J-A33029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JACK J. COLE                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                 v.

LAURA M. COLE

                            Appellant                 No. 606 WDA 2016


                 Appeal from the Decree Dated March 31, 2016
                In the Court of Common Pleas of Fayette County
                    Civil Division at No(s): 812 of 2015 G.D.

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

MEMORANDUM BY SOLANO, J.:                              FILED APRIL 24, 2017

        Appellant Laura M. Cole (“Wife”) appeals from the March 31, 2016

divorce decree, which made final the court’s June 30, 2015 order.            That

order granted the petition of Appellee Jack J. Cole (“Husband”) to confirm a

settlement agreement and stay Wife’s claim for spousal support. We affirm.

        The issue in this case is whether the parties entered into an

enforceable oral postnuptial/marital settlement agreement.1 The trial court

set forth the relevant facts as follows:

               In April 2015, Plaintiff Husband met with his attorney,
        Michelle Kelley, Esquire, in order to discuss an agreement for the
        division of marital property. One week later [on April 8, 2015],
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Wife refers to the agreement as a postnuptial agreement, while Husband
refers to it as a marital settlement agreement.
J-A33029-16


     the parties together met at the office of Plaintiff Husband’s
     attorney, and they engaged in discussions concerning the
     division of their assets, resulting from their separation. During
     this meeting, the parties provided Attorney Kelley a handwritten,
     two-page document which sets forth a list of various assets and
     provisions.     The document was prepared in Husband’s
     handwriting when the parties met together prior to meeting with
     Attorney Kelley, and during the meeting between the parties,
     they agreed upon certain assets that would be retained and/or
     transferred to each of them.        The parties referred to this
     document during their meeting with Attorney Kelley, and during
     the joint meeting, Attorney Kelley made notes on the document
     pertaining to the terms of the parties’ agreement.

            During their meeting with Attorney Kelley, the parties
     discussed the value of the marital home, for which they had an
     appraisal, and they discussed the equity in the home. The
     parties stipulated that the furnishings in the marital home are
     valued at $40,000.00. According to testimony from Attorney
     Kelley, the parties discussed the equity in the vehicles owned by
     the parties, their respective retirement accounts, and the
     amount and duration of alimony to be paid to [Wife]. The parties
     discussed the value of each of their marital assets, as well as the
     total asset distribution to Wife and to Husband. It was apparent
     to Attorney Kelley that the parties ha[d] previously discussed the
     distribution of their assets. Attorney Kelley testified that the
     parties knew about and understood each of the assets discussed
     at the meeting. Attorney Kelley informed both parties that she
     need[ed] to “know clearly” what they [were] agreeing on.
     Attorney Kelley testified that the parties had a “meeting of the
     minds” as to how each of the assets would be distributed. The
     parties discussed the value of each of the assets, and the
     distributions set forth pursuant to the handwritten list resulted in
     a distribution to Wife in the amount of $230,000 and to Husband
     in the amount of $234,500.

           Based on the testimony of Attorney Kelley, it is clear that
     neither party was under duress, nor was there any coercion by
     either party during the joint meeting with Attorney Kelley. In
     addition, there was no evidence of any fraud or
     misrepresentation.

           After the parties reviewed their asset distribution with
     Attorney Kelley, it was understood that Attorney Kelley would


                                    -2-
J-A33029-16


       prepare a written agreement to reflect the terms of their oral
       settlement, and they would each go back into Attorney Kelley’s
       office to sign the agreement the following week.

             Subsequent to meeting with the parties, Attorney Kelley
       received a phone call to inform her that Defendant Wife
       “changed her mind” and would not sign an agreement.[2]

Trial Ct. Op., 6/30/15, at 1-3 (pagination added). After learning that Wife

would not sign the agreement, Husband told Attorney Kelley to not prepare

it.   N.T., 6/11/15, at 25, 44, 60-61.         As a result of these calls, Attorney

Kelley did not prepare a written agreement. Id. at 25. We further note that

both Husband and Attorney Kelley testified at the hearing.            Wife did not

testify or present any evidence contradicting Husband and Attorney Kelley’s

version of the events.

       On April 27, 2015, Husband filed for divorce.            On May 6, 2015,

Husband filed the “Petition for Special Relief to Confirm Settlement

Agreement and to Stay [Wife’s] Claim for Spousal Support” that is the

subject of this appeal. In his petition, Husband asked the court to enter an

order confirming the existence of a binding marital settlement agreement

between the parties and to stay Wife’s claim for spousal support.3              On

June 11, 2015, the trial court held a hearing on Husband’s petition.
____________________________________________


2
  Attorney Kelley received the message approximately one week after the
joint meeting.
3
  According to Husband’s petition, Wife filed a claim for spousal support on
April 24, 2015, at PACSES Case No. 890115268. See Pet. at ¶ 6. Wife’s
claim is not in the certified record for this case.




                                           -3-
J-A33029-16



       On June 30, 2015, the trial court issued an opinion and order granting

Husband’s petition. After the divorce decree was entered, Wife filed a timely

notice of appeal.4 On appeal, Wife presents the following issue:

       Whether the terms and conditions of a post-nuptial agreement
       can be held valid based upon a purported oral agreement that is
       not in written form and formally executed by either party.

Appellant’s Brief at 4.

       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.
       An abuse of discretion exists when the trial court has rendered a
       decision or a judgment which is manifestly unreasonable,


____________________________________________


4
    In the past, we held that an order upholding a marital settlement
agreement is final and immediately appealable. See Nigro v. Nigro, 538
A.2d 910, 913 (Pa. Super. 1988) (citing Laub v. Laub, 505 A.2d 290 (Pa.
Super. 1986)). However, more recently we stated, “[a]lthough neither Laub
nor Nigro has been expressly overruled, their precedential value with regard
to appealability of an order upholding or enforcing a marital settlement
agreement is in doubt.” Sneeringer v. Sneeringer, 876 A.2d 1036, 1038
(Pa. Super. 2005). In Sneeringer, we noted that the Rules of Civil
Procedure have been amended since Laub and Nigro were decided. See
Sneeringer, 876 A.2d at 1038. In light of the current rules, we held in
Sneeringer that an order addressing enforceability of a settlement
agreement was not a final or collateral order, and thus was not immediately
appealable. Id. at 1039-40. We stated that the aggrieved party would have
an opportunity to challenge the order once a divorce decree had been
entered. Id. at 1040. Accordingly, Wife followed the proper procedure in
this case by waiting until the divorce decree was entered to file an appeal.



                                           -4-
J-A33029-16


       arbitrary, or capricious, has failed to apply the law, or was
       motivated by partiality, prejudice, bias or ill will.

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

marks omitted).

       Wife argues that the trial court erred as a matter of law by upholding

an agreement that was not in writing and executed by the parties.       Wife

contends that the agreement at issue was a postnuptial agreement, and that

oral postnuptial agreements are unenforceable.

       In support of the agreement, Husband relied on Luber v. Luber, 614

A.2d 771 (Pa. Super. 1992), appeal denied, 631 A.2d 1008 (Pa. 1993).

See N.T., 6/11/15, at 61-64; Trial Ct. Op., 6/13/16, at 3. In Luber, after

the wife filed for divorce, she and her husband set forth the terms of a

settlement agreement orally, on the record, before a Master. 614 A.2d at

772.    “The Master indicated that, following the parties placing their

settlement agreement on the record, a document reflecting that agreement

would be drafted by counsel.”    Id.   For reasons that are not clear in the

opinion, the agreement was not reduced to writing. Nonetheless, this Court

held that the agreement was enforceable, explaining that, “[w]here parties

have reached an oral agreement, the fact that they intend to reduce the

agreement to writing does not prevent enforcement of the oral agreement.”

Id. at 773.     Wife asserts that Luber is distinguishable because (1) it

involved a marital settlement incident to divorce, not a postnuptial

agreement; and (2) the oral agreement in Luber was on the record. See

Appellant’s Brief at 10; N.T., 6/11/16, at 62-63.

                                     -5-
J-A33029-16



      In holding in favor of Husband and agreeing to enforce the parties’

agreement, the trial court noted that both postnuptial agreements and

marital settlement agreements are “subject to the same general contract

principles.”   Trial Ct. Op., 6/13/16, at 1-2 (citing Stoner v. Stoner, 819

A.2d 529, 533 n.5 (Pa. 2003); Simeone v. Simeone, 581 A.2d 162, 165

(Pa. 1990); and Luber, 614 A.2d at 773).        The trial court looked to the

following general contract principles:

      There must be a meeting of the minds, which requires the assent
      of both parties to the agreement. City of Erie v. Fraternal
      Order of Police, Lodge 7, 977 A.2d 3 (Pa. Commw. Ct. 2009);
      Quiles v. Financial Exchange Co., 879 A.2d 281 (Pa. Super.
      Ct. 2005). The intent of the parties to be contractually bound is
      a question of fact to be determined by the factfinder. Luber,
      614 A.2d at 773; see also Johnston v. Johnston, 499 A.2d
      1074 (Pa. Super. Ct. 1985). In determining the intent of the
      parties, it is their outward and objective manifestations of assent
      that matter, rather than their undisclosed and subjective
      intentions. As such, it is not necessary for the parties to come
      to a “true and actual meeting of the minds” to form a contract,
      so long as their manifested intent reasonably suggests their
      assent to the agreement. Long v. Brown, 582 A.2d 359 (Pa.
      Super. Ct. 1990); Ingrassia Const. Co., Inc. v. Walsh, 486
      A.2d 478 (Pa. Super. Ct. 1984). Moreover, although preliminary
      negotiations do not constitute a contract, if the parties orally
      agree to all of the terms of a contract between them and
      mutually expect the imminent drafting of a written contract
      reflecting their previous understanding, that oral contract may
      be enforceable. Trowbridge v. McCaigue, 992 A.2d 199 (Pa.
      Super. Ct. 2010); Storms ex rel. Storms v. O’Malley, 779
      A.2d 548 (Pa. Super. Ct. 2001); Kazanjian v. New England
      Petroleum Corp., 480 A.2d 1153 (Pa. Super. Ct. 1984).

Trial Ct. Op., 6/13/16, at 2-3. Applying these principles, the trial court held

that the parties’ agreement was enforceable, even though both parties

decided at the last minute not to reduce it to writing. We agree.

                                     -6-
J-A33029-16



      After careful review of the record, the parties’ briefs, and the trial

court’s decision, we affirm on the basis of the June 13, 2016 trial court

opinion by the Honorable Linda R. Cordaro. See Trial Ct. Op., 6/13/16, at 1,

3-4 (holding (1) the distinction between a “post-nuptial agreement” and a

“marital property settlement” is not significant to this case; (2) the parties’

oral agreement was enforceable because “there most certainly was a

meeting of the minds between the parties as to the distribution of marital

assets” despite the parties’ decision not to commit the agreement to writing;

and (3) there was a full disclosure of marital assets and the presence of a

Master was unnecessary).

      We add that in her appellate brief, Wife relies on Section 3106 of the

Divorce Code and the Uniform Commercial Code’s Statute of Frauds to

support her argument.      Wife did not mention these statutes in the trial

court, and thus the trial court was not given the opportunity to address their

applicability. Even assuming that Wife did not waive her reliance on these

statutes, we conclude the statutes are inapplicable.

      Section 3106 of the Divorce Code, entitled “Premarital agreements,”

provides:

      (a) General rule.—The burden of proof to set aside a
      premarital agreement shall be upon the party alleging the
      agreement to be unenforceable. A premarital agreement shall
      not be enforceable if the party seeking to set aside the
      agreement proves, by clear and convincing evidence, that:

       (1) the party did not execute the agreement voluntarily; or

       (2) the party, before execution of the agreement:

                                     -7-
J-A33029-16


        (i) was not provided a fair and reasonable disclosure of the
        property or financial obligations of the other party;

        (ii) did not voluntarily and expressly waive, in writing, any
        right to disclosure of the property or financial obligations of
        the other party beyond the disclosure provided; and

        (iii) did not have an adequate knowledge of the property or
        financial obligations of the other party.

     (b) Definition.—As used in this section, the term “premarital
     agreement” means an agreement between prospective spouses
     made in contemplation of marriage and to be effective upon
     marriage.

23 Pa.C.S. § 3106.    By its express terms, Section 3106 applies only to

agreements “between prospective spouses made in contemplation of

marriage.” 23 Pa.C.S. § 3106(b). There are no such statutory regulations

addressing postnuptial agreements. Lugg v. Lugg, 64 A.3d 1109, 1112-13

(Pa. Super. 2013). Moreover, Section 3106 deals only with actions to “set

aside” a premarital agreement.     Section 3106 therefore has no possible

application to the agreement in this case.   We note that the definition of

“premarital agreement” in § 3106 is based on the definition in the Uniform

Premarital Agreement Act. See 23 Pa.C.S. § 3106 cmt. This Uniform Act

has not been enacted in Pennsylvania and, in any event, it does not apply to

postmarital or settlement agreements. See Unif. Premarital Agreement Act

§ 1 cmt.

     Wife argues that the requirement of a written waiver of disclosure in

Section 3106(a)(2)(ii) is relevant because “post-nuptial agreements are to

be reviewed under the same principles as a prenuptial agreement.”

Appellant’s Brief at 9. But the “same principles” that apply in this context

                                    -8-
J-A33029-16



are the general contract principles described by the trial court. See Stoner,

819 A.2d at 533 (“traditional contract rules should be applied to marriage

agreements”). Wife has not identified, and we have not found, any authority

to support the proposition that statutes expressly applicable to premarital

agreements also apply to postnuptial agreements.      See Lugg, 64 A.3d at

1112-13. We therefore find Wife’s reliance on Section 3106 misplaced.

       We are also unpersuaded by Wife’s argument based on the Uniform

Commercial Code’s Statute of Frauds, 13 Pa.C.S. § 2201, et seq.5 The

Commercial Code applies only to contracts “for the sale of goods.”         13

Pa.C.S. § 2201(a); see id. §§ 2105 (defining “goods” as including all things

movable), 2106(a) (defining “sale” as “the passing of title from the seller to

the buyer for a price”).

       Based on the foregoing and the trial court’s well-reasoned analysis, we

affirm.    In the event of further proceedings that reference this Court’s

memorandum, the parties shall attach a copy of the trial court’s June 13,

2016 opinion.

       Order affirmed.




____________________________________________


5
  Wife included an incorrect citation to the statute on page 11 of her brief,
making the identity of the statute on which she relied unclear; but Wife’s
table of citations makes clear that she is relying on the Commercial Code
provision.



                                           -9-
J-A33029-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2017




                          - 10 -
                                                                              Circulated 04/18/2017 03:21 PM




     IN THE COURT OF COMMON PLEAS OF FAYETTE COUNIY, PENNSYLVANIA
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                           RULE 1925(b) OPINION

 LINDAR CORDARO,J.

       This Court entered an Order and Opinion in the above matter on July 1, 2015,

granting Plaintiffs Petition for Special Relief to Confirm Settlement Agreement and to

Stay Defendant's Claim for Spousal Support. Counsel for Appellant-Defendant filed an

appeal on April 27, 2016, after which this Court directed Appellant-Defendant's counsel

to file a Concise Statement of Matters Complained of on Appeal. The Concise Statement

was subsequently filed on May 20, 2016.

       This matter centers on the enforceability of an oral agreement between the parties

as to the distribution of marital property. Appellant-Defendant's counsel insists on

making the distinction that this agreement was in the form of a "post-nuptial agreement"

rather than a "marital property settlement agreement." The Court does not find there to

be any significance to this distinction, as either variation is subject to the same general

contract principles. Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990) ("Prenuptial

agreements are contracts, and, as such, should be evaluated under the same criteria as

are applicable to other types of contracts"); Stoner v. Stoner, 819 A.2d 529, 533 n. 5 (Pa.
                           ,(


 2003) ("the principles applicable to antenuptial agreements are equally applicable to

 postnuptial agreements, although the circumstances may slightly differ"); Luber v. Luber,

 614 A.2d 771, 773 (Pa. Super. Ct. 1992), citing Lipschutz v. Lipschutz, 571 A.2d 1046 (Pa

 Super. Ct. 1990) ("A property settlement agreement is enforceable by utilizing the same

 rules of law used in determining      the validity of contracts"); See Also Horowitz v.

 Horowitz, 600 A.2d 982 (Pa. Super. Ct. 1991). As such, the only relevant inquiry as far as

 this Court is concerned is whether an enforceable agreement was created between the

parties.

         The general framework of an enforceable agreement is surely well known to any

legal professional.   There must be a meeting of the minds, which requires the assent of

both parties to the agreement. City of Erie v. Fraternal Order of Police, Lodge 7, 977 A.2d

3 (Pa. Commw. Ct. 2009); Quiles v. Financial Exchange Co., 879 A.2d 281 (Pa. Super. Ct.

2005).     The intent of the parties to be contractually bound is a question of fact to be

determined by the factfinder. Luber, 614 A.2d at 773; See Also Johnston v. Johnston, 499

A.2d 1074 (Pa. Super. Ct. 1985). In determining the intent of the parties, it is their

outward and objective manifestations of assent that matter, rather than their undisclosed

and subjective intentions. As such, it is not necessary for the parties to come to a "true

and actual meeting of the minds" to form a contract, so long as their manifested intent

reasonably suggests their assent to the agreement. Long v. Brown, 582 A.2d 359 (Pa.

Super. Ct.1990); Ingrassia Const. Co., Inc. v. Walsh, 486A.2d478 (Pa. Super. Ct. 1984).

Moreover, although preliminary negotiations do not constitute a contract, if the parties

orally agree to all of the · terms of a contract between them and mutually expect the

imminent drafting of a written contract reflecting their previous understanding, that oral

contract may be enforceable. Trowbridge v. McCaigue 992 A.2d 199 (Pa. Super. Ct.
 2010); Storms ex rel. Storms v. O'Malley, 779 A.2d 548 (Pa. Super. Ct. 2001); Kazanjian

 v. New England Petroleum Corp., 480 A.2d 1153 (Pa. Super. Ct. 1984).

        Both parties refer only to Luber as legal authority in their oral arguments. In

 Luber, the Petitioner-Wife sought an order requiring Respondent-Husband to comply

 with the terms of an oral settlement agreement that was made before a Master, but never

 reduced to a writing. The agreement was enforced by both the trial court and Superior

 Court, as the record before the Master indicated an understanding and assent to the

 agreement on the part of both parties. Id., at 773. Appellant-Defendant in the instant

matter argues that Luber should be distinguished from this case, as the agreement here

was not made before a Master, nor was it on the record. Further, Appellant-Defendant

argues that there was not a full disclosure of the marital assets, which would be necessary

if the agreement were characterized as a postnuptial agreement. This Court found no

merit to Appellant-Defendant's argument, as the undisputed evidence of record

demonstrated full disclosure through a two-page list of assets used by the parties and a

calculation of assets made by Attorney Michelle Kelly,who was present for the settlement

discussion. Additionally, there was a clear agreement upon value and distribution of

those assets, and nothing in Luber persuaded this Court that the presence of a Master is

determinative as to whether a contract was formed between the parties.

       Lastly, Appellant-Defendant's Concise Statement also provides that the parties

subsequently withdrew from the agreement, but the evidence of record does not support

this conclusion. It was undisputed that Appellant-Defendant left a voicemail for Attorney

Kelly that she no longer wished to sign the agreement, and later, Respondent-Plaintiff

requested that she not draft the agreement. However, the language of that conversation

is telling, as Attorney Kelly indicated on record that Mr. Cole "didn't want to pay for it if
                           (
                         I\,




it wasn't going to serve any purpose at this point." Petition for Special Relief Proceedings,

p. 25 (June 11, 2015). Counsel for Respondent-Plaintiff further clarified this statement

by asking Attorney Kelly if Mr. Cole indicated simply that he did not wish to pay for a

written agreement, rather than that he had changed his mind, and Attorney Kelly

confirmed that this was in fact the case. Proceedings, p.44; This Court finds that there

most certainly was a meeting of the minds between the parties as to the distribution of

marital assets by way of an oral agreement made before Attorney Michelle Kelly, and as

such, that agreement is legally enforceable.

       The Court respectfully submits the aforementioned reasoning for its order and

opinion in this matter for the Superior Court's consideration.




                                       ~'fL                 £1           LJ~
                                          LINDA R. CORDARO, JUDGE
