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HomeMy WebLinkAbout2010-3570 PHILLIP H. THOMPSON, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : EMILY E. THOMPSON, : DEFENDANT : 10-3570 CIVIL TERM IN RE: PETITION TO ENFORCE AGREEMENT BEFORE MASLAND, J. OPINION AND ORDER OF COURT Masland, J., March 26, 2013: -- Before the court is Defendant’s Petition to Enforce Agreement filed on August 20, 2012. After a hearing on October 12, 2012 and briefing by the parties, we now grant the Petition in accordance with the following opinion and order of court. I. Facts Plaintiff and Defendant began dating in January 2005. Hr’g Tr.5, Oct. 12, 2012. During this time, Defendant lived in Bethlehem, Pennsylvania where she owned property in her own name. Id. at 5-6. The parties were engaged in August 2005, at which time they discussed Defendant relocating to Carlisle, Pennsylvania. Id. at 6-7. Significantly, they discussed Defendant selling her home and using the proceeds to pay off Plaintiff’s mortgage on the property located at 903 Forge Road, Carlisle, Pennsylvania (“Forge Road Property”). Id. Further, the parties discussed drafting an agreement that would address Defendant’s interest in the Forge Road Property. Id. 10-3570 CIVIL TERM Prior to the parties’ marriage, Defendant moved into the Forge Road Property with Plaintiff. Id. The parties originally intended to marry on June 4, 2006, but moved the marriage date to March 10, 2006 in contemplation of Defendant paying off the Forge Road Property. Id. at 9 and 11. Defendant alleges that the parties verbally agreed that Defendant would use the proceeds from the sale of her property in Bethlehem to pay off Plaintiff’s mortgage on the Forge Road Property. Id. at 11. In consideration for the pay off, Plaintiff would deed the Forge Road Property into the names of both Plaintiff and Defendant, and Defendant would retain a separate and distinct interest in the funds used to pay off the mortgage. Id. The parties were married on March 10, 2006. Id. at 9. Defendant sold her Bethlehem property on March 31, 2006. Id. at 12. On April 3, 2006, Defendant retained Attorney David Baric to draft a Postnuptial Agreement (“Agreement”) that would memorialize the alleged verbal agreement made by the parties. Id. at 12-13. On April 7, 2006, Defendant paid off Plaintiff’s mortgage on the Forge Road Property. Id. at 13-14; Def.’s Ex. 2. On April 25, 2006, Plaintiff conveyed the Forge Road Property into the names of both Plaintiff and Defendant as joint tenants in the entirety. Hr’g Tr. 17-19; Def.’s Ex. 8. At the time of the transfer, Plaintiff estimated the value of the house to be $120,000 (the purchase price in 2000), Id. at 25, while Defendant contended the value had increased to 1 $180,000. Id. at 57-58. 1 Notably, in 2012, the house was valued at $175,000 by a certified real estate appraiser. Pl.’s Ex. 1. -2- 10-3570 CIVIL TERM Defendant then executed a Will drafted by Attorney Baric which provided that in the event of her death, her separate interest in the Forge Road Property would pass to her family. Hr’g Tr. 22-23; Def.’s Ex. 12. This was drafted by Attorney Baric with full knowledge that the Forge Road Property was owned by Plaintiff and Defendant as joint tenants in the entireties. Hr’g Tr. 15. Defendant further alleges that Attorney Baric prepared a Post-Nuptial Agreement and that the parties signed the Agreement at the time Defendant signed her will. Id. at 26- 28. However, Defendant alternatively alleges that if the parties did fail to sign the Post-Nuptial Agreement, this failure was a mistake and the parties did intend to sign it and had reached an oral agreement consistent with the terms of the Agreement. Attorney Baric has no recollection of meeting with the parties in 2006 or of the parties signing the Post-Nuptial Agreement. Id. at 43. There is also no entry in Attorney Baric’s billing records regarding the meeting. Id. Finally, Attorney Baric testified that he generally keeps a copy of all documents he prepared for his clients and had them sign, and he has no such copy of the Post-Nuptial Agreement. Id. at 44. In April 2010, the Defendant was granted a Protection from Abuse Order against Plaintiff, and Plaintiff was expelled from the Forge Road Property. Id. at 23-24. Defendant has been unable to find a signed copy of the Post-Nuptial Agreement. Id. at 39-40. Furthermore, Plaintiff denies that the parties discussed a Post-Nuptial Agreement, though he acknowledges that he did see a Post- Nuptial Agreement. Id. at 56-57, 60-61. -3- 10-3570 CIVIL TERM III. Discussion In Pennsylvania, an oral prenuptial agreement can be established only by clear and convincing evidence. In re Russo’s Estate, 180 A. 741, 743 (Pa. Super. Ct. 1935); see also De Luca v. De Luca, 130 A.2d 179 (Pa. 1957) (finding that an oral prenuptial agreement was established through testimony). Pennsylvania courts have defined “clear and convincing evidence” to require that the trier of fact find the witnesses credible and their testimony so “convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In re Novsierski, 992 A.2d 89, 107 (Pa. 2010). In order to determine whether a prenuptial agreement exists, the evidence must “be evaluated under the same criteria as are applicable to other types of contracts.” Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990). This criteria includes an offer, acceptance and consideration “or mutual meeting of the minds.” Jenkins v. County of Schulkill, 658 A.2d 380, 383 (Pa. Super. Ct. 1995). Finally, the inability “to reduce [an oral] agreement to writing after several attempts does not necessarily preclude a finding that the oral agreement was enforceable.” Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999). In the present matter, Defendant testified that the parties had agreed that she would maintain an interest in the Forge Road Property separate and distinct from her interest as a tenant in the entirety. In consideration of this agreement, Defendant testified that she paid $89,132.20 toward Plaintiff’s mortgage on the property. Consequently, Defendant’s testimony would establish that a valid oral prenuptial agreement existed between Plaintiff and Defendant. -4- 10-3570 CIVIL TERM As in most matters, this case boils down to credibility. In short, the court finds Defendant more credible than the Plaintiff. Her testimony is supported by documents, circumstances and logic. Despite Plaintiff’s protestations, based on our observations in court and on our common sense evaluation of the facts presented, Defendant’s account not only rings true, but also makes sense. Plaintiff’s suggestion that discussion of an Agreement “kind of went away,” Hr’g Tr. 64, defies belief. After paying $89,000 to cover the total indebtedness on a house that was worth much closer to $120,000 than $180,000, the Defendant’s insistence on getting that $89,000 back – off the top – is completely understandable. Otherwise, had the parties marriage soured sooner, Plaintiff’s scenario would leave Defendant far short of a full return on her investment. And, despite the blissful sound of wedding bells (even the second or third time they ring), we are satisfied that Defendant would not have paid off Plaintiff’s mortgage without an agreement that she would be repaid the full sum of her investment before considering what, if any, marital interest she might have in the property. Furthermore, the court finds the fact that Attorney Baric prepared, and Defendant signed, a will that proposed to pass Defendant’s interest in the Forge Road Property to her family supports Defendant’s testimony that an oral prenuptial agreement was entered. This support is based on the fact that, if the Defendant did not maintain an interest in the Forge Road Property separate and apart from her interest as a tenant in the entirety, she would be unable to devise an interest to her family because interest as a tenant in the entirety passes at death to the other tenant in the entirety. We find most persuasive the fact that -5- 10-3570 CIVIL TERM Attorney Baric drafted a Will that proposed to devise Defendant’s interest in the property to her family. Clearly, this supports Defendants contention that she and Plaintiff had entered into an oral prenuptial agreement. Therefore, the court finds by clear and convincing evidence that an oral prenuptial agreement existed between Plaintiff and Defendant. Defendant is more credible, truthful and accurate in her contention that she and Plaintiff had entered a prenuptial agreement through which she would maintain a separate interest in the $89,132.20 she paid towards Plaintiff’s mortgage. Accordingly, we enter the following order. ORDER OF COURT AND NOW, this _________ day of March, 2013, Defendant’s Petition to GRANTED Enforce Agreement is . Pursuant to the parties’ oral prenuptial agreement, Defendant shall receive a credit of $89,132.20 towards the Forge Road Property or payment otherwise in the divorce proceedings before any further distribution of marital property. By the Court, _________________________ Albert H. Masland, J. Samuel L. Andes, Esquire For Plaintiff Hubert X. Gilroy, Esquire For Defendant -6- PHILLIP H. THOMPSON, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : EMILY E. THOMPSON, : DEFENDANT : 10-3570 CIVIL TERM IN RE: PETITION TO ENFORCE AGREEMENT BEFORE MASLAND, J. ORDER OF COURT AND NOW, this _________ day of March, 2013, Defendant’s Petition to GRANTED Enforce Agreement is . Pursuant to the parties’ oral prenuptial agreement, Defendant shall receive a credit of $89,132.20 towards the Forge Road Property or payment otherwise in the divorce proceedings before any further distribution of marital property. By the Court, _________________________ Albert H. Masland, J. Samuel L. Andes, Esquire For Plaintiff Hubert X. Gilroy, Esquire For Defendant