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-A17044
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_____________________________ *Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 EILEEN M. VANETT IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. BRUCE B. VANETT Appellant No. 1792 EDA 2015

Appeal from the Order Entered June 12 , 2015 In the Court of Common Pleas of Delaware County

Civil Division at No(s): 1997
- 8655
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 21, 2016 Appellant, Bruce B. Vanett (“Husband”), appeals from the order 1 entered in the Delaware County Court of Common Pleas that denied his petition for a declaratory judgment to cease his contractual obligation to maintain life insurance for th e benefit of the parties’ children, pursuant to a divorce
- related property settlement agreement (“PSA”). 2 We affirm.

____________________________________________ 1 The court entered the order on app eal on Friday, June 12, 2015. Notice per Pa.R.C.P. 236 was issued on Monday, June 15, 2015.
2 Notwithstanding the manner in which this appeal is captioned, throughout most of the certified record, Husband is designated as plaintiff and Appellee, Eileen M. Vanett (“Wife”) is designated as defendant. Sometimes in the course of the current matter, the designations are periodically reversed, without explanation. Husband, however, initiated the declaratory judgment (Footnote Continued Next Page)J
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- 2
-

The relevant facts and procedural history of this case can be summarized briefly as follows. On July 20, 1999, the parties executed a PSA in anticipation of their divorce. Under the PSA, Husband was obliged to pay alimony, child support, and maintain $950,000.00 in life insurance for the benefit of the parties’ children. Contrary to other provisions within the PSA, namely, the alimony and child support payments, the life insurance obligation did not include a termination date or any circumstance to end the insurance obligation. Further, the life insurance topic was covered under a separate, non - contiguous section of the PSA; and the PSA drew no connection between the life insurance provisions and the child support provisions. Importantly, the PSA also contained an integration clause. On September 16, 1999, the parties formally divorced and incorporated the PSA in the divorce decree. On October 12, 2012, the parties entered and filed a stipulation for an agreed order to terminate child support, which was approved by court order on October 15, 2012. Husband filed a petition for declaratory judgment on September 20, 2013, to terminate his life insurance obligation under the PSA. On March 21, 2014, Wife filed a motion in limine to preclude parol evidence related to the PSA. The court heard argument on the motion on March 25, 2104, and granted it on April 10, 2014. The declaratory jud gment (Footnote Continued)

_______________________ proceedings. Husband is also a medical d octor, whose professional initials (M.D.) were only recently added to his name in some of the court filings.J
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-

proceedings continued on June 9, 2014, with argument from counsel. Husband submitted a pre
- trial brief to the court on November 18, 2014, with a copy to Wife’s counsel on that date. On November 19, 2014, the court heard testimony from the parties, including direct and cross
- examination. Wife’s counsel asked to file a response to Husband’s pre
- trial brief by December 5, 2014. Husband’s counsel filed a reply to the response on December 12, 2014. 3 On June 12, 2015, the court denied Husband’s petiti on for declaratory judgment, with Rule 236 notice sent on Monday, June 15, 2015. Husband did not file post
- trial motions; instead, he filed a notice of appeal on June 18, 2015. On June 22, 2015, the court ordered Husband to file a concise statement of er rors complained of on appeal per Rule 1925(b); Husband timely complied on July 9, 2015. Husband raises the following issues for our review: DID THE TRIAL COURT ERR BY FINDING THAT [HUSBAND] IS OBLIGATED TO MAINTAIN HIS LIFE INSURANCE OBLIGATION UNDER TH E JULY 20, 1999 PROPERTY SETTLEMENT AGREEMENT FOR [WIFE] AND THEIR CHILDREN WHERE THERE IS NO UNDERLYING OBLIGATION FOR ALIMONY OR CHILD SUPPORT OWED TO EITHER[?] DID THE TRIAL COURT ERR BY PRECLUDING [HUSBAND]

____________________________________________ 3 Husband’s pre
- trial brief does not appear as filed of record on the certified docket, and it is absent from the certified record on appeal. Wi fe’s responsive brief and Husband’s reply brief, however, are included in the certified record on appeal.J
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- 4
- FROM PRESENTING PAROL EVIDENCE AS TO THE PARTIES’ INTENT REGARDING THE DURATION AND TERMINATION OF THE LIFE INSURANCE OBLIGATION? DID THE TRIAL COURT ERR IN FINDING THAT [HUSBAND] IS OBLIGATED TO MAINTAIN HIS LIFE INSURANCE OBLIGATION FOR [WIFE] AND THE CHILDREN DESPITE THE EVIDENCE PRESENTED AT THE HEARING, INCLUDING, BUT NOT LIMITED TO, THE POST
- CONTRACT FORMATION EVIDENCE PRESENTED BY [HUSBAND]? (Husband’s Brief at 6). Husband argues the life insurance section of the PSA is ambiguous, given that the agreement omits a termination date for th e obligation, and Husband would eventually be required to maintain life insurance even where financially impossible or unreasonably burdensome. Husband avers that the intent of the parties regarding the duration of the insurance obligation necessitated th e admission of parol evidence of the parties’ intent at the time of contract formation as well as evidence of subsequent performance and conduct after contract formation. Even without the parol evidence of pre - agreement intent, Husband insists the parties ’ post
- agreement actions clarified that they intended to link the insurance obligation to the child support. Specifically, Husband contends the parties intended to terminate the insurance obligation when the parties’ children became adults, i.e. , when the parties agreed to end child support payments; likewise, Wife at no time insisted that Husband purchase whole life as opposed to term life insurance. Husband concludes the court erred in excluding all extrinsic evidence related to the insurance obligation because the extrinsic evidence showed the intentJ
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of the parties to the PSA; and he is entitled to a new trial. We cannot agree. As a prefatory matter, we must determine whether Husband properly preserved his issues for review. See Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007), aff’d, 602 Pa. 147, 977 A.2d 1170 (2009) (citing Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006)) (stating: “This Court may sua sponte determine whether issues have been properly preserved for appeal”); Hall v. Owens Corning Fiberglass Corp. , 779 A.2d 1167, 1169 (Pa.Super. 2001) (stating: “[P]ost
- trial relief may not be granted unless the grounds for such relief are specified in the post
- trial motion. Grounds not specified in the post
- trial motion are de emed waived”) (internal citations omitted); Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 (Pa.Cmwlth. 1998) (stating party’s failure to file post
- verdict motions constitutes waiver of all issues on appeal; whether appellant has preserved any issue for appeal can be raised sua sponte by reviewing court). Pennsylvania Rule of Civil Procedure sets out the requirements for post - trial relief and states in pertinent part:

Rule 227.1. Post-Trial Relief * * * (c) Post Trial motions shall be file d within ten days after (1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or (2) notice of nonsuit or the filing of theJ
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- decision in the case of a trial without a jury. If a party has filed a timely post
- trial motion, any other party may file a post
- trial motion within ten days after the filing of the first post
- trial motion. Note : A motion for post
- trial relief may be filed following a trial by jury or a trial by a judge without a jury pursu ant to Rule 1038. A motion for post
- trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a tr ial. See U.S. National Bank in Johnstown v. Johnson , 506 Pa. 622, 487 A.2d 809 (1985). * * * The filing of a motion for post
- trial relief is prohibited by the following rules: Rule 1557 (order directing partition) and Rule 1930.2 (no post
- tria l practice in domestic relations matters). Pa.R.C.P. 227.1(c)(1)
- (2) and Note . Generally, following a trial, an appellant must file post
- trial motions to preserve issues for appellate review; issues not raised in post
- trial motions are waived. Chalkey v . Roush , 757 A.2d 972, 975 (Pa.Super. 2000) ( en banc), aff’d, 569 Pa. 462, 805 A.2d 491 (2002). D eclaratory judgment actions, like all others, are subject to post
- trial practice when resolved after a trial. Crystal Lake Camps v. Alford, 923 A.2d 482, 4 88 (Pa.Super. 2007) (citing Motorists Mut. Ins. Co. v. Pinkerton , 574 Pa. 333, 342, 830 A.2d 958, 963 (2003) ).

[T]he Declaratory Judgment Act should not be interpreted to undermine the uniform procedures that [the Supreme Court of Pennsylvania] has devised with respect to post
-J
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- trial proceedings. [ Motorist Mut. Ins. Co. ] ultimately evinces the Supreme Court’s intent that post
- trial practice be dictated primarily by the manner in which a case is disposed, not merely by the form of the action. Hence, declaratory judgment actions, like all others, are subject to post - trial practice when resolved after trial, while actions resolved by peremptory remedies are not. See [ id. ] ([stating:] “[W]here a trial court enters a declaratory order following a trial, parties must file post
- trial motions from that order, as they would in any other civil proceeding, before the order may be deemed a final order for purposes of an appeal. On the other hand, where the trial court enters a declaratory order based on a pretr ial motion...the parties are obviously not required to abide by the post
- trial practice rules governing civil proceedings”); Pa.R.C.P. 227.1(c), Note: ([stating:] “A motion for post
- trial relief may not be filed to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a trial”). The plain language of Pa.R.C.P. 227.4 makes it clear that the Rule’s post - trial procedure is inexorably i ntertwined with post
trial motion practice under Pa.R.C.P. 227.1. Therefore, by subjecting declaratory judgment actions to the post
- trial practice of Pa.R.C.P. 227.4, our decision today is in accord with [ Motorist Mut. Ins. Co. ]’s primary purpose of achieving procedural uniformity between actions at law and equity. ...[W]e conclude that [ Motorist Mut. Ins. Co. ], considered together with Rules 227.4 and 227.1, is controlling authority on the matter and compels the result that we reach today. Crystal Lake Camps, supra at 488
- 89 (most internal citations and quotation marks omitted). But see Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1119 n.3 (Pa.Super. 2007) (distinguishing pre
- trial order imposing preliminary injunction as immediately appealable under Pa.R.A.P. 311(a)(4); preliminary injunction in this case “followed a proceeding in the nature of a pre
- trial evidentiary hearing”; “Only where a declaratoryJ
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judgment is entered after a jury or non
-jury trial, must post
- trial motions be filed to preserve i ssues for appellate review”). See also Pa.R.C.P. 1930.2 (stating: “There shall be no motions for post
- trial relief in any domestic relations matter”; abolishing all post
- trial practice in domestic relations cases). In the present case, Husband filed fo r declaratory judgment on September 20, 2013. Wife filed a motion in limine , and the court heard oral argument on Wife’s motion on March 25, 2014. On June 9, 2014, the court conducted a hearing, with argument from counsel for both parties. Husband submi tted a pre
- trial brief on November 18, 2014. A day later, the court received testimony from both parties, including direct and cross
examination. Wife’s counsel filed a response to Husband’s pre
- trial brief on December 5, 2014, and Husband filed a reply to that response on December 12, 2014. The trial court denied Husband’s request for declaratory relief on June 12, 2015, with Rule 236 notice sent to the parties on June 15, 2015. Here, the court proceedings consisted of hearings, testimony, and argume nts, which constituted a trial. The parties exchanged pre
- trial briefs. Husband even requests relief on appeal in the form of a new trial. The order denying declaratory judgment finally resolved the issue before the court. Thus, the proceeding was not “in the nature of a pre
- trial evidentiary hearing.” See Jarl Investments, L.P., supra . As a result, Husband was arguably subject to the applicable rules governing post
- trial procedure. SeeJ
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Pa.R.C.P. 227.1(c)(1). Husband did not file post
- trial motions. Yet, to the extent this case can be viewed as a domestic relations matter, the absence of post
- trial motions is not fatal to Husband’s claims because Rule 1930.2 preempts Rule 227.1 and controls. See Pa.R.C.P. 1930.2(a). Nevertheless, after a thoroug h review of the record, the briefs of the parties, the applicable law, and the opinion of the Honorable Ann A. Osborne, we conclude Husband’s claims merit no relief. The trial court opinion properly discusses and disposes of the questions presented. See Trial Court Opinion, filed December 31, 2015, at 3
- 7, 9
- 10 (concluding: (1 - 2) life insurance section of PSA is independent of alimony or child support, so Husband’s contention that life insurance obligation is somehow connected to support commitment is unfounded; insurance obligation endures until Husband’s death; parties added no termination condition to life insurance obligation whereas alimony and child support provisions specify conditions for payments to end; life insurance clause is detailed, clear, a nd incapable of being understood in more than one reasonable sense; (3) absent any ambiguity in life insurance provisions, court saw no need for extrinsic evidence to interpret PSA). We agree but add one qualification. We observe that a court can look to subsequent conduct of the parties or course of performance evidence as an aid to contract interpretation, so long as the conduct/performance evidence manifests a common understanding of the agreement at issue. See Herzog v. Herzog , 887 A.2d 313 (Pa.Super
.J
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2005). In this particular context, the agreement does not necessarily have to be first deemed ambiguous. Here, however, the court declined to consider Husband’s extrinsic evidence, which was the court’s prerogative, because Husband’s extrinsic evidence did not manifest a common understanding but only his unique understanding of the PSA. Accordingly, we affirm on the basis of the trial court opinion with this minor qualification. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/21/2016Circulated 07/08/2016 10:10 AM

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CIVIL ACTION -LAW EILEEN M. VANETT Plaintiff /Appellee


### vs. BRUCE B. VANETT Defendant/Appellant DOCKET NUMBER: 

### 1997 

### -008655
1792 EDA 

### 2015 IN CUSTODY Mary 

### Cushing Doherty, Esq., Attorney for 

### Plaintiff Lynne Z. Gold -Bikin, 

### Esq., Attorney for 

### Defendant 

### OPINION OSBORNE, 

### S.J. FILED: 

### December 31, 

### 2015
Procedural History Appellant, 

### Bruce B. 

### Vanett, (Husband) 

### appeals from 

### this Court's Order 

### dated 

### June 12, 

### 2015 

### denying 

### his Petition for 

### Declaratory 

### Judgment. In 

### the 

### prayer for relief 

### sought, 

### Husband's Petition 

### requested 

### that this Court issue Declaratory 

### Judgment directing 

### that he is no 

### longer 

### required to 

### maintain his life 

### insurance obligation 

### arising 

### out of 

### the 

### parties' Property 

### Settlement Agreement in 

### this action in divorce. The 

### June 12, 

### 2015 

### Order was 

### entered following 

### hearings conducted on March 25, 

### 2014, 

### June 9, 

### 2014, 

### and November 19, 

### 2014. On 

### June 18, 

### 2015, 

### Husband, 

### through counsel, filed 

### his Notice of Appeal to 

### Superior Court 

### and on 

### June 22, 

### 2015, 

### this Court 

### entered its Order Requiring 1925(b) 

### Statement. Appellant filed 

### his Concise 

### Statement of 

### Matters Complained of on Appeal on 

### July 9, 

### 2015. 

### Appellant's Concise 

### Statement of 

### Matters Complained of on Appeal 

### raises six 

### issues for review. They 

### are 

### presented substantially verbatim as follows. 

### First,



### (5k Circulated 07/08/2016 10:10 AM

### Husband contends 

### that the Trial 

### Court Court 

### erred in finding 

### that Defendant is obligated to 

### maintain his life 

### insurance obligation 

### under the 

### July 20, 1999 

### Property 

### Settlement Agreement for 

### Plaintiff 

### and their children when 

### there is no 

### underlying obligation for 

### alimony or 

### child 

### support owed for 

### either. 

### Husband next 

### contends 

### that this Court erred by 

### precluding Defendant from 

### presenting parol evidence 

### as to 

### the 

### parties' 

### intent regarding 

### the 

### duration and termination of 

### the life 

### insurance obligation. 

### Husband also 

### argues 

### this Court 

### erred in failing to 

### consider the 

### contradictions between 

### Paragraph 7 

### and 

### Paragraph 4.1 of 

### the 

### parties' Property 

### Settlement Agreement 

### as they 

### pertain to 

### the 

### termination of 

### Defendant's obligation for life 

### insurance. Fourth, 

### Husband states 

### that this Court 

### erred in finding 

### the 

### Defendant is 

### obligated to 

### maintain his life 

### insurance obligation for 

### the Plaintiff 

### and 

### the 

### children despite evidence of 

### the 

### unconscionability to 

### require Defendant to 

### continue paying for life 

### insurance when there is no 

### purpose of 

### funding it 

### at a 

### huge 

### cost to 

### him 

### at his age. 

### Husband also 

### argues the Trial 

### Court 

### erred in 

### finding 

### that Plaintiff 

### had standing to 

### bring 

### this action when 

### the life 

### insurance is 

### ostensibly payable to 

### a 

### trust for 

### the 

### parties' children. Finally, 

### Husband contends this Court 

### erred in 

### finding 

### that Defendant is 

### obligated to 

### maintain his life 

### insurance obligation for 

### Plaintiff 

### and the 

### children despite 

### the evidence 

### presented 

### at the 

### hearing, including, 

### but not limited to, 

### the post- 

### contract formation evidence 

### presented by 

### Defendant.

2

### Statement of Law
As 

### our Superior Court 

### has stated, "The 

### determination of 

### marital property rights 

### through 

### prenuptial, postnuptial and settlement agreements 

### has long been 

### permitted, 

### and even 

### encouraged. Both 

### prenuptial 

### and post

### -nuptial agreements are 

### contracts 

### and are governed by 

### contract law. Moreover, a 

### court's order upholding the 

### agreement in divorce 

### proceedings is 

### subject to 

### an 

### abuse of 

### discretion or 

### error of law 

### standard of review. An 

### abuse of 

### discretion is 

### not lightly 

### found, 

### as it 

### requires clear 

### and convincing evidence 

### that the 

### trial 

### court misapplied 

### the law or failed to follow 

### proper legal 

### procedures. We will 

### not 

### usurp the 

### trial court's factfinding function." Paroly v. 

### Paraly, 

### 876 A.2d 1061, 1063 (Pa. 

### Super. 2005) 

### When 

### interpreting a 

### contract, the 

### Court may not 

### consider extrinsic evidence 

### unless the 

### terms of 

### the 

### contract are 

### ambiguous. Seven Springs Farm, Inc. v. Croker, 

### 748 A.2d 

### 740, 744 (Pa. 2000). A 

### contract is 

### ambiguous "if it is 

### reasonably 

### susceptible of 

### different 

### constructions and capable of being 

### understood in more 

### than
one 

### sense. Lang v. Meske, 

### 850 A.2d 

### 737, 739 -40 (Pa. Super. 2004). Where 

### a 

### contract fails to provide for 

### a specific 

### contingency, 

### the 

### contract is 

### silent, 

### not 

### ambiguous. Seven Springs Farm, Inc., 

### 748 A.2d 

### at 744. 

### Discussion
In 

### his first 

### assignment of 

### error, 

### Husband contends 

### that this Court erred in 

### finding 

### that Defendant is 

### obligated to 

### maintain his life 

### insurance obligation 

### under the 

### July 20, 1999 

### Property 

### Settlement Agreement 

### (hereinafter "PSA ") for Plaintiff 

### and their 

### children when 

### there is no 

### underlying obligation for 

### alimony or child 3

### support owed to 

### either. 

### Husband's claim 

### that his obligation to 

### maintain life 

### insurance 

### under the Property 

### Settlement Agreement is 

### contingent 

### upon his obligation to 

### pay alimony or child 

### support is 

### incorrect and 

### contrary to 

### the plain language of 

### the Property 

### Settlement Agreement. 

### This Court 

### found 

### that the plain language of 

### the Life 

### Insurance clause of 

### the 

### Property Settlement Agreement was 

### not ambiguous 

### and therefore, 

### based on 

### the 

### applicable case law, 

### extrinsic evidence 

### as to 

### the 

### intent of 

### the 

### parties was 

### not admissible. The Life 

### Insurance clause 

### makes no 

### mention 

### at all of 

### alimony or child 

### support so 

### Father's contention 

### that life 

### insurance is 

### connected to 

### the obligation to pay 

### support is completely 

### unfounded. 

### Husband 

### has argued 

### that the life 

### insurance was 

### put in 

### the PSA to 

### ensure payments of 

### alimony in 

### case 

### Husband were to die before 

### his obligation to 

### pay alimony 

### ceased. (N.T. 

### 3/25/14, p. 13 -14) This is simply 

### not the case. The 

### relevant portion of 

### Section 4.1 (Alimony) of 

### the PSA 

### states:
"Commencing on 

### the execution 

### date and terminating on 

### December 31, 

### 2004, 

### Husband shall pay Wife 

### the 

### sum of Two 

### Thousand Two 

### Hundred Fifty 

### Dollars ($2,250.00) 

### per 

### month as alimony, on 

### the 

### first day of 

### each month. 

### Husband's obligation to 

### make 

### such payments 

### shall 

### terminate 

### upon Wife's 

### death or 

### Husband's death only, provided he 

### has complied 

### with 

### the 

### insurance provisions of 

### this Agreement."

4

### Furthermore, the 

### fact 

### that the 

### parties' Property 

### Settlement Agreement does 

### not provide 

### a 

### termination date of 

### Defendant's obligation to 

### maintain a life 

### insurance policy does 

### not 

### result in 

### an ambiguity, 

### because the lack of a 

### termination clause is 

### not 

### susceptible to 

### different 

### constructions nor is 

### it 

### capable of being 

### understood in

more 

### than one 

### sense. Finally, 

### as was 

### mentioned above, 

### the Life 

### Insurance section 

### lists the terms which 

### must be 

### included in 

### the 

### insurance policies. These 

### include 

### that "1) 

### the policies 

### shall be 

### automatically renewable; 2) 

### the policies 

### shall 

### not be 

### cancelable on 

### account of, 

### and renewal 

### shall not be 

### contingent 

### upon, Husband's health; 

### and 3) The 

### policies 

### shall 

### not be 

### cancelable on 

### account of, 

### and renewal 

### shall 

### not be 

### contingent upon, 

### Husband's employment or 

### lack 

### thereof" 

### Instead of 

### mentioning a 

### termination date, the 

### plain 

### language of 

### this section 

### mentions 

### the 

### continuation of 

### the life 

### insurance policies. As 

### the language is clear 

### and 

### unambiguous, this Court did 

### not


### err in 

### choosing 

### not to 

### admit parol evidence. 

### Husband's third 

### argument is 

### much like 

### his first. He 

### contends 

### that this Court 

### erred in failing to 

### consider the 

### contradictions between 

### Paragraph 7 

### and 

### Paragraph 4.1 of 

### the 

### parties' Property 

### Settlement Agreement 

### as they 

### pertain to 

### the 

### termination of 

### Defendant's obligation for life 

### insurance. As is 

### stated in 

### the analysis of 

### the first 

### issue above, 

### there are 

### not contradictions between Section 4.1 

### regarding Alimony 

### and Section 7 

### regarding Life 

### Insurance. Therefore 

### the Court need 

### not 

### further 

### address this issue here.

7Next, 

### Husband alleges 

### that this Court erred in finding 

### the 

### Defendant is obligated to 

### maintain his life 

### insurance obligation for 

### the Plaintiff 

### and the children despite evidence of 

### the 

### unconscionability to 

### require Defendant to 

### continue paying for life 

### insurance when 

### there is no 

### purpose of 

### funding it 

### at a 

### huge 

### cost to 

### him 

### at his age. "In 

### order for 

### a 

### court to 

### deem 

### a 

### contractual provision 

### unconscionable it 

### must determine 

### both 

### that the 

### contractual terms are 

### unreasonably favorable to 

### the 

### drafter 

### and 

### that there is 

### no 

### meaningful choice on 

### the 

### part of 

### the 

### other 

### party regarding 

### acceptance of 

### the provisions." Colonna v. Colonna, 791 A.2d 

### 353, 

### 357 (2001). In 

### the 

### present case, 

### Husband 

### has failed to show 

### any evidence of 

### either factor. The PSA for 

### Husband 

### and Wife 

### was 

### jointly 

### prepared by 

### their 

### then counsel 

### and was signed by 

### each 

### party immediately below 

### the 

### clause 

### stating 

### that "Each 

### party 

### has carefully 

### read 

### and fully 

### considered 

### this Agreement 

### and all of 

### the 

### statements, terms, conditions 

### and provisions 

### thereof prior to 

### signing below." As 

### the PSA was 

### not drafted by 

### either party, it 

### cannot be 

### deemed to be 

### unreasonably favorable to 

### either party. And 

### as was found in Colonna, 

### Husband has failed to show 

### that the 

### parties were 

### not of "equal 

### bargaining power" 

### when 

### creating 

### and entering the PSA 

### and therefore 

### has failed to show 

### there was no 

### meaningful choice 

### regarding acceptance of 

### the provisions. Id. 

### at 357. 

### Appellant's fifth 

### contention is 

### quite puzzling to the 

### Court. 

### Husband argues the Trial 

### Court 

### erred in 

### finding 

### that Plaintiff 

### had standing to 

### bring 

### this action when 

### the life 

### insurance is 

### ostensibly payable to 

### a 

### trust for the 

### parties' children. This is 

### not 

### accurate. 

### Husband is 

### the Plaintiff in 

### this Complaint in Divorce. He filed 

### the

8Petition for 

### Declaratory 

### Judgment at issue in 

### this appeal, 

### designating Wife 

### as the opposing 

### party. 

### Husband may 

### not choose 

### the 

### party required to 

### defend 

### the Petition 

### and then also 

### claim she 

### does 

### not have 

### standing to 

### defend 

### the claim. Additionally, 

### "standing" is a 

### premise 

### that describes "a 

### party's right to 

### make a legal claim or 

### seek 

### judicial enforcement of a 

### duty or right." 

### Black's Law Dictionary, p. 1413 (7th ed. 1999). A 

### plaintiff's 

### challenge to 

### the 

### standing of a 

### defendant plaintiff 

### has selected is 

### meritless. 

### Standing does 

### not apply to 

### someone's ability to 

### defend 

### an action, 

### at least where 

### the sole 

### plaintiff 

### has selected a sole 

### defendant. Finally, if 

### this were 

### not a 

### meritless claim, 

### it 

### was never 

### raised prior to 

### this appeal and is 

### therefore waived. Finally, 

### Husband contends this Court erred in finding 

### that Defendant is obligated to 

### maintain life 

### insurance for Plaintiff 

### and the 

### children despite the evidence 

### presented at the hearing, including, 

### but not limited to, 

### the post- 

### contract formation evidence 

### presented by 

### Defendant. It is 

### true that "subsequent conduct of 

### the parties, course of 

### performance, is 

### an aid to 

### interpretation," however, 

### a 

### Court 

### must first find 

### that the language of 

### the 

### contract is 

### ambiguous before looking to 

### extrinsic evidence for 

### interpretation of 

### that language. See, Herzog v. Herzog, 887 A.2d 313, 

### 316 (2005). Since 

### there was no 

### ambiguity, the 

### Court will 

### not look to 

### extrinsic evidence. 

### Additionally, 

### Husband argued 

### at the 

### hearing 

### that since he 

### barely 

### had 

### a relationship with 

### his 

### children he would not have 

### entered an agreement 

### requiring him to 

### maintain life 

### insurance for 

### his children 

### past the time he 

### was 

### required to 

### pay for 

### their other obligations 

### such as child 

### support and education. This 

### argument does 

### not make sense when combined with 

### Husband's testimony 

### that

9he 

### barely 

### had a 

### relationship with 

### the children 

### at the time of 

### signing the PSA. (N.T. 

### 11/19/14, p.42 From 

### the testimony of 

### the 

### parties 

### at the 

### hearing it was 

### apparent to 

### the 

### Court 

### that Husband did 

### not have 

### a 

### significant 

### relationship with 

### his 

### children 

### at the time of 

### signing 

### the PSA 

### therefore 

### his 

### continued lack of 

### relationship with 

### them in 

### the 

### years since signing 

### the PSA is 

### not dispositive in 

### determining the 

### intent of 

### the 

### parties or 

### whether or 

### not 

### Husband 

### must continue to 

### maintain life 

### insurance to 

### fund 

### the 

### trust which was 

### established solely for 

### the benefit of 

### the 

### parties' children.
CONCLUSION 

### This 

### Court did 

### not make an 

### error or law 

### nor did it 

### abuse its 

### discretion. For all of 

### the 

### reasons set 

### forth above, 

### this Court respectfully 

### submits 

### that the Order 

### entered on 

### June 12, 

### 2015 denying 

### the Petition for 

### Declaratory 

### Judgment is 

### proper 

### and should be affirmed.

BY THE COURT:

Ann 

### Osborne,

10 

### S.J.

C73