Bonds v. Bonds

• Decision Date: 30 January 1997
• Parties: Pamela Sue Obrant BONDS, Appellee, v. Robert BONDS, Appellant.
• Court: Pennsylvania Superior Court

Page 275

689 A.2d 275

455 Pa.Super. 610

Pamela Sue Obrant BONDS, Appellee, v. Robert BONDS, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 18, 1996.

Filed Jan. 30, 1997.

Barbara Schneider, West Chester, for appellant.

William D. Glycenfer, Conshohocken, for appellee.

Before DEL SOLE, BECK and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from the trial court order dated November 27, 1995, enforcing the parties' property settlement agreement and ordering husband to pay wife's counsel fees. Herein, husband contends the following: (1) The trial court erred in preventing effective cross-examination of wife's sole witness where it would not permit husband to examine Attorney Frank Baer's legal file; (2) The trial court erred in finding that wife did not waive her attorney-client privilege with regard to communications made to Attorney Baer; (3) The trial court erred in concluding that wife's action was not barred by the doctrine of laches or equitable estoppel; (4) The trial court erred in finding the parties' May 5, 1993, property settlement agreement enforceable, and then enforcing only some of the provisions contained therein; and, (5) The trial court erred in ordering him to pay wife's counsel fees. We affirm.

The relevant facts and procedural history are as follows: Husband and wife were married on June 3, 1984. During their marriage, two children were born: Maxwell, on August 19, 1985, and Madalyn, on June 10, 1988. On February 9, 1990, wife filed a complaint in divorce against husband. Husband then filed a motion for appointment of a special master. In response, a special master was appointed on July 28, 1992.

On May 5, 1993, the parties appeared before the special master. After negotiating for a rather lengthy period of time, the parties entered into an agreement disposing of all outstanding ancillary economic claims. This agreement was read into the record on May 5, 1993, thereby becoming a part of the transcript of the proceedings before the special master. The parties then indicated on the record that it was their intention to have the agreement reduced to writing and submitted to the trial court. This was never accomplished.

On September 26, 1995, wife filed a petition for special relief seeking enforcement of some of the terms of the May 5, 1993, agreement, including those pertaining to child support, an accounting of child support payments, health insurance and compensation for renovations made to the marital home's basement. A hearing was held on October 30, 1995, during which husband alleged that the parties rescinded the May 5, 1993, agreement and replaced it with an agreement reached by the parties in October, 1994. The trial court determined that the parties never rescinded the May 5, 1993, agreement nor entered into an agreement in October, 1994. Accordingly, the trial court granted wife's requested relief, and, in addition, ordered husband to pay wife $1,500.00 for counsel fees. This appeal followed. ¹

Husband's first contention is that the trial court erred in preventing effective cross-examination of wife's sole witness, Frank Baer, Esquire. Intertwined with this contention is husband's assertion that the trial court erred in finding that wife did not waive her attorney-client privilege in regard to communications made to Attorney Baer.

Attorney Baer, who was wife's prior counsel during this matter, testified with the assistance of a file. During his testimony, on numerous occasions, Attorney Baer examined documents in his file to refresh his recollection about the events surrounding the litigation and the negotiations between the parties. Each time Attorney Baer referred to a document, it was shown to husband's counsel immediately. During cross-examination, husband requested permission to examine the entire file used by Attorney Baer during direct examination. The trial court would not permit husband to view the remaining contents of the file which had not been disclosed by Attorney Baer. The trial court indicated that the remaining contents of the file were protected by the attorney-client privilege. While husband does not contest that the contents of Attorney Baer's file was confidential communication ordinarily protected by the attorney-client privilege, he argues that because Attorney Baer "took the stand to testify" and testified concerning some of the documents in the file, wife waived the attorney-client privilege with regard to the entire file. We disagree.

42 Pa.C.S.A. § 5928 provides that "[i]n a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived at trial by the client." As husband correctly asserts, the appellate courts of this jurisdiction have found waiver when the communication is made in the presence of or communicated to a third party or to the court, when the client relies on the attorney's advice as an affirmative defense, or when the confidential information is placed at issue. Rost v. State Bd. of Psychology, 659 A.2d 626 (Pa.Commonwealth Ct.1995); Johnston v. Johnston, 346 Pa.Super. 427, 499 A.2d 1074 (1985). However, we find that none of these waiver principles required Attorney Baer to disclose the entire contents of his file.

At the October 30, 1995, hearing, Attorney Baer's testimony was limited to communications made between him and husband's counsel and the events which transpired during the hearing before the special master. The documents he referred to during direct examination included a copy of the parties' May 5, 1993, property settlement agreement and letters exchanged between him and husband's counsel. All of these documents and Attorney Baer's testimony related to communications which were not confidential and which were not protected by the attorney-client privilege. At no time did Attorney Baer testify regarding confidential communications protected by the attorney-client privilege. Husband suggests that because Attorney Baer retrieved nonconfidential documents from a file, instead of approaching the bench with just the necessary documents, the entire file must now be disclosed. We disagree with this contention and find that it is not supported by case law. It is preposterous for husband to suggest that once wife's attorney testified regarding nonconfidential communications, he was required to disclose all documents, including confidential items, in his possession. Johnston, supra (attorney was permitted to testify regarding nonconfidential material without revealing privileged communications); Panko v. Alessi, 362 Pa.Super. 384, 524 A.2d 930 (1987) (attorney-client privilege does not bar all testimony, attorney is permitted to testify regarding nonconfidential communications). Moreover, there was no evidence that the remaining contents in Attorney Baer's file were communicated to a third person or to the court, that wife relied on Attorney Baer's advice as an affirmative defense or that the confidential material was placed at issue. Therefore, wife did not waive the attorney-client privilege with respect to these materials. We also note that husband was given ample opportunity to examine all of the documents referred to by Attorney Baer, and that he was given considerable latitude in cross-examining him regarding these documents. Accordingly, the trial court did not limit improperly husband's cross-examination of Attorney Baer. Robertson v. Atlantic Richfield Petroleum Products Company, 371 Pa.Super. 49, 537 A.2d 814 (1987).

Husband's next contention is that the trial court erred in concluding that wife's action was not barred by the doctrine of laches or equitable estoppel. We disagree.

Laches arises when a party's rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). "The application of the equitable doctrine of laches does not depend upon the fact that a certain definite period of time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act at another's prejudice." In re Jones, 442 Pa.Super. 463, 660 A.2d 76, 82 (1995) (citation omitted).

Husband contends that wife unreasonably failed to commence this action for approximately two and a half years since the parties entered into the May 5, 1993, property settlement agreement. However, the record demonstrates that between May 5, 1993, and the filing of this suit on September 6, 1995, wife made several demands requesting husband to abide by the terms of the May 5, 1993, agreement. The record further shows that the parties met on several occasions to discuss the May 5, 1993, agreement, including a meeting which occurred in October, 1994. The record further reveals that despite wife's insistence that husband abide by the terms of the May 5, 1993, agreement, husband refused to do so. Essentially, it was husband's refusal to abide by the agreement that triggered this legal action. Wife filed her petition for special relief approximately one year after the parties' October, 1994, meeting. We find that from these circumstances, wife acted diligently, and, therefore, any prejudice that husband suffered cannot be attributed to wife's lack of diligence but must be attributed to his own actions. In re Jones, supra.

As for husband's argument that wife's claim was barred by equitable estoppel, we find it meritless.

Equitable estoppel is a doctrine that prevents one from doing an act differently from the manner in which another was induced by word or deed to expect. Council of Plymouth Township v. Montgomery County, 109 Pa.Cmwlth. 616, 531 A.2d 1158 (1987). Its essential elements are inducement and justifiable reliance on that inducement...