Kensey v. Kensey

877 A.2d 1284
CourtSuperior Court of Pennsylvania
DecidedJune 24, 2005
StatusPublished
Cited by15 cases

This text of 877 A.2d 1284 (Kensey v. Kensey) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kensey v. Kensey, 877 A.2d 1284 (Pa. Ct. App. 2005).

Opinion

OPINION BY ORIE MELVIN, J.:

¶ 1 Appellant, Michelle Kensey (Wife), appeals from the trial court’s order finding her Antenuptial Agreement with Kenneth [1286]*1286Kensey (Husband) enforceable. After review of Wife’s petition for permission to appeal, we decline to exercise our prerogative review, quash the direct appeal and remand.

¶ 2 The procedural history of this case is as follows.

On December 7, 1989 [Husband and Wife] signed an Antenuptial Agreement. On December 8, 1989 the parties were married. They separated in October of 2001. On July 3, 2002, [Wife] filed a Complaint in Divorce. She also filed a Petition for Special Relief in the Nature of an Application for Exclusive Possession of the Marital Home under Section 3502(c) of the Pennsylvania Divorce Code and to Enjoin [Husband] from Selling, Transferring or Otherwise disposing of Said Marital Residence. On July 22, 2002, [Husband] answered the Petition and filed a Counter-Petition for Declaratory Judgment asking the court to determine the validity of the Ante-nuptial Agreement pursuant to 42 Pa. C.S.A. §§ 7531 et seq.

Trial Court Opinion, 11/13/03, at 1-2. After holding hearings, the trial court issued an order on April 28, 2003 finding that Husband’s and Wife’s Antenuptial Agreement was a valid enforceable contract. The order specified the trial court’s findings concerning the Antenuptial Agreement’s effect on distribution of the marital estate.1 Wife filed a motion to reconsider. After granting Wife’s motion and holding argument, the trial court entered an order on September 3, 2003 reaffirming its April 28, 2003 order.2 This direct appeal followed along with a petition for permission to appeal from an interlocutory order.

¶ 3 Wife raises five issues for our review:

1. Whether the phrase in Section 3 of the Antenuptial Agreement that “non-marital property shall mean all property now owned or hereafter acquired by either party” means that all property acquired by the parties in their individual names after marriage is presumed to be non-marital.
2. Whether the proceeds from the sale of Kensey Nash stock, any property interests acquired from the reinvestment of those proceeds and any income derived from the reinvestment of those proceeds are “non-marital property” under the Antenuptial Agreement.
3. Whether all of Dr. Kensey’s partnership, corporate and business interests as well as the assets owned by those partnerships, corporations and businesses are non-marital property under the Antenuptial Agreement.
4. Whether the Antenuptial Agreement defines “non-marital property” to include the increase in value of non-marital property which is due in whole or in part to the contribution or investment of marital property.
5. Whether the parties to the Antenup-tial Agreement had a “meeting of the minds” as to the meaning of Section 3 of the Agreement and thus whether that provision is enforceable.

Appellant’s brief at 5.

¶ 4 Before addressing these substantive issues, we must address the appealability [1287]*1287of the trial court’s September 3, 2008 order sua sponte because the appealability of the order goes to our jurisdiction to hear the appeal. See Mensch v. Mensch, 713 A.2d 690, 691 (Pa.Super.1998).

¶ 5 “Under Pennsylvania law, an appeal may only be taken from an interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P. 341), from a collateral order (Pa.R.A.P. 313), or from an interlocutory order by permission (Pa. R.A.P. 31 [2], 1311, 42 Pa.C.S.A. § 702(b)).” Radakovich v. Radakovich, 846 A.2d 709, 714 (Pa.Super.2004) (alteration in original) (quoting Nemirovsky v. Nemirovsky, 776 A.2d 988, 991 (Pa.Super.2001)). In this regard, the issue concerns whether the trial court’s order is either a final order or an interlocutory order that is appealable by permission.

¶ 6 In the Statement of Jurisdiction in her brief, Wife asserts that the trial court’s order is a final order. A final order is defined by our Rules of Appellate Procedure as an order that:

(1) disposes of all claims and of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered [in certain situations with a trial court’s express determination that an immediate appeal would facilitate resolution of the entire case].

Pa.R.A.P. 341(b), 42 Pa.C.S.A. Wife does not claim that the trial court order disposes of all of Husband and Wife’s claims under 341(b)(1). Further, she does not argue that the trial court’s order is final pursuant to 341(b)(3). Instead, Wife relies on 341(b)(2), and argues that the trial court’s order is expressly defined as a final order by the Declaratory Judgments Act, 42 Pa.C.S.A. §§ 7531-7541. We disagree.

¶ 7 The Declaratory Judgments Act provides that

[c]ourts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

42 Pa.C.S.A. § 7532. Wife argues that, under this provision, the trial court’s September 3, 2003 order is a final order because it declared Husband and Wife’s rights under their Antenuptial Agreement with respect to their property.

¶ 8 The problem with Wife’s argument is that relief under the Declaratory Judgments Act is expressly limited in divorce cases. The Act provides no relief with respect to any “[a]ction wherein a divorce or annulment of marriage is sought except as provided by 23 Pa.C.S.A. § 3306.” 42 Pa.C.S.A. § 7541(c)(1). Thus, relief is limited to the following situations:

When the validity of a marriage is denied or doubted, either or both of the parties to the marriage may bring an action for a declaratory judgment seeking a declaration of the validity or invalidity of the marriage and, upon proof of the validity or invalidity of the marriage, the marriage shall be declared valid or invalid by decree of the court and, unless reversed upon appeal, the declaration shall be conclusive upon all persons concerned.

23 Pa.C.S.A. § 3306. The trial court’s order in this case did not declare the validity or invalidity of Husband and Wife’s marriage. Instead, as Wife points out, it declared the effect of the Antenuptial Agreement on certain of Husband’s and Wife’s property rights. Such an order is not a [1288]*1288final order under the Declaratory Judgments Act. 42 Pa.C.S.A. § 7541(c)(1).

¶ 9 Since the September 3, 2003 order is not a final order under Pa.R.A.P. 341, we turn our attention to whether permissive interlocutory appeal under 42 Pa. C.S.A.

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Cite This Page — Counsel Stack

Bluebook (online)
877 A.2d 1284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kensey-v-kensey-pasuperct-2005.