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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BERNARD GIGLI,                            :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
BRENDA GIGLI,                             :
                                          :
                 Appellant                :     No. 1227 MDA 2015

                 Appeal from the Order Entered March 3, 2014
              in the Court of Common Pleas of Schuylkill County
                     Civil Division at No(s): S-1024-2013

BEFORE:     BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 13, 2016

      Following the entry of a divorce decree on June 25, 2015, Brenda Gigli

(Wife) appeals from the now-final March 3, 2014 order that denied her

petition for special relief in which she sought a declaration that the Property

Settlement Agreement (PSA) signed by Wife and Bernard Gigli (Husband)

was null and void.1 We affirm.

      Husband and Wife married in 1998 and separated in 2009. Husband

filed a complaint in 2013 in which he sought divorce, equitable distribution,

and custody of the parties’ four children. On December 9, 2013, Husband



1
  Wife’s previous appeal from the March 3, 2014 order was quashed as
interlocutory by this Court’s order of June 5, 2014. See Sneeringer v.
Sneeringer, 876 A.2d 1036, 1039 (Pa. Super. 2005) (“[B]ecause no decree
of divorce has been entered in the present case, we find that the denial of
Wife’s petition to invalidate the parties’ marital settlement agreement is not
a final order.”).

*Retired Senior Judge assigned to the Superior Court.
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filed the PSA, which was signed by both Husband and Wife and witnessed by

a notary public on December 3, 2013.

      On December 26, 2013, Wife filed a petition for special relief, seeking

to invalidate the PSA based upon claims of duress, mistake, lack of capacity,

lack of adequate disclosure, unconscionability, and lack of counsel. Petition,

12/26/2013, at ¶ 8. Husband filed an answer, and the trial court scheduled

a hearing before a special master. On March 3, 2014, the trial court entered

an order, “upon recommendation of the Master,”2 denying and dismissing

Wife’s petition for special relief. Order, 3/3/2014, at 5 (pages unnumbered).

      The case proceeded to the June 25, 2015 entry of the divorce decree.

The PSA was incorporated in, but not merged into, the divorce decree. Wife

timely filed a notice of appeal referencing the March 3, 2013 order.

Thereafter, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a)

directing this Court to its March 3, 2013 order for the reasoning for its

determination.

      Wife presents this Court with the following question on appeal:

      Whether the trial court committed an abuse of discretion or error
      of law by dismissing [Wife’s] petition for special relief seeking to
      have the [PSA] invalidated by finding: (1) [Wife] did not lack
      capacity; (2) [Wife] was not under duress; and (3) [Husband]
      provided [Wife] with a full and fair disclosure of all assets.



2
  Although the trial court apparently had access to the master’s findings and
recommendation, neither the docket nor the certified record transmitted to
this Court contains a report or recommendation of the special master who
presided over the February 18, 2014 hearing on Wife’s petition.

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Wife’s Brief at 2 (unnecessary capitalization omitted).

      Our standard of review in examining the trial court’s ruling is whether

the trial court abused its discretion or committed an error of law. Colonna

v. Colonna, 791 A.2d 353, 355 (Pa. Super. 2001). “[I]n determining issues

of credibility the master’s findings must be given the fullest consideration for

it was the [m]aster who observed and heard the testimony and demeanor of

various witnesses.” Anderson v. Anderson, 822 A.2d 824, 830 (Pa. Super.

2003). We consider whether the trial court abused its discretion in adopting

the master’s findings. Id.

      “An abuse of discretion is not lightly found,” and requires a showing

“that the trial court misapplied the law or failed to follow proper legal

procedures.” Holz v. Holz, 850 A.2d 751, 757 (Pa. Super. 2004) (citation

and internal quotation marks omitted).       “As in all matters on appeal, the

appellant bears the burden of persuasion to demonstrate his [or her]

entitlement to the relief he [or she] requests.” Ruthrauff, Inc. v. Ravin,

Inc., 914 A.2d 880, 893 (Pa. Super. 2006) (internal quotation marks and

citation omitted).

      With these standards in mind, we turn to the applicable law.

“[P]roperty settlement agreements are presumed to be valid and binding

upon the parties.” Crispo v. Crispo, 909 A.2d 308, 313 (Pa. Super. 2006).

When a PSA is not merged into a divorce decree, “it stands as a separate




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contract, is subject to the law governing contracts and is to be reviewed as

any other contract.” Id. at 312-13.

      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. 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.

Id. at 313 (citations and internal quotation marks omitted). Nor may this

Court examine whether the parties “had attained informed understandings of

the   rights   they    were    surrendering”    absent    proof    of   material

misrepresentation or fraud. Colonna, 791 A.2d at 357 (citation and internal

quotation marks omitted). Further, “in the absence of fraud, the failure to

read a contract before signing it is an unavailing excuse or defense and

cannot justify an avoidance, modification or nullification of the contract; it is

considered supine negligence.” In re Estate of Boardman, 80 A.3d 820,

823 (Pa. Super. 2013) (citations and internal quotation marks omitted).

      Wife first claims that the trial court erred in finding that she did not

lack capacity to enter into the PSA on December 3, 2013. Wife’s Brief at 7.

      “It has long been the law of Pennsylvania that the evidence required to

set aside a transaction on the basis of mental incompetency must be clear,

precise and convincing.” Elliott v. Clawson, 204 A.2d 272, 273 (Pa. 1964)

(internal quotation marks omitted). “Mere mental weakness, if it does not

amount to inability to comprehend the contract, and is unaccompanied by


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evidence of imposition or undue influence, is insufficient to set aside a

contract.” Estate of McGovern v. Com. State Employees’ Ret. Bd., 517

A.2d 523, 526 (Pa. 1986) (overruled in part on other grounds). “[W]here

mental competency is at issue, the real question is the condition of the

person at the very time he [or she] executed the instrument….” Sobel v.

Sobel, 254 A.2d 649, 651 (Pa. 1969).

      In support of her claim, Wife points to her testimony that the

medications she takes for “anxiety and bipolar depression” make her “feel

woozy and dizzy, in a cloud, forgetful and fuzzy headed, kind of out there,

and sick to her stomach.”     Id. at 8 (internal quotation marks omitted).

Thus, she argues, “[i]t is clear, given [Wife’s] testimony that she was

suffering from the side effects of the prescription medication at the time the

[PSA] was signed, that she lacked the capacity necessary to enter into the

contractual agreement with [Husband].” Id. at 9.

      The trial court adopted the master’s rejection of Wife’s testimony,

finding that she “presented no credible evidence” that she was “unable to

understand what was going on” at the time she signed the PSA. Rather, the

trial court found that Husband and the notary who witnessed Wife sign the

PSA testified credibly that Wife exhibited no signs of unusual behavior or

being upset, Order, 3/3/2014, at 2 (pages unnumbered); rather Wife

“seemed coherent and normal.” Id. at 5.




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        The record supports the trial court’s findings,3 and the credibility

determinations will not be disturbed by this Court.      Busse v. Busse, 921

A.2d 1248, 1256 (Pa. Super. 2007) (“We do not reverse credibility

determinations on appeal.”). Accordingly, Wife is not entitled to relief based

upon her first issue.

        Wife next contends that the trial court erred in finding that she was

not under duress at the time she signed the PSA. Wife’s Brief at 9.

        Our Supreme Court has defined duress as:

        [T]hat degree of restraint or danger, either actually inflicted or
        threatened and impending, which is sufficient in severity or
        apprehension to overcome the mind of a person of ordinary
        firmness…. The quality of firmness is assumed to exist in every
        person competent to contract, unless it appears that by reason
        of old age or other sufficient cause he is weak or infirm…. Where
        persons deal with each other on equal terms and at arm’s
        length, there is a presumption that the person alleging duress
        possesses ordinary firmness…. Moreover, in the absence of
        threats of actual bodily harm there can be no duress where the
        contracting party is free to consult with counsel….

Degenhardt v. Dillon Co., 669 A.2d 946, 950 (Pa. 1996) (quoting Carrier

v. William Penn Broadcasting Co., 233 A.2d 519, 521 (Pa. 1967)).

        Wife claims that Husband told her that the document she was signing

related to custody of their children “and that if she refused to sign said

document she would never see her children again.” Wife’s Brief at 10. Wife

additionally makes a duress argument similar to the one she presented for

mental incapacity:


3
    See N.T. 2/18/2014, at 7-8, 50-51.

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             [Wife] clearly lacks the mental firmness of an ordinary
      person as a direct result of all of the medications she must take
      on a daily basis. [Wife’s] testimony supports the fact that her
      medications prevent her from thinking clearly, and, as a direct
      result, impact her comprehension of ordinary matters and her
      memory.       While [Wife] is capable of understanding and
      remembering basic concepts and daily occurrences, the same
      cannot be said for complex concepts such as the instant [PSA].
      Admittedly, [Wife] was not threatened with bodily harm;
      however, she was not free to consult with counsel either. [Wife]
      was never told that she could have the [PSA] reviewed by an
      attorney.    Given her long history of mental health issues
      resulting in her diminished capacity, not informing [Wife] of her
      right to consult with an attorney had the same effect as
      preventing her from freely doing so. Since [Wife] was already in
      a weakened mental state there is no way she would have been
      able to comprehend the magnitude of the rights she was giving
      up by signing the [PSA].         As such, the [PSA] should be
      invalidated on the ground that [Wife] was under duress at the
      time she executed the [PSA].

Appellant’s Brief at 11.

      The trial court adopted the master’s determination that Husband’s

testimony was credible and Wife’s was not, and found that Wife: made no

efforts to exercise the custody rights she had been awarded; knew the

document was related to her divorce; and did not allege any danger,

restraint, or other threats. Order, 3/3/2014, at 3 (pages unnumbered).

      Again, the record supports the trial court’s factual conclusions and we

will not second-guess credibility findings. Before Wife signed the PSA, she

failed to show up for the custody conciliation or the custody trial, and the

court entered an order on November 25, 2013, awarding primary physical

custody of the children to Husband, with Wife to have “supervised partial



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physical custody” “on an open and reasonable basis by mutual assent.”

Order, 11/25/2013, at 2 (pages unnumbered). At the time she signed the

PSA, Wife had not seen the children in approximately one year, although

Husband often encouraged Wife to see them and Wife “says she’ll come, but

she never shows up.”    N.T., 2/18/2014, at 51. The record simply does not

support Wife’s claim that the children were held hostage to procure Wife’s

signature.

      Wife’s failure to consult with counsel prior to executing the PSA does

not per se provide a basis to invalidate it. Simeone v. Simeone, 581 A.2d

162, 166 (Pa. 1990) (“To impose a per se requirement that parties entering

a prenuptial agreement must obtain independent legal counsel would be

contrary to traditional principles of contract law, and would constitute a

paternalistic and unwarranted interference with the parties’ freedom to enter

contracts.”).4

      Further, there is no evidence that Wife was prevented from having an

attorney review the agreement. Wife showed up before the notary as she

had arranged with Husband, and Husband talked with Wife about the

contents of the document, including provisions that each would keep his or

her respective personal property and retirement accounts.        Id. at 49.



4
  “Simeone involved a prenuptial, rather than a postnuptial, agreement.
However, the principles applicable to antenuptial agreements are equally
applicable to postnuptial agreements, although the circumstances may
slightly differ.” Stoner v. Stoner, 819 A.2d 529, 533 (Pa. 2003).

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Husband presented Wife with the PSA and advised her to read it, and Wife

looked through it and signed it. Id. at 50. Nothing in the record suggests

that Wife was unable to take the document to an attorney before signing it.

Although Wife argues, without offering authority in support, that Husband

neglected to fulfill some duty to advise her of her right to have counsel

review it, her factual premise is belied by the record. The PSA provides that

“Wife acknowledges that she has been advised to obtain counsel…” and that

she “is entering into [the PSA] freely and voluntarily after having the

opportunity to receive such advice….” PSA, 12/9/2013, at 5. As such, Wife

has failed to convince us that her duress argument entitles her to relief.

Accord Lugg v. Lugg, 64 A.3d 1109, 1113-14 (Pa. Super. 2013) (affirming

trial court’s determination that agreement was not product of duress where

“Lugg never claimed she was subject to any level of force or threat of

force[ and there was] nothing in the record to show Husband threatened her

in any way to prevent her from contacting her lawyer.”).

      Finally, Wife argues that the trial court should have deemed the PSA

invalid because Husband failed to make a full disclosure of all of his assets to

Wife before she signed it. Wife’s Brief at 11.

      A postnuptial settlement agreement is valid if each party had “a full

and fair disclosure of the other’s worth.”   Nitkiewicz v. Nitkiewicz, 508,

535 A.2d 664, 665 (Pa. Super. 1988). See also Stoner, 819 A.2d at 533




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(“[W]e reaffirm the principle … that full disclosure of the parties’ financial

resources is a mandatory requirement.”).

      It is well settled that this disclosure need not be exact, so long
      as it is full and fair. In essence therefore, the duty of disclosure
      under these circumstances is consistent with traditional
      principles of contract law…. If an agreement provides that full
      disclosure has been made, a presumption of full disclosure
      arises. If a spouse attempts to rebut this presumption through
      an assertion of fraud or misrepresentation then this presumption
      can be rebutted if it is proven by clear and convincing evidence.

Sabad v. Fessenden, 825 A.2d 682, 691 (Pa. Super. 2003) (quoting

Mormello v. Mormello, 682 A.2d 824, 827 (Pa. Super. 1996), disapproved

of on other grounds by Stoner).

      The PSA in the instant case contains the following separately-

numbered provision under the heading “FULL DISCLOSURE.”

            The parties warrant and represent that, prior to this
      Agreement, they have made a full disclosure to each other of all
      assets and debts in existence as of the fate of their separation,
      and this Agreement is based upon such disclosure.             It is
      expressly understood that in the event that it is later discovered
      that either party failed to disclose any asset or debt owned or
      owed at the time of separation, this matter may be re-opened
      and the innocent party may seek equitable distribution [of] all
      marital assets, as well as counsel fees and costs incurred as a
      result of the party’s failure to fully disclose.

PSA, 12/9/2013, at 21.

      Wife argues that the PSA should be invalidated because Husband failed

to disclose fully his assets. Specifically, Wife claims that Husband failed to

disclose his pension value, the amount in his 401(k), and $10,000 he owns

in the stock of his employer, UPS.      Wife’s Brief at 14.   In support, Wife


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points to her testimony that Husband handled the finances during their

marriage, that she and Husband never talked about assets, and that she had

no idea what assets Husband had when she signed the agreement. Id. at

13 (citing N.T., 2/18/2014, at 26-27).

     The trial court once again deferred to the master in not crediting Wife’s

testimony but instead believing Husband:

           In the agreement the parties acknowledge they made full
     disclosure.   Wife is a college graduate and is intelligent.
     Husband testified credibly that Wife handled the family finances.
     Wife was aware Husband worked, how much money he made,
     what employee benefits he had and that the couple had a home.
     The agreement specifically addresses marital property such as
     residence on Page 9, motor vehicles on Page 10, financial and
     retirement accounts on Page 11, personal property on Page 12,
     support, alimony and alimony pendente lite and counsel fees and
     costs on Page 13 and debts on Pages 14 and 15.

Order, 3/3/2013, at 4 (pages unnumbered; italics added).

       Once more, the trial court’s factual findings are supported by the

record and this Court will not disturb credibility determinations.    Husband

testified that Wife handled the finances while they were together, and that

he discussed with her that each of them would keep his or her “respective

retirement and things like that[.]”     N.T., 2/18/2013, at 47, 49.   With no

evidence of record that Husband misrepresented or concealed the value of

these disclosed assets, Wife has failed to rebut the presumption that full

disclosure was made in this case. See Paroly v. Paroly, 876 A.2d 1061,

1069 (Pa. Super. 2005) (“[W]here the circumstances indicate that a spouse



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has knowledge of the general value of the couple’s assets, an agreement will

be upheld, especially where, as here, the agreement recites that full and fair

disclosure was made.”). Therefore, Wife has failed to establish that the trial

court erred or abused its discretion in holding that the PSA is supported by

valid disclosure.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




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