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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COLLEEN MULLEN MELCHIORRE

v.

PAUL L. MELCHIORRE

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3400 EDA 2019

Appeal from the Order Entered November 4, 2019

In the Court of Common Pleas of Philadelphia County Domestic Relations

at No(s): No. D01068461

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2020

Paul L. Melchiorre (“Husband”) appeals from the November 4, 2019

order finding him in civil contempt for willfully failing to comply with the terms

of a post

- nuptial agreement (“Agreement”) with his former wife, Colleen

Mull en Melchiorre (“Wife”). After review, we affirm.

The relevant facts are as follows. Husband and Wife entered into the

Agreement on June 8, 2001, which was incorporated but not merged into the

divorce decree of July 18, 2001. In the Agreement, the part ies addressed

Husband’s non

- vested stock options from his employer, Ariba, Inc. (“Ariba”),

totaling 1,269,317 shares, that were in his name only. The parties agreed:

Husband has non

- vested stock options from his employer,

Ariba, Inc., also set forth on E xhibit “A” attached. Upon vesting,

Wife shall be entitled to request that Husband sell one

- half (1/2)

of the shares exercisable at each time and Wife will be paid the

net proceeds thereof after deduction of commissions and any

applicable capital gains tax es to Husband.J

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Post

- Nuptial Agreement, 7/18/01, at ¶7(d). Paragraph 11 of the Agreement,

provided that within fifteen days after demand, each of the parties would

execute any and all written instruments necessary to effectuate their

Agreement.

Seventee n years later, Wife found her copy of the Agreement while

going through her papers. Upon reviewing the Agreement, she realized that

she had never received her one

- half share of the Ariba stock, and she asked

Husband about it. While he acknowledged that t he stock had been sold,

Husband refused to provide any information about the proceeds. Wife

retained counsel, who subsequently requested documentation. When

Husband was not forthcoming, Wife filed a petition for contempt and

enforcement of the Agreement on July 25, 2019.

The trial court scheduled a hearing for November 4, 2019. Thereafter,

Husband filed an answer to Wife’s petition, and four days prior to the

scheduled hearing, Husband filed a motion for judgment on the pleadings. At

the November 4 h earing, the trial court first heard oral argument regarding

the motion for judgment on the pleadings, and denied the motion. It then

heard testimony and argument on Wife’s petition. The trial court concluded

that Wife’s claim was not barred by the statut e of limitations, the doctrine of

laches, or waiver. Based on the evidence presented, the court held Husband

in civil contempt, imposed sanctions, and delineated how he could purge

himself of contempt by executing the necessary authorizations, providingJ

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f inancial documents, and remitting attorney fees of $ $5,202.18 to Wife within

thirty days. Husband filed a motion for reconsideration on November 15,

2019, which was denied. He filed a timely appeal on November 27, 2019.

Thereafter, he filed a petition for supersedeas and determination of security

to be posted during the pendency of the appeal, which was denied on January

31, 2020. Both Husband and the trial court complied with Pa.R.A.P. 1925.

Husband presents five issues for our review:

1. Did the tr ial court commit an error of law or abuse its discretion

by denying Husband's motion for judgment on the pleadings by

finding that the statute of limitations did not bar Wife's petition

for special relief to enforce the marital settlement agreement

and fin d Appellant in contempt?

2. Did the trial court commit an error of law or abuse its discretion

by denying Husband's motion for judgment on the pleadings by

finding that the doctrine of latches did not bar Wife's petition

for special relief to enforce the marital settlement agreement

and find Appellant in contempt?

3. Did the trial court commit an error of law or abuse its discretion

by denying Husband's motion for judgment on the pleadings by

finding that the doctrine of waiver did not apply to the releases

set forth in the Post

- Nuptial Agreement and thus, should have

denied Wife's petition for special relief[?].

4. Did the trial court abuse its discretion by finding Husband in

civil contempt for failing to acknowledge debt to Wife?

5. Did the trial court commit an error of law or abuse its discretion

by conducting an evidentiary hearing and taking testimony

from the parties on Husband's motion for judgment on the

pleadings?

Appellant’s brief at 8.J

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Appellant’s first three issues, which implicate the statute of limitations,

the doctrine of laches, and waiver, present questions of law. See K.A.R. v.

T.G.L. , 107 A.3d 770, 775 (Pa.Super. 2014 ) (statute of limitations and laches

are questions of law); Temple v. Providence Care Ctr., LLC , 2020 Pa. LEXIS

3841, *19 (applicability of waiver presents a question of law). Hence, our

standard of review is de novo , and our scope of review is plenary. However,

we are bound by the trial court’s credibility determinations. Id . (citing

Stamerro v. Stamerro

, 889 A.2d 1251, 1257

- 58 (Pa.Super. 2005))

.

Husband cites Stamerro

, supra

, in support of his contention that the

statute of limitations applicable to this non

- merged marital settlement

agreement is the four

- year statute of limitations for contracts generally. 1 He

claims the trial court erred in finding that this was a continuing contract where

there was a definitive time fixed for payments, as well as a requirement that

Wife make a demand. See Appellant’s brief at 19. He argues Wife’s right to

institute her claim began when each set of Ariba stock vested, which dates

were provided to her, and the last of which vested in 2004. Thus, he contends

that there were “effectively, three separate contracts with defined times fixed

for payment, to wit: January 1, 2002 ; 192,000 shares vest January 1, 2003;

and, 255,984 shares vest January 1, 2004,” and that “Wife had four years

_________________ __________ ______ ____ _______

1 Herein, the post

- nuptial agreement was expressly incorporated but not

merged into the divorce decree. In such circumstances, the agreement

survives the divorce and is governed by contract law. See McGough v.

McGough , 522 A.2d 638 ( Pa.Super. 1987)

.J

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from each date to assert for claim and make a request to Husband to sell one

half (1/2) of the Ariba stock.” Appellant’s brief at 19. From thi s perspective,

t he burden was on Wife to make the demand. Id

. In support of his position,

Husband cites our decision in K.A.R.

, supra

, as analogous and controlling

herein.

The trial court concluded that the contract was a continuing one because

althoug h Wife agreed that she would not request her share before the stock

had vested, the Agreement contained no time limit on the request. Thus,

there was no fixed time for payment. Additionally, Husband acknowledged

that he owed his Wife a debt equal to one

- half of the net proceeds from the

sale of the Ariba stock, which tolled the statute of limitations on a continuing

contract. See Crispo v. Crispo

, 909 A.2d 308, 313 (Pa.Super. 2006)

(providing that acknowledgment of a debt consistent with a promise to pay a

debt may toll the statute of limitations or remove its bar). Hence, the trial

court ruled that Wife could proceed on the debt even though seventeen years

had passed since the Agreement as the statute of limitations did not preclude

the enforcement acti on.

In arriving at that holding, the court distinguished K.A.R

., supra

. The

marital agreement therein was not a continuing one as the “if and when”

language in the equitable distribution agreement set forth a fixed time for

payment. Furthermore, the wife knew of the sale of the business in April

2004, but waited until 2011, more than two years after the expiration of theJ

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four year s tatute of limitations, to file a petition for enforcement. Hence, this

Court concluded that even with the operation of the discovery rule, the wife’s

petition was time

- barred.

The trial court’s interpretation of the Agreement is in accord with its

plain meaning. Wife was under no obligation to ask Husband to sell one

- half

of the stock as it vested; she was merely entitled to do so. Husband, on the

other hand, was obligated to pay Wife one

- half of the net proceeds from the

sale of the stock, whenever Wif e tendered such a request

. 2 Herein, Husband

testified that he could sell the stock any time before the option expired, a term

that he believed was ten years from its issuance. Since Husband was the sole

owner of the stock, only he could sell it, and unle ss he notified Wife of the

sale, she had no way of independently acquiring knowledge of the sale. Once

Wife learned in 2018 that Husband had sold the stock, she promptly requested

her one

- half share of the net proceeds, and Husband refused to comply with

his obligations under the Agreement

.

The law is well

- settled that the statute of limitations begins to run as

soon as the right to institute suit arises. Fine v. Checcio

, 870 A.2d 850, 857

(Pa. 2005). The test, however, of whether a contract is continuing in nature

so as to take it outside the stature of limitations, is whether there was no

_________________ __________ ______ ____ _______

2 Husband testified that he did not sell the Ariba stock as the options vested.

See N.T., 11/5/19, at 50. Rather, he waited until it was at its highest value,

which was sometime prior to 2008. Id . He admitted that he never informed

Wife when he sold the stock. Id . at 51.J

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definite time fixed for payment. K.A.R

., supra at 775 (citing Crispo

, supra

at 3 13). In Crispo

, we found a continuing contract where, although the wife

agreed to defer payment of her $22,500 share in the business until 2001, and

then accept installment payments over ten years or more, the agreement did

not provide a start date for th e first installment. Nonetheless, the terms of

the agreement clearly evinced the husband’s intent to pay the wife what they

deemed to be a fair share of her interest in his business. This Court found it

“disingenuous” for the husband to claim that the wi fe’s failure to make a

demand within a certain time frame barred her from recovering an amount he

admittedly owed. Since obligations under the marital agreement were

continuing, the statute of limitations defense was unavailable to the husband.

Herein, a lthough the vesting dates were known, and Wife was entitled

to demand that Husband sell her share of the stock at those times, she was

not required to do so. In addition, she was not compelled under the

Agreement to demand her share of the stock at any p articular time. The

Agreement contained no definite time for the sale of the stock, and hence, no

definite time for payment of Wife’s share of the proceeds from a sale. The

trial court concluded, and we agree

, that the Agreement was a continuing

contract. Moreover

, Husband acknowledged in the Agreement that Wife was

owed one

- half of the net proceeds from the sale of the Ariba stock. His

acknowledgment of the debt takes this continuing contract outside the statute

of limitations

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Husband argues in the alternative that Wife’s claim is barred by the

doctrine of laches. He contends that Wife knew when the stocks vested, and

she failed to exercise due diligence by waiting almost eighteen years to assert

her right. See Appellant’s brief at 14. He claims that he was prejudiced by

the delay because he was forced to hire counsel and track down the stock and

related documents.

As this Court reaffirmed in In re Estate of Aiello

, 993 A.2d 283, 287

(Pa.Super. 2010), in order to success fully invoke laches, one must establish:

(a) a delay arising from petitioner’s failure to exercise due diligence; and (b)

prejudice to the respondents resulting from the delay. Prejudice is a factual

question, and is determined by examining the circumstan ces of each case.

Id

. Prejudice in this context means that respondent must have changed his

position to his detriment. Id

. Moreover, “l aches is an equitable doctrine that

should not be applied in favor of a person who has failed to take required

action on his own.” Id

.

Husband had the burden of proving laches, and he failed to do so. He

did not notify Wife when he sold the Ariba stock. Nor did Husband pay Wife

her one

- half share of the net proceeds when the sale was consummated.

Having failed to do what he was contractually obligated to do, he cannot seek

refuge in the equitable doctrine of laches. Furthermore, he did not

demonstrate that he changed his position to his detriment as a result of Wife’s

delay in requesting payment

, the requirement f or prejudice. The fact thatJ

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Husband hired a lawyer h as no bearing upon any alleged lack of diligence on

Wife’s part, but is the natural consequence of his own failure to pay Wife the

sums owing. Since Husband knew that Wife was entitled to one

- half of the

proceeds of the stock sale

, and declined to notify her that he had sold the

stock, he failed to keep the documentation related to that sale at his own peril.

Furthermore, we cannot disregard the trial court’s finding that Husband’s

purpor ted inability to locate this documentation was not credible, especially

when he was able to produce a forensic accounting of the stock within weeks

of the hearing. For these reasons, Husband has failed to establish the

applicability of laches.

Finally, Husband’s claim of waiver is grounded in what he calls the

“ Releases ” provision of the Agreement. Husband claims that SECOND

subparagraph (a)

, specifically the language “ t hat he or she will never any time

hereafter sue the other party or his or her heirs , etc

. for the purpose of

enforcing any of the rights relinquished under this paragraph.... ” is a waiver

of the right to seek redress herein. Agreement, at 4. He contends that “b y

doing nothing, Wife effectively waived her right to enforce the agreement by

waiting at least fourteen years to make a claim .” Appellant’s brief at 22. In

addition, Husband alleges that “W ife can also be viewed as in complete breach

of the agreement by disregarding all the releases that she had agreed to within

the Agreement. ” Id

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Husband’s claim of waiver is woefully undeveloped and lacking in

analysis. Notably, the foregoing paragraph governing “Releases” is prefaced

with the language “Except for as provided in this Agreement.” Agreement, at

4. By entering the Agreement , the parties agreed to relinquish any other

“past, present, and future claims against each other on account of

maintenance and support, alimony . . . [a]nd also equitable distribution of

marital property.” Id

. Wife’s right to one

- half of the net proceed s from the

sale of the Ariba stock is clearly delineated in the Agreement, and she did not

waive the right to enforce it. The “Releases” provision was not intended to

preclude the parties from enforcing the terms of the Agreement, but from

asserting claim s as to support, alimony, and equitable distribution that were

not preserved in the Agreement. We find no merit in Husband’s claim.

Husband’s fourth issue is a challenge to the trial court’s finding of civil

contempt. As this Court confirmed in Annechi no v. Joire , 946 A.2d 121

(Pa.Super. 2008), a contempt proceeding is a proper vehicle for seeking

enforcement of a marital settlement agreement entered into after passage of

the Divorce Code. See 23 Pa.C.S. § 3105(a) of the Divorce Code (providing

that pa rties to marital agreements may utilize a remedy set forth in that

provision “to enforce the agreement to the same extent as though the as

though the agreement had been an order of Court except as provided to theJ

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contrary in the agreement.”). 3 The order a llegedly violated herein was the

Agreement. See also 23 Pa.C.S § 3502(e)(9) (providing that “If, at any time,

a party has failed to comply with an order of equitable distribution, . . . with

the terms of an agreement as entered into between the parties, a fter hearing,

the court may, in addition to any other remedy available . . . in order to effect

compliance . . . find the party in contempt.”).

When a property settlement agreement is incorporated into a divorce

decree, “ t he general rule in such proceedings is that the burden of proof rests

with the complaining party to demonstrate, by [a] preponderance of the

evidence that the defendant is in noncompliance with a court order.” Habjan

v. Habjan

, 73 A.3d 630, 637 (Pa.Super. 2013) (citation omitte d). To sustain

a finding of civil contempt, the complainant must prove certain distinct

elements: (1) that the contemnor had notice of the specific order or decree

which he is alleged to have disobeyed; (2) that the act constituting the

contemnor's violat ion was volitional; and (3) that the contemnor acted with

wrongful intent. Id

. (citing Stahl v. Redcay

, 897 A.2d 478, 489 (Pa.Super.

2006).

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3 In addition, 23 Pa.C.S § 3502(e)(9)

— provides that “If, at any time, a party

has failed to comply with an order of equitable distribution, . . . with the terms

of an agreement as entered into between the part ies, after hearing, the court

may, in addition to any other remedy available . . . in order to effect

compliance . . . find the party in contempt.J

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“Our scope of review when considering an appeal from an order holding

a party in contempt of court is narrow: We wi ll reverse only upon a showing

of an abuse of discretion.” Orfield v. Weindel , 52 A.3d 275, 278 (Pa.Super.

2012) (citation omitted). A “court abuses its discretion if it misapplies the law

or exercises its discretion in a manner lacking reason.” Godfrey v. Godfrey

,

894 A.2d 776, 780 (Pa.Super. 2006).

Husband contends that the trial court abused its discretion in finding

him in civil contempt of the Agreement. He argues that he did not violate the

Agreement because although he never informed Wife that he had in fact sold

his shares of Ariba s tock, and she had no knowledge of the sale, the onus was

on Wife to either request the sale or demand payment without actual

knowledge of the sale

. See N.T., 11/4/19, at 50

- 51; Appellant ’ s brief at 23.

Until then, Husband maintains that he had no debt to acknowledge. Id

.

Furthermore, he claims that his failure to produce information about the Ariba

stock in response to Wife’s request was “not volitional.” Id . at 24. He directs

our attention to his testimony tha t he “made every attempt” to retrieve the

information and was hindered by the passage of time. N.T., 11/4/19, at 42.

Finally, he asserts that he did not act with wrongful intent. Appellant’s brief

at 24.

The trial court found Husband testified “incre dulously” that he was

“unable to locate any financial documents regarding the sale of the Ariba

[s] tock.” Trial Court Opinion, 2/11/20, at unnumbered 4 (quoting N.T.,J

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11/4/19, at 58. The court found additional support for its credibility

determination wh en “on December 2, 2019, a mere 28 days after his

testimony, Husband provided a detailed forensic accounting of the sale of the

Ariba stock.” Id . at n.1. Moreover, the trial court found that Husband

acknowledged in the Agreement that he owed Wife one

- hal f of the net

proceeds from the sale of the stock, and that he violated the Agreement when

he failed to remit one

- half of the net proceeds to Wife from the sale of the

1,269,317 shares of Ariba Stock. See Trial Court Opinion, 2/11/20, at

unnumbered 5. The court found the language of the Agreement to be

“straightforward,” and we agree. N.T., 11/4/19, at 14.

We defer to the trial court’s finding that Husband’s professed inability to

provide the requested documentation lacked credibility, as we must.

Furth ermore, we agree that the Agreement unambiguously obligates Husband

to pay Wife one

- half of the net proceeds of Ariba stock upon demand, and that

Husband violated the Agreement when he refused to do so. On the facts

before us, we find no abuse of discreti on on the part of the trial court in holding

Husband in civil contempt. 4

Order affirmed.

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4 Husband withdrew his fifth issue after conceding that the trial court properly

held argument on the judgm ent on the pleadings, and then took testimony on

the petition for civil contempt and enforcement.J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/26/20