Sabree, T. v. Sharif, E.

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2022
• Docket: 1490 WDA 2021
• Status: Unpublished

Opinion

J-A15024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THERESE SABREE : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ERNEST H. SHARIF : : Appellant : No. 1490 WDA 2021

Appeal from the Order Entered December 7, 2021, in the Court of Common Pleas of Allegheny County, Civil Division at No(s): FD 00-000529-002.

BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 2, 2022

Ernest H. Sharif, Esq. appeals, pro se, from the order directing partition

of the property that he and his ex-wife, Therese Sabree, own. Because the

parties did not contract for Ms. Sabree to surrender her right as a cotenant to

seek a partition of the property, and because laches is inapplicable, we affirm

and remand for further proceedings.

Mr. Sharif and Ms. Sabree married in 1989 and acquired the home at

issue during their marriage. Fifteen years later, Ms. Sabree moved to Florida

with the couple’s minor son, due, in part, to physical abuse that Mr. Sharif

inflicted upon her. The following year, Mr. Sharif filed for divorce. In May of

2010, Mr. Sharif moved for a final order of divorce, to which he attached an

affidavit of consent. Both parties signed that document.

The affidavit provided in relevant part, “The parties agree [Ms. Sabree]

has sole custody of [the minor] child and may allow child to visit [Mr. Sharif]

throughout the year at [Ms. Sabee’s] discretion.” Affidavit of Consent, J-A15024-22

5/27/10, at 1 (some capitalization omitted). The next section, on “PROPERTY

RIGHTS,” stated, “The parties agree [Mr. Sharif] will have the right to sole

possession of [the home] as between the parties, and that [Ms. Sabree] will

not surrender any ownership rights that she acquired in [the home] during

the marriage.” Id.

A final decree of divorce issued on November 8, 2010.

In 2018, Mr. Sharif fell behind on a loan. In order to modify that loan,

Mr. Sharif petitioned the trial court to remove Ms. Sabree’s name from the

deed to the home. As a result, the parties entered a consent order, wherein

Ms. Sabree agreed to co-sign the loan modification without assuming financial

responsibility. She also agreed not to seek a partition of the property until

either (a) the lender accepted the loan modification or (b) 60 days passed.

Sixty-three days later, Ms. Sabree commenced this partition action. The

matter proceeded to a bench trial on whether Ms. Sabree may demand a

partition of the property. Thereafter, the court entered an order directing

equitable partition. This timely appeal followed.1

Mr. Sharif raises two issues on appeal:

1. Whether the trial court erred in finding that the affidavit of consent . . . was void and inapplicable in this case?

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1 See Kapcsos v. Benshoff, 194 A.3d 139, 142 (Pa. Super. 2018) (en banc) (describing the procedure for a partition action and explaining that it involves two, distinct phases; following the first phase, any party may appeal the order directing partition as of right).

-2- J-A15024-22

2. Whether the trial court erred in finding that the doctrine of laches was inapplicable on the basis that [Mr. Sharif] is seeking this remedy with unclean hands?

Mr. Sharif’s Brief at 7 (some capitalization omitted).

When reviewing a trial court’s non-jury decision, our “standard of review

. . . is to assess whether the findings of facts by the trial court are supported

by the record and whether the trial court erred in applying the law.”

Woullard v. Sanner Concrete & Supply, 241 A.3d 1200, 1207 (Pa. Super.

2020). Additionally, this Court “must consider the evidence in the light most

favorable to the verdict winner and reverse the trial court only where the

findings are not supported by the evidence of record or are based on an error

of law.” Id. Regarding questions of law, our scope of review is plenary, and

our standard of review is de novo. See id.

The learned Judge Mary C. McGinley, writing for the Court of Common

Pleas of Allegheny County, authored a detailed, well-reasoned opinion to

support the order that the property by equitably partitioned. Based upon our

review of that opinion, the record evidence, the parties’ appellate briefs, and

oral argument before this Court, we fully agree with the trial court’s legal

analysis. Because the trial court’s opinion thoroughly and correctly addresses

the matters that Mr. Sharif raises on appeal, we adopt the trial court’s opinion

dated January 27, 2022 as our own.

Therein, the trial court held that Ms. Sabree did not surrender her right

to seek a partition of the marital home by signing the May 27, 2010 affidavit

-3- J-A15024-22

of consent. The only property right that Ms. Sabree forfeited in the affidavit

was her right of possession, not her ownership rights, which include the right

of partition.

Regarding the equitable doctrine of laches, the trial court first found that

Ms. Sabree did not delay in filing suit, because she initiated this action three

days after the 60-day-waiting period under the consent order expired. Also,

even if we calculate the time period from when Ms. Sabree left the home (in

2004), the trial court determined that equity still would not lend Mr. Sharif its

aid, because he physically abused Ms. Sabree during their marriage. That

abuse forced her to flee the martial home with their son. Thus, the trial court

ruled that Mr. Sharif had unclean hands. The evidence of record, when viewed

in the light most favorable to Ms. Sabree, supports that factual finding.

We direct the parties to attach a copy of Judge McGinley’s opinion to

this Memorandum in all future proceedings.

Order affirmed. Case remanded for equity to partition the property.2

Jurisdiction relinquished.

2 Ms. Sabree’s request for sanctions against Mr. Sharif is denied.

-4- J-A15024-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2022

-5- Circulated 07/06/2022 09:36 AM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY PENNSYLVANIA ' FAMILY DIVISION Therese Sabree, Plaintiff, FD.00,-00529.002 1490 WDA 2021 V.

Erest Sharif,

Defendant.

Opinion

Appellant/Defendant Ernest Sharif ("Defendant") appeals this Court's Order dated

December 3, 2021 (the "Order") granting the request of Appellee/Plaintiff Therese Sabree

(formerly Therese Sabree-Sharif) ("Plaintiff) for partition of the property located at 157 Villa

Drive, Pittsburgh, Pennsylvania 15214 (the "Property") and affirming that each cotenant "has a

one-half equal share in the property or in the alternative, in the value in the property at the 'time of

sale." On December I 0, 2021, Defendant timely tiled his Notice of Appeal from the Order to the

Superior Court of Pennsylvania at 1490 WDA 2021.

BACKGROUND AND PROCEDURAL HISTORY

The parties were married on February 11, 1989. The Property was purchased during the

course of the marriage. While Defendant was the sole borrower listed on the original Mortgage,

the Deed dated March 28, 1994 recites a transfer of the Property from Maranda Homes, Inc. to

Ernest H. & Therese H. Sharif (HUSBAND & WIFE)" in exchange for the consideration of

$92,450.00. (Plaintiff s Exhibit A).

Prior to Defendant filing for Divorce in 2005, Plaintiff had filed for and obtained a

Protection from Abuse Order against Defendant in 2000. Plaintiff testified that at that time she 1 began to plan for a separation and divorce from Defendant by completing her Master’s degree so I II that she could command a higher salary and move away from Pittsburgh. (Transcript p. 13). In I I I I July of 2004, Plaintiff moved with the parties' then minor son to Florida where Plaintiff secured a I l I I position as a teacher. (Transcript pp. 37-38). 0n February 18, 2005, Defendant filed a one count I I

Complaint in Divorce.

There was no further docket activity until May 27, 2010, when Defendant filed a Motion

for Final Order of Divorce to which an Affidavit of Consent notarized on the same day was

attached (the "Affidavit of Consent").1 In addition to statutory language provided for in the

Divorce Code, the May 20 IO Affidavit of Consent contained the following recitations relating to custody and property rights:

CUSTODY I During the marriage (I) child was born to the Parties on January 16, 1994 whose I I name Isa Sharif, I The Parties agree that Defendant has sole custody of Child and may allow Child I to v i s i t f a t h e r (plaintiff) throughout the year at Defendant’s discretion. I PROPERTY RIGHTS

During the marriage the Parties obtained (l) house (Property) at 157 Villa Drive, Pittsburgh, Pennsylvania 15214,

The Parties agree that Plaintiff will have sole possession of Property as between the Parties, and that Defendant will not surrender any ownership rights that she acquired in said Property during the marriage. Defendant is presently living at 4620 Cason Cove Dr., Apt. 715, Orlando, FL 32811, and has been a resident of the State of Florida since July 2004.

' The Affidavit of Consent is central to the parties' respective positions. Although the Affidavit of Consent was not separately introduced or admitted as an exhibit at hearing, it is filed on the docket as an attachment to Defendant's Motion For Final Order of Divorce filed on May 27, 2010 [Docket Entry 4] and to Plaintiff's Motion to Confirm Custody filed on August 26, 20 IO [Docket Entry 5]. Neither party disputes that both parties signed the Affidavit. For ease of reference, the Court has included the Affidavit of Consent with the trial exhibits filed of record as "Trial Court Supplemental Exhibit (hereinafter, "TC Supp), I." 2 In the Affidavit of Consent, the Plaintiff in the present action is referred to as the "Defendant" and the Defendant in the present action was referred to as the "Plaintiff and "father".

i, ; . • l + • l. I l' t. I I ! I I . "' I I In May of 20 I0, when each of the parties signed the Affidavit of Consent, neither party was I II represented by counsel as was noted in the preamble of the Affidavit. (Transcript pp. 17, 64, and I I 81). Defendant drafted this document. (Transcript p. 75). Subsequently, a Motion to Confirm \

Custody was submitted to the Court on Plaintiffs behalf by Robert B. Marcus, Esq., who never

formally entered his appearance for the matter. (Transcript pp. 16, 21). This Motion had attached

the Affidavit of Consent, and only made reference to the terms of the custody provision in

requesting the Order of Court confirming custody. The Order of Court confirming the custody

arrangement was signed on August 25, 2010.

A Motion for Final Order of Divorce was also signed on August 25, 2010; however, a

number of issues with the record had to be cured before the Divorce Decree was granted on

November 8, 20 I 0. Inter alia, both the proposed decree attached to the Divorce Complaint and

the Affidavit of Consent were not in the form prescribed. [Docket Entry 9]. New Affidavits of

Consent without reference to custody and possession were signed by each party on October 26,

2010 and filed on November 4, 2010, following which the Divorce Decree issued.

In March 2018, Defendant petitioned the Court to remove Plaintiff from the Deed on the

basis that she would not sign a Loan Modification Agreement, which was needed because

Defendant had fallen delinquent on the loan and Plaintiff was named on the Deed. (Transcript p.

73). Pursuant to a Consent Order of Court dated April I 0, 2018, Plaintiff agreed to sign the Loan

Modification Agreement but did not assume any financial obligation by virtue of her signature.

Plaintiff would also forbear from filing an action in partition until the earlier of two conditions

occurred: either she received confirmation that the Loan Modification Agreement had been

accepted, or sixty (60) days from the date of the Consent Order. Finally, if Defendant fell into

I rt • • v ' t I ,le I · . I I ..,, default again, he was required to notify Plaintiff within five (5) days of default, and she could

petition the court to list the property for immediate sale if he remained in default for thirty (30) days. [Docket entry 21].

On June 12, 2018 (day 63 after the Consent Order), Sabree f il e d a Complaint for Partition

in the Civil Division under GD-18-007480. By Order dated August 9, 2018, the matter was

transferred to the Family Division and consolidated at the instant case number. Following delays as a result of judicial reassignments and the COVID-19 pandemic, hearing on the matter was held

in person on December 3, 2021. After consideration of the evidence admitted at trial, the Court

granted Plaintiff’s request to partition the property by Order dated December 3, 2021, the Order

from which Defendant appeals.

MATTERS COMPLAINED OE ON APPEAL

In Defendant’s “Statement of Matters on Appeal to Superior Court of Pennsylvania” filed

on December 17, 2021, Defendant complains of the following issues:

I. Why did the Judge not enforce the Affidavit of Consent (written Agreement) in this matter; and 2. The Issue of Laches.

DISCUSSION

Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii) requires an appellant to

“concisely identify each error that the appellant intends to assert with sufficient detail to identify

the issue to be raised for the judge.” “The Statement should not... provide lengthy explanations

as to any error.” Pa.R.A.P. 1925(b)(4)(iv). “If the appellant in a civil case cannot readily discern

the basis for the judge's decision, the appellant shall preface the Statement with an explanation as

to why the Statement has identified the errors in only general terms.” Pa.R.A.P. 1925(b)(4)(vi).

4 Issues not raised in accordance with this rule are waived. Pa.R.A.P. 1925(b)(4)(vii).

Defendant’s Statement of Matters runs afoul of Pa.R.A.P. 1925(b)(4)(iv) as it consists of

lengthy explanations. The Statement also raises multiple sub issues within a single issue, which

makes it difficult for this Court to identify with clarity what Defendant is appealing for a meaningful review. In re: A.B, 6 A.3d 345, 350 (Pa. Super. 2013), quoting Commonwealth ». I Dowling, 778 A.2d 683, 686 (Pa. Super. 200l). In addition, contrary to the concise specificity I \ requirement, Defendant states that all issues raised in his briefs are still at issue." (Defendant’s I

I Statement of Matters, p. 2). Accordingly, Defendant has waived any allegations of error. \ Notwithstanding Defendant's waiver, the law and factual record fall in Plaintiffs favor and the I Court wi11 attempt to decipher and address the salient issues complained of below.

Issue I

Defendant’s first matter complained of is that the Affidavit of Consent bars the Plaintiff

from acting on her statutory right to partition the Property acquired during the marriage. Plaintiff

retained her right to file for partition even under the terms of the Affidavit of Consent as written.

The Parties acquired the Property during the marriage as tenants by the entireties. Upon their

divorce, by operation of law, they became tenants in common. (23 P.S.C.A. § 3507). Tenants in

common have the right to file for partition at any time and may agree to forego partition for a

reasonable amount of time, but it is against the public policy of this Commonwealth to prevent the

free alienation of property indefinitely. Hyatt v. Hyatt, 273 Pa. Super. 435, 417 A.2d 726 (1979).

By the express terms of the Affidavit of Consent, Plaintiff retained all of her rights in the Property

except for possession. Defendant admitted on the record multiple times, including when

questioned by this Court and Plaintiff’s counsel, that Plaintiff has all the rights he has minus

possession. (Transcript pp. 64-65, 74, and 81). One of these rights would be the statutory right to

5 seek partition under 23 P.S.C.A. § 3507. Either party may bring an action against the other to have

the property sold and the proceeds divided between them. 23 P.S.C.A. § 3507(a).

The Superior Court has previously explained, “Among tenants in common partition of real

property is normally a matter of right. However, the statutory right to partition may be modified

or postponed for a reasonable time by agreement of the parties.” Hyatt, 417 A.2d at 729, citing

Lykiardopoulos ». Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973) and Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 ( 1976). In Hyatt, the Superior Court found that the terms of an agreement

did not limit the right of the party out of possession of the property to seek partition to any

discernable time. The Court stated, “The indefinite postponement of the right to partition is

contrary to the policy of the Commonwealth which is to encourage free alienation. Because this

agreement is contrary to the said policy, we hold that it is invalid.” Id.

In Kopp v. Kopp, the Superior Court upheld an agreement wherein the parties agreed that

the wife would relinquish all right to support and maintenance and have the sole occupancy of the

family residence so long as she paid all mortgage payments, utilities, and taxes. Kopp v. Kopp, 339

Pa. Super. 230,488 A.2d 636,637 (1985). The Court held that the separation agreement limited

the restraints on the right to partition to a period which could not extend beyond the life of the

Wife. Id. at 639. The Superior Court held that this time period was not an unreasonable restraint

on alienation.

In summary, tenants in common have a right to seek partition at any time for any reason,

but they may agree to forego that right for a discernable period of time. The only prohibited

duration is an indefinite duration. The duration can be made conditional upon actions the party in

possession must keep doing -paying the mortgage and taxes -or that they could do in the future

list the property for sale or remarry. The fact that this conditional duration could potentially

'., , ,t +l vs } +. l s I I ' I ' ; • • "" ' I I I I extend to the end of the life of the party in possession does not render the restraint on alienation I I unreasonable. Absent words in an agreement creating a definite duration, the duration is deemed I I indefinite and is therefore an unreasonable restraint on alienation. A definite duration was not iI I I contemplated in the Affidavit of Consent. I I I Defendant argues that the terms of the Affidavit of Consent were ratified by prior Orders I

In this matter. However, the Court was not previously tasked with addressing the issues of contract interpretation, the duration of possession, or whether the right to partition had been waived by its

terms. Further, the Consent Order of Court dated April I 0, 20 18 specifically contemplates that

Plaintiff already had the right to file for partition, which she agreed to forego for no longer than

sixty (60) days while the Loan Modification Agreement was completed.3

The parties do not dispute that the Affidavit of Consent was relied upon by Plaintiff when

she sought an order confirming custody of their then minor child. Plaintiff does not dispute that

she agreed to Defendant remaining in sole possession of the property after the divorce, which was

memorialized in the Affidavit of Consent. Plaintiff testified that Defendant suggested that they

wait to “split the house,” because they “were going to build the asset.” (Transcript pp. 20-21).

During examination by her counsel, Plaintiff affirmed that it was her understanding that the

statement in the Affidavit of Consent that preserved all her rights was added in furtherance of their

verbal agreement. (Transcript p. 21 ). At trial, Defendant's recollection about how the agreement

came about and what he maintains are the property rights of the parties was as follows:

So I said, okay, we’re going to get the divorce. I said, you need full custody, fine, you can have that, just give me possession of the house. Your rights are still in the

3 This Court took judicial notice of the Consent Order of Court at trial. (Transcript p. 30). The Court has included the Consent Order with the trial exhibits filed of record as "TC Supp 2."

7 house. She has all the rights that I have minus possession because that's what she gave me, that's what she agreed to in the agreement, so that's what we did.

(Transcript p. 64)

THE COURT: So the divorce decree gets issued -- MR. SHARIF: The divorce decree gets issued, and the Affidavit of Consent is apart (sic) of the divorce decree. THE COURT: You still own a property together through the divorce decree?

MR. SHARIF: She has all the rights that I have except for possession. That's the only right she doesn't have, and she gave that up. She agreed to give up the possession right, give me sole possession, and I agreed to give up my rights for the custody and gave her sole custody.

(Transcript p. 65) Then I had to file a petition to have her name placed off the deed. Now, that did not hurt her rights as a property owner because the property was purchased while we were married, so all of her marital rights were still in tact (sic). It was just a cosmetic thing. That's what they were requiring a signature for me to get into the program. (Transcript pp. 73-74) [ ... ] she has the same rights that I have in the property except for possession, and that's what she agreed to in the affidavit of agreement. (Transcript p. 74) In assessing the enforceability of the Affidavit of Consent, the Court also concluded that

the agreement lacked consideration. Defendant’s position is that the consideration for him having

possession of the house was that Plaintiff received primary custody of their son. This

Commonwealth considers child custody as consideration to be void; therefore, there is no

consideration for Defendant’s infinite possession of the Property. Miller v Miller, 423 Pa. Super.

162, 620 A.2d 1161, 1165 ( 1993). A contract pertaining to the custody of a minor child is always

subject to being set aside in the best interest of the child. Id., citing, Mumma v. Mumma, 380 Pa.

Super. 18, 550 A.2d 1341 (1988). During cross examination Defendant acknowledged that

custody agreements are always modifiable. (Transcript p. 82).

4 t

"o,, t!- al , .I, i _ .Iii ]i i s II I \

I

This Court has not, as Defendant suggested in his Rule 1925(b) Statement, modified the I

parties’ agreement. Enforcement of the Affidavit of Consent as against Plaintiff’s statutory right \ I \ to partition under its terms as written - wherein there is an indefinite duration to Defendant’s I I I I possession - would be against the public policy of this Commonwealth. Further, Plaintiff’s

agreement to forbear rights to possession lacked consideration. Last, the Consent Order of Court

dated April I 0, 2018 contained express provisions under which Plaintiff could seek partition and

she has complied with those provisions. The order granting partition should be affirmed for these

reasons.

Issue 2

In Defendant’s Answer to the Complaint, he raised the issue of Laches and he has likewise

raised it on appeal.

In order to prevail on an assertion of laches, respondents must establish a) a delay arising from petitioner's failure to exercise due diligence; and b) prejudice to the respondents resulting from the delay. The question of laches is factual and is determined by examining the circumstances of each case. Prejudice in the context of a claim of laches means that the party must change his position to his detriment in order to invoke laches. Furthermore, laches is an equitable doctrine that should not be applied in favor of a person who has failed to take required action on his own. In re Estate of Aiello, 993 A.2d 283, 287 (Pa. Super. 2010)(internal citations omitted).

Defendant cannot meet either prong necessary for the application of laches. In advancing

this argument Defendant ignores the Consent Order of Court dated April I 0, 2018. Plaintiff sought

partition swiftly after the period of forbearance agreed upon by the parties. Defendant is instead

focused on the period following execution of the Affidavit of Consent. However, any delay in

Plaintiff bringing an action in partition was excusable and caused, at least in part by, Defendant’s

conduct; thus he seeks the application of an equitable doctrine with unclean hands. In addition to

t\.p v,t! i • j i is .l F . ! t, .I. ... ..« I I I her understanding of the parties’ plan about waiting to sell the house, Plaintiff credibly recounted I II a history of domestic violence and difficult financial circumstances, causing her to distance herself I I I from Defendant and focus on relocating with her young son for opportunities in Florida.

(Transcript pp. 10-14; 27-30). Any delay that can be attributed to Plaintiff was therefore not I I I II resultant from a lack of diligence. I I As to resulting prejudice by any delay, Defendant’s position also fails. Defendant argues \ ' ! I that he missed time with his son that he cannot regain due to the sole custody agreement with

Pia inti ff. As noted in the section above, child custody cannot serve as consideration and is always

modifiable. While it is the case that their son has been emancipated for some time, this Court finds

that the parties’ custody arrangement has no bearing on I aches. Laches does not apply to these

circumstances simply because Defendant did not seek to modify the custody agreement when the

child was a minor, and the child’s own age precludes him from doing so now. Defendant also

argues that partition would cause a financial strain on Defendant as he would need to look for a

new home. Contrarily, Defendant has benefited from exclusive possession for quite some time.

Under these circumstances the doctrine of laches is inapplicable, and this Court properly entered an order directing partition of the Property.

. .l . '] « CONCLUSION

Consistent with the Superior Court’s recent holding in Jacob v. Stephens, 204 A.3d 402

(Pa. Super. 2019) regarding the two-part process to partition, this court entered an order directing

partition in equal one-half shares. For the reasons stated above, this Court’s Order should be

affirmed.

I I

I I I

DATED: January 27, 2022 ---------' J.

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