Creeks v. Creeks
| Citation | 619 A.2d 754,422 Pa.Super. 432 |
| Parties | Carrl J. CREEKS, Appellant, v. John H. CREEKS. |
| Decision Date | 19 January 1993 |
| Court | Pennsylvania Superior Court |
Mark A. Criss, Evans City, for appellant.
Wesley F. Hamilton, Zelienople, for appellee.
Before TAMILIA, JOHNSON and HESTER, JJ.
Carrl Creeks appeals from an order which denied her Petition For the Imposition of a Constructive Trust on marital assets which were not disclosed by John Creeks (Husband) during the negotiation of the marital settlement agreement and also denied Wife's request for attorney's fees. We reverse.
The parties were married on January 19, 1945. On April 17, 1989, Wife filed for divorce. Prior to entering into a Marital Settlement Agreement (Agreement), Husband filed his Inventory and Appraisement. The parties entered into the Agreement on December 5, 1990. On December 24, 1990, the parties were divorced. The Agreement was incorporated but not merged into the divorce decree.
On August 22, 1991, Wife filed a Petition For Imposition of a Constructive Trust and for Attorney's Fees. Wife's petition alleged that Husband had breached the disclosure clause of the Agreement by failing to disclose certain marital funds which were deposited, during the marriage, into Husband's paramour's bank account. Wife sought to have a constructive trust imposed by the court on the undisclosed assets and the provision of attorney's fees. Following a hearing on this issue, the trial court denied Wife's petition. It is from this order that Wife appeals.
Wife presents four issues for our review:
1. Whether the trial court erred in failing to enforce, as written, an explicit warranty concerning disclosure of assets contained in the Agreement.
2. Whether the trial court erred by imposing on Wife the burden of proving the omission of assets from Husband's disclosure of assets statement was either intentional or negligent.
3. Whether the trial court abused its discretion by declining Wife's request for a continuance and supplemental hearing, after Husband's surprise testimony attributing the non-disclosure of assets to his previous attorney.
4. Whether the trial court erred in failing to award attorney's fees pursuant to the language contained in the Agreement.
First, Wife contends that the trial court erred in failing to enforce the Warranty of Financial Information, contained in paragraph 4 of the Agreement. We agree.
The pertinent paragraph of the Agreement reads as follows:
4. Warranty of Financial Information. The parties each represent and warrant to the other that he or she has made complete and accurate disclosure to the other of all assets of any nature whatsoever in which such party has or may have an interest and of all the facts relating to the subject matter of this Agreement. Husband specifically warrants the accuracy and completeness of the financial information provided to Wife as set forth on the Inventory and Appraisement Forms filed with the Court at F.C. # 89-339-D, Book 22, Page 339. Husband and Wife further warrant to each other that neither has received any lump sum advance payment from Mr. and Mrs. Reeb as the purchasers of 113 South Milton Street under the existing Article of Agreement.
Wife alleges that Husband provided funds, totaling $2,887.32, to Sharon Shields (now Sharon Creeks) during a series of transactions between May, 1988, and September, 1988. The funds transferred to Shields were not listed on Husband's Inventory and Appraisement Forms, despite the warranty in paragraph 4 of the Agreement. The trial court specifically found that Husband did transfer the funds to Shields. Trial court opinion, January 24, 1992, at 2. The trial court however, concluded that Husband did not breach paragraph 4 of the Agreement because he sent a letter to his then attorney informing the attorney that "he had received $2,887.00 from a friend who was keeping it for him." Trial court opinion, January 24, 1992 at 2. This conclusion is in error.
When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties understanding. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992) (en banc ). The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). When the terms of a written contract are clear, this Court will not re-write it or give it a construction in conflict with the accepted and plain meaning of the language used. Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). Conversely, when the language is ambiguous and the intention of the parties cannot be reasonably ascertained from the language of the writing alone, the parol evidence rule does not apply to the admission of oral testimony to show both the intent of the parties and the circumstances attending the execution of the contract. DeWitt v. Kaiser, 335 Pa.Super. 258, 484 A.2d 121 (1984).
In this case, the language of the Agreement required each party to make "a complete and accurate disclosure to the other of all assets of any nature whatsoever in which such party has or may have an interest...." This language is clear. Husband and Wife had a duty under the terms of their agreement to disclose all assets to each other regardless of their source. This duty was not assignable, under the contract, but inured personally to Husband and Wife. When Husband specifically warranted that the Inventory and Appraisement Forms were complete and accurate, Husband could not avoid this warranty merely by informing his attorney of the existence of the funds. Husband had a duty to actually disclose the existence of the funds to Wife in the Inventory and Appraisement Forms. A review of the Inventory and Appraisement Forms, the testimony, and the trial court's findings, indicates Husband did not disclose the existence of the $2,887.32. We, therefore conclude that the trial court erred in failing to find that the plain language of the Agreement...
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