J-A24011-16

2017 PA Super 253

PETER Y. BENNETT IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

PAMELA A. BENNETT

No. 428 EDA 2016

Appeal from the Order January 19, 2016

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 1995-60876-E

BEFORE: BOWES, OTT AND SOLANO, JJ.

OPINION BY BOWES, J.: Filed August 4, 2017

Peter Y. Bennett (“Husband”) appeals from the March 1, 2016 order 

imposing a constructive trust over a pension benefit that accrued during his 

marriage to Pamela A. Bennett (“Wife”).1 We reverse. 

Husband and Wife married on January 29, 1972 and divorced 

approximately twenty-three-and-one-half years later. Two children were 

born of the marriage. In anticipation of the divorce, the parties executed a 

property settlement agreement to facilitate equitable distribution. The 

agreement covered the various economic aspects of the divorce, including 

____________________________________________

1 Technically, Husband receives two related pension benefits that he earned 

while working for the American Can Company and its successor, James River 

Corporation, for thirteen years during the marriage. For ease of discussion, 

we refer to the pensions as a single asset. 
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the distribution of marital assets and Husband’s assent to paying the marital 

liabilities, alimony, child support, and the children’s college expenses. As it 

relates to the present case, the accord provides: 

3. Legal Advice. Each of the parties acknowledges that he and 

she has had the opportunity to consult with independent legal 

counsel regarding the terms and provisions of this Agreement 

and his or her legal rights and obligations, and each party 

further acknowledges and accepts that this Agreement is, in the 

circumstances, fair and equitable, and that it is being entered 

into freely and voluntarily, and that the execution of this 

Agreement is not the result of any duress or undue influence. 

Each party has made a full and complete disclosure to the 

other of his and her entire assets and liabilities, and each 

is informed and familiar with the property, estate and 

assets, earnings and income of the other.

. . . .

6. Distribution of Property.

(a) The parties acknowledge that they have previously sold 

and divided to their mutual satisfaction the proceeds from the 

sale of their former marital residence. Each party shall retain the 

proceeds from the sale thereof received by him and her free and 

clear of any claim of the other.

(b) The parties have previously divided to their 

mutual satisfaction all items of tangible personal property, 

household furnishings, motor vehicles, bank accounts, 

investments, business interests, stocks, securities, retirement 

accounts, insurance policies and all other assets which, as 

between the parties, are or may be subject to equitable 

distribution, and each party does hereby release and relinquish 

any and all claims that either of them have or may have with 

respect to any property, property interest or asset. 
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Property Settlement Agreement, 4/21/95, at 3, 4-5 (emphases added).2 

Although the accord did not identify any specific marital assets or state 

the percentage basis that the assets would be divided, it listed the liabilities 

that Husband was solely responsible for repaying. Likewise, the agreement

stipulated that the potential net proceeds from a possible lawsuit against 

Boise Cascade Corporation would be divided equally. During the evidentiary 

hearing, Wife testified that she requested fifty percent of the pension 

benefits because it was in keeping with the parties’ promise to split the other 

assets equally. 

The property settlement agreement was incorporated but not merged 

into the July 12, 1995 divorce decree. Approximately nineteen years later, 

on September 2014, Wife filed a petition to impose a constructive trust 

pursuant to 23 Pa.C.S. § 3505(d), which we reproduce infra. She averred 

that, in executing the property settlement agreement, Husband failed to 

make a full disclosure of the pension benefit that he earned during the 

____________________________________________

2 Husband and Wife dedicate significant discussion in their briefs to whether 

the reference to “retirement accounts” in the property settlement agreement 

subsumed the pension benefit that Husband earned during the marriage. 

However, that issue is a diversion. Regardless of the semantics of whether a 

“pension benefit” equates to a “retirement account,” the asset is subject to 

the recital’s catch-all provision “all other assets . . . subject to equitable 

distribution[.]” Property Settlement Agreement, 4/21/95, at 4. 
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marriage.3 Wife requested the creation of a constructive trust as to the 

previously undisclosed marital asset, an accounting of the monthly benefits 

Husband received since the account entered pay status, and fifty percent of 

the marital value of past and future benefits. She also requested counsel 

fees and the costs associated with drafting the Qualified Domestic Relations 

Orders (“QDRO”) needed to facilitate the future payment of her portion of 

the benefit. 

Husband filed preliminary objections in the nature of a demurrer based 

upon the position that the formation of a constructive trust pursuant to § 

3505(d) required, as a prerequisite, the filing of an inventory during the 

equitable distribution process, and, in the absence of that form, the 

statutory provision is inapplicable. In addition, Husband leveled a 

preliminary objection to the petition based upon insufficient specificity 

insofar as Wife failed to assert that Husband secreted the pension’s 

existence when the agreement was formed. After conferring with the 

attorneys, the trial court summarily overruled Husband’s preliminary 

objections and scheduled an evidentiary hearing on Wife’s petition. 

____________________________________________

3 While there was no discussion regarding whether the pension benefit had 

vested prior to the date of separation, we observe that non-vested pensions 

are marital property subject to equitable distribution. Berrington v. 

Berrington, 598 A.2d 31, 34 (Pa.Super. 1991). Thus, it was an asset 

subject to disclosure/acknowledgment under the property settlement 

agreement.
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The evidence adduced at the hearing revealed that Husband has a 

pension that entered pay status during October 2012. Since then, Husband 

has received a monthly benefit of $1,785.75, which calculates to an annual 

benefit of $21,429. Wife testified that she and Husband did not discuss the 

pension in anticipation of equitable distribution of their marital estate.4 

Their discussions focused upon liquidating the marital residence, which was 

subject to encumbrances, and satisfying debts. She identified two 

conversations with Husband wherein both parties agreed that the only 

significant marital asset was the family home. Neither party mentioned the 

pension or retirement benefits that possibly accrued during the marriage. 

Wife did not assert that Husband mislead her or lied about the 

existence of the pension benefit. Instead, she testified that she was 

unaware of the pension and believed that the home was the only asset to be 

divided. She received $1,100 from the sale of the property. In relation to 

her view of the marital estate, Wife stated, “I didn't think there was 

anything. I didn't think I was signing away anything. And with the house, it 

____________________________________________

4 Wife presented the expert testimony of John McGovern, C.P.A., who stated 

that the parties received a $29,000 retirement distribution from an 

unidentified account during 1992. Mr. McGovern was unable to specify 

whether the source of the distribution was an IRA, 401(k), vested pension, 

or a combination of retirement plans. The only meaningful information to 

flow from the witness was that, approximately three years prior to the 

parties’ execution of the property settlement agreement, Husband and Wife 

both knew that some form of retirement income existed and withdrew at 

least a portion of it. 
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was $1100; I left the marriage with $1100, a car and two part-time jobs[.]” 

N.T., 1/19/16, at 47. Wife also testified that she believed the agreement 

was boilerplate and that the references to various assets did not apply to 

them. She explained, “I believed it was a template. I looked for the things 

that he and I agreed upon and made sure that they were [included] and 

signed it.” Id. at 44. 

During his testimony, Husband countered, “we did, in fact, review the 

document [and] we were very comfortable with the fact that the assets 

weren't identified [and] the fact I was going to pick up all the outstanding 

liabilities[.]” Id. at 71-72. He also testified that he believed Wife was aware 

of all of the marital assets. He stated that Wife had knowledge of the 

pension in the past because, along with the increase in salary, he and Wife 

considered the pension benefit when Husband faced the decision whether to 

accept his position with American Can Company and, then having been 

promoted by its successor, whether to uproot the family from its hometown 

in Connecticut and move to Virginia. In addition, he surmised that the 1992 

distribution that Wife’s expert referenced was connected to a 401(k) plan 

that Husband contributed to when he worked for those entities. Id. at 79, 

86-87.

At the conclusion of the evidence, the trial court announced from the 

bench its decision to grant Wife’s petition for a constructive trust. The court 

entered a final order memorializing its decision on March 1, 2016. Husband 
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filed a timely appeal.5 His concise statement of errors complained of on 

appeal filed pursuant to Pa.R.A.P. 1925(b) leveled five issues6, which he 

restates as follows:

____________________________________________

5 The notice of appeal was filed prematurely approximately two weeks after 

the close of the evidentiary hearing. However, Husband’s misstep was 

corrected on March 1, 2016, when the trial court entered a final order 

granting Wife’s requested relief. See Pa.R.A.P. 905(a)(5) (“A notice of 

appeal filed after the announcement of a determination but before the entry 

of an appealable order shall be treated as filed after such entry and on the 

day thereof.”).

6 The Rule 1925(b) Statement asserted the following issues:

a. The Court abused its discretion and/or committed an error of 

law in granting Defendant's petition for a constructive trust over 

Husband's pension plans and awarding her 50% of the same on 

the basis that there was not a full and fair disclosure of the 

assets at the time of settlement despite Defendant's failure to 

allege fraud;

b. The Court abused its discretion and/or committed an error of 

law in granting Defendant's petition for a constructive trust over 

Husband's pension plans and awarding her 50% of the same 

despite the existence of contractual language in the Marital 

Settlement Agreement indicating that full and fair disclosure was 

made and that Defendant was satisfied with her knowledge of 

the estate at the time of Agreement; that the parties' waived 

discovery; that the parties mutually released each other from 

any claims related to their rights under Pennsylvania's Divorce 

Code; that the parties had divided in advance of the Agreement 

all assets to their mutual satisfaction, and;

c. The Court abused its discretion and/or committed an error of 

law in granting Defendant's petition for a constructive trust over 

Husband's pension plans and awarding her 50% of the same on 

the basis that Defendant overcame by clear and convincing 

evidence the presumption of disclosure and/or that Defendant 

(Footnote Continued Next Page)
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1. Did the [t]rial [c]ourt err by granting a constructive trust 

pursuant to 23 Pa.C.S.A. § 3503(d) without establishing that 

[Husband] failed to disclose an asset as required by a general 

rule of the Supreme Court?

2. Did the [t]rial [c]ourt err by finding that [Wife] rebutted by 

clear and convincing evidence the presumption of full disclosure 

by [Husband]?

3. Did the [t]rial [c]ourt err by failing to affirm the terms of 

the parties’ Property Settlement Agreement?

4. Did the [t]rial [c]ourt err by applying its credibility 

determination as the standard for determining whether 

misrepresentation or fraud occurred in the execution for the 

Property settlement Agreement?

Appellant’s brief at 4.

Husband’s brief does not conform to Pa.R.A.P. 2119 insofar as he 

failed to divide the argument into sections that correspond with the four 

(Footnote Continued) _______________________

did not have knowledge of the assets at the time the Agreement 

was executed.

d. The Court abused its discretion and/or committed an error of 

law in granting Defendant's petition for a constructive trust over 

Husband's pension plans and awarding her 50% of the same by 

applying its determination as to the credibility of the parties to 

its determination as to the plain reading of the disclosure and 

waiver language set forth in the Agreement.

e. The court abused its discretion and/or committed an error of 

law in granting Defendant's petition for a constructive trust over 

Husband's pension plans and awarding her 50% of the same by 

misapplying 23 Pa.C.S.A. § 3505(d) which applies only where 

there is a failure to disclose the assets as required by general 

rule of the Supreme Court.

Husband’s Rule 1925(b) Statement, 2/3/16, at 1-2. 
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issues he raised in his statement of questions involved. Instead of 

complying with the procedural uniformity of Rule 2119, Husband identifies 

four overlapping arguments. For example, rather than enumerating his 

arguments in correlation with the numerals used in the statement of 

questions presented, Husband lists his arguments alphabetically. Moreover, 

those arguments are in disorder. Husband’s argument A is actually four 

interwoven assertions, and his remaining arguments in B, C, and D do not 

align with any numerical counterparts. In addition, while addressing 

substantively different concerns, the arguments Husband identifies as B and 

D share an identical heading, “The Trial Court erred by Failing to Affirm the 

Parties Property Settlement Agreement.” See Appellant’s brief at 20, 30. 

Finally, Husband’s argument D is a collection of various complaints, some of 

which are subsumed by issues three and four. Although this Court is 

authorized to quash a nonconforming brief, Husband’s procedural missteps 

do not substantially impede our ability to perform appellate review, and we 

shall address the merits of the arguments that have been preserved for 

review in the Rule 1925(b) statement. See Pa.R.A.P. 2101; 

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (“Despite 

the numerous defects in Appellant's brief, we will address the one claim that 

we are able to review[.]”). 

As noted in his statement of questions presented, Husband raises 

several procedural challenges to the trial court’s application of 23 Pa.C.S. § 
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3505(d) under the facts of this case. However, since we ultimately find that 

the certified record does not sustain the trial court’s factual findings in 

support of Wife’s position that the constructive trust was warranted, we do 

not confront those arguments herein. Instead, we presume that § 3503(d) 

applies and address the effect of the recital in the property settlement 

agreement, wherein the parties acknowledged full and complete disclosure 

of assets. 

Section 3505(d) of Divorce Code, provides as follows:

(d) Constructive trust for undisclosed assets.--If a party 

fails to disclose information required by general rule of the 

Supreme Court and in consequence thereof an asset or assets 

with a fair market value of $1,000 or more is omitted from the

final distribution of property, the party aggrieved by the 

nondisclosure may at any time petition the court granting the 

award to declare the creation of a constructive trust as to all 

undisclosed assets for the benefit of the parties and their minor 

or dependent children, if any. The party in whose name the 

assets are held shall be declared the constructive trustee unless 

the court designates a different trustee, and the trust may 

include any terms and conditions the court may determine. The 

court shall grant the petition upon a finding of a failure to 

disclose the assets as required by general rule of the Supreme 

Court.

23 Pa.C.S. § 3503(d). 

By its terms, § 3503(d) does not require a party to demonstrate that 

the failure to disclose an asset was deliberate or intentional. This is because 

the provision is triggered by a breach of a parties’ affirmative obligation to 

“disclose information required by general rule of the Supreme Court,” e.g., 

an inventory under Rule 1920.33, which did not occur in this case. 
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However, mindful that parties to property settlement agreements are 

entitled to enforcement measures set forth in the Divorce Code, see

§ 3105(a), we find that the provision’s silence as to disclosure clauses did 

not preclude Wife from invoking this remedial provision. Cf. Creeks v. 

Creeks, 619 A.2d 754 (Pa.Super. 1993) (where husband failed to include 

asset in inventory pursuant to agreement’s disclosure clause, the breach 

triggers action for constructive trust). Nevertheless, prior to granting the 

requested relief in the case at bar, the trial court was required to reconcile 

the pension benefit’s omission from the accord with Wife’s affirmative 

acknowledgment that she received full and complete disclosure and was not 

only informed of, but also familiar with, the marital estate. 

In Pennsylvania, the law of contracts governs a property agreement if 

the agreement is not merged into a divorce decree. Crispo v. Crispo, 909 

A.2d 308, 313 (Pa.Super. 2006) (“property settlement agreements are 

presumed to be valid and binding upon the parties”). An agreement that is 

not merged, “stands as a separate contract, is subject to the law governing 

contracts and is to be reviewed as any other contract.” Id. at 312-313.

Our Supreme Court previously explained, 

under the law of contracts, in interpreting an agreement, the 

court must ascertain the intent of the parties. Robert F. Felte, 

Inc. v. White, 451 Pa. 137, 302 A.2d 347, 351 (1973). In 

cases of a written contract, the intent of the parties is the writing 

itself. If left undefined, the words of a contract are to be given 

their ordinary meaning. Pines Plaza Bowling, Inc. v. 

Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958). When the 

terms of a contract are clear and unambiguous, the intent of the 
J-A24011-16

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parties is to be ascertained from the document itself. Hutchison 

v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385, 390 

(1986). 

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004).

We review the trial court’s order upholding the agreement for an abuse 

of discretion. Lugg v. Lugg, 64 A.3d 1109, 1110 n.1 (Pa.Super. 2013). As 

we explained in Lugg, “[a]n 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.” Id. Additionally, we will not 

usurp the trial court’s factfinding function.” Id. 

In Simeone v. Simeone, 581 A.2d 162 (Pa. 1990), our Supreme 

Court clarified the standards for determining the validity of marital 

settlement agreements and abolished the prior paternalistic approach to 

enforcement. The High Court announced that “Absent fraud, 

misrepresentation, or duress, spouses should be bound by the terms of their 

agreements.” Id. at 165. As the venerable Joann Ross Wilder, Esquire, 

couched the concept in Pennsylvania Family Practice and Procedure 5th, 

2002 at 96, “Parties are free to enter into bargains they later regret, and 

bad deals are as enforceable as good ones provided the agreement is free of 

fraud or duress.”

As it relates to the case at bar, the Simeone Court admonished, “If an 

agreement provides that full disclosure has been made, a presumption of full 

disclosure arises.” Id. at 167. Likewise, the Court explained, “If a spouse 
J-A24011-16

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attempts to rebut this presumption through an assertion of fraud or 

misrepresentation then this presumption can be rebutted if it is proven by 

clear and convincing evidence.” Id. Thus, “Absent fraud, misrepresentation 

or duress, spouses should be held to the terms of their agreements.” Lugg, 

supra at 1112; Stoner v. Stoner, 819 A.2d 529, 533 (Pa. 2003) (expressly 

rejecting approach which allows court to inquire into reasonableness of 

parties’ bargain). This Court subsequently explained, “an agreement is valid 

even if it does not contain financial disclosure itself and can be upheld if it 

merely recites that such disclosure has been made.” Paroly v. Paroly, 876 

A.2d 1061, 1066 (Pa.Super. 2005). Indeed, “a full and fair disclosure in the 

property settlement agreement merely requires sufficient disclosure to allow 

the intended party to make an informed decision.” Busch v. Busch, 732 

A.2d 1274, 1278 n. 5 (Pa.Super. 1999).

Although this Court’s holding in Lugg, supra concerned the waiver of 

disclosure rather than an acknowledgment of full disclosure, our reasoning is 

informative. In pertinent part, the Lugg Court addressed whether the trial 

court erred in denying a wife’s claim to set aside a property settlement 

agreement due to her husband’s failure to fully disclose assets when the 

agreement was executed. In an attempt to circumvent the fact that she 

expressly waived economic disclosure, the wife argued that a person cannot 

waive disclosure if they do not know what was being waived. Id. at 1112. 

The Court rebuffed that reasoning in light of the legislature’s adoption of 23 
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Pa.C.S. § 3106, which allows a party to waive economic disclosure in a 

prenuptial agreement, and our High Court’s prior reasoning in Stoner, 

supra, that “pre-and post-nuptial agreements are to be similarly viewed.” 

Id. at 1112-1113. Thus, the Lugg Court held that parties to a property 

settlement agreement may waive full economic disclosure. Id. at 1113. 

Specifically, the Court held, “[w]e must reject the assertion that economic 

disclosure cannot be waived because the party waiving disclosure does not 

know the extent of what is being waived.” Id. at 1112. 

Instantly, the trial court employed reasoning similar to the wife in 

Lugg in an attempt to elevate Wife’s belated claim of lack of disclosure over 

her express assent that full and complete disclosure actually occurred and 

the acknowledgment that she was familiar with the marital estate. The 

lynchpin of the trial court’s logic is that, notwithstanding Wife’s explicit 

recognition of full disclosure, she should be excused from that provision 

because she believed that she knew the extent of the marital estate when 

she signed the agreement. Stated another way, the trial court concluded 

that Wife should not be bound by the disclosure recital because she was not 

actually familiar with all of the marital assets that she certified knowing 

about. The trial court’s rationale conflicts with our analogous holding in 

Lugg that a party to an agreement can, in fact, waive economic disclosure 

even if they do not know the full extent of that waiver. Like the Lugg Court, 

we find herein that Wife cannot negate the recital affirming her knowledge of 
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the marital estate based upon a subsequent assertion that she did not know 

the full extent of the assets when she executed the certification. Plainly, 

having acknowledged both the disclosure and her familiarity with the assets, 

absent clear and convincing evidence of Husband’s misconduct, Wife’s 

subjective belief regarding the nature and extent of the marital estate is 

irrelevant. Thus, we conclude that the disclosure recital applies herein, and 

absent clear and convincing evidence of fraud, duress, or misrepresentation 

to permit Wife to overcome the presumption of full disclosure, the recital is 

valid and enforceable. 

Next, we review the court’s determination that Wife sustained her 

evidentiary burden of establishing fraudulent misrepresentation. Our High 

Court reiterated the elements misrepresentation as follows,

In order to void a contract due to fraudulent misrepresentation, 

the party alleging fraud must prove, by clear and convincing 

evidence: (1) a representation; (2) which is material to the 

transaction at hand; (3) made falsely, with knowledge of its 

falsity or recklessness as to whether it is true or false; (4) with 

the intent of misleading another into relying on it; (5) justifiable 

reliance on the misrepresentation; and (6) resulting injury 

proximately caused by the reliance. All of these elements must 

be present to warrant the extreme sanction of voiding the 

contract. 

Porreco v. Porreco, 811 A.2d 566, 570-571 (Pa. 2002) (plurality) (internal 

citations omitted). 

Instantly, Wife did not expressly assert misrepresentation in her 

petition for a constructive trust or during her testimony regarding the 

parties’ discussion of the marital assets. Nevertheless, the trial court 
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reasoned that Wife was uninvolved with Husband's employment 

compensation beyond his salary, and therefore, she was unaware of the 

pension benefit that accrued during the marriage. Indeed, despite both the 

fact that Wife neglected to assert misrepresentation and the dearth of 

evidence to support its finding, the trial court went so far as to conclude that 

“Husband affirmatively told her that there were no other assets beyond the 

house considered in the Agreement.” Trial Court Opinion, 3/31/16, at 6. 

The record belies the trial court’s findings of fact. Wife did not present 

any evidence of fraud or misrepresentation. At most, Wife established that 

the parties did not discuss the pension and that Husband did not disclose it. 

However, in light of her evidentiary burden to rebut the presumption of 

disclosure, evidence that a potentially inadvertent or negligent omission may 

have occurred is woefully inadequate to establish fraud or misrepresentation 

that would negate Wife’s certification that she received full disclosure. 

Notwithstanding Wife’s failure to plead or prove misrepresentation 

under Porreco, supra, the trial court concluded that Husband misled her 

about the marital assets. As noted, the court’s reasoning is founded upon a 

purported credibility determination in Wife’s favor. However, the certified 

record cannot sustain the court’s finding that a meaningful credibility dispute 

existed. In fact, the parties concur that the pension was not discussed 

before they executed the agreement, and Wife does not assert that Husband 

mislead her or misrepresented the marital estate. She simply testified that 
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she was unaware of the pension when she signed the recital certifying her 

familiarity with the assets. Thus, contrary to the trial court’s expression of 

rationale, this case does not turn upon a credibility determination regarding 

whether Husband made an express misrepresentation.7 The trial court erred 

in invoking the non-existent issue of credibility in order to compensate for 

Wife’s failure to adduce evidence of fraud or misrepresentation.

Likewise, the record will not sustain the court’s conclusion that Wife 

adduced clear and convincing evidence of misrepresentation. The only 

evidence in the certified record that could conceivably support the trial 

court’s finding of misrepresentation are two of Wife’s responses during 

cross-examination. At one point, Wife responded to an inquiry by retorting, 

“in my book and from our conversation, there was nothing, and I had no 

reason to believe that he would not have mentioned [the pension].” N.T., 

1/19/16, at 60. Then, when asked whether she believed that Husband 

purposely withheld the information from her, she answered “it appears so.” 

Id. This evidence is neither clear nor compelling. The first statement 

simply restates the fact that the asset was not discussed. The latter 

response is a qualified suggestion that, in the absence of any other 

____________________________________________

7 Any credibility dispute was limited to whether Wife had known of the 

pension in the past. However, regardless of whether Wife was completely 

unaware of the pension or had previously known of it and simply forgot 

when she executed the agreement, that issue is irrelevant to whether 

Husband intentionally mislead her.
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acceptable explanation, Wife believed that Husband must have misled her. 

Both statements fail to reach the quantum of clear and convincing evidence 

of fraudulent misrepresentation that the High Court detailed in Porreco, 

supra (fraud requires material false representation made with intent to 

mislead). 

In addition to the dearth of direct evidence to support the trial court’s 

conclusion that Husband misrepresented the marital estate or intentionally 

withheld information from Wife regarding his pension benefit, the 

circumstantial evidence favoring that finding is limited to what the trial court 

characterized as Husband’s evasiveness and argumentative answers during 

cross-examination. However, absent direct evidence indicating that 

Husband hid the asset or purposefully lied to Wife about its existence, 

Husband’s demeanor during cross-examination is hardly clear and 

convincing evidence of fraud or misrepresentation. 

In sum, Wife failed to assert fraudulent misrepresentation, much less 

prove it by clear and convincing evidence, and the trial court’s purported 

credibility determination in her favor is ineffective. The undisputed facts 

established that Husband and Wife did not discuss the pension prior to 

executing the agreement. While the trial court speculates that Husband 

intentionally hid the asset from Wife, the evidence does not bear out that 

insinuation, and the trial court erred in relying upon a contrived credibility 

determination to negate Wife’s failure to satisfy her evidentiary burden of 
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proving the requisite scienter to rebut the presumption that full disclosure 

occurred. See Colonna v. Colonna, 791 A.2d 353, 357 (Pa.Super. 2001) 

(rejecting wife’s contention that she was not fully aware of her statutory 

rights because, absent proof of material misrepresentation or fraud, 

reviewing court may not examine whether parties attained informed 

understandings of rights they were surrendering); Busch, supra at 1278 

n.5 (full and fair disclosure need only allow intended party to make informed 

decision). 

As the certified record does not support the trial court’s finding that 

Husband engaged in fraud or misrepresentation, the trial court erred in 

determining that Wife was not bound by the disclosure recital. Accordingly, 

we reverse the trial court order imposing a constructive trust over the 

pension benefits pursuant to § 3505(d). 

Order reversed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2017