J-S32027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RUTH Y. WINGARD,                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ROBERT E. SEANOR,

                            Appellee                  No. 1881 WDA 2014


                Appeal from the Order Entered October 17, 2014
                 In the Court of Common Pleas of Butler County
                   Civil Division at No(s): F.C. No. 80-90847-D


BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                FILED JUNE 25, 2015

       Appellant, Ruth Y. Wingard (hereinafter “Wife”), appeals from the

order entered on October 17, 2014, granting in part and denying in part

Wife’s “Petition to Enforce Alimony.” We affirm.1

       The trial court has ably explained the underlying facts of this case:

         The parties hereto, [Wife] and Robert Seanor [(hereinafter
         “Husband”)], were married on June 8, 1957, and divorced
         on April 21, 1979. As part of the divorce proceedings[,] the
         parties entered into a settlement agreement which was
         adopted by Order of Court on February 15, 1979 (“1979
         Agreement”).     The parties entered into a subsequent
         agreement pursuant to an Interim Order dated November
____________________________________________


1
   Within Husband’s appellate brief, Husband claims that Wife’s appeal is
frivolous and that her conduct has been obdurate, vexatious, and done in
bad faith; Husband requests that this Court “award [] counsel fees, costs[,]
and damages” and remand the matter so that the trial court may determine
the amount of the award. We deny Husband’s request for relief.
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       10, 1980 (“1980 Agreement”), which modified the 1979
       Agreement. The 1980 Agreement was finalized by Order of
       Court dated December 1, 1980.

       The 1980 Agreement provided in pertinent part:

          [When [Husband’s] obligation for support of his son shall
          terminate for any reason, the sum of $500.00 per month
          plus one-half of any increase in the net pension above
          $566.09 per month shall be payable to [Wife] until
          February 1, 1994, said sums to be paid out of the
          military pension.     Thereafter, support shall continue
          being paid to [Wife] in the amount of one-half of the net
          pension as it then exists or as it shall be from time to
          time increased in the future for the natural life of [W]ife.
          . . . The portion of payments hereunder payable to
          [W]ife shall be treated as alimony. . . .]

       [On March 10, 2014, Wife filed a “Petition to Enforce
       Alimony,” naming Husband as the respondent. In pertinent
       part, the petition declared:

          5. Since the issuance of the last order[, Husband]
          converted his Air [F]orce Retirement to a Civil Service
          Retirement.

          6. [Wife] has received [$482.00] per month since
          February 1994.

          7. [Wife] has not received any portion of cost of living
          adjustments.

          8. [Wife] avers upon information and belief that she
          should have received a total of $170,057.28 from
          February 1994 until August 2013.

          9. However, [Wife] received only a total of $113,270.00
          since February 1994, leaving a balance due and owing to
          [Wife] in the amount of $56,787.04.

                                      ...




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          13. The November 10, 1980 Order provides [that W]ife
          should receive one-half [] of the net pension for the
          natural life of [] Wife.

          14. [Husband] should be ordered to obtain a life
          insurance policy in which [Wife] is named the
          irrevocable beneficiary in order for [Wife] to receive the
          support for the remainder of her natural life should
          [Husband] predecease [Wife].

          15. Said life insurance policy should be in the amount of
          $131,787.00 (which represents the amount currently
          owed to [Wife] plus the future amount owed to [Wife]).

          16. [Wife] wishes to modify support to comply with the
          November 10, 1980 Order, be awarded current and back
          support determined by the cost of living adjustments,
          and for [the trial court] to force [Husband] to obtain a
          life insurance policy in which [Wife] is named the
          irrevocable beneficiary.

       Wife’s Petition to Enforce Alimony, 3/10/14, at 4-5 (internal
       emphasis omitted).]

       [By order entered May 21, 2014, the trial court declared
       that a hearing on Wife’s petition would take place on August
       14, 2014. On the day of the hearing, t]he [trial c]ourt
       initially met with counsel in chambers. Based upon the
       discussion with counsel, the [trial c]ourt stated in open
       court on the record that “the facts are not in dispute, only
       the existence of survivor benefits and what the applicable
       law is to determine that.” Then, counsel for Husband . . .
       stated on the record in open court:

          As we indicated in Chambers, we have agreed that the
          monthly alimony on a present basis, net of tax, and that
          is the amount that would be in the Order, is $750.10,
          and that the arrears which are recognizable total
          $13,072.77.

                                     ...

          [T]he applicable provision of the contract here says that
          alimony is to be payable to [Wife,] which is measured by

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           one-half of the net military pension. It’s payable for her
           lifetime. And that’s what the contract says. And the
           dispute, as Your Honor indicated at the outset, is that
           [Wife] takes the position that somehow that converts to
           a survivor interest in the pension itself, which we’ve
           argued was not possible in 1979 or 1980, and is, beyond
           that, not what the contract provides. So those are the
           matters I think will be addressed by the submissions of
           counsel.

        [N.T. Hearing, 8/14/14, at 3-5 (emphasis added).]

        Following [Husband’s counsel’s] representations, counsel for
        Wife [] stated: “I am in agreement with all the facts
        that were presented by [Husband’s counsel] as well
        as the agreements that were []presented into
        evidence.” [Id. at 6 (emphasis added).] Accordingly, [the
        trial court declared that, at the conclusion of the hearing,
        the only matter left for the trial court to decide was whether
        Wife was entitled to a modification of the 1980 Agreement,
        to declare that she was entitled to] survivor benefits . . . .

Trial Court Opinion, 10/17/14, at 1-3.

     Following the hearing (but before the trial court issued its final order in

the case), Wife filed a “Memorandum of Law in Support of Petition to

[Enforce] Alimony.”   Within this memorandum, Wife attempted to retreat

from her in-court stipulation that the “the [alimony] arrears which are

recognizable total $13,072.77.”     N.T. Hearing, 8/14/14, at 3-6.       Wife’s

memorandum claimed that her earlier stipulation was based upon her belief

that the four-year statute of limitations for contract actions applied to her

arrearages claim – and that she was now of the opinion that the four-year

statute of limitations was inapplicable to her claim. Wife’s Memorandum in

Support, 8/28/14, at 6. Further, with respect to Wife’s claim that the trial




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J-S32027-15



court order “[Husband] to obtain a life insurance policy in which [Wife] is

named the irrevocable beneficiary,” Wife’s memorandum stated:

        the parties appear to agree that, due to Husband’s
        advanced age and declining health, Husband will be unable
        to secure life insurance[.     Thus,] the only reasonable
        alternative available to secure Husband’s responsibility to
        Wife is to direct Husband to take all steps necessary to
        name Wife as survivor beneficiary/annuitant on Husband’s
        federal civil service pension.

Id. at 8.

      On October 17, 2014, the trial court entered an order that granted

Wife’s Petition to Enforce Alimony in part and denied the petition in part.

Specifically, and in accordance with the parties’ stipulation in open court, the

trial court ordered that Wife was “entitled to back alimony in the amount of

$13,072.77, and current alimony in the amount of $750.10 per month;”

however, the trial court denied the remainder of Wife’s petition. Trial Court

Order, 10/17/14, at 1.

      Wife filed a timely notice of appeal; she now raises two claims before

this Court:

        [1.] Whether the trial court erred when [it] applied a four []
        year statute of limitations to [Wife’s] claim for arrearages
        owed to [Wife]?

        [2.] Whether the trial court erred when [it] did not order
        that [Husband’s] responsibility to pay [Wife] alimony for the
        remainder of her natural life be secured by a policy of life
        insurance or by [Wife] being named as survivor
        beneficiary/annuitant of [Husband’s] federal civil service
        pension?

Wife’s Brief at 4 (some internal capitalization omitted).

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J-S32027-15



      Wife has waived her appellate claims.

      According to Wife’s first claim on appeal, Wife contends that the trial

court erred in calculating the alimony arrearages that Husband owed to Wife.

This claim is waived because, during the August 14, 2014 hearing, Wife

stipulated   that   “the   [alimony]   arrears   which   are   recognizable   total

$13,072.77.” N.T. Hearing, 8/14/14, at 3-6. As we have explained:

        Statements of fact by one party in pleadings, stipulations,
        testimony, and the like, made for that party’s benefit, are
        termed judicial admissions and are binding on the party.
        Nasim v. Shamrock Welding Supply Co., 563 A.2d 1266,
        1267 (Pa. Super. 1989) (“It is well established that a
        judicial admission is an express waiver made in court or
        preparatory to trial by a party or his attorney, conceding for
        the purposes of trial, the truth of the admission.”). Judicial
        admissions are deemed true and cannot be contradicted by
        the admitting party. Rizzo v. Haines, 555 A.2d 58, 59 (Pa.
        1989); Wills v. Kane, 2 Grant 60, 63 (Pa. 1853) (“When a
        man alleges a fact in a court of justice, for his advantage,
        he shall not be allowed to contradict it afterwards. It is
        against good morals to permit such double dealing in the
        administration of justice.”). If there is some support in the
        record for the truth of an averment, the trial court abuses
        its discretion if it disregards the admission. Rizzo, 555
        A.2d at 69. Such averments are binding on a party whether
        admitted by counsel or the client. Glick v. White Motor
        Co., 458 F.2d 1287, 1291 (3rd Cir. 1972). Such admissions
        are considered conclusive in the cause of action in which
        they are made—and any appeals thereof [] – and the
        opposing party need not offer further evidence to prove the
        fact admitted.

John B. Conomos, Inc. v. Sun Co., 831 A.2d 696, 712-713 (Pa. Super.

2003) (some internal citations omitted).

      Both Wife and the trial court were bound by her stipulation that “the

[alimony] arrears which are recognizable total $13,072.77.” N.T. Hearing,

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J-S32027-15



8/14/14, at 3-6; see also Kershner v. Prudential Ins. Co., 554 A.2d 964,

966 (Pa. Super. 1989) (en banc) (“stipulations are binding upon the court as

well as on the parties agreeing to them”). Wife cannot now claim that the

trial court erred when, pursuant to the parties’ stipulation, it ordered that

Wife was “entitled to back alimony in the amount of $13,072.77.”             Wife’s

first claim on appeal is thus waived.

      With respect to Wife’s second claim on appeal, Wife contends that the

trial court erred when it failed to order Husband “to obtain either a life

insurance policy [or] take all steps necessary to name [Wife] as survivor

beneficiary/annuitant on [Husband’s] federal civil service pension in order to

secure [Husband’s] obligation to [Wife].”       Wife’s Brief at 11.    Wife’s claim

regarding the life insurance policy is waived because, within Wife’s post-

hearing memorandum, Wife admitted that, “due to Husband’s advanced age

and declining health, Husband will be unable to secure life insurance.”

Wife’s Memorandum in Support, 8/28/14, at 8 (emphasis added); see

Ciamaichelo     v.   Independence        Blue   Cross,   928    A.2d    407,   413

(Pa.Cmwlth. 2007) (“[a] party’s statement in its brief is treated as a judicial

admission, which, although not evidence, has the effect of withdrawing a

particular fact from issue”); 8 SPP 2d § 50:15 (same).         Wife cannot claim

that the trial court erred in failing to order that Husband obtain a life

insurance policy, when Wife concedes that Husband cannot secure such a

policy.




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J-S32027-15



       Wife has also waived her claim that the trial court erred in failing to

order that Husband “take all steps necessary to name [Wife] as survivor

beneficiary/annuitant on [Husband’s] federal civil service pension.”         Wife’s

Brief at 11. Wife’s petition requested only that the trial court order Husband

“to obtain a life insurance policy in which [Wife] is named the irrevocable

beneficiary in order for [Wife] to receive the support for the remainder of her

natural life should [Husband] predecease [her].”2 Wife’s Petition to Enforce

Alimony, 3/10/14, at 4 (emphasis added).               Further, within her brief on

appeal, Wife does not explain how she could, or why she should, be named

as “survivor beneficiary/annuitant on [Husband’s] federal civil service

pension.”     See Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa.

Super. 2011) (Superior Court “may not act as counsel for an appellant and

develop arguments on [her] behalf”).             Thus, since Wife did not plead her

claim for relief in her petition or develop her argument on appeal, Wife’s

claim on appeal is waived.
____________________________________________


2
  Moreover, even if Wife properly claimed that she should be named as
“survivor beneficiary/annuitant on [Husband’s] federal civil service pension,”
Wife’s claim would fail. Under the terms of the support agreement, Wife
possessed no direct interest in Husband’s pension; rather, Husband’s “net
pension” merely served as an index for Wife’s alimony payment. The 1980
Agreement, 11/10/80, at ¶ 3 (“support shall continue being paid to [Wife] in
the amount of one-half of the net pension”) (emphasis added). Therefore,
under the terms of the 1980 Agreement, Wife’s support payment was
contingent upon the existence of a pension payment to Husband. Under
the terms of the 1980 Agreement, since Husband’s pension payments will
end when he dies, Wife would not be entitled to alimony in the event
Husband predeceases Wife.



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J-S32027-15



     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2015




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