered

on May 24, 2016, August 25, 2016, April 10, 2017, and January 9, 2019.

        To enforce the August 25, 2016 judgment, Wife filed a praecipe for a

writ of execution in which she sought to garnish the amount of the judgment

from Husband’s account at Fulton Bank.             On December 1, 2016, the

prothonotary entered judgment in favor of Wife and against Fulton Bank in

the amount of $17,749.25, thereby satisfying Husband’s alimony obligations

through August of 2016. Following the satisfaction of the August 25, 2016


1   The postnuptial agreement contained language indicating that,

              to the extent [the] Agreement is incorporated into any
              decree of divorce, it shall be for purposes of
              enforcement only of the provisions contained herein,
              and the parties do not intend to grant or confer upon
              the [trial c]ourt any right to alter or modify any of the
              dispositive provisions of this postnuptial settlement …

Postnuptial agreement, 4/8/13 at 1. Neither the divorce decree, the parties’
affidavits of consent, nor the parties’ waivers of intention to request entry of
a divorce decree reference the incorporation of the postnuptial agreement into
the decree.


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judgment, Wife filed a praecipe to settle, satisfy, and discontinue a confession

of judgment on January 6, 2017.

        On April 10, 2017, the trial court entered an order in which it found

Husband to be in contempt for failing to make alimony payments from

September of 2016 through February of 2017. The trial court also entered

judgment in favor of Wife and against Husband in the amount of $17,500,

representing seven missed alimony payments from September of 2016

through March of 2017. (Order, 4/10/17 at 2.) On October 5, 2018, Wife

filed a petition for special relief to enforce the April 10, 2017 judgment. Wife

further alleged that Husband did not make any alimony payments from April

of 2017 through February of 2018.2         The trial court held a hearing on

December 13, 2018. On January 9, 2019, the trial court entered a judgment

against Husband in the amount of $29,170, which represented outstanding

alimony payments from April of 2017 through February of 2018 and Wife’s

attorney’s fees.3 (Order, 1/9/19 at 2.)

        Husband filed a timely notice of appeal on February 7, 2019. The trial

court ordered Husband to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Husband timely complied. The trial

court subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).




2   Wife remarried on February 24, 2018, thereby terminating alimony.

3 The trial court specifically noted that the January 9, 2019 judgment had no
impact on the April 10, 2017 judgment. (Order, 1/9/19 at 3.)


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      Husband raises the following issues for our review:

            I.    Whether the trial court         erred by granting
                  [Wife’s] petition for special   relief because on or
                  about January 6, 2017 a         “praecipe to settle,
                  satisfy, discontinue” was       filed on behalf of
                  [Wife]?

            II.   Whether the trial court lacked jurisdiction to
                  enter its order of January 9, 2019?

Husband’s brief at 7 (extraneous capitalization omitted).

      In his first issue, Husband contends that the praecipe Wife filed on

January 6, 2017, to settle, satisfy, and discontinue following the satisfaction

of the judgment entered on August 25, 2016, relieved him of any further duty

to pay alimony pursuant to the terms of the parties’ postnuptial agreement.

(See Husband’s brief at 16-19.) Wife argues that neither party signed any

writing modifying the postnuptial agreement to absolve Husband of his

obligation to pay alimony. (Wife’s brief at 13.)

            We review a trial court’s decision to grant special relief
            in divorce actions under an abuse of discretion
            standard as follows:

                  Judicial discretion requires action in
                  conformity with law on facts and
                  circumstances before the trial court after
                  hearing and consideration. Consequently,
                  the court abuses its discretion if, in
                  resolving the issue for decision, it
                  misapplies the law or exercises its
                  discretion in a manner lacking reason.
                  Similarly, the trial court abuses its
                  discretion if it does not follow legal
                  procedure.




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           Lachat v. Hinchcliffe, 769 A.2d 481, 487 (Pa.Super.
           2001) (citation omitted). “An abuse of discretion
           exists when the trial court has rendered a decision or
           a judgment which is manifestly unreasonable,
           arbitrary, or capricious, has failed to apply the law, or
           was motivated by partiality, prejudice, bias or ill will.”
           Pratt v. St. Christopher’s Hosp., 824 A.2d 299, 302
           (Pa.Super. 2003), aff’d, [] 866 A.2d 313 ([Pa.]
           2005).

Prol v. Prol, 935 A.2d 547, 551 (Pa.Super. 2007).

     Essentially, Husband is alleging a modification of the parties’ postnuptial

agreement. Postnuptial agreements are contracts and are thus governed by

contract law. Lugg v. Lugg, 64 A.3d 1109, 1110 n.1 (Pa.Super. 2013), citing

Laudig v. Laudig, 624 A.2d 651, 653 (Pa.Super. 1993).               Indeed, our

supreme court has stated that “[a]bsent fraud, misrepresentation, or duress,

spouses should be bound by the terms of their agreements.”              Stoner v.

Stoner, 819 A.2d 529, 532 (Pa. 2003), quoting Simeone v. Simeone, 581

A.2d 162, 165 (Pa. 1990).

           The burden of proving modification of a contract is
           carried by the party asserting the modification. East
           Texas Motor Freight Diamond Div. v. Lloyd, []
           484 A.2d 797, 800 ([Pa.Super.] 1984), citing In re
           Indus. Car. Mfg. Co., 1 B.R. 339 (Bkrtcy. E.D.Pa.
           1979), Nicolella v. Palmer, [] 248 A.2d 20 ([Pa.]
           1968). A contract can be modified with the assent of
           both contracting parties if the modification is
           supported by consideration. Wilcox v. Regester, []
           207 A.2d 817, 821 ([Pa.] 1965), citing Pellegrene v.
           Luther, [] 169 A.2d 298, 299 ([Pa.] 1961), Stoner
           v. Sley System Garages, [] 46 A.2d 172, 173 ([Pa.]
           1946).      Modification of a contract may be
           demonstrated by words, conduct, or both. Burge v.
           Western Pennsylvania Higher Educ. Council,



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            Inc., [] 570 A.2d 536, 538 ([Pa.Super.] 1990)
            (citations omitted).

Trombetta v. Raymond James Fin. Serv., Inc., 907 A.2d 550, 558

(Pa.Super. 2006).

      To support his argument, Husband relies upon Barson’s and

Overbrook, Inc. v. Arce Sales Corp., 324 A.2d 467 (Pa.Super. 1974), and

Miller v. Commonwealth, Dept. of Highways, 415 A.2d 709 (Pa.Cmwlth.

1980). In Barson’s, this court held as follows:

            In essence, the entry of an order to settle,
            discontinue, and end a proceeding has “the same
            effect as the entry of a judgment” in any legal
            proceeding. All parties who sign such an order to
            settle, discontinue and end forever renounce
            their claims arising out of said action[,] as if the
            matter had been fully litigated.

Barson’s, 324 A.2d at 468 (citations omitted; emphasis added). In Miller,

the Commonwealth Court determined that a praecipe to settle, discontinue,

and end a case “constituted a final resolution of all issues in the case which

could have been litigated at the time of filing the praecipe.” Miller,

415 A.2d at 710 (emphasis added).

      Husband’s reliance on these cases is misguided. Indeed, Husband can

cite to no statute, case, or rule of court to support his theory that filing a

praecipe to settle, satisfy, and discontinue following the satisfaction of a

judgment of contempt for his failure to adhere to the terms of the postnuptial

agreement extinguishes his obligations under the postnuptial agreement.

Rather, the praecipe at issue pertains only to litigation relating to the


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August 25, 2016 judgment entered against him by the trial court as part of a

contempt proceeding.

      Indeed, the record reflects that the praecipe references a confession of

judgment.    Black’s Law Dictionary defines “confession of judgment,” in

relevant part, as “[a] person’s agreeing to the entry of judgment upon the

occurrence or non-occurrence of an event, such as making a payment.”

Black’s Law Dictionary 317 (8th ed. 2004). Here, the record reflects that

the confession of judgment involved a judgment entered against Husband’s

bank to garnish the amount of the August 25, 2016 judgment from Husband’s

account. (See judgment against garnishee, 12/1/16.) Therefore, the August

25, 2016 judgment is the action for which the parties renounced any further

claims. See Barson’s, 324 A.2d at 468. Further, at the time of the filing of

the praecipe to settle, satisfy, and discontinue, the August 25, 2016 judgment

against Husband was the only issue in this case that could have been litigated.

See Miller, 415 A.2d at 710.

      Moreover, we note that the docket did not close with the filing of the

praecipe. Indeed, the record reflects that following the filing of the praecipe

on January 6, 2017, Wife filed two more petitions for special relief seeking

enforcement of the terms of the parties’ postnuptial agreement, with the trial

court’s granting relief on both petitions.

      We, therefore, find that the trial court did not abuse its discretion when

it concluded that, “[a] praecipe to satisfy one judgment does not terminate



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[Husband’s] contractual obligation to pay [Wife] alimony pursuant to the

terms of the [p]ostnuptial [a]greement.         The [p]raecipe filed by [Wife] in

January 2017 has no impact on [Husband’s] continued contractual obligation.”

(Trial court opinion, 4/5/19 at 3.) Further, we find that Husband has not met

his burden of establishing that, with the filing of the praecipe acknowledging

the satisfaction of the August 25, 2016 judgment, the postnuptial agreement

was modified with the assent of both parties. See Trombetta, 907 A.2d at

558 (holding that a contract may only be modified with the assent of both

parties). Accordingly, Husband’s first issue is without merit.

      In his second issue, Husband contends that the trial court lacked

jurisdiction to enter its January 9, 2019 order. Specifically, appellant argues

that the January 6, 2017 praecipe filed by Wife divested the trial court of any

jurisdiction   over   enforcement   of    the   parties’   postnuptial   agreement.

(Husband’s brief at 22.) As is discussed in detail supra, the praecipe only

terminated litigation relating to the August 25, 2016 judgment entered by the

trial court because the judgment was satisfied by garnishment. Therefore,

Husband’s second issue is without merit.




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Order affirmed.



     Gantman, P.J.E. joins this Memorandum.

     McLaughlin, J. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2020




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