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HomeMy WebLinkAbout99-1162 civil termLINDA H. THOMAS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. WELDON E. THOMAS, DEFENDANT 99-1162 CIVIL TERM IN RE: ALIMONY PENDENTE LITE ORDER OF COURT AND NOW, this ~-' day of April, 2000, IT IS ORDERED: (1) The order of alimony pendente lite entered on May 6, 1999, IS VACATED and replaced with this order. (2) Weldon E. Thomas shall pay alimony pendente lite to Linda H. Thomas through the Domestic Relations Office of Cumberland County in the amount of $1,151.60 per month effective March 30, 1999. (3) Defendant shall pay all arrearages due on this order not later than thirty (30) days from this date. By the C.o. urt;"'~'~"/ Ed Maria P. Cognetti, Esquire For Plaintiff Wayne F. Shade, Esquire For Defendant 99-1162 CIVIL TERM Rickie Shadday, DRO :saa -2- LINDA H. THOMAS, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. WELDON E. THOMAS, DEFENDANT 99-1162 CIVIL TERM IN RE: ALIMONY PENDENTE LITE OPINION AND ORDER OF COURT Bayley, J., April 18, 2000:-- Linda H. Thomas, age 52, and Weldon E. Thomas, age 51, were married on August 16, 1996. They separated on March 18, 1999. Wife instituted this action in divorce and filed a petition for alimony pendente lite. Husband avers that a "Premarital Agreement" signed by the parties on October 26, 1994, precludes wife's claim for alimony pendente lite. A hearing was conducted on April 5, 2000, to address the issue of the scope and validity of the Premarital Agreement.' This is a second marriage for both parties. They have no children together but they both have adult children by their prior marriages. Wife is a contract specialist for the United States Government at the Naval Inventory Control Point in Hampden Township. Husband is a retired naval officer who was formerly stationed at the Hampden Township naval facility. After husband retired from the navy he went to work ~ The parties agree to their respective net incomes for the purposes of calculating any order of alimony pendente lite as may be appropriate. 99-1162 CIVIL TERM for INS. The parties met in October, 1990, and started living together in May, 1993. In 1994, in anticipation of becoming married they both determined that they should have a prenuptial agreement to protect the children of their prior marriages. Husband contacted an attorney whom neither party knew previously? They saw the attorney together after husband was told that they both should bring to the meeting a synopsis of what they wanted in a prenuptial agreement, and a list of their separately owned personal property. Each brought the synopsis when they met with the attorney but neither had completed their list of personal property. The attorney thereafter prepared a Premarital Agreement and forwarded it to husband. The evening before October 26, 1994, husband asked wife to sign the agreement the next day. Wife testified that she went to husband's office on October 26, 1994, where she looked over the agreement and without reading it in detail she signed it because she thought the agreement accomplished what both parties wanted which was to protect their personal property for their children. Wife testified that the signatures of her and her husband on the agreement were witnessed by employees in his office. Husband testified that they went to the office of the attorney who drafted the agreement where it was signed in an anteroom. In any event, no matter where it was signed, the attorney who drafted the agreement was not present and he never discussed it with the wife after it was 2 For ease of reference we refer to the parties as husband and wife even before they were married. -2- 99-1162 CIVIL TERM prepared. No personal property lists were attached to the Premarital Agreement despite the fact that it contains clauses indicating that Exhibit "A" attached is wife's personal property list, and Exhibit "B" attached is husband's personal property list. The Premarital Agreement also contains the following clause: FULL FINANCIAL DISCLOSURE. Attached hereto as Exhibit 'C' and made a part hereof is a current statement of assets and liabilities of each party which each party certifies as true and correct. No Exhibit "C" was attached to the Agreement nor were any such disclosure statements of assets and liabilities, much less the values of such assets, ever discussed, or prepared or exchanged by either party. Wife testified that the reason she and husband sought to have a premarital agreement was that they both wanted their personal property to go to their respective children. She testified that although she knew generally what her husband's other assets were in the form of his Navy retirement, an IRA, a 401K plan, and twenty-three acres of land in Texas, she was not aware of the value of any of those assets. She testified that the Prenuptial Agreement was not prepared to deal with those assets, or her federal government retirement plan, or a waiver of statutory rights in the case of a divorce. Husband testified and acknowledged that no Exhibit "C" to the Prenuptial Agreement, identified therein as a current statement of assets and liabilities of each party, was ever exchanged between the parties. He acknowledged that the personal property lists were not completed by either party at the time they signed the agreement -3- 99-1162 CIVIL TERM on October 26, 1994. In fact, no personal property lists were exchanged between the parties even after they were married on August 16, 1996. Personal property lists were finally exchanged between the parties after they separated on March 18, 1999. Wife's personal property list is on three and one-half pages with values next to each entry. The list also contains an entry of $64,650 as a down payment and closing costs she paid on the purchase of what became the marital residence at 3815 Chippenham Road, Hampden Township. Husband's list is on one page and contains no values next to his entries of personal property. In addition, he lists his Navy retirement, a house at 6205 Locust Lane, Mechanicsburg, twenty-three acres of Texas land, a Smith-Barney IRA and an INS 401K plan. No values are provided for these entries. Husband testified that he has discovered in his computer a list of his assets and liabilities that he drew up, he is not sure when, and he suggests that wife knew of these assets before she signed the Prenuptial Agreement. He testified that the failure to prepare an Exhibit "C" to the Premarital Agreement was a result of it having "slipped through the cracks." Husband maintains that wife had adequate disclosure of his assets before she signed the Premarital Agreement, and that she is precluded from seeking alimony pendente lite under the following clauses. The first is the "Recital" clause that provides: In consideration of their intention to purchase a home in both of their names as single individuals, and in contemplation of their eventual marriage, the parties desire to fix and determine the rights and claims that will accrue to each of them in the property and the estate of the other and to accept the provisions of this Agreement in full discharge and satisfaction of such rights. -4- 99-1162 CIVIL TERM The second is the "Marriage Dissolution" clause that provides: This Agreement shall be construed as a settlement agreement with respect to those interests described in Paragraphs 3 and 4 hereof in the event of a dissolution of marriage of the parties and shall not be subject to modification by the final judgment or thereafter. It is the intent of the parties that in such event those assets not specifically referred to in this Agreement shall be divided one-half to each, to be distributed in a manner which would achieve this equitable result. This Paragraph shall not preclude the parties from claiming or a court having jurisdiction over the parties from adjudicating the legal or equitable rights acquired by them during marriage in jointly-held property of any nature or in such property as may be acquired individually by either party during the marriage and which is not specifically included in Paragraphs 3 and 4 above. Paragraphs 3 and 4 as referred to in the Marriage Dissolution clause are: LINDA'S PROPERTY. (a) Real Property. The real property owned by Linda prior to the execution of this Agreement shall be or has been sold and the proceeds are to be used as a down payment and for closing costs on the home which the parties are purchasing together, known and numbered 3815 Chippenham Road, Hampden Township, Cumberland County, Pennsylvania. As set forth below, she shall own a 100% interest in this property for the first 24 months following execution of this Agreement. (b) Personal Property. The personal property owned by Linda prior to the execution of this Agreement shall remain hers, whether or not the parties subsequently marry, and, when married, shall remain her sole and separate property throughout the marriage. Weldon shall not claim or acquire any interest, including any entireties property interest, in any of her property, regardless of whether or not it increases or decreases in value during the marriage. She reserves the right to make gifts of such property to Weldon and to other persons during the marriage, but the gifts shall not constitute an amendment to or otherwise change this Agreement. A list of her personal property is attached hereto as Exhibit 'A.' Such property is excluded from characterization as marital property which would be subject to distribution to Weldon in the event of Linda's death, and he waives, relinquishes and intends this Agreement to act as a bar to all inchoate, intestate and other rights or interests that he may have as a result of their marriage in and to such property, including any -5- 99-1162 CIVIL TERM appreciation and increments in value thereon. WELDON'S PROPERTY. (a) Real Property. The real property owned by Weldon prior to the execution of this Agreement, situate at 6205 Locust Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055, shall be retained by him in his name until the parties marry. For the first 24 months following the execution of this Agreement, Linda shall not claim or acquire any interest, including any entireties interest, in the property, regardless of how the deed is titled, whether or not it increases or decreases in value, and regardless of whether or not the parties shall marry within this period. Such property is excluded from characterization as marital property which would be subject to distribution to Linda in the event of Weldon's death, and she waives, relinquishes and intends this Agreement to act as a bar to all inchoate, intestate and other rights or interests that she may have as a result of their marriage in and to such property, including any appreciation and increments in value thereon within the 24 month period if Weldon dies within this period; and this property shall pass to his estate, to be distributed in accordance with his Will. However, under such circumstances, the administrators of his Estate shall be bound by this Agreement to offer this property to Linda at its fair market value, the proceeds of which would pass to his estate. The proceeds of any insurance which Weldon may have purchased for the purpose of paying off the mortgage on this property shall not pass to Linda during this period, but shall pass to his estate. Following the expiration of the 24 month period, if the parties have not married, Weldon agrees to prepare a new deed transferring his interest into his and Linda's names as tenants in common until such time as they shall marry, at which time he shall prepare a new deed in which the parties shall hold the property by Husband and Wife as tenants by entireties without further restriction. (b) Personal Property. The personal property owned by Weldon prior to the execution of this Agreement shall remain his, whether or not the parties subsequently marry, and, when married, shall remain his sole and separate property throughout the marriage. Linda shall not claim or acquire any interest, including any entireties property interest, in any of his property, regardless of whether or not it increases or decreases in value during the marriage. He reserves the right to make gifts of such property to Linda and to other persons during the marriage, but the gifts shall not constitute an amendment to or otherwise change this Agreement. A list of -6- 99-1162 CIVIL TERM the personal property is attached hereto as Exhibit 'B.' Such property is excluded from characterization as marital property which would be subject to distribution to Linda in the event of Weldon's death, and she waives, relinquishes and intends this Agreement to act as a bar to all inchoate, intestate and other rights or interests that she may have as a result of their marriage in and to such property, including any appreciation and increments in value thereon. Wife sold a home that she owned before the parties purchased 3815 Chippenham Road, Hampden Township on October 20, 1994, which was six days before the prenuptial agreement was signed on October 26, 1994. From the proceeds of the sale of her house wife invested $64,650 into the Chippenham Road property for which the deed was placed in her name and that of her future husband as tenants in common. The purchase price was $218,000 for which a mortgage was taken for $163,000. Husband still lives in this marital residence. On November 9, 1996, three months after the parties were married, husband deeded his solely owned property at 6205 Locust Lane, Mechanicsburg into himself and his wife, the consideration of which is listed as "natural love and affection." In Simeone v. Simeone, 525 Pa. 392 (1990), the Supreme Court of Pennsylvania stated with respect to the validity of prenuptial agreements: [w]e do not depart from the longstanding principle that a full and fair disclosure of the financial positions of the parties is required. Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted. I-lillegass, 431 Pa. at 152-53,244 A.2d at 676-77. Parties to these agreements do not quite deal at arm's length, but rather at the time the contract is entered into stand in a relation of mutual confidence and trust that calls for disclosure of their financial resources. Id., 431 Pa. at 149, 244 A.2d at 675; Gelb Estate, 425 Pa. 117, 120, 228 A.2d 367, 369 (1967). It is well settled that this disclosure -7- 99-1162 CIVIL TERM need not be exact, so long as it is 'full and fair.' Kaufmann Estate, 404 Pa. 131,136 n. 8, 171 A.2d 48, 51 n. 8 (1961). In essence therefore, the duty of disclosure under these circumstances is consistent with traditional principles of contract law. If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse 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. Hillegass, 431 Pa. at 152-53, 244 A.2d at 676-77. In Ebersole v. Ebersole, 713 A.2d 103 (Pa. Super. 1998), wife sought alimony pendente lite from husband which the trial court concluded was barred by a postnuptial agreement? The Superior Court reversed the trial court, stating: In order for a post-nuptial agreement to be valid, the enforcing spouse must make full and fair disclosure of the couple's financial status as well as any statutory rights relinquished. See Morrnello v. Mormello, 452 Pa. Super. 590, 682 A.2d 824, 828 (1996). '[W]hether adequate disclosure has been made will depend on the facts and circumstances of individual cases.' Id. (citations omitted). Hence, we must determine whether husband fully and fairly disclosed the couples' assets to wife before she signed the April 15 agreement. The Agreement contains neither reference to property values nor significant enumeration of assets held by the couple. Though the agreement refers to specific real estate and automobiles, it does not provide their respective values. Furthermore, the Agreement only vaguely refers to the remaining property waived by wife as 'all stocks, bonds, mutual funds, retirement plan, personal banking checking accounts and all other financial assets accumulated through the marriage, not mentioned above, if any.' We find this broad description wholly inadequate to provide wife with full and fair disclosure to the couple's assets. See, e.g., Hess v. Hess, 397 Pa. Super. 395, 580 A.2d 357 (1990) (full and fair disclosure requires that a 'reasonable estimate of the worth of the assets must be attempted so that the general financial resources of the parties are not obscured'). Thus, we must look for some other circumstance that indicates wife was aware of the parties' worth. The same principles of law are applicable to the validity of postnuptial and prenuptial agreements. Mormello v. Mormello, 682 A.2d 824 (Pa. Super. 1996). -8- 99-1162 CIVIL TERM Previously, we have found that significant involvement in the couple's financial affairs constitutes full and fair disclosure of marital assets. See Mormello, supra (relying on appellant's lack of involvement in spouse's financial affairs in finding appellant was not fully and fairly aware of marital estate); see also Adams v. Adams, 414 Pa. Super. 634, 607 A.2d 1116 (1992) (appellant's participation in her spouse's business and her knowledge of parties general financial resources sufficient for full and fair disclosure); Nigro v. Nigro, 371 Pa. Super. 625, 538 A.2d 910 (1988) (full and fair disclosure demonstrated where appellant had significant work experience in family pizza business). Instantly, however, the trial court found that husband managed the couple's assets and that wife had little or no involvement. See Notes of Testimony (N.T.), 9/24/97, at 61. Notwithstanding wife's lack of involvement, the record shows that she knew the location of the couple's financial information, that husband never prevented wife from accessing this information, and that the couple had several general discussions during their marriage about their overall worth. See id. at 26-28. These facts convinced the trial court, 'that a fair and full disclosure of the parties' assets was made available to wife.' Opinion, 11/5/97, at 1. Availability of information, however, is not equivalent to disclosure. Under the trial court's analysis, as long as a spouse is not prevented from investigating the couple's financial situation, full and fair disclosure is provided. This position finds no support in our caselaw. To the contrary, the caselaw requires affirmative disclosure of relevant financial information unless there is clear evidence that the other party already possesses the information. See, e.g., Mormello, supra. Moreover, the instant Agreement failed to disclose wife's statutory rights. The Agreement states, 'Wife shall release her claim and right to marital support or alimony.' This language may include APL. See Musko v. Musko, 548 Pa. 378, 697 A.2d 255 (1997). Although wife had the opportunity to consult with legal services, there is no evidence that wife was aware of this particular legal consequence. Again, it is incumbent upon the enforcing party to ensure their spouse is aware of the statutory rights relinquished. See Mormello, 682 A.2d. at 828. As that did not occur in this case, the Agreement is invalid. (Emphasis added.) In the case sub judice, clearly husband did not provide wife full and fair disclosure of the value of his assets before she signed the Prenuptial Agreement on October 26, 1994. Although the parties had lived together for close to a year and a half -9- 99-1162 CIVIL TERM before the Prenuptial Agreement was signed, and during that time they intermingled some of their financial affairs, wife was not fully and fairly aware of the value of husband's estate when she signed the Prenuptial Agreement, nor did she have access to the necessary financial information to learn of such value. Furthermore, the Prenuptial Agreement did not waive wife's statutory rights to alimony pendent lite. Husband cites Busch v. Busch, 732 A.2d 1274 (Pa. Super. 1999), in support of his position. In Busch, wife filed a complaint in divorce and husband filed a counterclaim for equitable distribution of marital property, alimony pendente lite, and alimony. He also filed for support. Wife raised as a defense to the counterclaim and the claim for support, a prenuptial agreement. At or before the execution of their prenuptial agreement the parties exchanged financial disclosure statements that were to be attached to the agreement but, for whatever reason, were not attached. The statements, which were prepared prior to the execution of the agreement, were based on the party's personal knowledge. The Superior Court affirmed an order of the trial coart upholding the validity of the prenuptial agreement and dismissing husband's claims for alimony pendente lite and support. Busch does not support husband's position in the present case because in Busch there was full and fair disclosure of assets notwithstanding that the disclosure statements were not attached to the prenuptial agreement. In the present case, no disclosure of assets and values was made prior to the signing of the Agreement. Even the asset statement that husband finally provided to wife almost five and a half years 99-1162 CIVIL TERM after the Prenuptial Agreement was signed did not contain the value of his assets. The Prenuptial Agreement signed on October 26, 1994, is invalid. It does not preclude wife's claim for alimony pendente lite. Based on the attached Pennsylvania support guideline computation, marked Exhibit "A," the following order is entered. 4 ORDER OF COURT AND NOW, this ~._~ day of April, 2000, IT IS ORDERED: (1) The order of alimony pendente lite entered on May 6, 1999, IS VACATED and replaced with this order. (2) Weldon E. Thomas shall pay alimony pendente lite to Linda H. Thomas through the Domestic Relations Office of Cumberland County in the amount of $1,151.60 per month effective March 30, 1999. (3) Defendant shall pay all arrearages due on this order not later than thirty (30) days from this date. B~ the Court, Edgar B. Bayley, J. / 4 Pa. Rule of Civil Procedure 1910.16-1(b) provides that "The amount of support (child support, spousal support or alimony pendente lite) to be awarded pursuant to the procedures under Rules 1910.11 and 1910.12 shall be determined in accordance with the support guidelines which consist of the guidelines expressed as the child support schedule and the chart of proportional expenditures set forth in Rule 1910.16-3, the formula set forth in Rule 1910.16-4 and the operation of the guidelines as set forth in these rules." -11- 99-1162 CIVIL TERM Maria P. Cognetti, Esquire For Plaintiff Wayne F. Shade, Esquire For Defendant Rickie Shadday, DRO :saa -12- In the Court of Common Pleas of CUMBERLAND County, Pennsylvania DOMESTIC RELATIONS SECTION P.O. BOX 320, CARLISLE, PA. 17013 Phone: (717) 240-6225 Fax: (717) 240-6248 Plaintiff Name: ~.'rNDJ~ H. THOMAS Defendant Name: WELDON E. THOMAS Docket Number: 9 9 - 116 2 civi L PACSES Case Number: 306100903 Other State ID Number: Please note: All correspondence must include the PACSES Case Number. Spousal Support Calculation - with Dependent Children (30% for line 7) -without Dependent Children (40% for line 7) 1. Obligor's Monthly Net $ 5,608.00 2. Less Obligee's Monthly $ 2,729.00 3. Difference $ 2,879.00 4. Less Child Obligation for Current $ o. oo 5. Less All Other Support $ o. oo 6. Income Available for Spousal $ 2,879. oo 7. Multiply by 30 % or 40 % 4 o % 8. Amount of Monthly Spousal $ 1,151.6o Summary Date: AVR'r*. 7, 2000 Monthly obligation amount selected: $1, ]_51.60 Payment frequency: Obligation amount: $ ~.,~.s~.. 60 Deviation reason: EXHIBIT A Form OE-523 Service Type M Worker ID 21005