J-A20028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BERNARD J. RUSSELL IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MARGARET A. RUSSELL

Appellee No. 1778 WDA 2015

Appeal from the Order Dated October 5, 2015

In the Court of Common Pleas of Washington County

Civil Division at No: No. 2006-6151

BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2016

Appellant Bernard J. Russell (“Husband”) appeals from the October 5, 

2015 order of the Court of Common Pleas of Washington County (“trial 

court”), granting in part Margaret A. Russell’s (“Wife”) petition for special 

relief/enforcement and denying his petition to modify. Upon review, we 

affirm. 

The facts and procedural history underlying this appeal are 

undisputed. Briefly, on October 24, 2006, Husband filed a complaint in 

divorce against Wife. On December 11, 2007, the parties entered into a 

marriage settlement agreement (“MSA”), which Wife filed in the trial court 

on December 12, 2007.1 On December 13, 2007, both parties signed and 

____________________________________________

1

Paragraph 19 of the MSA, relating to mutual waivers and releases, provides 

in part: “Neither party may apply to any court for a modification of this 

(Footnote Continued Next Page)
J-A20028-16

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filed their respective waiver of notice of intention and affidavits of consent to 

effectuate a no-fault divorce under Section 3301(c) of the Divorce Code, 23 

Pa.C.S.A. § 3301(c). On December 21, 2007, the trial court issued a final 

divorce decree, releasing the parties from the bonds of matrimony under 

Section 3301(c). The trial court also incorporated the MSA into the divorce 

decree “for enforcement purposes only.” Divorce Decree, 12/21/07. 

On May 12, 2015, Wife filed a petition for special relief/enforcement, 

alleging that Husband had failed to comply with the terms of MSA. In 

particular, she alleged that Husband failed to (1) make alimony payments to 

her, and (2) pay her $475,000.00 that represented her interest in Husband’s 

business,2and half of his loyalty bonus or $125,000.00, totaling 

$610.000.00. Wife also sought confirmation that Husband maintained two 

life insurance policies, $1,000,000.00 and $750,000.00 respectively, listing 

her as the sole beneficiary. Finally, Wife requested attorney’s fees pursuant 

to the MSA. On May 14, 2015, Husband filed an answer to the enforcement 

petition and a concomitant petition to modify the MSA. In his answer, 

Husband claimed ineffective assistance of counsel and challenged the 

valuation of his business at the time the parties executed the MSA. In his 

(Footnote Continued) _______________________

Agreement, except under Paragraph 11 (Custody) or Paragraph 12 (Child 

Support) of this Agreement, whether pursuant to the Divorce Code or any 

other present or future statutory authority.”

2 $475,000.00 is the difference between Wife’s $575,000.00 marital interest 

in the business, which was valued at $1,150,00.00, and $100,000.00 in 

payments received by Wife from Husband. N.T. Hearing, 6/1/15, at 47-48.. 
J-A20028-16

- 3 -

petition, Husband requested reformation of the MSA based on mutual 

mistake and frustration of purpose as they relate to the valuation of his 

business. The trial court conducted a hearing on June 1, 2015, after which it 

issued an order granting in part Wife’s enforcement petition and denying 

Husband’s modification petition on October 5, 2015. Following the trial 

court’s denial of Husband’s reconsideration motion, Husband timely appealed 

to this Court on November 4, 2015.3

On appeal,4 Husband raises five issues for our review.

____________________________________________

3 The trial court did not order Husband to file a Pa.R.A.P. 1925(b) statement 

of error complained of on appeal. The trial court, however, filed a Pa.R.A.P. 

1925(a) opinion addressing issues Husband raised in his reconsideration 

motion. 

4

In Pennsylvania, we enforce settlement agreements between husband and 

wife in accordance with the same rules applicable to contract interpretation. 

Osial v. Cook, 803 A.2d 209, 213–214 (Pa. Super. 2002). Thus, our review 

is guided by the following standards:

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.

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.

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citations 

omitted). Furthermore:

this Court must accept findings of the trial court that are 

supported by competent evidence of record, as our role does not 

(Footnote Continued Next Page)
J-A20028-16

- 4 -

1. Does the [the trial c]ourt have authority to modify a marriage 

settlement agreement that is incorporated but not merged into a 

final divorce decree by applying standard contract principles 

related to (a) mutual mistake of fact and/or (b) impossibility of 

performance?

2. Was there a mutual mistake of fact by the parties regarding 

the value of the business to be gained upon sale of the business, 

and of the value of Wife’s equitable interest in the business?

3. Is it impossible for Husband to perform the terms and

conditions of the MSA as to division of his business interests, 

given the evidence regarding the actual sales value of the 

business, the downturn in his income and prospects, and his 

other MSA financial obligations?

4. Is the [trial c]ourt nonetheless foreclosed from modifying a 

marriage settlement agreement when the mistake particularly is 

overvaluation of a closely held business?

5. Is the [trial c]ourt, in consideration of all the facts and 

circumstances surrounding this MSA, bound by special equitable 

principles to ensure a fair and just determination and settlement 

of property rights in divorces, in addition to applying regular 

contract principles?

Husband’s Brief at 4-5.5 

After careful review of the parties’ briefs, the record on appeal, and 

the relevant case law, we conclude that the trial court’s October 5, 2015 

opinion and its Rule 1925(a) opinion, authored by the Honorable Michael J. 

Lucas, cogently disposes of Husband’s issue on appeal. See Trial Court 

Opinion, 10/5/15, at 10-16; Trial Court’s Rule 1925(a) Opinion, 12/28/15, 

(Footnote Continued) _______________________

include making independent factual determinations. In addition, 

with regard to issues of credibility and weight of the evidence, 

this Court must defer to the trial judge who presided over the 

proceedings and thus viewed the witnesses first hand.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (citation 

omitted), appeal denied, 995 A.2d 354 (Pa. 2010).

5 We observe that Husband does not challenge the trial court’s calculation of 

the amount due to Wife under the October 5, 2015 order. 
J-A20028-16

- 5 -

at 6-8. We, therefore, affirm the trial court’s October 5, 2015 order granting 

in part Wife’s enforcement petition and denying Husband’s modification 

petition. We direct that a copy of the trial court’s October 5, 2015 opinion 

and December 28, 2015 Rule 1925(a) opinion be attached to any future 

filings in this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2016
Record. On December 20, 2015, the Honorable Janet Moschetta Bell signed the 

pursuant to 23 Pa.C.S.A. § 3301(c). Mrs. Russell filed a Praecipe to Transmit the 

to the marriage. On December 13, both parties filed their affidavits of consent 

parties and constituted a complete settlement of all rights and obligations pursuant 

Agreement ("MSA"). The thirty-five (35) page agreement was signed by both 

On December 12, 2007, Margaret Russell filed a Marriage Settlement 

distribution. 

Washington County, Pennsylvania. He raised counts of divorce and equitable 

On October 24, 2006, Bernard Russell filed a Complaint for Divorce in 

Procedural History 

opinion pursuant to Pa.R.A.P. 1925(A). 

And now, on this 281h day of December, 2015, the Court provides its 

OPINION PURSUANT TO PA.R.A.P.1925 

DEFENDANT 

MARGARET A. RUSSELL, 

Common Pleas No.CV-200606151 

Superior Court No.1778 WDA 2015 

v. 

PLAINTIFF, 

IN THE COURT OF COMMON PLEAS OF WASHING TON COUNTY, PENNS~ VANll\! / ~ 

CIVIL DIVISION ~i3 ~ z8 ~ tl 

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BERNARD J. RUSSELL, 

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2 

parties' Divorce Decree and incorporated the parties' MSA for enforcement 

purposes only. 

On May 12, 2015, Mrs. Russell presented a Petition for Special 

Relief/Enforcement to the undersigned in Motions Court. Mrs. Russell alleged that 

Mr. Russel had failed to follow multiple provisions of the MSA: that he had ceased 

paying alimony; that he had made neither the lump sum payment nor all monthly 

payments in exchange for Mrs. Russell's share of Mr. Russell's business; and that 

he had failed to maintain a life insurance policy. In total, the MSA required Mr. 

Russell to make payments to Mrs. Russell totaling $575,000. He had paid a total of 

approximately $100,000 at the time Mrs. Russell presented her petition. Mr. 

Russell appeared through counsel who orally motioned for a modification of the 

MSA at that time. The Court scheduled a hearing for June 1, 2015 for both 

requests. Both parties appeared at that time represented by counsel and participated 

in a contested hearing. 

The Court filed its Order and Opinion on October 5, 2015. The Court 

ordered Mr. Russell to fulfill his obligations under the MSA, and established a 

schedule that would enable him to do so in a manner that did not require an 

immediate $475,000 payment. 

On October 27, 2015, Mr. Russell filed a Motion for Reconsideration. The 

Motion for reconsideration raised twelve (12) grounds for reconsideration. The 

·--. 
3 

Court denied this motion. Mr. Russell filed his Notice of Appeal on November 4, 

2015. The Court provides its opinion pursuant to Pa.R.A.P. 1925(A)(l). In doing 

so, this Court incorporates by reference its Order and Opinion of October 5, 2015 

because it contains a full discussion of the Court's rationale. (See Exhibit A). 

Standard of Review 

When interpreting a property settlement agreement, the trial court is the sole 

determiner of facts, and absent an abuse of discretion, the [ appellate courts] will 

not usurp the trial court's fact-finding function. Stamerro v. Stamerro, 889 A.2d 

1251 (Pa. Super. 2005), citing Chen v. Chen, 840 A.2d 355, 360 (Pa. Super. 2003). 

On appeal from an order interpreting a marital settlement agreement, the 

appellate courts must decide whether the trial court committed an error of law or 

abused its discretion. Tuthill v. Tuthill, 7 63 A.2d 417, 419 (Pa. Super. 2000 ). 

Martial settlement agreements are "private undertakings between two 

parties, each having responded to the 'give and take' of negotiations and bargained 

consideration." Stamerro, citing Brower v. Brower, 413Pa. Super. 48, 604 A.2d 

726, 731 (1992). "A settlement agreement between [spouses] is governed by the 

law of contracts unless the agreement provides otherwise." Stamerro, quoting 

Chen v. Chen, 840 A.2d at 360. Because contract interpretation is a question of 

law, the Appellate Courts' standard of review over questions of law is de novo, and 

to the extent necessary, the scope of review is plenary. Stamerro, citing Wade v. 

·-. 
4 

1 As Mr. Russell's Motion of Reconsideration specifically set forth the "errors" he believed this 

Court committed, this Court did not direct him to file a concise statement of errors complained of 

on appeal. 

Seventh, Mr. Russell stated this Court committed an error of law by requiring Mr. 

that the MSA capped Mrs. Russell's interest in her former husband's business. 

executed their MSA. Sixth, Mr. Russell asserted that this Court erroneously found 

by concluding there was no evidence of a mutual mistake of fact when the parties 

of his business." Fifth, Mr. Russell indicated that this Court committed legal enor 

over $50,000 in Federal Income Tax from the "disposable proceeds from the sale 

business. Fourth, Mr. Russell alleged that this Court "ignored" that he had to pay 

"erroneously inferred" he was able to pay$ 285,000 at the time of the sale of his 

amount of funds that exceed his annual income. Third, he charged that this Court 

the "payback schedule" is "impossible" and requires him to pay in some years an 

enforcement of the MSA modified the parties' agreement. Second, he contended 

he considers "incorrect." 1 First, he alleged that the Court's Order directing 

(12) findings of fact and conclusions of law he alleged this Court made and which 

Paragraph 2 of Mr. Russell's Motion for Reconsideration set forth twelve 

Discussion 

A.2d 1159, 1164 n. 5 (2004), and Chen, supra at 360. 

Huston, 877 A.2d 464 (Pa. Super. 2005), Kripp v. Kripp, 578 Pa. 82, 91 n. 5, 849 
5 

In support of these twelve claims of error, Mr. Russell provided not one (1) 

citation to legal authority to include statutory provisions or case precedent that 

would aid this Court in making a determination in his favor. Importantly, Mr. 

Russell did not specify a single provision in the MSA that permitted the Court to 

modify his obligations due to a change in his economic circumstances. 

Russell to prove that Mrs. Russell knew that Mr. Russell "was making a mistake" 

when the parties executed the MSA. Eighth, Mr. Russell asserted that this Court 

"ignored the glaring errors in the MSA" as committed by the parties and their 

counsel who negotiated the MSA. Ninth, Mr. Russell charged that this Court 

"disregarded/ignored" his recent income which shows it is impossible for him to 

"pay all the money that the MSA requires." Tenth, Mr. Russell asserted that this 

Court concluded, in error, that the parties did not intend to divide the estate in 

equal shares. Eleventh, Mr. Russell contended that this Court "ignored the fact 

that both parties' object in the MSA was to liquidate the business and reap big 

rewards, which purpose was so severely frustrated by market forces that neither 

party could perform/benefit as anticipated." Twelfth, Mr. Russell advanced that 

this Cami's citation to Miller v. Ginsburg, 874 A.2d 93, 99 (Pa. Super. 2008) was 

an irrelevant legal citation to any matter at issue in this case. 
Exhibit I offered at the parties' hearing was a thirty-two page Marriage 

Settlement Agreement executed by the parties and their legal counsel. As "Exhibit 

A" to the MSA the parties attached a "PROMISSORY NOTE" in which Mr. 

Russell agreed to pay Mrs. Russell $525,000.00 by monthly payments of $ 

2,000.00 per month commencing November 1, 2007 through October 1, 2017 and 

by making a "balloon payment" of$ 285,000.00 to Mrs. Russell on November 1, 

2017. Paragraph 20 of the parties, MSA provided that no modification or waiver 

of the parties' agreement is valid unless in "writing and signed by both parties." 

No written modification executed by the parties was offered into evidence. The 

parties' MSA contained no provisions that permitted this Comito modify Mr. 

Russell's obligations under paragraphs 4.D.2, 10 Band B.l of the agreement. 

Paragraph 4.D.2 sub-paragraphs (a) through (e) recited Mr. Russell's duty to pay$ 

525,000.00 to Mrs. Russell; that such debt would be secured by a promissory note; 

and reiterated the specific terms of the promissory note that were already 

described. Paragraph 4.D.2 sub-paragraph (t) specifically provided, "Whether or 

6 

As a starting point in determining these issues, this Court strictly applied the 

principle that 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. Brower, supra at 730; 23 Pa.C.S.A. § 3105(c). Stamerro v. 

Stamerro, 2005 PA Super 424, ,I 9, 889 A.2d 1251, 1258 (Pa. Super. 2005). 
7 

At argument for reconsideration, Counsel for Mr. Russell persisted in 

making his claim that the Court should modify the parties' MSA as a matter of 

equity. However, the primary asset to be distributed in the parties' MSA was Mr. 

Russell's closely held business. Mr. Russell both at hearing and in his motion for 

reconsideration argued that the MSA should be modified because he overvalued 

his closely held business. In response, this Court informed Mr. Russell's Counsel 

of the Superior Court's decision in Colonna v. Colonna, 2002 PA Super 376, 791 

A.2d 353 (Pa. Super. 2001). 

The lack of an applicable modification clause in the MSA and the express 

provisions of Paragraphs 4.D.2, 10 B and B. l and the Promissory Note foreclose 

consideration of eight (8) of Mr. Russell's claimed errors. This Court is unable to 

consider the parties' current economic circumstances when determining whether to 

enforce or modify their MSA. The second, third, fourth, sixth, eighth, ninth, tenth 

and eleventh allegations of error described above all were asserted to avoid Mr. 

Russell's clear and unambiguous duties to pay Mrs. Russell pursuant to Paragraphs 

4.D.2., 10 Band B.l and the Promissory Note. 

not any or all of these entities (Mr. Russell's businesses) are sold, the payment of 

the Two Hundred Eighty-Five Thousand Dollars ($285,000) lump sum payment 

shall be paid by Husband to Wife on or before November 1, 2017." 

.·- 
8 

through eight (8) of this Court's Order and Opinion of October 5, 2015. 

calculation of the amounts unpaid to Mrs. Russell is set forth on pages four (4) 

additional time to meet his obligations. A complete discussion of this Court's 

Instead, an extended schedule of payment was set forth to provide Mr. Russell 

immediately make all payments due pursuant to Paragraphs 4.D.2.,10 Band B.l. 

the MSA. This Court's Order of enforcement did not direct that Mr. Russell 

Finally, Mr. Russell alleged this Court's Order enforcing the MSA modified 

assignment of errors fifth, seventh and twelfth as set forth above are without merit. 

this Court's original Order and Opinion. For these reasons, Mr. Russell's 

of mutual mistake is set forth in detail at pages ten (10) through thirteen (13) of 

of Mr. Russell's business interests. This Court's discussion of Mr. Russell's claim 

parties' MSA was the product of a mutual mistake of fact regarding the true value 

Colonna, supra. at 355-56. 

Mr. Russell also faulted this Court for not accepting his claim that the 

Not surprisingly, we find no Pennsylvania statutory or case law declaring 

that overvaluing a closely-held business may render an antenuptial 

agreement unenforceable. The valuation of a closely-held corporation is not 

an exact science; reasonable minds often disagree on the worth of such a 

business, and the agreement evidences just that. .. 

Specifically, this Court cited the portion of the opinion that stated: 
9 

BY THE COURT 

For these reasons, this Court has found that Mr. Russell was not entitled to 

relief when he requested reconsideration of this Court's October 5, 2015 Order and 

Opinion. 
4(D)(2)(b) of the parties' MSA. On or before April 30, 2016 Mr. Russell shall pay 

Russell shall make monthly payments of$ 2,000.00 in conformity with paragraph 

On November l , 2015, and on the first day of each month thereafter, Mr. 

and shall continue making such payments through December 31, 2018. 

forth in paragraph 1 O(B )(I) of the parties' marriage settlement agreement ("MSA") 

Thereafter Mr. Russell shall continue making all monthly alimony payments as set 

alimony payments of$ 1,000.00 per month from March of2015 to date. 

On or before October 20, 2015, Mr. Russell shall make all outstanding 

GRANTED in part. 

DECREED that the Plaintiff's motion is DENIED and the Defendant's motion is 

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and review of the parties' written briefs, it is ORDERED, ADJUDGED, and 

And now, on this 5111 day of October, 2015, after a hearing, oral argument 

C) .-- 

·_::)' I I 

---~ ORDER 

DEFENDANT. 

MARGARET RUSSELL, 

Case No. 2006-6151 v. 

PLAINTIFF, 

BERNARD RUSSELL, 

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, 

PENNSYLVANIA 

CIVIL DIVISION 
2 

the sum of $18,000.00 towards the amounts due and owing and shall make five (5) 

additional $18,000.00 payments each on August 30, 2016, December 30, 2016, 

April 30, 2017 and August 30, 2017. $7,900.00 shall be added to the principal 

amount of this obligation and the term of re-payment for this obligation shall be 

extended to February 1, 2018 with Mr. Russell being obligated to pay$ 2,000.00 

on November 1, 2017, December 1, 2017, January 1, 2017 and $1,900.00 on 

February 1, 2018. 

On or before November 2, 2015, Mr. Russell shall provide Mrs. Russell with 

copies of all life insurance policies presently in force concerning Mr. Russell. Mrs. 

Russell shall be declared by Mr. Russell as the beneficiary on all such policies if 

the total death benefits payable are equal to or less than $ 1, 7 50,000. On or before 

December 31, 2015, Mr. Russell shall apply for and obtain such additional life 

insurance naming Mrs. Russell the beneficiary as is necessary to make certain that 

upon Mr. Russell's death Mrs. Russell receives$ 1,750,000. 

On or before, December 1, 2015 Mr. Russell shall pay Mrs. Russell's 

counsel fees in the amount of$ 1775.00 for fees she incurred to enforce the MSA. 

Such payment shall be remitted directly to Blackwell and Associates. 

On or before November 1, 2017 Mr. Russell shall remit the sum of 

$285,000.00 to Mrs. Russell. 

........... 
3 

Pa.C.S.A. § 330l(c) on December 13, 2007. Mr. Russell filed his affidavit of 

settled the parties' claims. Mrs. Russell filed her affidavit of consent pursuant to 23 

counsel for Margaret Russell filed a marriage settlement agreement ("MSA") that 

counts of no-grounds divorce and equitable distribution. On December 12, 2007, 

Bernard Russell filed a Complaint in Divorce on August 24, 2006. He raised 

Procedural History 

parties' marriage settlement agreement. 

Relief/Enforcement and Plaintiff Bernard Russell's counter-petition to modify the 

Before the court is Defendant Margaret Russel's Petition for Special 

Opinion 

BY THE COURT 

~~k-=----.L--_J. 

MICHAE fl LUCAS 

to demonstrate that such bonus was paid. 

bonus" from "Siemans" as this Court has found the evidence presented insufficient 

Mr. Russell shall have no obligation to pay any monies due to a "loyalty 

to contempt sanctions by this Court to include compensatory and coercive relief. 

Failure to comply with the provisions of this Order shall subject Mr. Russell 

.. -= .. 
4 

consent and the Praecipe to Transmit Record on the same day. The Honorable 

Janet Moschetta Bell signed a divorce decree on December 20, 2007. She adopted 

the parties' MSA in her Order. 

On May 12, 2015, Mrs. Russell presented a Petition for Special 

Relief/Enforcement. She alleged that Mr. Russell had failed to comply with the 

terms of the MSA. Specifically, she alleged that he had failed to pay her a portion 

of the vaJuation of his business, failed to make monthly alimony and asset 

distribution payments, and failed to make her a beneficiary of his life insurance as 

required by the parties' MSA. Mr. Russell responded with his own petition to 

modify, claiming the MSA was unenforceable on multiple grounds: that he agreed 

to its contents upon mistake, misunderstanding, that it was against public policy, 

that its purpose was frustrated, and that he entered into it due to the ineffective 

assistance of counsel. A hearing was conducted on June 1, 2015. Both parties 

testified. 

Without objection the parties stipulated to the admission of their divorce 

decree and MSA. (See Exhibit 1) Pursuant to paragraph 4 of the MSA, Mr. 

Russell retained his business interests "as his separate property ... " However, 

paragraph 4 obligated Mr. Russell to pay Mrs. Russell $ 575,000.00 for her marital 

interest in these business interests. Such amount according to Paragraph 4 required 

Mr. Russell to: 
1 If such monthly payments were received after the 1 o" day of any month, a 5% 

late fee is to be assessed and added to the principal until paid. 

5 

that Mrs. Russell is the "sole" and "irrevocable" beneficiary of those policies. 

upon death in the amounts of $750,000.00 and $1,000,000.00. The MSA mandates 

expense to Wife" shall "maintain" two separate life insurance policies payable 

Exhibit 1, par. lOB and B.1) Paragraph 14 provides that Mr. Russell "at no 

1,000.00 per month from January 1, 2014 through December 31, 2018. (See 

2,000.00 per month from January 1, 2011 through December 31, 2013 and$ 

par.4.D.3). Paragraph 10 of the MSA requires Mr. Russell to pay alimony of$ 

make such payment within thirty days of receipt of the bonus. (See Exhibit l, 

"loyalty bonus" of$ 250,000.00 from Siemans. Mr. Russell was mandated to 

Paragraph 4 of the MSA required Mr. Russell to pay one -half of an anticipated 

November 1, 2017(Par.4.D.e and f.). 

entities are sold, the payment of $285,000 shall be paid on or before 

Audilogics, Inc ... " and "whether or not any or all ofthese(Mr. Russell's) 

c. Pay a lump sum payment of $285,000.00 "when Husband sells 

(Par.4.D.2.b ); 1 and 

$2,000.00 per month for one hundred and twenty consecutive months 

b. Commencing November 1, 2007 and ending October 1, 2017 pay 

(Par.4(D.2.a); 

a. Pay Mrs. Russell $50,000.00 upon execution of the Agreement 
6 

The credible evidence presented established that Mrs. Russell has received 

two (2) checks of$ 50,000 each from Mr. Russell. Such checks were paid to Mrs. 

Russell for the purpose of partial satisfaction of Mr. Russell's obligations under 

paragraph 4 of the parties MSA. Mr. Russell never made monthly payments of$ 

2,000 per month as required by paragraph 4 (D)(2)(b) of the MSA. Mr. Russell 

sold his business Audiologies, Inc. on January 13, 2012 to Heather M. Gasparovic 

and he presently is paid on a commission basis by her for his work at his former 

business. In 2012, Mr. Russell received$ 368,816.25 in cash when he sold his 

business and also was relieved of the obligation to pay a personally guaranteed 

debt in the amount of$ 279,933.75. (See Exhibit A) Mr. Russell sold his business 

in 2012 and did not remit to Mrs. Russell the sum of$ 285,000. The confession of 

Judgment that Mr. Russell executed indicated this payment was due on or before 

November 1, 2017. (See Exhibitl attached "exhibit a") 

Mr. Russell has not been paying the monthly $2,000.00 amount due Mrs. 

Russell pursuant to paragraph 4.D.2.b. Mr. Russell offered no sufficient or 

credible excuse for this failure. He did pay the sum of $50,000.00 to Mrs. Russell 

after the sale of Audiologies, Inc. If such amount is credited towards the monthly 

obligation Mr. Russell has not made fifty-four (54) payments and never timely 

made a single monthly payment. At the time of June 1, 2015 hearing seventy-nine 

..,__.i....;.., 
7 

As for Mr. Russell's receipt of a "loyalty bonus" from Siemans, Mrs. Russell 

in her testimony conceded that she "did not know" if Mr. Russell had received 

such bonus. Mr. Russell credibly testified that he did not receive such bonus. His 

tax return for 2008 showed total income of $293,587 and in subsequent years 

amounts less than $150,000. However, the returns provided were incomplete and 

contained claimed adjustments to income that did not correspond to the MSA. 

Mr. Russell has not maintained life insurance in two separate amounts of$ 

1,000,000 and $750,000 as required by paragraph 14 of the parties' MSA. He 

indicated he has one policy in the amount of$ 250,000. 

The parties disputed Mr. Russell's payment of alimony in 2014. Mrs. 

Russell credibly testified that she was overpaid in the months of January and 

February in aggregate amount of $2,000.00. She indicated she did not receive 

alimony in November and December of 2014. The evidence demonstrated that as 

of the hearing on June 1, 2015 Mr. Russell had paid $2, 000. 00 towards total 

alimony due of$ 3, 000. 00 for the months of March, April and May of 2015. 

The parties disputed Mrs. Russell's entitlement to alimony. Mr. Russell 

claimed that Mrs. Russell is living with another man. Such claim was not proven 

monthly payments should have been made, which amounts to $158,000. Mr. 

Russell incurred a five percent (5%) late fee for every payment. Such fees totaled 

$7,900.00 as of June 1, 2015. 

--. .. 
8 

2 Additionally, the MSA provided that such alimony payments "shall not be 

reduced" because of "Wife's .... cohabitation." (See Exhibit A par. 10 D). 

3 Pennsylvania, like a majority of states, follows the rule that parties may 

contract to provide for the breaching party to pay the attorney fees of the prevailing 

party in a breach of contract case, but that the trial court may consider whether the 

fees claimed to have been incurred are reasonable, and to reduce the fees claimed if 

appropriate. McMullen v. Kutz, 603 Pa. 602, 613-15, 985 A.2d 769, 776-77 

(2009). In determining whether attorney's fees are reasonable, a trial court must 

consider numerous factors, including the following: 

the amount of work performed; the character of the services rendered; 

the difficulty of the problems involved; the importance of the 

litigation; ... the degree of responsibility incurred; ... the professional 

skill and standing of the attorney in his profession; the result he was 

able to obtain; and, very importantly, the amount of money or the 

value of property in question. 

issues presented in this matter.' 

amounts of fees awarded are appropriate in light of the complexity of the legal 

community and the customary fees charged within the local legal community. The 

are commensurate with his experience, reputation in the Washington County legal 

necessary charges. Counsel has achieved a favorable determination. Such charges 

1,000 in representation at and following the hearing are fair, reasonable and 

of the parties MSA. Mrs. Russell's fees of$ 775.00 prior to the hearing and$ 

following the hearing were necessary to enforce the clear and unambiguous terms 

1, 2015. Her counsel's attendance and participation in the hearing and his brief 

Mrs. Russell incurred counsel fees of$ 775.00 prior to the hearing on June 

mother.2 

credibly or persuasively. Mrs. Russell credibly testified that she lives with her 

-· ....... ---·-. 
9 

Wigwam Lake Club, Inc. v. Quintero, 426 C.D. 2011, 2012 WL 8677729 

(Pa.Cmwlth. June 11, 2012), citing In re LaRocca's Estate, 431 Pa. 542, 

548-549, 246 A.2d 337, 340. 

the words used herein a specific meaning and that the words, therefore, must be 

Finally, [the Cami] must assume that the parties knew that the law gives to 

659, 661 (1982). 

express terms will be given effect. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 

the parties is to be determined from the express language of the agreement and its 

When the language of a contract is clear and unambiguous, the intention of 

470, 905 A.2d 462 (2006). 

337 (2011), citing Insurance Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 

writing itself. Lesko v. Frankford Hospital-Bucks County, 609 Pa. 115, 15 A.3d 

the contracting parties. In cases of a written contract, the intent of the parties is the 

The fundamental rule in contract interpretation is to ascertain the intent of 

(1990). 

the terms of their agreements. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 

contracts: absent fraud, misrepresentation, or duress, the parties are to be held to 

agreements are contracts, and are to be evaluated under the same criteria as other 

nuptial agreements Stoner v. Stoner, 572 Pa. 665, 819 A.2d 529 (2003). Such 

Post-nuptial agreements are to be reviewed under the same principles as preStandard of Review 

-- 
10 

The misconception which avoids a contract is necessarily a mutual one, and 

a fact which entered into the contemplation of both parties as a condition of their 

assent". Ehrenzeller v. Chubb, 171 Pa.Super. 460, 90 A.2d 286, 287 (1952). And, 

Mistake 

Defendant, Margaret Russell, asserts in her petition for special relief and 

enforcement that Plaintiff, Bernard Russell, violated the terms and conditions of 

the parties Marriage Settlement Agreement (MSA). Specifically, she contends that 

he has failed to make $ 575,000 in payments as required by paragraph 4D of the 

MSA. She further asserts that Mr. Russell has failed and refused to pay agreed 

upon alimony at the rate of$ 1,000.00 per month since March 1, 2015. Finally, 

she has requested confirmation that Mr. Russell has maintained life insurance 

policies in separate amounts of one million dollars and seven hundred and fifty 

thousand dollars respectively. Pursuant to the MSA, Mrs. Russell has requested 

that the Court award attorneys' fees she incurred in pursuing enforcement. Mr. 

Russell urges the Court to reform the parties' agreement on the basis of mutual 

mistake and frustration of purpose. 

Discussion 

interpreted in their legal sense. [The Court] must also assume that the parties wrote 

this agreement in conformity to these well-established rules of contract 

construction. Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991). 

-- 
4 Pennsylvania also recognizes that a party to a contract in limited circumstances 

may gain relief due to a unilateral mistake. If a party to a contract knows or has 

11 

expectation of its future economic success.4 The evidence demonstrated that Mr. 

belief as to the value of Mr. Russell's hearing aid business or an unrealistic 

No testimony established that Mrs. Russell entered into the MSA with a mistaken 

prior counsel was ineffective and the value was not based upon a formal appraisal. 

success. Mr. Russell asserts such valuation was mistaken. Mr. Russell claims his 

MSA but was mistaken as to the value of his business and its future economic 

Russell contends that he, with the benefit of counsel, entered into a comprehensive 

mutually mistaken. The evidence revealed no mutual mistake of the parties. Mr. 

The Court finds no credible or persuasive evidence that the parties' were 

Gocek, 417 Pa.Super. 406, 409-10, 612 A.2d 1004, 1006 (1992). 

York Life Insurance Co., 408 Pa. 472, 184 A.2d 499, 500 (1962) and Gocek v. 

the mutual mistake by evidence that is clear, precise and convincing. Eugen v. New 

because of mutual mistake, the moving party is required to show the existence of 

subject-matter." (Citation omitted). Lastly, to obtain reformation of a contract 

mistake, if the parties [ can be] placed in their former position with reference to the 

fact which formed the inducement to it, may be rescinded on discovery of the 

again stated thusly: "A contract [made under] a mutual mistake as to an essential 

in Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858, 860 (1952), the general rule was 

-~-, 
reason to know of a unilateral mistake by the other party and the mistake, as well 

as the actual intent of the parties, is clearly shown, relief will be granted to the 

same extent as if a mutual mistake existed. Lapio v. Robbins, 729 A.2d 1229 

(Pa.Super.1999). Lanci v. Metropolitan Insurance Co., 388 Pa.Super. 1, 564 A.2d 

972 (1989). In such a situation, Id.; Restatement (Second) of Contracts§ 153. The 

evidence in this case did not clearly establish that Mrs. Russell knew or had reason 

to know that Mr. Russell was unilaterally mistaken as to the value of his business 

when the parties executed the MSA in 2007. Mr. Russell's evidence and 

argument contended that events, being the 2008 financial crisis, which occurred 

after the MSA was executed demonstrated that the parties were mistaken as to the 

future economic prospects of his business. If a mistaken and contractually unstated 

belief concerning one's future economic prospects were proper grounds to rescind 

one's contractual obligations, commercial relationships and domestic agreements 

would have no more permanence than a child's sand castle near the shore of the 

Atlantic Ocean while Hurricane Joaquin approaches. 

12 

presently litigating equitable distribution of their marital estate. However, the 

Mr. Russell's claims would have some persuasive effect if the parties were 

his business. 

twenty (20) location franchise that Mr. Russell testified he charted as the course for 

could claim no greater amount due her if Audiologies suddenly blossomed into a 

Audiologies for the purposes of equitable distribution was capped. Mrs. Russell 

The parties' intention in the MSA could not be clearer. The value of 

agreed upon value of $1, 15 0, 000 for Mr. Russell.' s business. 

was willing to accept delayed payments of certain specific sums based upon an 

his business would grow and expand. The evidence indicated that Mrs. Russell 

$1, 150,000. Mr. Russell advances that he based such valuation on his belief that 

Russell and Mrs. Russell agreed in 2007 that Mr. Russell's business had a value of 

- .. 
13 

Frustration of Purpose 

Mr. Russell argues that the contract should be modified on the basis that its 

purpose has been frustrated. 

The credible and persuasive evidence presented in this case demonstrated no 

fraud, duress, mutual or unilateral mistake of the parties. The parties entered into a 

counseled arm's length transaction that was reduced to a comprehensive written 

agreement. Mr. Russell's gamble that such agreement would ultimately be 

beneficial to him due to the expected growth of his business proved unwise. Mrs. 

Russell was not contractually obligated to insure the declining economic fortunes 

of Mr. Russell or his business, Audiologies. 

Parties are free to enter into agreements that they may later regret. Absent 

fraud or duress, however, the agreement is enforceable. See Adams v. Adams, 414 

Pa.Super. 634, 607 A.2d 1116 (1992) and Middleton v. Middleton, 2002 PA Super 

371, ,r 20, 812 A.2d 1241, 1248 (Pa. Super. 2002). 

matter to be decided by this Court is not equitable distribution of a marital estate. 

The MSA Mr. Russell entered into eight (8) years ago included a mutual waiver 

and release of claims including the right to "apply to any court for modification of 

this Agreement ... whether pursuant to the Divorce Code or any other present or 

future statute or authority." (See Exhibit 1, p.25-26) 

_,-.-.~. 
14 

The Commonwealth recognizes that the Doctrine of Frustration of Purpose 

exists as a defense to the performance of a contract. When people enter into a 

contract which is dependent for the possibility of its performance on the continual 

availability of a specific thing, and that availability comes to an end by reason of 

circumstances beyond the control of the parties, the contract is prima facie 

regarded as dissolved." Ragnar Benson, Inc. v. Hempfield Tp. Mun. Authority, 916 

A.2d 1183 (Pa. Super. 2007), citing Hart v. Arnold, 8 84 A.2d 3 16, 3 3 5 

(Pa.Super.2005). 

First, the purpose that is frustrated must have been a principal purpose 

of that party in making the contract. It is not enough that he had in mind 

some specific object without which he would not have made the contract. 

The object must be so completely the basis of the contract that, as both 

parties understand, without it the transaction would make little sense. 

Second, the frustration must be substantial. It is not enough that the 

transaction has become less profitable for the affected party or even that he 

will sustain a loss. The frustration must be so severe that it is not fairly to be 

regarded as within the risks that he assumed under the contract. Third, the 

non-occurrence of the frustrating event must have been a basic assumption 

on which the contract was made. This involves essentially the same sorts of 

determinations that are involved under the general rule on impracticability. 
15 

Step Plan Services, Inc. v. Koresko, 12 A.3d 401 (Pa. Super. 2010), quoting 

Restatement (Second) of Contracts, § 265 

However, one party's wholly subjective expectations are insufficient to 

avoid enforcing an otherwise clear agreement based on the frustration of purpose 

doctrine. Step Plan Services, Inc. v. Koresko, 12 A.3d at 413, citing American 

Bank and Trust Co. of Pennsylvania v. Lied, 487 Pa. 333, 339, 409 A.2d 377, 380 

(1979). Settlement agreements are subject to enforcement notwithstanding one 

party's failure to anticipate related complications prior to performance. Miller v. 

Ginsberg, 874 A.2d 93, 99 (Pa. Super. 2005). 

Mr. Russe11 's testimony established that events of the past 8 years have 

made his decision to agree to the MSA less prudent today than it was in 2007. He 

explained his subjective intent was that Mrs. Russel should receive half of the 

proceeds from the sale of his business. The plain language of the MSA does not 

support this claim. His payment of merely $50,000.00 to Mrs. Russell following 

the sale of the business is not consistent with an intent of "1/2 and 1/2." To the 

contrary, the evidence clearly demonstrates a pattern of dilatory behavior by Mr. 

Russell with regard to contractual obligations to Mrs. Russell. Mr. Russell's 

evidence did not establish circumstances so severe as notfairly to be regarded as 

within the risks that he assumed under the MSA. The MSA did not condition Mr. 

Russell's future obligations on the financial well-being of Audiologies. No escape 
16 

s See Paragraph 22 of the MSA. 

Conclusion 

For these reasons, the Court grants the Defendant's Motion for Special 

Relief and Enforcement. Furthermore, because the Defendant was required to 

litigate in order to enforce the MSA, the Court shall award appropriate counsel 

fees.5 

clause is set forth in the agreement. Mr. Russell owned and operated Audiologies. 

The evidence did not establish that Mrs. Russell had superior knowledge of 

Audiologies value in 2007 and its future business success. Every financial 

agreement, whether commercial or domestic, carries some risk for the parties. Mr. 

Russell's present appreciation of that risk is not grounds to justify his breach of the 

parties' MSA.