Green v. Green

• Decision Date: 11 June 2013
• Citation: 69 A.3d 282,2013 PA Super 138
• Parties: Marsha E. GREEN, Appellee v. Lester J. GREEN, Appellant.
• Court: Pennsylvania Superior Court

69 A.3d 282

2013 PA Super 138

Marsha E. GREEN, Appellee

v.Lester J. GREEN, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 22, 2012.

Filed June 11, 2013.

Douglas G. Linn, II, Butler, for appellant.

Danielle R. Grunden, Butler, for appellee.

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J.

OPINION BY WECHT, J.

Lester J. Green (“Husband”) appeals a September 23, 2011 order that disposed of Husband's Motion to Enforce Settlement Agreement. That order set values for real and personal property that had been divided between the parties, found Husband had received rental income from a marital property, and ordered Wife to pay Husband in order to effectuate a 50/50 split of the marital estate. We affirm.

Husband and Marsha E. Green (“Wife”) married on December 18, 1981. Their divorce was initiated in February 2006. On December 22, 2008, the divorce decree issued. A trial on equitable distribution was scheduled for December 3, 2008. In fact, no trial ever occurred.

The trial court summarized what transpired, as follows:

At the December 3, 2008 proceeding, being the time and place for an equitable distribution trial, the parties entered into a Marital Settlement Agreement, which was made an Order of Court on December 30, 2008. Per the agreement, the parties identified the marital and non-marital assets, agreed to the value of the assets, and agreed to a 50/50 distribution of said assets. Exhibit 1 of the December 3, 2008 proceeding, which listed the personal property amounting to approximately $84,000, was intended to be adopted as an Order of Court. The parties had “arduously sat over the last three days and decided which way it [would] be distributed and put dollar amounts to it.” “The dollar amounts [were] important because the parties [had] agreed to a 50–50 distribution.” Attached to Exhibit 1 was a hand written list, to which both parties represented to counsel was the complete list of personal property. Counsel for both parties then agreed that the attached list could be adopted as an Order. At the time, the court indicated its concern that since the parties were not present to consent to the agreement that something should be forthcoming from the parties indicating that they have signed off on the agreement. However, [Husband's] counsel had previously indicated that a full blown settlement agreement would not be [forthcoming], as the handwritten list was “almost self-executing.” [Wife's] counsel then indicated that a Motion to Adopt the Agreement would be [forthcoming].

A Motion to Adopt the Agreement was not presented to the Court. Nonetheless, on December 30, 2008 an Order of Court was entered, which memorialized the agreement that was put on the record at the time of the December 3, 2008 equitable distribution trial. [Wife] filed a Notice of Appeal, but subsequently filed a Praecipe to Discontinue without ever having filed a Concise Statement of Matters Complained of on Appeal. Therefore, the reasoning behind [Wife's] appeal remains unknown. Regardless, the appeal was discontinued and the appeal period expired without [Husband] ever having filed a Motion for Reconsideration, Notice of Appeal, or any form of post-trial relief. As a divorce decree had been previously issued and a final resolution of any claims to equitable distribution reached, the matter has been resolved.

Upon the joint request of the parties, a status conference was held on September 17, 2009. At the time of the status conference, the parties agreed to transfer all real estate and investment accounts within five days. The parties also agreed that all personal property would be exchanged within twenty-one days. The October 5, 2009 Order of Court also reflected the agreement of the parties that “[w]ithin thirty (30) days from the date of this Order of Court, any and all disputes over items of personal property will be resolved—or, in the alternative,—either party may within thirty days of the Order request that a hearing be scheduled before the Court by the procedure as outlined below. If a hearing on this issue is not requested within thirty (30) days of the date of this Order of Court, the matters relating to the distribution of personal property will be deemed resolved and the court will deny any and all requests to hear any and all disputes thereon.” Thirty days passed from the time said Order was entered and neither party requested a hearing, nor was any post-trial relief sought.

It was not until April 8, 2010, a full five months after the October 5, 2009 Order of Court, that [Wife] presented the Court with a Motion to Compel. As a result, the Court issued the May 10, 2010 Order of Court, which affirmed the October 5, 2009 Order and ordered that the distribution and valuation of all personal property is complete. Again, no post-trial relief was sought.

No further action was taken on the matter until February 10, 2011, when [Husband] presented the Court with a Motion to Enforce the Marital Settlement Agreement. Following the April 29, 2011 oral argument thereon, the Court issued the May 11, 2011 Order of Court, which found that “the parties did not enter into a formal written marital settlement agreement, but rather agreed to the value and distribution of assets, which was made an Order of Court on December 29, 2008.” The court then left the record open for twenty days to allow both parties to file with the Court a trial aid, which was to list the entire marital estate as distributed between the parties, the corresponding values, and what transfers must yet be made to effectuate a 50/50 division of property. The Court also scheduled a hearing for July 25, 2011 in the event testimony became necessary. [Husband] filed a Narrative Report to the Court and a Trial Aid. [Wife] filed a Trial Aid and Amended Trial Aid. Subsequently, both parties appeared for the July 25, 2011 hearing; but, rather than putting testimony on the record, offered only oral argument. Regardless, the Court entertained the oral argument and informed the parties that they may put additional evidence on the record if they desired. As a result of the April 29, 2011 oral argument, the subsequent Trial Aids, and July 25, 2011 hearing, the Court entered the September 23, 2011 Order of Court, to which Appellant filed the within appeal.

Trial Court Memorandum Opinion and Order of Court (“T.C.O.”), 2/9/2012, at 2–5 (footnotes omitted). This appeal followed.¹

Husband raises three issues on appeal:

1. Did this Honorable Court enter an Order dated September 23, 2011 that constitutes an abuse of this Court's discretion in that the Court made various findings of fact, the support of which is not found in the record or otherwise established by competent evidence?

2. Did this Honorable Court enter an order dated September 23, 2011 that contained references to personal property valuations for those items received by each of the parties, which were not established of record by any stipulation or evidentiary submission at hearing? Moreover, did the Court utilize personal property divisions and related values, which were not agreed to by [Husband] nor acknowledged by [Wife] in her Amended Trial Aid filed with the Court on page 2, first paragraph thereof?

3. Did the Court Order dated September 17, 2009 and entered on October 5, 2009 and the Court Order dated April 26, 2010 and entered May 10, 2010 specifically find that the parties' personal property was divided pursuant to the parties' oral agreement to wit, 50%/50%? By virtue of that Order, was [Husband] unable to challenge or contest the personal property distribution, as he had not requested a hearing in the time prescribed by this Court? Did [Wife] also fail to demand a hearing on the issue of personal property and should have been estopped from challenging the equal distribution of property?

Husband's Brief at 7.

When reviewing an order for equitable distribution, we consider whether the trial court abused its discretion or made an error of law. Nagle v. Nagle, 799 A.2d 812, 818 (Pa.Super.2002). If supported by credible evidence of record, the trial court's findings of fact are binding upon the appellate court. Id.

Although he asserts three issues on appeal, Husband presents only one argument encompassing the first two of these three issues: to wit, that the lower court lacked a sufficient record upon which to base its September 23, 2011 order.^2,3 Husbandattacks the court's use of an exhibit and the trial aids.

Husband points out that Exhibit 1 ⁴ from the December 3, 2008 conference (there never having been a trial in this case) was not admitted as an exhibit. Indeed, the document was never formally moved or admitted into evidence. Husband's counsel maintains that he did not have the opportunity to view Exhibit 1 during the chambers discussion with the court, and that the document did not reflect the agreements reached during negotiations. Husband explains that this is why he refused to accept Wife's proposed order adopting Exhibit 1. Husband's Brief at 15, 17–18.

Wife claims that Exhibit 1 was admitted. Wife maintains that Husband's counsel agreed that Exhibit 1 could be adopted as an order of court. Wife argues that, because the court then relied upon Exhibit 1 as the basis for its September 23, 2011 order and Wife used Exhibit 1 as the basis of her trial aid, Exhibit 1 was properly considered. Therefore, according to Wife, the order was based on competent evidence. Wife's Brief at 6–7.

The learned trial court does recognize candidly that Exhibit 1 was not formally admitted. However, the court characterizes this lapse as a “clerical failure,” stating that the parties referred to the document as an exhibit and that it was treated as one ( i.e., the court reporter took the document). The court notes that no one objected to the document, and states that Husband's counsel agreed that it could be adopted as a court order. The court asserts that it would be inequitable to permit Husband to challenge Exhibit 1 on...