Zandrowicz, R. v. Zandrowicz, A.

• Court: Superior Court of Pennsylvania
• Decided: June 21, 2016
• Docket: 2269 EDA 2015
• Status: Unpublished

Opinion

J-S30015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT R. ZANDROWICZ IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

AGNIESZKA M. ZANDROWICZ

Appellee No. 2269 EDA 2015

Appeal from the Order Entered June 25, 2015 In the Court of Common Pleas of Monroe County Domestic Relations at No(s): 2894 CIVIL 2012; 389 DR 2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 21, 2016

Appellant, Robert R. Zandrowicz (“Husband”), appeals from the order

entered in the Monroe County Court of Common Pleas, which granted the

petition to enforce the marital property settlement agreement (the

“Agreement”) filed by Appellee, Agnieszka M. Zandrowicz (“Wife”). We

affirm.

The relevant facts and procedural history of this case are as follows.

Husband and Wife married in 1998 and had two daughters during the

marriage. The parties separated in 2011, and Husband filed a divorce

complaint on April 11, 2012. After separation but prior to divorce, the

parties found a marital property settlement form on the Internet, read it

together, and executed the Agreement pursuant to their wishes without the

aid of counsel. Per the Agreement, beginning June 30, 2012, Husband was J-S30015-16

to: (1) keep the marital residence and assume full responsibility for the

mortgage; (2) pay Wife $1,500.00 per month in spousal maintenance for

eighty-four months; and (3) pay Wife $1,159.00 per month in child support.

The parties filed the Agreement with the court on April 20, 2012. On July

31, 2012, the court entered a divorce decree, which incorporated the terms

of the Agreement.

Following the divorce, Wife and the children continued to reside in the

marital residence with Husband until October 2014. During that time,

Husband did not pay Wife the child support or spousal maintenance provided

for in the Agreement. In October 2014, both parties filed petitions for

modification of child support. After hearings on the child support matter, the

court increased Husband’s child support obligation to $2,068.00 per month.

Around the same time, Wife filed a petition to enforce the Agreement due to

Husband’s failure to provide Wife any spousal maintenance and child support

since the divorce. Husband filed an answer and new matter on December

15, 2014, which raised various affirmative defenses to enforcement of the

Agreement. On December 29, 2014, Wife filed an answer to Husband’s new

matter, and the court scheduled the petition for a hearing. The court

conducted hearings on March 19, 2015, and May 21, 2015.

On June 24, 2015, the court granted Wife’s petition to enforce the

Agreement and ordered Husband to: (1) pay Wife spousal maintenance

arrears in the amount of $51,000.00 within twelve months; (2) pay Wife

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spousal maintenance of $1,500.00 per month beginning on June 30, 2015;

and (3) pay Wife child support arrears in the amount of $32,452.00 at the

rate of $1,500.00 per month until paid in full. On July 24, 2015, Husband

timely filed a notice of appeal. On August 11, 2015, the court ordered

Husband to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Husband timely complied on September

1, 2015.

Husband raises the following issues for our review:

UNJUST ENRICHMENT: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY UNJUSTLY ENRICHING WIFE WHEN IT DECLINED TO CREDIT HUSBAND THE PERIOD OF TIME (APPROXIMATELY TWENTY EIGHT AND A HALF…MONTHS) SUBSEQUENT TO THE AGREEMENT WHEN WIFE AND MINOR CHILDREN WERE LIVING WITH HUSBAND, AND HUSBAND WAS FINANCIALLY SUPPORTING THEM?

LACK OF FULL AND FAIR DISCLOSURE: DID THE TRIAL COURT ERR AND/OR ABUSE[] ITS DISCRETION BY UPHOLDING THE PARTIES’ AGREEMENT IN ITS ENTIRETY WHEN TESTIMONY REVEALED THAT THERE WAS NOT FULL AND FAIR DISCLOSURE BETWEEN THE PARTIES AS TO THE DEBT HUSBAND ASSUMED, OR THE ASSETS OF THE PARTIES, AND TESTIMONY AND EVIDENCE SHOWED THAT THERE WAS A LACK OF FULL UNDERSTANDING AS TO THE TERMS, CONDITIONS AND PROVISIONS OF THE AGREEMENT, WHEN NEITHER PARTY WAS REPRESENTED BY COUNSEL, NEITHER PARTY SPEAKS ENGLISH AS A FIRST LANGUAGE?

WAIVER: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO DETERMINE THAT WIFE WAIVED ANY AND ALL CLAIMS RELATIVE TO SPOUSAL MAINTENANCE AND CHILD SUPPORT THROUGH OCTOBER 15, 2014, THE PERIOD OF TIME DURING WHICH SHE AND THE MINOR CHILDREN WERE RESIDING WITH AND BEING

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FINANCIALLY SUPPORTED BY HUSBAND[?]

LACHES: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION WHEN IT FAILED TO CONSIDER HUSBAND’S ARGUMENT FOR LACHES GIVEN THAT WIFE FAILED TO COMMENCE AN ACTION TO ENFORCE THE [] AGREEMENT FOR APPROXIMATELY TWO AND A HALF YEARS AFTER THE EXECUTION OF THE AGREEMENT, AND HUSBAND IS PREJUDICED BY OWING PAST DUE ALIMONY AND CHILD SUPPORT FOR THE PERIOD OF TIME PRIOR TO WIFE AND CHILDREN MOVING OUT?

MUTUAL MISTAKE: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION WHEN IT FAILED TO CONSIDER HUSBAND AND WIFE’S MUTUAL MISTAKE AS TO THE MODIFIABILITY OF THE CHILD SUPPORT SET FORTH IN THE AGREEMENT, AND NEITHER PARTY WAS REPRESENTED BY COUNSEL, AND BOTH PARTIES INTENDED THE ALIMONY AND CHILD SUPPORT PAYMENTS TO BE NON-MODIFIABLE?

EQUITABLE ESTOPPEL: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO UPHOLD HUSBAND’S ARGUMENT FOR EQUITABLE ESTOPPEL, WHEN BOTH PARTIES TESTIFIED THAT THEY BELIEVED AT THE TIME THEY ENTERED THE AGREEMENT THAT SUPPORT WAS NOT MODIFIABLE, AND HUSBAND’S AGREEMENT TO PAY WIFE EIGHTY-FOUR (84) MONTHS OF ALIMONY WAS CONDITIONED UPON THE FIXED CHILD SUPPORT AMOUNT SET FORTH IN THE AGREEMENT OF $1,159.00 PER MONTH?

ILLUSORY PROMISE: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO TAKE INTO ACCOUNT THAT HUSBAND’S ACCEPTANCE OF THE TERMS OF THE AGREEMENT WAS CONDITIONED UPON THE MISTAKEN BELIEF, WHICH WAS REINFORCED BY WIFE, THAT THE SUPPORT FIGURES WERE NOT MODIFIABLE, WHEN THE BARGAINED FOR PROMISE WAS ILLUSORY?

INTENT OF THE PARTIES: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY FAILING TO TAKE INTO ACCOUNT THE INTENT OF THE PARTIES AT THE TIME THE AGREEMENT WAS ENTERED INTO, AND FAILING TO

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CONSIDER TESTIMONY AND EVIDENCE THAT COULD HAVE CLARIFIED THE SAME, ESPECIALLY GIVEN THE LACK OF SPECIFICITY IN THE TERMS OF THE AGREEMENT?

REASONABLE ABILITY TO PAY: DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION BY ISSUING AN ORDER DIRECTING HUSBAND TO PAY SPOUSAL MAINTENANCE ARREARS IN THE AMOUNT OF $51,000.00 WITHIN TWELVE (12) MONTHS, SPOUSAL MAINTENANCE OF $1,500.00 PER MONTH, CHILD SUPPORT ARREARS IN THE AMOUNT OF $32,452.00…AT THE RATE OF $1,500.00 PER MONTH UNTIL PAID IN FULL, ON TOP OF THE CHILD SUPPORT CALCULATED BY DOMESTIC RELATIONS IN THE AMOUNT OF $2,068.00 PER MONTH (TOTAL MONTHLY PAYABLE BY HUSBAND EQUALS $9,318.00) WITHOUT CONSIDERING HUSBAND’S REASONABLE ABILITY TO PAY GIVEN HIS INCOME AND EXPENSES?

(Husband’s Brief at 16-18).1

As a preliminary matter, we observe:

Rule 1030. New Matter

(a) Except as provided by subsection (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading “New Matter.” A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.

* * *

Pa.R.C.P. 1030(a). Importantly, the list of affirmative defenses contained in ____________________________________________

1 For purposes of disposition, we have reordered Appellant’s issues.

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Pa.R.C.P. 1030(a) is not exclusive. Falcione v. Cornell School District,

557 A.2d 425, 428 (Pa.Super. 1989). “An affirmative defense is

distinguished from a denial of facts which make up a plaintiff’s cause of

action in that a[n affirmative] defense will require the averment of facts

extrinsic to the plaintiff’s claim for relief.” Id. “Failure to plead an

affirmative defense in compliance with [Pa.R.C.P.] 1030 results in waiver of

the defense.” Werner v. Werner, 573 A.2d 1119, 1121 (Pa.Super. 1990),

appeal denied, 527 Pa. 668, 593 A.2d 843 (1991); see also Pa.R.C.P.

1032(a).

Instantly, Husband raised his first issue, unjust enrichment, and his

second issue, lack of full and fair disclosure, for the first time in his court-

ordered Rule 1925(b) statement. Both of these claims are affirmative

defenses because they require Husband to aver facts extrinsic to Wife’s

claim for relief, which would prevent the enforcement of the Agreement.

See Falcione, supra. Because Husband failed to raise these affirmative

defenses in a new matter in response to Wife’s petition to enforce the

Agreement or any time prior to the filing of his Rule 1925(b) statement, they

are waived for purposes of our review. See Werner, supra; Pa.R.C.P.

1032(a). Therefore, we will not address the merits of Husband’s first and

second issues on appeal.

With respect to Appellant’s remaining claims on appeal, the relevant

law is as follows. Private support agreements are subject to contract

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principles and are enforceable in an action at law for damages or in equity

for specific performance. Nicholson v. Combs, 550 Pa. 23, 43, 703 A.2d

407, 417 (1997). The action at law for damages might include the unpaid

amount of support plus interest, whereas relief in equity for specific

performance seeks an order directing the payor to comply with his future

support obligations under the agreement. Id. “The powers of a domestic

relations judge are plenary and the function is that of a law judge or equity

chancellor as the case demands.” Horowitz v. Horowitz, 600 A.2d 982,

984 n.1 (Pa.Super. 1991).

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. Tuthill v. Tuthill, 763 A.2d 417, 419 (Pa.Super. 2000) (en

banc), appeal denied, 565 Pa. 675, 775 A.2d 808 (2001). “We do not usurp

the trial court’s fact-finding function.” Id.

“[J]udicial discretion” requires action in conformity with law on facts and circumstances before the trial court after hearing and due consideration. Such discretion is not absolute, but must constitute the exercises of sound discretion. This is especially so where, as here, there is law to apply. On appeal, a trial court's decision will generally not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying correct principles of law. An “abuse of discretion” or failure to exercise sound discretion is not merely an error of judgment. But if, in reaching a conclusion, law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason, discretion must be held to have been abused.

In re Deed of Trust of Rose Hill Cemetery Ass'n Dated Jan. 14, 1960,

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527 Pa. 211, 216, 590 A.2d 1, 3 (1991) (internal citations omitted). See

also Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000).

“Because contract interpretation is a question of law, this Court is not bound

by the trial court’s interpretation.” Stamerro v. Stamerro, 889 A.2d 1251,

1257 (Pa.Super. 2005).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jennifer

Harlacher Sibum, we conclude Husband’s, third, fourth, fifth, sixth, seventh

and eighth issues on appeal merit no relief. The trial court opinion

comprehensively discusses and properly disposes of those questions. (See

Trial Court Opinion, filed June 24, 2015, at 3-12) (finding: (issues 3 and 4)

Husband failed to prove necessary elements to assert defense of laches or

waiver; parties testified that they knowingly remained in marital residence

together following their decision to separate; Wife testified she had access to

Husband’s bank accounts with Husband’s knowledge, maintained household,

and cared for parties’ children; Husband testified he provided financial

support for benefit of household and kids, and that living arrangement

provided Husband with convenient and easy opportunity to spend time with

his children; in light of this testimony, Husband failed to demonstrate that

continued cohabitation with Wife and Wife’s delayed petition to enforce

Agreement caused him to suffer prejudice; thus, Husband’s reliance on

doctrine of laches and waiver merits no relief; (issues 5 and 6) parties

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testified that after separation, in effort to save money on counsel fees, they

obtained blank marital property settlement form from Internet; Husband and

Wife both testified that they read form together and discussed relevant

terms and provisions they wanted to include; both Husband and Wife further

stated that after discussion, Husband populated form in accordance with

parties’ mutual agreement; Husband’s belief that his spousal maintenance

and child support obligations would be constant and unmodifiable was result

of his own judgment and does not appear to have been induced by any

representation on Wife’s part; thus, doctrine of equitable estoppel does not

apply and Husband’s equitable estoppel and illusory promise claims are

meritless; (issue 7) Agreement does not contain any language that pertains

to modification of spousal maintenance and child support obligations; at time

of execution of Agreement, parties simply did not contemplate or address

possibility of modification of these obligations; further, court can increase

child support obligation regardless of Agreement or either parties’

assumption regarding modifiability; thus, Husband failed to establish by

clear, precise, and convincing evidence that mutual mistake of fact existed,

which would entitle him to relief; (issue 8) Agreement evinces clear and

unambiguous intent by both parties to determine and settle their respective

property rights finally and for all time; parties also intended to be legally

bound by terms of Agreement; plain reading of spousal maintenance

provision of Agreement reveals parties’ intent to have Husband pay Wife

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$1,500.00 per month in spousal maintenance for eighty-four months subject

to termination upon Wife’s death or remarriage; even though parties were

not represented by counsel at time of execution of Agreement, court will not

assume parties chose their words carelessly; Husband’s own testimony

supports finding that Agreement is clear and unambiguous because Husband

stated it was his own belief that he would have to pay spousal maintenance

and child support for eighty-four months; Agreement also contained valid

and enforceable child support provision, which court properly modified after

parties’ filed petitions for modification in October 2014; thus, Husband’s

complaint that court ignored intent of parties when it granted Wife’s petition

to enforce Agreement fails). Therefore, with respect to Husband’s third,

fourth, fifth, sixth, seventh, and eighth issues on appeal, we affirm on the

basis of the trial court’s opinion.

With respect to Husband’s ninth issue on appeal, Husband argues the

court failed to consider his ability to pay or Wife’s actual need when it

ordered Husband to pay child support and spousal maintenance pursuant to

the Agreement. Husband complains the court order requires him to pay

Wife approximately $9,000.00 per month in child support and spousal

maintenance despite the fact that Wife admitted to the use of Husband’s

accounts to pay her own bills after the divorce. Husband avers the court-

ordered payment schedule does not leave him enough money each month to

pay his bills including his mortgage, taxes, and insurance. Husband

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concludes his court-ordered assumption of liabilities pursuant to the

Agreement is unreasonable, and this Court should vacate and reverse the

trial court’s enforcement of the Agreement. We disagree.

This Court is not permitted to review the reasonableness of a marital

settlement agreement to determine its validity. Paroly v. Paroly, 876 A.2d

1061, 1065 (Pa.Super. 2005). Importantly:

Traditional principles of contract law provide perfectly adequate remedies where contracts are procured through fraud, misrepresentation or duress. Consideration of other factors, such as the knowledge of the parties and the reasonableness of their bargain, is inappropriate. [Postnuptial] agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreement.

Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162, 165 (1990).

Instantly, prior to divorce, Husband and Wife read the marital property

settlement agreement form together, discussed the relevant terms and

provisions they wanted to include, and then Husband populated the form

pursuant to the parties’ wishes. The trial court’s June 24, 2015 order merely

enforced the terms of the Agreement entered into by the parties. When

granting Wife’s petition to enforce the Agreement, the court specifically

determined the Agreement was clear and unambiguous and Husband’s

challenges to the enforcement of the Agreement had no merit. Husband

cannot now avoid his contractual obligations under the Agreement with an

assertion that the terms are unreasonable in light of his income and other

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expenses. See Simeone, supra; Paroly, supra. Therefore, the trial court

properly granted Wife’s petition to enforce the Agreement, and Husband’s

ninth issue on appeal has no merit. See Tuthill, supra. Accordingly, we

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/21/2016

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COURT OF COMMON PLEAS OF MONROE COUNlY FOR lY- THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA

ROBERT ROMUALD ZANDROWICZ, No. 389 DR 2012 No. 2894 CV 2012 Plaintiff

vs. AGNIESZKA MARIA ZANDROWICZ, PETITION TO ENFORCE MARITAL PROPERTY Defendant SETTLEMENT AGREEMENT

OPINION

This matter comes before us on Defendant's Petition to Enforce Marital

Property Settlement Agreement filed on November 13, 2014. The relevant facts

and procedural history are summarized as follows: Robert ("Husband") and

Agnieszka ("Wife")Zandrowicz were married on November 20, 1998. The

couple has two children born of the marriage. Having the intent to separate

and divide their property, the parties utilized an online form they found on

the internet and executed a Marital Property Settlement Agreement

("Agreement") on April 11, 2012. The parties also filed a monthly net income

calculation on April 20, 2012, which identified Wife's monthly income as

$700.00, and Husband's monthly income as $6,500.00. On July 31, 2012, the

Court issued a Divorce Decree, which incorporated, but did not merge the

parties' Agreement into the Decree. On November 13, 2014, Wife filed the instant Petition to Enforce Marital

Property Settlement Agreement. Husband filed an Answer and New Matter to

Defendant's Petition to Enforce on December 12, 2014. Two hearings were

conducted on this matter- one on March 19, 2015 and a second one on May

21, 2015. After hearing on this matter and upon review of all pleadings filed,

we are now prepared to decide Wife's Petition.

DISCUSSION

It is well-established that agreements between married parties are

presumed to be valid. See In Re Ratoney's Estate, 277 A.Zd 791 (Pa. 1971). "The

determination of marital property rights through prenuptial, postnuptial and

settlement agreements has long been permitted, and even encouraged."

Laudig v. Laudiq, 425 Pa.Super. 228, 624 A.Zd 651, 653 (1993). The

Pennsylvania Divorce Code also recognizes the validity of marital agreements.

Section 3501 specifically provides that the definition of marital property does

not include "property excluded by valid agreement of the parties entered into

before, during or after the marriage." 23 Pa.CS.§ 350l(a)(2).

A postnuptial agreement is typically a contract entered into after

marriage by a husband and wife, generally involving the property or property

rights of the parties. Vaccarello v. Vaccarello, 757 A.2d 909, 911 (Pa. 2000). A

postnuptial agreement differs from other types of marital agreements in that

it generally resolves property rights definitively. Where spouses desire to

2 "settle and determine their respective property rights finally and for all time,

[their agreement] should be construed as a postnuptial agreement." Id.

(internal citations omitted). Moreover, liability under a postnuptial agreement

is not automatically terminated by reconciliation of the parties or subsequent

divorce. See Commonwealth ex rel. DiValerio v. DiValerio, 82 A.2d 687

(Pa.Super. 1951).

Postnuptial agreements are considered as contracts, and as such, are

governed by contract law. Simeone v. Simeone, 525 Pa. 392, 400, 581 A.2d 162,

16 S (1990). Generally, the principles that govern antenuptial agreements are

also applicable to postnuptial agreements. Lugg v. Lugg, 64 A.3d 1109 (Pa.

Super. 2013). Spouses should be bound by the terms of their agreement unless

there is a finding of fraud, misrepresentation, or duress. See McMahon v.

McMahon, 612 A.2d 1360, 1363 (Pa.Super. 1992).

In the case sub judice, Husband raises several challenges to the

enforcement of the marital settlement agreement. First, Husband argues that

Wife failed to commence an action to enforce the property settlement

agreement for approximately two and a half years after the execution of the

agreement, and thus the current action is barred by the doctrine of laches.

Laches is the failure to assert a right for an unreasonable and unexplained

length of time. See Patten v. Vose, 590 A.2d 1307, 1309 (1991). It is based on

"some change in the condition or relation of the parties which occurs during

3 [a] period [that] the complainant unreasonably failed to act." Id. A party

claiming the benefit of the doctrine of laches must demonstrate prejudice due

to lapse of time. Beaver v. Penntech Paper Co., 307 A.2d 281 (Pa. 1973). It is

important to be mindful of the fact that laches will not be imputed by the

mere passage of time, but requires an evaluation of all circumstances of a

particular case. Lindenfelser v. Lindenfelser, 119 A.2d 87, 88 (Pa. 1956)(internal

citations omitted). Husband asserts the defense of laches due to the delay on Wife's part to

file an action to enforce the property settlement agreement. Husband argues

that Wife had resided in the formal marital home from the time the property

settlement agreement was executed until she filed the current petition to

enforce. During this period, Husband contends that he paid the bills relating

to the residence, which included the mortgage and the utility bills, and also

provided food and other items to the household. Husband claims that if Wife

is entitled to receive spousal maintenance for this period of time, he will be

severely prejudiced. Furthermore, Husband argues that Wife had access to

Husband's bank accounts and could have utilized these funds to retain

counsel and pursue this action sooner. We find that Husband has failed to prove the necessary elements to

successfully assert the defense of laches. The parties testified that following

their decision to separate, they knowingly remained in this living arrangement.

4 Wife testified that she remained in the marital residence, had access to

Husband's bank accounts, maintained the household, and cared for the

parties' children. Husband, on the other hand, testified that he provided

financial support for the benefit of the household and his children, and the

living arrangement provided him convenient and easy opportunity to spend

time with his children. We find that Husband failed to demonstrate any

prejudice suffered by knowingly remaining in this protracted period of

cohabitation with Wife.

Second, Husband argues that the property settlement agreement should

be dismissed based on equitable estoppel. Husband contends that he entered

into the property settlement agreement relying on Wife's assurances that his

spousal maintenance and child support obligations would not change.

Husband further argues that he would not have entered into this agreement

knowing that his spousal and child support obligation would be different than

$2,659.00 per month.

Equitable estoppel arises when a party by acts or representations

intentionally or through culpable negligence, induces another to believe that

certain facts exist and the other justifiably relies and acts upon such belief, so

that the latter will not be prejudiced if the former is permitted to deny the

existence of such facts. Straup v. Times Herald, 423 A.2d 713, 720 (Pa.Super.

1980). "[Elquitable estoppel is a doctrine of fundamental fairness intended to

5 preclude a party from depriving another of a reasonable expectation when the

party inducing the expectation knew or should have known that the other

would rely to his detriment upon that conduct." Id. Thus, the essential

elements of equitable estoppel are inducement and justifiable reliance on that

inducement. The inducement may be by words or by conduct and the reliance

must be exhibited by a change in condition either by act or forbearance that

causes a disadvantage to the one induced. Novelty Knitting Mills, Inc. v. Siskind,

457 A.2d 502, 503-04 (Pa. 1983). The party asserting estoppel has the burden

of proving the elements by clear, precise, and unequivocal evidence. Blofsen v.

Cutaiar, 333 A.2d 841, 844 (Pa. 1975).

We find Husband's argument to be without merit. The parties testified

that following their decision to separate and in an effort to save counsel fees,

they obtained a blank property settlement agreement from the Internet. Husband and Wife both testified that they read the form together; discussed

the relevant terms and provisions they wanted to include; and Husband

populated the blank form according to their mutual agreement. Husband has

failed to prove by clear, precise and unequivocal evidence that Wife induced

Husband into this agreement by promising that his spousal and child support

obligations would remain constant. It is important to note the doctrine of

equitable estoppel does not apply where the complainant's actions appear to

be a result of his own will or judgment rather than a product of what the

6 other party did or represented. The action must be induced by the other

party's conduct or representation. Here, Husband's mistaken understanding of

his spousal and child support obligations does not appear to be induced by

any representation on Wife's part, but rather stems from Husband's own

judgment.

Third, Husband argues that the agreement should not be enforced due

to Wife's negligent misrepresentation. Husband asserts that Wife

misrepresented to Husband that his spousal and child support payments

would total $2,659.00 per month and would not change. Following the

discussion and analysis cited above, we find that this argument must also fail.

In order to prove negligent misrepresentation, a plaintiff must show (1)

a misrepresentation of a material fact; (2) the representor must either know of

the misrepresentation, must make the misrepresentation without knowledge

as to its truth or falsity or must make the representation under circumstances

in which he ought to have known of its falsity; (3) the representor must intend

the representation to induce another to act on it; and (4) injury must result to

the party acting in justifiable reliance on the representation. Gibbs v. Ernst,

647 A.2d 882, 890 (Pa. 1994). As stated above, Husband cannot prove that

Wife misrepresented that Husband's monthly financial obligations would

remain constant.

7 Alternatively, Husband argues that the property settlement agreement

must be voided due to mutual mistake of fact. Husband contends that the

parties entered into the agreement under the mistaken assumption that child

support cannot be modified. Further, Husband notes that neither party had

the benefit of counsel in reviewing and drafting the agreement, and that the

agreement itself, which they obtained online, did not notify the parties that

child support could be modifiable.

The doctrine of mutual mistake of fact serves as a defense to the

formation of a contract and occurs when the parties to the contract have "an

erroneous belief as to a basic assumption of the contract at the time of

formation which will have a material effect on the agreed exchange as to

either party." Bianchi v. Bianchi, 859 A.2d 511, 516, n.3 (Pa.Super. 2004). To

obtain reformation of a contract because of mutual mistake, the moving party

is required to show the existence of the mutual mistake by evidence that is

clear, precise and convincing. Buqen v. New York Life Insurance Co., 184 A.2d

499, 500 (Pa. 1962). We find that Husband failed to satisfy his burden of proving a mutual

mistake of fact that would permit reformation of the Agreement. The

Agreement does not contain any language pertaining to the modifiability of

the spousal and child support payment obligations. At the time of the contract

formation, the parties simply did not contemplate or address the modification

8 of these payments. Further, we note that regardless of the understanding of

either party as to modifiability, a court is not precluded by the terms of a

property settlement agreement from increasing the amount of child support

provided for in the agreement. Millstein v. Millstein, 457 A.2d 1291 (Pa.Super.

1983). Thus, even if Husband could prove the existence of the mutual mistake

regarding modifiability of child support payments, it would be immaterial.

Fourth, Husband argues that Wife materially breached the Agreement by

filing a domestic relations action seeking an increase in child support.

Husband argues that the Agreement does not provide for the modification of

child support, and thus, Wife's action is a material breach of the Agreement.

As stated above, a court is not precluded by the terms of a property . settlement agreement from increasing child support obligations. See McGough

v. McGough, 522 A.2d 638, 640 (1987). Further, Wife's action did not breach

any provision in the agreement, as there are no provisions that prevent either

party from seeking modification. In fact, Husband also filed a petition seeking

child support on October 3, 2014. We will not imply a missing provision in the

contract when it is unclear "that an [such] obligation is within the

contemplation of the parties at the time of the contracting or is necessary to

carry out their intentions." See Slater v. Pearle Vision Center, Inc., 546 A.2d .

676, 679 (Pa.Super. 1988). Thus, Husband's argument must fail.

9 In the instant Petition to Enforce the Property Settlement Agreement,

Wife requests the Court to enforce the Property Settlement Agreement and

direct Husband to (1) pay spousal maintenance or alimony to Wife in

accordance with the Agreement; and (2) pay child support to Wife in

accordance with the Agreement. We will address each of Wife's arguments in

turn.

It is the intent of the parties that governs the interpretation of the

agreement. Zlotziver v. Zlotziver, 49 A.2d 779 (Pa. 1946). In Pennsylvania, the

standards for interpreting contracts are well-settled:

"When interpreting the language of a contract, the intention of the parties is a paramount consideration. In determining the intent of the parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly. When interpreting agreements containing clear and unambiguous terms, we need only examine the writing itself to give effect to the parties' intent."

Melton v. Melton, 831 A.2d 646, 653-54 (Pa.Super. 2003) (citing Profi.t Wize

Marketing v. Wiest, 812 A.2d 1270, 1274 (Pa.Super. 2002)). However, when the

agreement is ambiguous and the intentions of the parties are not clear from

the agreement itself, the court may take into account attendant circumstances

to determine the parties' intent. Osial v. Cook, 803 A.2d 209, 213 (Pa.Super.

2002). When an essential term is missing from the contract, the court may

imply such a term "only when it is necessary to prevent injustice and it is

10 abundantly clear that the parties intended to be bound by such term." Kaplan

v. Cablevision of Pennsylvania, Inc., 671 A.2d 716, 720 (Pa.Super. 1996).

Applying our well-settled principles here, the parties' Agreement evinces

a clear and unambiguous intent on both parties to determine and settle their ·

respective property rights finally and for all time. The parties also intended to

be legally bound by the terms of the Agreement. Under Paragraph 7, the

Agreement states:

"The Plaintiff [Husband] shall pay spousal maintenance to the other party in the amount of $1,500.00 per month, beginning on 06/30/2012 to terminate after 84 months or on the death or remarriage of the payee, whichever comes first."

A plain reading of this provision reveals the parties' intent to have Husband

pay to Wife spousal maintenance in the amount of $1,500 for 84 months

subject to termination upon Wife's death or remarriage. Despite the fact that

the parties did not obtain the benefit of counsel while drafting this agreement, we will not assume that the parties chose their words carelessly. Furthermore,

in ascertaining the intent of the parties to a contract, "tt is their outward and

objective manifestations of assent, ~s opposed to their undisclosed and

subjective intentions, that matter." Inqressia Construction Company, Inc., v.

Walsh, 486 A.2d 478, 483 (1984). We find that Paragraph 7 contains clear and

unambiguous language, which directs Husband to pay for spousal

maintenance. As Wife is still alive and has not remarried, we find Paragraph 7

to be valid and enforceable. Husband's testimony at the hearing held in this

11 matter supports our finding on this issue as Husband, himself, testified that it

was his understanding under the terms of their agreement that he was

required to pay Wife child and spousal support for 84 months commencing as

of the date Wife moved out of the former marital residence.

The Agreement also contains a valid and enforceable child support

provision, which was properly modified following the parties' petitions. Under

the Agreement, Paragraph 10 provides: "Plaintiff [Husband] shall pay support

in the amount of $1,159 per month for the support and care of the parties' .

minor children." There is no provision concerning modification. In October of

2014, both parties filed petitions for child support. Following a support

conference held on December 8, 2014, a support order was issued, which

assessed Wife's monthly net income as $2,362.22 and Husband's monthly net

income as $12,265.47. The support order directed Husband to pay $2,068.00

in child support and $206.00 in arrears. As previously discussed, agreements

between Husband and Wife concerning child support do not preclude the

Court from increasing the amount. See McGough, supra.

Accordingly, we enter the following ORDER.

12 COURT OF COMMON PLEAS OF MONROE COUNTY FORTY-THIRD JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA

ROBERT ROMUALD ZANDROWICZ, No. 389 DR 2012 No. 2894 CV 2012 Plaintiff

vs. AGNIESZKA MARIA ZANDROWICZ, PETITION TO ENFORCE MARITAL PROPERTY Defendant SETTLEMENT AGREEMENT

ORDER

AND NOW, this 24th day of June, 2015, upon consideration of

Defendant's Petition to Enforce Marital Property Settlement Agreement, and

after hearing conducted on this matter, IT IS ORDERED as follows:

1. Plaintiff is directed to pay Defendant spousal maintenance arrears

in the amount of $51,000.00 within the next twelve months;

2. Plaintiff is directed to immediately begin paying spousal

maintenance in accordance with the parties' agreement, by paying

$1,500.00 per month, his first payment to occur June 30, 2015;

3. Plaintiff is directed to pay Defendant child support arrears in the

amount of $32,452.00, which arrears shall be paid at the rate of

$1,500 per month until paid in full.

13 4. Plaintiff's future spousal maintenance payments, including

arrears, be payable through a wage attachment to be enforced by

the Domestic Relations Section.

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