J-A14003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAUREN KIPP, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL ALDEN KIPP,

Appellant No. 1782 MDA 2014

Appeal from the Order Entered September 25, 2014

In the Court of Common Pleas of Centre County

Civil Division at No(s): 2014-2154

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 10, 2015

Michael Alden Kipp (Husband) appeals from the order entered 

September 25, 2014, granting Lauren Kipp’s (Wife) petition for special relief 

and directing Husband to pay Wife $55,000 for her one-half share of the 

equity in the marital residence. After review, we affirm.1 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Notably, the parties’ divorce decree was entered by the Cameron County 

Court of Common Pleas, but the instant appeal arises from an order issued 

by the Centre County Court of Common Pleas. We are also aware that an 

appeal was filed by Wife from an order issued on January 16, 2013, by the 

Cameron County Court, denying her petition for special relief. Husband filed 

a motion to quash with this Court, which in essence was granted because 

the Cameron County Court belatedly granted Wife’s motion for 

reconsideration and transferred the case to Centre County. See Kipp v. 

Kipp, No. 460 WDA 2013, unpublished memorandum (Pa. Super. filed May 

16, 2014).
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Following the transfer of the case to Centre County, Wife filed a 

petition for special relief pursuant to 23 Pa.C.S. § 3323 and Pa.R.C.P. 

1920.43. After a hearing was held on August 18, 2014, the trial court issued 

the order presently on appeal and an accompanying opinion which contained 

the following findings of fact: 

1. The parties separated in May, 2011 and were divorced by 

entry of a final Decree in Divorce[] entered on December 9, 

2011, by the Cameron County Court of Common Pleas.

2. After the parties separated, but before the entry of the 

divorce decree, they negotiated terms of a Draft Property 

Settlement Agreement, including the distribution of their marital 

real property located at 745 Thomas Street, State College, 

Centre County, Pennsylvania. The Property Settlement 

Agreement was never executed. 

3. The parties also proposed that [Husband] would refinance the 

marital home solely in his name. In order to effectuate this 

refinance, and for the sole purpose of the refinance, the parties 

executed a Separation Agreement on August 24, 2011 in which 

[Wife] waived any rights to the marital property. 

4. On August 31, 2011, after the parties signed the Separation 

Agreement, but before the property was refinanced, [Wife] 

emailed [Husband] and requested that he forward the value at 

which the property had been appraised so that it could be 

included in the Property Settlement Agreement they had 

negotiated.

5. In that same email, [Wife] indicated her wariness at signing 

any Deed related to the property before they signed the Property 

Settlement Agreement stating she was “entitled to half of the 

amount of the profit when [Husband] sell[s] the house (at its 

current market value).”

6. [Husband] provided the requested information that day, and 

[Wife] emailed him a completed draft of the Property Settlement 

Agreement shortly thereafter. 
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7. On September 2, 2014, the parties executed the Deed 

transferring the marital property solely into [Husband’s] name. 

8. On September 26, 2011, [Wife] mailed a signed and notarized 

copy of the final Property Settlement Agreement to [Husband] 

for his signature. [Wife] indicated same to [Husband] via email 

later that morning.

9. [Husband] responded to the email that same day, and 

indicated that he would take care of the paperwork as soon as 

possible. 

10. On October 4, 2011, [Husband] emailed [Wife] indicating 

that he would “like to come up with some type of solution to repay” her. 

11. There are no other provisions in the Property Settlement 

Agreement which deal with a debt of any kind owed by 

[Husband] to [Wife].

12. That same day, [Wife] responded that she was in no 

immediate rush for a lump sum of money and was willing to give 

[Husband] time to assess his ability to make the large payments 

on the house. The parties agreed that they would wait until 

spring before discussing the repayment again.

13. On March 13, 2012, [Wife] emailed [Husband] regarding the 

repayment and wanting to move forward with signing the 

Property Settlement Agreement.

14. On May 31, 2012, [Wife] emailed [Husband] again wanting 

to discuss her share of the equity in the marital home. 

[Husband] responded that they could talk about it “sometime 

soon.” 

15. On June 4, 2012, it now being toward the end of spring, 

[Wife] again emailed [Husband] about the marital residence and 

wanting to discuss her half of the equity. 

16. On August 14, 2012, [Wife] emailed [Husband] asking him 

to respond to her various communications. [Husband] 

responded, “Please cease communication with me. Things are 

final.”
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17. As [Husband] was not cooperating, [Wife] was forced to hire 

an attorney to protect her interest in the equity in the marital 

residence.

18. On September 5, 2012, [Wife’s] attorney sent a letter to 

[Husband] giving him the options of either paying [Wife] her 

share of the marital equity, or a lien would be placed against the 

property in the amount of her share to be paid to [Wife] when 

the home sold. [Wife’s] attorney indicated that failure to comply 

with one of the options would force [Wife] to pursue a remedy in 

court.

Trial Court Opinion (T.C.O.), 9/25/14, at 1-3. 

Based upon these findings, the court entered the order directing 

Husband to pay Wife $55,000, which represented half of the equity in the 

marital residence. Husband appealed, raising the following issues for our 

review:

1. Did the signed separation agreement and divorce, on it’s [sic] 

face, ban an action to enforce an oral agreement?

2. Did the court commit error by finding that there was an oral 

agreement to modify the written document?

3. Did the court commit error in requiring [] Husband to pay 

$55,000.00 within thirty days which was not part of the alleged 

oral contract? 

Husband’s brief at 4 (unnecessary capitalization omitted). 

Husband first argues that upon the entry of the divorce decree 

pursuant to 23 Pa.C.S. § 3301(c) (“Mutual consent”), the parties lose all 

rights not claimed before the divorce was granted. Specifically, Husband 

argues that by the time the divorce decree was entered, “the parties had 

taken the steps necessary to remove [Wife] from any liability relating to the 

marital residence[,]” and, therefore, “[W]ife had no legal interest in the 
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property.” Husband’s brief at 11. In support of this contention, Husband 

relies on 23 Pa.C.S. § 3503, which provides that when a divorce decree is 

granted “all property rights which are dependent upon the marital relation ... 

are terminated unless the court expressly provides otherwise in its decree.” 

Id.2 Husband emphasizes the loss of any right to equitable distribution 

under the Divorce Code if no specific reservation of property rights was 

included in the divorce decree. Id. at 11-12 (citing inter alia Smith v. 

Smith, 749 A.2d 921 (Pa. Super. 2000), and Bastion v. Bastion, 472 A.2d 

226 (Pa. Super. 1984)). Because no such reservation of rights was included, 

Husband claims that the separation agreement, divorce decree and the deed 

control and that Wife cannot now assert grounds to the contrary, i.e., an oral 

agreement. 

Wife counters Husband’s argument, asserting that the Divorce Code 

allows her to request special relief via her petition in order to protect her 

____________________________________________

2 Section 3503 of the Divorce Code states:

Whenever a decree or judgment is granted which nullifies or 

absolutely terminates the bonds of matrimony, all property 

rights which are dependent upon the marital relation, except 

those which are vested rights, are terminated unless the court 

expressly provides otherwise in its decree. All duties, rights and 

claims accruing to either of the parties at any time theretofore in 

pursuance of the marriage shall cease, and the parties shall 

severally be at liberty to marry again as if they had never been 

married. 

23 Pa.C.S. § 3503. 
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economic interests through the court’s equity powers. She relies on 

Annechino v. Joire, 946 A.2d 121 (Pa. Super. 2008), wherein the wife 

claimed that since the husband had not pled any equitable distribution 

counts in the divorce complaint before the entry of the divorce decree, the 

trial court did not have jurisdiction to enforce the parties’ agreement. In 

Gabourey v. Gabourey, 988 A.2d 672 (Pa. Super. 2009), this Court 

discussed the Annechino case, explaining that:

Annechino concerned the court's subject matter jurisdiction 

over an action to enforce a marital settlement agreement. In 

Annechino, the parties entered into a marital property 

settlement agreement prior to the entry of a divorce decree and 

did not incorporate or merge that agreement into the final 

divorce decree. The appellant wife argued that since the 

agreement was not incorporated and the pleadings did not 

include a count for equitable distribution, the trial court did not 

have the authority to enforce the agreement. She asserted that 

the appellee husband's only remedy was a separate civil action 

in equity. We rejected the wife's claim and held that the trial 

court had authority to enforce the agreement under the Divorce 

Code. 

Gaboury, 988 A.2d at 679. Moreover, the Annechino opinion explains:

Section 3105(a) of the Divorce Code states that parties to 

an agreement regarding matters within the jurisdiction of the 

court under the Divorce Code, 23 Pa.C.S.A. § 3101 et seq., 

whether or not the agreement has been merged or incorporated 

into the decree, may use a remedy or sanction set forth in the 

Divorce Code to enforce the agreement to the same extent as 

though the agreement had been an order of the court, unless 

otherwise agreed. 23 Pa.C.S.A. § 3105(a). 

Section 3105 does not specify that the agreement would 

have had to have been pled in the divorce complaint; however, 

[the w]ife claims that section 3104(a) limits the jurisdiction and 

enforcement powers under section 3105 to those matters that 

have been raised in the pleadings. Because the legislature has 
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clearly set forth its intent and objectives, and because it has 

granted the courts continuing jurisdiction and broad enforcement 

powers, we do not read the Divorce Code in the restrictive 

manner [the w]ife advocates. Instead, we read section 3105 to 

permit the courts to enforce the parties’ agreement even if not 

incorporated or merged into the decree, and even if not 

specifically raised in the divorce pleadings.

We decline to read this section in isolation. To do so would 

discourage the resolution of economic claims by agreement and 

send economic claims relating to divorce over to the civil division 

as a breach of contract claim, precisely the situation the 

legislature intended to change by the 1988 amendments.

Annechino, 946 A.2d at 123. The Annechino decision also relies on 23 

Pa.C.S. § 3323(f), stating:

In all matrimonial causes, the court shall have full equity power 

and jurisdiction and may issue injunctions or other orders which 

are necessary to protect the interests of the parties or to 

effectuate the purposes of this part and may grant such other 

relief or remedy as equity and justice require against either 

party or against a third person over whom the court has 

jurisdiction and who is involved in or concerned with the 

disposition of the cause.

Id. at 124 n.4 (quoting 23 Pa.C.S. § 3323(f)).

Recognizing that Husband’s claim in the instant case essentially 

mirrors the wife’s claim in Annechino, it is evident that Husband’s position 

here is not tenable. The trial court’s actions comport with the dictates of 

Annechino and the statutory interpretations contained therein. We, 

therefore, conclude that the court did not abuse its discretion or err as a 

matter of law by assuming jurisdiction of this matter in order “to protect the 

interests of the parties and effectuate economic justice and insure the fair 

and just settlement of the parties’ property rights.” Id. See also Foley v. 
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Foley, 572 A.2d 6 (Pa. Super. 1985) (stating that the court retains equitable 

authority after a divorce decree is entered to intercede upon a petition to 

address economic injustice). 

Husband next argues that the trial court erred by finding an oral 

amendment to the written separation agreement, deed and divorce decree. 

Husband’s brief at 13. With reliance on Fina v. Fina, 737 A.2d 760 (Pa. 

Super. 1999), Husband acknowledges that “[w]hen a party seeks oral 

modification of a written separation agreement, the oral contract must be 

proven by ‘clear, precise and convincing evidence.’” Husband’s brief at 14 

(quoting Fina, 737 A.2d at 764). However, Husband overlooks the following 

recitation in the Fina decision, which states that there is

the well-settled principle that a written contract may be orally 

modified, even when the contract expressly provides that 

modifications must be in writing. ... Somerset Community 

Hospital v. Mitchell, 454 Pa. Super. 188, 685 A.2d 141 (Pa. 

Super. 1996).[] As Somerset indicates, “an agreement that 

prohibits non-written modification may be modified by 

subsequent oral agreement if the parties’ conduct clearly shows 

the intent to waive the requirement that the amendments be 

made in writing.” [Somerset,] 685 A.2d at 146, citing AccuWeather v. Prospect Communications, 644 A.2d 1251 (Pa. 

Super. 1994). Finally, an oral modification of a written contract

must be proved by clear, precise and convincing evidence. Id., 

citing Pellegrene v. Luther, 403 Pa. 212, 169 A.2d 298 (1961).

Id. at 764. 

As noted by Wife, Husband has misconstrued the trial court’s 

determination, which we set forth as follows:

Testimony at the hearing held on August 18, 2014 

established that the parties entered into the Separation 
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Agreement, which reserved no rights for [Wife] regarding the 

marital residence, for the sole purpose of allowing [Husband] to 

refinance the marital residence in his name. Had the Separation 

Agreement contained any provision providing for a payment to 

[Wife,] the bank would not have approved the refinancing. This 

Court found [Wife’s] testimony, that the Separation Agreement 

was not intended to be the final agreement and that an oral 

agreement existed regarding the equity in the marital residence, 

to be credible. [Husband] even acknowledged that the 

Separation Agreement was a requirement of the bank's 

refinancing process. [Wife’s] testimony was further supported 

by [Husband’s] own statements in emails indicating that he 

wanted to figure out a way to repay [Wife] when she would ask 

about her share of the equity. Furthermore, had there never 

been an oral agreement as to an outstanding Property 

Settlement Agreement, there would have been no reason for 

[Wife] to request a copy of the appraisal of the marital residence 

via email on August 31, 2012, nor for [Husband] to send her a 

copy. If [Husband] truly believed there was no oral agreement 

in addition to the Separation Agreement for the bank, this Court 

finds it odd that he did not tell [Wife] this at any time during 

their communications until months later, in August of 2012.

[Husband’s] testimony that no oral agreement existed is 

plainly contrary to his assertions in email communications with 

[Wife] regarding the repayment and that he would “get the 

paperwork taken care of ASAP.” Taking into account all of the 

circumstances surrounding the two agreements, this Court finds 

that an oral agreement between the parties existed as to the 

unsigned Property Settlement Agreement. [Wife] signed the 

Separation Agreement with the understanding that the parties 

were memorializing their oral agreement in writing shortly 

thereafter. Indeed, [Wife] did not even want to sign the Deed 

removing her name from the property until their oral agreement 

had been memorialized and signed by both parties. This fact 

was made known to [Husband] before the Deed was signed and 

at no time did he object to any provisions regarding equity of the 

marital residence mentioned by [Wife]. This Court believes that 

it was the intent of the parties to use the Separation Agreement 

only for refinancing purposes and to later memorialize their oral 

agreement regarding the marital residence in the Property 

Settlement Agreement. It would be [i]nequitable to now prevent 

[Wife] from receiving her share of the equity in the marital 

residence, as was the intent of the parties, simply because 
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[Husband] was dragging his feet in signing the Property 

Settlement Agreement. 

T.C.O. at 5-6. 

Based upon the above findings, the court granted Wife’s petition, 

concluding that Husband had expressly agreed to the oral modification. We 

conclude that the court did not err by doing so. Wife presented clear, 

precise and convincing evidence that established the modification. 

Moreover, “[s]ince matters of credibility are for the trial court, we are bound 

by the court’s finding[s] of fact....” Fina, 737 A.2d at 765. Husband’s 

second argument is without merit.

Lastly, Husband argues, if this Court concludes that the written 

agreement can be modified by an oral agreement, then the immediate 

payment to Wife of the $55,000 is not supported by the record. Specifically, 

Husband contends that the evidence of the terms of the oral agreement are 

not clear and convincing. Rather, Husband contends that the court’s 

conclusion is based on the fact that the parties had been discussing the 

payment since August of 2011 and that Wife stated that she needed money, 

not that the payment was immediately due. 

In response, Wife relies on 23 Pa.C.S. § 3323(f), quoted above, which 

directs that a court “may grant such other relief or remedy as equity and 

justice require against either party ... over whom the court has 

jurisdiction....” Also, as Wife points out, the trial court found that Husband 

had numerous opportunities to pay Wife during a period in excess of three 

years, that Husband misled Wife about his intent to pay her, and that he 
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“secured an additional lien on the marital residence in the amount of 

$28,000.00 from which Wife received no funds.” Wife’s brief at 29. 

In response to this issue raised by Husband, the trial court issued a 

second opinion on December 8, 2014, explaining its reasoning for directing 

the payment within thirty days of the September 25, 2014 order. The court 

stated:

For the sake of clarity, the [c]ourt will briefly address 

[Husband’s] ... matter complained of on appeal, that this Court 

erred when it ordered [Husband] to pay $55,000.00 

immediately, which was not required by the parties unsigned 

agreement. The [c]ourt's rationale in giving [Husband] thirty 

days from the September 25, 2014 Order to make the payment 

was based on the fact that the parties had been discussing the 

payment since August of 2011. [Wife] has given [Husband] 

plenty of time and multiple opportunities to make a payment 

over the years. Furthermore, [Wife] made it clear to [Husband] 

that she was in need of this money over two years ago. A 

payment of this amount should not be a shock to Appellant after 

having discussed it so many times with [Wife], and as it 

progressed through litigation to trial.

Trial Court’s Opinion, 12/8/14, at 1-2. 

Husband has overlooked the equity powers possessed by the court as 

described in 23 Pa.C.S. § 3323(f) and the legislative intent in promulgating 

the amendments to the Divorce Code, “which include effectuating economic 

justice between the parties and insuring a fair and just settlement of the 

parties’ property rights.” Annechino, 946 A.2d at 123 (citing 23 Pa.C.S. § 

3102). Having acted within the confines of the Divorce Code, we conclude 

that the trial court’s resolution of this issue is not an abuse of discretion. 

Husband’s final issue is without merit. 
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015