J-A23004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARISSA S. BARKSDALE                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUSTIN T. BARKSDALE

                            Appellant                No. 1891 WDA 2015


                Appeal from the Order Dated November 6, 2015
               In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): FD 14-7960-011


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 18, 2016

        Justin Barksdale (“Husband”) appeals from the order entered in the

Court of Common Pleas of Allegheny County denying his Motion to Enforce

Consent Order against Marissa Barksdale (“Wife”).          After our review, we

affirm.

        Husband and Wife were married on December 19, 2004. Two children

were born of the marriage, ages five and eleven. On September 26, 2014,

Wife filed for divorce. On June 11, 2015, Husband and Wife entered into a

consent order, which resolved the issues of equitable distribution and

custody.    With respect to the marital home, the order provided that Wife

would sign over the deed to Husband and Husband would assure that Wife

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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was not obligated on the mortgage. The court entered a divorce decree on

July 17, 2015.

      Thereafter, on October 26, 2015, Husband filed a Motion to Enforce

Consent Order. In his motion, Husband averred Wife failed to sign over the

deed to the marital home, and although Wife’s name was still listed on the

mortgage instrument, she “is not named in the Mortgage Note.” Motion to

Enforce Consent Order, 10/26/15, at ¶5. Further, Husband averred that he

contacted the mortgagee, and has “been assured that because [W]ife is not

named in and did not sign the Mortgage Note, she cannot be held

responsible for the mortgage in any way.” Id. at ¶ 6. Husband claimed that

Wife’s failure to sign over the deed violated the parties’ agreement.

      On November 6, 2015, the court heard argument on Husband’s motion

and concluded that Wife was not required to sign over the deed until

Husband removed Wife from the mortgage note. The court entered an order

denying Husband’s motion and ordering him to remove Wife from the

mortgage. See Order, 11/6/15. Husband filed a motion for reconsideration,

which was denied, and this appeal followed.

      Husband raises one issue for our review:

      Whether the trial court erred in failing to enforce the parties’
      unambiguous agreement and in requiring the husband to remove
      the wife’s name from the mortgage on the marital residence.

Appellant’s Brief, at 3.

      It is well-established that the law of contracts governs marital
      settlement agreements, and under the law of contracts, the
      court must ascertain the intent of the parties when interpreting a

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     contractual agreement. Kripp v. Kripp, 849 A.2d 1159, 1163
     (Pa. 2004) (citations omitted). 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. Moreover,
     the long-standing law of this Commonwealth is that property
     settlement agreements are presumed to be valid and binding
     upon the parties. When construing agreements involving clear
     and unambiguous terms, a trial court need only examine the
     writing itself to give effect to the parties' understanding. A court
     may not modify the plain meaning of the words under the guise
     of interpretation.

Crispo v. Crispo, 909 A.2d 308, 312–13 (Pa. Super. 2006)(citations and

quotations omitted).

  The parties’ consent order provides, in pertinent part:

     Husband shall retain the marital residence and assume
     responsibility for all costs associated with it, including payment
     of the mortgage loan, property taxes, and insurance. Deed to be
     signed and transferred to Husband. Husband to assure Wife is
     not obligated in any way on the mortgage.

Consent Order, 6/16/15, ¶1 (emphasis added).

     Husband argues that absent a provision allowing for modification, the

court may not modify the terms of the agreement, which is treated as a

contract between the parties. Osial v. Cook, 803 A.2d 209, 213 (Pa. Super.

2002). He claims that the consent order did not specifically obligate him to

refinance the mortgage and thus his assurances satisfy the condition that

Wife is not obligated on the mortgage.

     The Mortgage Instrument states:


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J-A23004-16


     Any Borrower who co-signs this Security Instrument but does
     not execute the Note: (a) is co-signing this Security Instrument
     only to mortgage, grant and convey that Borrower’s interest in
     the Property under the terms of this Security Instrument; (b) is
     not personally obligated to pay the sums secured by this
     Security Instrument; and (c) agrees that Lender and any
     other Borrower may agree to extend, modify, forbear or make
     any accommodations with regard to the terms of this Security
     Instrument or the Note without that Borrower’s consent.

Mortgage, 2/6/12, at ¶12 (emphasis added).           A mortgage is generally

accompanied by a promissory note. The note is evidence of the debt

obligation for which the mortgage is given.       The mortgage and the note,

while separate instruments, secure the same debt. However, the note is a

personal obligation of the obligor (mortgagor).     Here, Husband signed the

Note; Wife did not. See Note, 2/6/12, at 2. Although Wife is not personally

liable on the Note, if Husband defaults on the Note and the mortgagee

(“Lender”) pursued a foreclosure action against the property, Wife would be

named and required to defend that action. Additionally, Wife, named as

Borrower on the Mortgage (“Security Instrument”), retains obligations on

the Mortgage apart from the Note, such as governmental or municipal

charges, fines and impositions that are not included in the monthly payment

as set forth in the Note. See Mortgage, at ¶ 7.

     If Borrower fails to make these payments . . . or fails to perform
     any other covenants and agreements contained in this Security
     Instrument, or there is a legal proceeding that may significantly
     affect Lender’s rights in the Property (such as a proceeding in
     bankruptcy, for condemnation or to enforce laws or regulations),
     then Lender may do and pay whatever is necessary to protect
     the value of the Property and Lender’s rights in the Property,
     including payment of taxes hazard insurance and other items


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      mentioned in paragraph 2.  Any amounts disbursed by
      Lender under this paragraph shall become an additional
      debt of Borrower and be secured by this Security
      Instrument.

Mortgage, ¶7 (emphasis added).

      Husband’s and mortgagee’s assurances that Wife will not be financially

responsible for the debt secured by the mortgage is not a satisfactory

release of Wife from association with the marital home and from all

obligations under the mortgage.       The court determined that it was the

intention of the parties to “sever Wife’s financial obligation to the mortgage”

and that in order to enforce the consent order, Husband was required “to

remove [Wife] from all mortgage documents associated with the marital

home.”   Trial Court Opinion, 1/7/16, at 6-7 (emphasis added).        The trial

court’s interpretation gives effect to the parties’ agreement. Crispo, supra.

We, therefore, affirm the trial court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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