J-A24011-16
                                  2017 PA Super 253


PETER Y. BENNETT                                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

PAMELA A. BENNETT

                                                      No. 428 EDA 2016


                     Appeal from the Order January 19, 2016
                 In the Court of Common Pleas of Bucks County
                      Civil Division at No(s): 1995-60876-E


BEFORE: BOWES, OTT AND SOLANO, JJ.

OPINION BY BOWES, J.:                                  Filed August 4, 2017

       Peter Y. Bennett (“Husband”) appeals from the March 1, 2016 order

imposing a constructive trust over a pension benefit that accrued during his

marriage to Pamela A. Bennett (“Wife”).1 We reverse.

       Husband and Wife married on January 29, 1972 and divorced

approximately twenty-three-and-one-half years later.      Two children were

born of the marriage. In anticipation of the divorce, the parties executed a

property settlement agreement to facilitate equitable distribution.      The

agreement covered the various economic aspects of the divorce, including

____________________________________________


1
 Technically, Husband receives two related pension benefits that he earned
while working for the American Can Company and its successor, James River
Corporation, for thirteen years during the marriage. For ease of discussion,
we refer to the pensions as a single asset.
J-A24011-16


the distribution of marital assets and Husband’s assent to paying the marital

liabilities, alimony, child support, and the children’s college expenses. As it

relates to the present case, the accord provides:

      3. Legal Advice. Each of the parties acknowledges that he and
      she has had the opportunity to consult with independent legal
      counsel regarding the terms and provisions of this Agreement
      and his or her legal rights and obligations, and each party
      further acknowledges and accepts that this Agreement is, in the
      circumstances, fair and equitable, and that it is being entered
      into freely and voluntarily, and that the execution of this
      Agreement is not the result of any duress or undue influence.
      Each party has made a full and complete disclosure to the
      other of his and her entire assets and liabilities, and each
      is informed and familiar with the property, estate and
      assets, earnings and income of the other.

            ....

      6. Distribution of Property.

            (a) The parties acknowledge that they have previously sold
      and divided to their mutual satisfaction the proceeds from the
      sale of their former marital residence. Each party shall retain the
      proceeds from the sale thereof received by him and her free and
      clear of any claim of the other.

             (b) The parties have previously divided to their
      mutual satisfaction all items of tangible personal property,
      household furnishings, motor vehicles, bank accounts,
      investments, business interests, stocks, securities, retirement
      accounts, insurance policies and all other assets which, as
      between the parties, are or may be subject to equitable
      distribution, and each party does hereby release and relinquish
      any and all claims that either of them have or may have with
      respect to any property, property interest or asset.




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Property Settlement Agreement, 4/21/95, at 3, 4-5 (emphases added).2

       Although the accord did not identify any specific marital assets or state

the percentage basis that the assets would be divided, it listed the liabilities

that Husband was solely responsible for repaying. Likewise, the agreement

stipulated that the potential net proceeds from a possible lawsuit against

Boise Cascade Corporation would be divided equally. During the evidentiary

hearing, Wife testified that she requested fifty percent of the pension

benefits because it was in keeping with the parties’ promise to split the other

assets equally.

       The property settlement agreement was incorporated but not merged

into the July 12, 1995 divorce decree. Approximately nineteen years later,

on September 2014, Wife filed a petition to impose a constructive trust

pursuant to 23 Pa.C.S. § 3505(d), which we reproduce infra. She averred

that, in executing the property settlement agreement, Husband failed to

make a full disclosure of the pension benefit that he earned during the




____________________________________________


2
  Husband and Wife dedicate significant discussion in their briefs to whether
the reference to “retirement accounts” in the property settlement agreement
subsumed the pension benefit that Husband earned during the marriage.
However, that issue is a diversion. Regardless of the semantics of whether a
“pension benefit” equates to a “retirement account,” the asset is subject to
the recital’s catch-all provision “all other assets . . . subject to equitable
distribution[.]” Property Settlement Agreement, 4/21/95, at 4.




                                           -3-
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marriage.3     Wife requested the creation of a constructive trust as to the

previously undisclosed marital asset, an accounting of the monthly benefits

Husband received since the account entered pay status, and fifty percent of

the marital value of past and future benefits.         She also requested counsel

fees and the costs associated with drafting the Qualified Domestic Relations

Orders (“QDRO”) needed to facilitate the future payment of her portion of

the benefit.

       Husband filed preliminary objections in the nature of a demurrer based

upon the position that the formation of a constructive trust pursuant to §

3505(d) required, as a prerequisite, the filing of an inventory during the

equitable distribution process, and, in the absence of that form, the

statutory provision is inapplicable.             In addition, Husband leveled a

preliminary objection to the petition based upon insufficient specificity

insofar as Wife failed to assert that Husband secreted the pension’s

existence when the agreement was formed.                After conferring with the

attorneys, the trial court summarily overruled Husband’s preliminary

objections and scheduled an evidentiary hearing on Wife’s petition.


____________________________________________


3
  While there was no discussion regarding whether the pension benefit had
vested prior to the date of separation, we observe that non-vested pensions
are marital property subject to equitable distribution. Berrington v.
Berrington, 598 A.2d 31, 34 (Pa.Super. 1991). Thus, it was an asset
subject to disclosure/acknowledgment under the property settlement
agreement.



                                           -4-
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       The evidence adduced at the hearing revealed that Husband has a

pension that entered pay status during October 2012. Since then, Husband

has received a monthly benefit of $1,785.75, which calculates to an annual

benefit of $21,429. Wife testified that she and Husband did not discuss the

pension in anticipation of equitable distribution of their marital estate. 4

Their discussions focused upon liquidating the marital residence, which was

subject to encumbrances, and satisfying debts.                 She identified two

conversations with Husband wherein both parties agreed that the only

significant marital asset was the family home. Neither party mentioned the

pension or retirement benefits that possibly accrued during the marriage.

       Wife did not assert that Husband mislead her or lied about the

existence of the pension benefit.              Instead, she testified that she was

unaware of the pension and believed that the home was the only asset to be

divided. She received $1,100 from the sale of the property. In relation to

her view of the marital estate, Wife stated, “I didn't think there was

anything. I didn't think I was signing away anything. And with the house, it

____________________________________________


4
  Wife presented the expert testimony of John McGovern, C.P.A., who stated
that the parties received a $29,000 retirement distribution from an
unidentified account during 1992. Mr. McGovern was unable to specify
whether the source of the distribution was an IRA, 401(k), vested pension,
or a combination of retirement plans. The only meaningful information to
flow from the witness was that, approximately three years prior to the
parties’ execution of the property settlement agreement, Husband and Wife
both knew that some form of retirement income existed and withdrew at
least a portion of it.



                                           -5-
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was $1100; I left the marriage with $1100, a car and two part-time jobs[.]”

N.T., 1/19/16, at 47.    Wife also testified that she believed the agreement

was boilerplate and that the references to various assets did not apply to

them. She explained, “I believed it was a template. I looked for the things

that he and I agreed upon and made sure that they were [included] and

signed it.” Id. at 44.

      During his testimony, Husband countered, “we did, in fact, review the

document [and] we were very comfortable with the fact that the assets

weren't identified [and] the fact I was going to pick up all the outstanding

liabilities[.]” Id. at 71-72. He also testified that he believed Wife was aware

of all of the marital assets.   He stated that Wife had knowledge of the

pension in the past because, along with the increase in salary, he and Wife

considered the pension benefit when Husband faced the decision whether to

accept his position with American Can Company and, then having been

promoted by its successor, whether to uproot the family from its hometown

in Connecticut and move to Virginia. In addition, he surmised that the 1992

distribution that Wife’s expert referenced was connected to a 401(k) plan

that Husband contributed to when he worked for those entities. Id. at 79,

86-87.

      At the conclusion of the evidence, the trial court announced from the

bench its decision to grant Wife’s petition for a constructive trust. The court

entered a final order memorializing its decision on March 1, 2016. Husband


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filed a timely appeal.5       His concise statement of errors complained of on

appeal filed pursuant to Pa.R.A.P. 1925(b) leveled five issues 6, which he

restates as follows:


____________________________________________


5
  The notice of appeal was filed prematurely approximately two weeks after
the close of the evidentiary hearing. However, Husband’s misstep was
corrected on March 1, 2016, when the trial court entered a final order
granting Wife’s requested relief. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”).
6
    The Rule 1925(b) Statement asserted the following issues:

        a. The Court abused its discretion and/or committed an error of
        law in granting Defendant's petition for a constructive trust over
        Husband's pension plans and awarding her 50% of the same on
        the basis that there was not a full and fair disclosure of the
        assets at the time of settlement despite Defendant's failure to
        allege fraud;

        b. The Court abused its discretion and/or committed an error of
        law in granting Defendant's petition for a constructive trust over
        Husband's pension plans and awarding her 50% of the same
        despite the existence of contractual language in the Marital
        Settlement Agreement indicating that full and fair disclosure was
        made and that Defendant was satisfied with her knowledge of
        the estate at the time of Agreement; that the parties' waived
        discovery; that the parties mutually released each other from
        any claims related to their rights under Pennsylvania's Divorce
        Code; that the parties had divided in advance of the Agreement
        all assets to their mutual satisfaction, and;

        c. The Court abused its discretion and/or committed an error of
        law in granting Defendant's petition for a constructive trust over
        Husband's pension plans and awarding her 50% of the same on
        the basis that Defendant overcame by clear and convincing
        evidence the presumption of disclosure and/or that Defendant
(Footnote Continued Next Page)


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J-A24011-16


      1.    Did the [t]rial [c]ourt err by granting a constructive trust
      pursuant to 23 Pa.C.S.A. § 3503(d) without establishing that
      [Husband] failed to disclose an asset as required by a general
      rule of the Supreme Court?

      2.    Did the [t]rial [c]ourt err by finding that [Wife] rebutted by
      clear and convincing evidence the presumption of full disclosure
      by [Husband]?

      3.    Did the [t]rial [c]ourt err by failing to affirm the terms of
      the parties’ Property Settlement Agreement?

      4.   Did the [t]rial [c]ourt err by applying its credibility
      determination as the standard for determining whether
      misrepresentation or fraud occurred in the execution for the
      Property settlement Agreement?

Appellant’s brief at 4.

      Husband’s brief does not conform to Pa.R.A.P. 2119 insofar as he

failed to divide the argument into sections that correspond with the four

                       _______________________
(Footnote Continued)

      did not have knowledge of the assets at the time the Agreement
      was executed.

      d. The Court abused its discretion and/or committed an error of
      law in granting Defendant's petition for a constructive trust over
      Husband's pension plans and awarding her 50% of the same by
      applying its determination as to the credibility of the parties to
      its determination as to the plain reading of the disclosure and
      waiver language set forth in the Agreement.

      e. The court abused its discretion and/or committed an error of
      law in granting Defendant's petition for a constructive trust over
      Husband's pension plans and awarding her 50% of the same by
      misapplying 23 Pa.C.S.A. § 3505(d) which applies only where
      there is a failure to disclose the assets as required by general
      rule of the Supreme Court.

Husband’s Rule 1925(b) Statement, 2/3/16, at 1-2.



                                            -8-
J-A24011-16


issues he raised in his statement of questions involved.          Instead of

complying with the procedural uniformity of Rule 2119, Husband identifies

four overlapping arguments.     For example, rather than enumerating his

arguments in correlation with the numerals used in the statement of

questions presented, Husband lists his arguments alphabetically. Moreover,

those arguments are in disorder.     Husband’s argument A is actually four

interwoven assertions, and his remaining arguments in B, C, and D do not

align with any numerical counterparts.        In addition, while addressing

substantively different concerns, the arguments Husband identifies as B and

D share an identical heading, “The Trial Court erred by Failing to Affirm the

Parties Property Settlement Agreement.”     See Appellant’s brief at 20, 30.

Finally, Husband’s argument D is a collection of various complaints, some of

which are subsumed by issues three and four.          Although this Court is

authorized to quash a nonconforming brief, Husband’s procedural missteps

do not substantially impede our ability to perform appellate review, and we

shall address the merits of the arguments that have been preserved for

review   in   the   Rule   1925(b)   statement.      See    Pa.R.A.P.   2101;

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (“Despite

the numerous defects in Appellant's brief, we will address the one claim that

we are able to review[.]”).

      As noted in his statement of questions presented, Husband raises

several procedural challenges to the trial court’s application of 23 Pa.C.S. §


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J-A24011-16


3505(d) under the facts of this case. However, since we ultimately find that

the certified record does not sustain the trial court’s factual findings in

support of Wife’s position that the constructive trust was warranted, we do

not confront those arguments herein. Instead, we presume that § 3503(d)

applies and address the effect of the recital in the property settlement

agreement, wherein the parties acknowledged full and complete disclosure

of assets.

      Section 3505(d) of Divorce Code, provides as follows:

      (d) Constructive trust for undisclosed assets.--If a party
      fails to disclose information required by general rule of the
      Supreme Court and in consequence thereof an asset or assets
      with a fair market value of $1,000 or more is omitted from the
      final distribution of property, the party aggrieved by the
      nondisclosure may at any time petition the court granting the
      award to declare the creation of a constructive trust as to all
      undisclosed assets for the benefit of the parties and their minor
      or dependent children, if any. The party in whose name the
      assets are held shall be declared the constructive trustee unless
      the court designates a different trustee, and the trust may
      include any terms and conditions the court may determine. The
      court shall grant the petition upon a finding of a failure to
      disclose the assets as required by general rule of the Supreme
      Court.

23 Pa.C.S. § 3503(d).

      By its terms, § 3503(d) does not require a party to demonstrate that

the failure to disclose an asset was deliberate or intentional. This is because

the provision is triggered by a breach of a parties’ affirmative obligation to

“disclose information required by general rule of the Supreme Court,” e.g.,

an inventory under Rule 1920.33, which did not occur in this case.


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However, mindful that parties to property settlement agreements are

entitled to enforcement measures set forth in the Divorce Code, see

§ 3105(a), we find that the provision’s silence as to disclosure clauses did

not preclude Wife from invoking this remedial provision.         Cf. Creeks v.

Creeks, 619 A.2d 754 (Pa.Super. 1993) (where husband failed to include

asset in inventory pursuant to agreement’s disclosure clause, the breach

triggers action for constructive trust).   Nevertheless, prior to granting the

requested relief in the case at bar, the trial court was required to reconcile

the pension benefit’s omission from the accord with Wife’s affirmative

acknowledgment that she received full and complete disclosure and was not

only informed of, but also familiar with, the marital estate.

      In Pennsylvania, the law of contracts governs a property agreement if

the agreement is not merged into a divorce decree. Crispo v. Crispo, 909

A.2d 308, 313 (Pa.Super. 2006) (“property settlement agreements are

presumed to be valid and binding upon the parties”). An agreement that is

not merged, “stands as a separate contract, is subject to the law governing

contracts and is to be reviewed as any other contract.” Id. at 312-313.

      Our Supreme Court previously explained,

      under the law of contracts, in interpreting an agreement, the
      court must ascertain the intent of the parties. Robert F. Felte,
      Inc. v. White, 451 Pa. 137, 302 A.2d 347, 351 (1973). In
      cases of a written contract, the intent of the parties is the writing
      itself. If left undefined, the words of a contract are to be given
      their ordinary meaning. Pines Plaza Bowling, Inc. v.
      Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958). When the
      terms of a contract are clear and unambiguous, the intent of the

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      parties is to be ascertained from the document itself. Hutchison
      v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390
      (1986).

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004).

      We review the trial court’s order upholding the agreement for an abuse

of discretion. Lugg v. Lugg, 64 A.3d 1109, 1110 n.1 (Pa.Super. 2013). As

we explained in Lugg, “[a]n abuse of discretion is not lightly found, as it

requires clear and convincing evidence that the trial court misapplied the law

or failed to follow proper legal procedures.”    Id.   Additionally, we will not

usurp the trial court’s factfinding function.” Id.

      In Simeone v. Simeone, 581 A.2d 162 (Pa. 1990), our Supreme

Court clarified the standards for determining the validity of marital

settlement agreements and abolished the prior paternalistic approach to

enforcement.        The   High   Court    announced     that   “Absent   fraud,

misrepresentation, or duress, spouses should be bound by the terms of their

agreements.” Id. at 165.      As the venerable Joann Ross Wilder, Esquire,

couched the concept in Pennsylvania Family Practice and Procedure 5th,

2002 at 96, “Parties are free to enter into bargains they later regret, and

bad deals are as enforceable as good ones provided the agreement is free of

fraud or duress.”

      As it relates to the case at bar, the Simeone Court admonished, “If an

agreement provides that full disclosure has been made, a presumption of full

disclosure arises.” Id. at 167. Likewise, the Court explained, “If a spouse


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J-A24011-16


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.” Id. Thus, “Absent fraud, misrepresentation

or duress, spouses should be held to the terms of their agreements.” Lugg,

supra at 1112; Stoner v. Stoner, 819 A.2d 529, 533 (Pa. 2003) (expressly

rejecting approach which allows court to inquire into reasonableness of

parties’ bargain). This Court subsequently explained, “an agreement is valid

even if it does not contain financial disclosure itself and can be upheld if it

merely recites that such disclosure has been made.” Paroly v. Paroly, 876

A.2d 1061, 1066 (Pa.Super. 2005). Indeed, “a full and fair disclosure in the

property settlement agreement merely requires sufficient disclosure to allow

the intended party to make an informed decision.” Busch v. Busch, 732

A.2d 1274, 1278 n. 5 (Pa.Super. 1999).

      Although this Court’s holding in Lugg, supra concerned the waiver of

disclosure rather than an acknowledgment of full disclosure, our reasoning is

informative. In pertinent part, the Lugg Court addressed whether the trial

court erred in denying a wife’s claim to set aside a property settlement

agreement due to her husband’s failure to fully disclose assets when the

agreement was executed.      In an attempt to circumvent the fact that she

expressly waived economic disclosure, the wife argued that a person cannot

waive disclosure if they do not know what was being waived. Id. at 1112.

The Court rebuffed that reasoning in light of the legislature’s adoption of 23


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Pa.C.S. § 3106, which allows a party to waive economic disclosure in a

prenuptial agreement, and our High Court’s prior reasoning in Stoner,

supra, that “pre-and post-nuptial agreements are to be similarly viewed.”

Id. at 1112-1113.    Thus, the Lugg Court held that parties to a property

settlement agreement may waive full economic disclosure. Id. at 1113.

Specifically, the Court held, “[w]e must reject the assertion that economic

disclosure cannot be waived because the party waiving disclosure does not

know the extent of what is being waived.” Id. at 1112.

     Instantly, the trial court employed reasoning similar to the wife in

Lugg in an attempt to elevate Wife’s belated claim of lack of disclosure over

her express assent that full and complete disclosure actually occurred and

the acknowledgment that she was familiar with the marital estate.        The

lynchpin of the trial court’s logic is that, notwithstanding Wife’s explicit

recognition of full disclosure, she should be excused from that provision

because she believed that she knew the extent of the marital estate when

she signed the agreement.    Stated another way, the trial court concluded

that Wife should not be bound by the disclosure recital because she was not

actually familiar with all of the marital assets that she certified knowing

about.   The trial court’s rationale conflicts with our analogous holding in

Lugg that a party to an agreement can, in fact, waive economic disclosure

even if they do not know the full extent of that waiver. Like the Lugg Court,

we find herein that Wife cannot negate the recital affirming her knowledge of


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J-A24011-16


the marital estate based upon a subsequent assertion that she did not know

the full extent of the assets when she executed the certification.      Plainly,

having acknowledged both the disclosure and her familiarity with the assets,

absent clear and convincing evidence of Husband’s misconduct, Wife’s

subjective belief regarding the nature and extent of the marital estate is

irrelevant. Thus, we conclude that the disclosure recital applies herein, and

absent clear and convincing evidence of fraud, duress, or misrepresentation

to permit Wife to overcome the presumption of full disclosure, the recital is

valid and enforceable.

      Next, we review the court’s determination that Wife sustained her

evidentiary burden of establishing fraudulent misrepresentation.      Our High

Court reiterated the elements misrepresentation as follows,

      In order to void a contract due to fraudulent misrepresentation,
      the party alleging fraud must prove, by clear and convincing
      evidence: (1) a representation; (2) which is material to the
      transaction at hand; (3) made falsely, with knowledge of its
      falsity or recklessness as to whether it is true or false; (4) with
      the intent of misleading another into relying on it; (5) justifiable
      reliance on the misrepresentation; and (6) resulting injury
      proximately caused by the reliance. All of these elements must
      be present to warrant the extreme sanction of voiding the
      contract.

Porreco v. Porreco, 811 A.2d 566, 570-571 (Pa. 2002) (plurality) (internal

citations omitted).

      Instantly, Wife did not expressly assert misrepresentation in her

petition for a constructive trust or during her testimony regarding the

parties’ discussion of the marital assets.      Nevertheless, the trial court

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reasoned    that   Wife   was    uninvolved    with   Husband's    employment

compensation beyond his salary, and therefore, she was unaware of the

pension benefit that accrued during the marriage. Indeed, despite both the

fact that Wife neglected to assert misrepresentation and the dearth of

evidence to support its finding, the trial court went so far as to conclude that

“Husband affirmatively told her that there were no other assets beyond the

house considered in the Agreement.” Trial Court Opinion, 3/31/16, at 6.

      The record belies the trial court’s findings of fact. Wife did not present

any evidence of fraud or misrepresentation. At most, Wife established that

the parties did not discuss the pension and that Husband did not disclose it.

However, in light of her evidentiary burden to rebut the presumption of

disclosure, evidence that a potentially inadvertent or negligent omission may

have occurred is woefully inadequate to establish fraud or misrepresentation

that would negate Wife’s certification that she received full disclosure.

      Notwithstanding Wife’s failure to plead or prove misrepresentation

under Porreco, supra, the trial court concluded that Husband misled her

about the marital assets. As noted, the court’s reasoning is founded upon a

purported credibility determination in Wife’s favor.    However, the certified

record cannot sustain the court’s finding that a meaningful credibility dispute

existed.   In fact, the parties concur that the pension was not discussed

before they executed the agreement, and Wife does not assert that Husband

mislead her or misrepresented the marital estate. She simply testified that


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she was unaware of the pension when she signed the recital certifying her

familiarity with the assets. Thus, contrary to the trial court’s expression of

rationale, this case does not turn upon a credibility determination regarding

whether Husband made an express misrepresentation.7 The trial court erred

in invoking the non-existent issue of credibility in order to compensate for

Wife’s failure to adduce evidence of fraud or misrepresentation.

       Likewise, the record will not sustain the court’s conclusion that Wife

adduced clear and convincing evidence of misrepresentation. The only

evidence in the certified record that could conceivably support the trial

court’s finding of misrepresentation are two of Wife’s responses during

cross-examination. At one point, Wife responded to an inquiry by retorting,

“in my book and from our conversation, there was nothing, and I had no

reason to believe that he would not have mentioned [the pension].” N.T.,

1/19/16, at 60.       Then, when asked whether she believed that Husband

purposely withheld the information from her, she answered “it appears so.”

Id.   This evidence is neither clear nor compelling.     The first statement

simply restates the fact that the asset was not discussed.         The latter

response is a qualified suggestion that, in the absence of any other

____________________________________________


7
  Any credibility dispute was limited to whether Wife had known of the
pension in the past. However, regardless of whether Wife was completely
unaware of the pension or had previously known of it and simply forgot
when she executed the agreement, that issue is irrelevant to whether
Husband intentionally mislead her.



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acceptable explanation, Wife believed that Husband must have misled her.

Both statements fail to reach the quantum of clear and convincing evidence

of fraudulent misrepresentation that the High Court detailed in Porreco,

supra (fraud requires material false representation made with intent to

mislead).

      In addition to the dearth of direct evidence to support the trial court’s

conclusion that Husband misrepresented the marital estate or intentionally

withheld    information   from    Wife    regarding        his   pension       benefit,   the

circumstantial evidence favoring that finding is limited to what the trial court

characterized as Husband’s evasiveness and argumentative answers during

cross-examination.        However,   absent       direct    evidence     indicating       that

Husband hid the asset or purposefully lied to Wife about its existence,

Husband’s    demeanor      during    cross-examination           is   hardly     clear    and

convincing evidence of fraud or misrepresentation.

      In sum, Wife failed to assert fraudulent misrepresentation, much less

prove it by clear and convincing evidence, and the trial court’s purported

credibility determination in her favor is ineffective.            The undisputed facts

established that Husband and Wife did not discuss the pension prior to

executing the agreement.         While the trial court speculates that Husband

intentionally hid the asset from Wife, the evidence does not bear out that

insinuation, and the trial court erred in relying upon a contrived credibility

determination to negate Wife’s failure to satisfy her evidentiary burden of


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proving the requisite scienter to rebut the presumption that full disclosure

occurred. See Colonna v. Colonna, 791 A.2d 353, 357 (Pa.Super. 2001)

(rejecting wife’s contention that she was not fully aware of her statutory

rights because, absent proof of material misrepresentation or fraud,

reviewing court may not examine whether parties attained informed

understandings of rights they were surrendering); Busch, supra at 1278

n.5 (full and fair disclosure need only allow intended party to make informed

decision).

      As the certified record does not support the trial court’s finding that

Husband engaged in fraud or misrepresentation, the trial court erred in

determining that Wife was not bound by the disclosure recital. Accordingly,

we reverse the trial court order imposing a constructive trust over the

pension benefits pursuant to § 3505(d).

      Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2017




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