Mullen, A. v. Donnelly, J.

• Court: Superior Court of Pennsylvania
• Decided: February 8, 2024
• Docket: 2255 EDA 2022
• Status: Unpublished

Opinion

J-S30033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ALICE M. MULLEN : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES G. DONNELLY : : Appellant : No. 2255 EDA 2022

Appeal from the Order Entered August 16, 2022 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): D04038548

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 08, 2024

James G. Donnelly (“Donnelly”) appeals from the order denying his

motion for relief from the marital settlement agreement (“the Agreement”)

between him and his former wife, Alice M. Mullen (“Mullen”). We affirm.

Donnelly and Mullen separated after thirty-six years of marriage, and

they divorced in 2007. They entered into the Agreement, which was read into

the record and incorporated with their divorce decree. The Agreement

provided in part that Donnelly pay Mullen “$475” per month as alimony “until

such time that [Mullen] shall cohabitate and/or remarry[,]” but either party

could seek modification of the amount. N.T., 2/7/07, at 3. Additionally, the

Agreement called for a “50-50” division of Donnelly’s monthly payments from

his pension from the Southeastern Pennsylvania Transportation Authority J-S30033-23

(“SEPTA pension”). Id. The court indicated Donnelly’s total monthly payment

to Mullen for alimony and the SEPTA pension was $1,527. See id. at 9-10.1

In October 2021, Donnelly filed a motion to terminate alimony. Donnelly

asserted, in part, that the Agreement was not intended to impose an

“indefinite” obligation to pay alimony.2 Motion to Terminate Alimony, 10/4/21,

at unnumbered 2. Mullen responded to Donnelly’s motion, and she also filed

a petition for contempt alleging that Donnelly violated the Agreement by

tendering monthly payments of $1,218.3

The trial court held hearings on Donnelly’s and Mullen’s respective

filings. Donnelly and Mullen presented evidence and testimony concerning

their incomes, assets, debts, and expenses. Further, Donnelly testified that

since he turned sixty-two in approximately 2010, SEPTA stopped paying him

a $500 supplement for health care, which reduced his monthly pension

payments to $1,485. See N.T., 4/12/22, at 16. Donnelly asserted he had

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1 At the time of the Agreement, Donnelly stated his SEPTA pension paid him

$2,101 per month, which he received by direct deposit to his bank account. See N.T., 2/7/07 at 3, 8-10. Although the court previously directed Donnelly’s pay Mullen through the court system, it appears that Donnelly paid Mullen through direct deposits to Mullen’s bank account. See N.T., 4/12/22, at 41. Lastly, we note that we use rounded numbers throughout this decision because the specific amounts of the payments are not at issue.

2 Donnelly’s motion to terminate alimony also stated that the court should terminate his obligation to pay Mullen one-half of his pension. See Motion to Terminate Alimony, 10/4/21, at unnumbered 3. Both Donnelly and Mullen were in their seventies at the time of the hearings in this matter, and Donnelly had remarried. See Trial Court Opinion, 3/10/23, at 4, 6.

3 Mullen has represented herself in the trial court and in this appeal.

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paid all taxes for his SEPTA pension payments before sending half of the gross

monthly payment to Mullen. See id. at 21. Donnelly argued that if the court

denied his motion to terminate alimony, it should grant alternative relief by

reducing the amount of alimony or having Mullen reimburse him for her share

of the taxes he paid for his SEPTA pension. See N.T., 5/19/22, at 111. Mullen

argued for an increase in alimony. See id. at 109.4

Donnelly and Mullen filed court-ordered proposed findings of fact and

conclusions of law. The trial court thereafter issued its findings of fact and

conclusions of law and on August 16, 2022,5 entered the order denying

Donnelly’s motion to terminate alimony and his alternative request to reduce

the amount of alimony. The order also denied Mullen’s contempt petition and

her request to increase the amount of alimony. Donnelly timely appealed and,

although the court had not ordered him to do so, he filed a Pa.R.A.P. 1925(b)

statement asserting, “Did the court err by denying termination/decrease of

alimony to [Mullen]?” See Rule 1925(b) Statement, 9/9/22, at 1. The trial

court filed a Rule 1925(a) opinion.

Donnelly raises the following issue for our review:

Whether the trial court properly found or made an err[or] in judgment by allowing alimony paid by . . . Donnelly to . . . Mullen

4 The transcript included in the certified record appears to identify Mullen as

“Mr. Donnelly.” N.T., 5/19/22, at 109.

5 The court dated its order August 11, 2022, but the order was docketed on

August 16, 2022.

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. . . to continue indefinitely with no ending point and to not incorporate taxes due on the pension payments to [Mullen].

Donnelly’s Brief at 11.

We initially note that Donnelly’s brief raises, and presents separate

arguments concerning, two issues—one claiming error in the trial court’s order

as to alimony, the other claiming error concerning his payment of all taxes for

his SEPTA pension. See id.; see also id. at 17-21, 22-23. However,

Donnelly’s Rule 1925(b) statement raised a single issue regarding alimony.

See Rule 1925(b) Statement, 9/9/22, at 1.

Where an appellant fails to raise an issue in a Rule 1925(b) statement,

the issue is waived for the purpose of this appeal. See Pa.R.A.P.

1925(b)(4)(vii). This rule of waiver applies even if the trial court did not order

the appellant to file a Rule 1925(b) statement. See Commonwealth v.

Snyder, 870 A.2d 336, 341 (Pa. Super. 2005); accord Commonwealth v.

Johnson, 1330 EDA 2019, 2019 WL 6211359, at *3 (Pa. Super. Nov. 21,

2019) (unpublished memorandum).6 Here, although the trial court did not

order one, Donnelly voluntarily filed a Rule 1925(b) statement with his notice

of appeal. The Rule 1925(b) statement only alleged error in the trial court’s

conclusion as to alimony and did not raise an issue concerning his payment of

taxes for his SEPTA pension. Therefore, Donnelly waived his issue concerning

the payment of taxes for his SEPTA pension, and we will not address it in this ____________________________________________

6 See Pa.R.A.P. 126(b) (stating that unpublished non-precedential decisions

of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

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appeal. See Pa.R.A.P. 1925(b)(4)(vii). Because Donnelly’s Rule 1925(b)

statement preserved his remaining issue as to alimony, however, we address

that remaining issue.

Donnelly issue implicates the trial court’s refusal to terminate or modify

an agreement to pay alimony. The following principles and standards govern

our review:

A marital support agreement incorporated but not merged into the divorce decree survives the decree and is enforceable at law or equity. A settlement agreement between spouses is governed by the law of contracts unless the agreement provides otherwise. The terms of a marital settlement agreement cannot be modified by a court in the absence of a specific provision in the agreement providing for judicial modification.

When interpreting a marital settlement agreement, the trial court is the sole determiner of facts and absent an abuse of discretion, we will not usurp the trial court’s fact-finding function. On appeal from an order interpreting a marital settlement agreement, we must decide whether the trial court committed an error of law or abused its discretion.

Because contract interpretation is a question of law, this Court is not bound by the trial court’s interpretation. Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as the appellate court may review the entire record in making its decision. However, we are bound by the trial court's credibility determinations.

Rosiecki v. Rosiecki, 231 A.3d 928, 932-33 (Pa. Super. 2020) (internal

citations and indentation omitted).

Donnelly contends that the trial court erred when it failed to consider

whether alimony was “needed now in light of what [Mullen had] received”

since their divorce. Donnelly’s Brief at 21. Donnelly relies heavily on the

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statutory bases for awarding alimony and the purposes of alimony to meet

the reasonable necessities of a person who is unable to support themselves.

See id. at 18, 20-21 (discussing the general rule and factors relevant to an

award of alimony pursuant to 23 Pa.C.S.A. § 3701(a)-(b) and related case

law). He asserts that “alimony for a short period of time was appropriate and

agreed to” at the time of the divorce. Id. at 21. He concludes that he should

not bear a lifetime obligation to pay alimony where Mullen has received more

than “what alimony is supposed to serve . . ..” Id. at 20.

The trial court explained that it refused to terminate Donnelly’s

obligation to pay alimony because the Agreement clearly required Donnelly to

pay alimony until Mullen cohabitated or remarried. See Trial Court Opinion,

3/10/23, at 9. The court concluded that absent any evidence that Mullen met

either condition, it was “unable to terminate the alimony payments.” See id.

The court noted that the Agreement permitted a party to seek modification

and discussed its findings of fact based on the statutory alimony factors it

deemed relevant. See id. at 12-13. Following its review, the court refused a

downward modification of alimony because Donnelly had the present ability to

pay and Mullen did not possess sufficient income and property to satisfy her

relative needs. See id.7

7 The trial court also concluded that Mullen did not establish expenses warranting an increase in the agreed-upon alimony. See Trial Court Opinion, 3/10/23, at 13. In her appellee’s brief, Mullen requests modifications of the trial court’s order. See Mullen’s Brief at 20. However, Mullen did not appeal (Footnote Continued Next Page)

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We conclude Donnelly’s arguments merit no relief. The terms of the

Agreement provided that Donnelly would pay $425 per month in alimony until

Mullen cohabitated or remarried. See N.T., 2/7/07, at 3. Donnelly offers no

analysis of these terms of the Agreement under contract law. See Donnelly’s

Brief at 17-21; see also Rosiecki, 231 A.3d at 932-33 (noting that the law

of contracts govern a marital settlement agreement unless the agreement

provides otherwise). Donnelly’s attempts to avoid the terms of the Agreement

by reference to the statutory principles governing alimony are misplaced.

Such principles apply to a court’s award of alimony, not an agreement

between the parties to pay alimony. See Woodings v. Woodings, 601 A.2d

854, 856, 859 (Pa. Super. 1992) (noting that “[a]limony agreements are not

governed by the statute but express the mutual agreement of the parties[,]”

and holding that the statutory bar to an award of alimony upon cohabitation,

did not apply to an alimony agreement unless the parties included specific

language referencing cohabitation). Furthermore, Donnelly identifies no

abuse of discretion in the trial court’s assessment of Mullen’s continuing needs

for, and Donnelly’s current ability to pay, alimony. In short, Donnelly

demonstrates no error of law or abuse of discretion in the trial court’s refusal

to terminate alimony based on the terms of the Agreement.

the trial court’s order or file a cross-appeal. Therefore, we have no basis to consider Mullen’s arguments for modification. See Osborne v. Carmichaels Mining Machine Repair, Inc., 628 A.2d 874, 877 n.3 (Pa. Super. 1993).

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Accordingly, we conclude that Donnelly’s sole issue preserved for review

fails and affirm the trial court’s order.

Order affirmed.

Date: 2/8/2024

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