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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MARY E. MASSEY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : FREDERICK A. MASSEY, JR. : : Appellant No. 467 WDA 2017

Appeal from the Order Entered March 15, 2017 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD 15-003025-006

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 8, 2018 This appeal by Frederick A. Massey, Jr. (“Husband”) is from a February 23, 2017 order, as amended, March 15, 2017, concluding that Mary Massey (“Wife”) was not precluded from seeking alimony pendent lite (“APL”) by the terms of the parties’ separation agreement (“Agreement”). We affirm. The trial court summarized the facts and procedural history as follows: The parties married on February 15, 1997 and separated on August 19, 2013. No children were born of the marriage. On September 5, 2013, they executed a Separation Agreement (Agreement) which provided for the “division of all assets, owned or possessed by them as marital property or separate property.” (Agreement, ¶ 9). The Agreement contained the following provision for payments to Wife, who is disabled and collecting Social Security Disability benefits: J-A27021-17 SPOUSAL MAINTENANCE 8. The Husband will pay spousal maintenance in the amount of $2000.00 monthly to the wife until September 1, 2015. Spousal maintenance payments will commence on September 1, 2013 and will be paid on the 1st day of each and every month. The Agreement states that it “was intended to settle only the matters addressed” and that it was understood and agreed that a “subsequent Separation Agreement will have to be made and duly incorporated into a final decree of divorce.” (Agreement, ¶ 3). Husband paid Wife $2000.00 a month from September 1, 2013 through September 1, 2015. On August 28, 2016, Husband filed a Complaint in Divorce and Wife filed a Complaint for Spousal Support. On September 1, 2015, Wife filed a Petition Raising Claims which included a count for APL. A hearing on Wife’s claims was scheduled before Hearing Officer Chester Beattie for October 2, 2015. The parties cancelled that hearing date by agreement and had the matter declared complex. Prior to the hearing, Husband filed a Memorandum of Law arguing that Wife’s claims for spousal support and APL were barred by the Agreement. Hearing Officer Beattie was not available on the scheduled date and the matter was heard by Hearing Officer Peggy Ferber. The Hearing Officer issued a Report and Recommendation dated December 4, 2015 finding that Wife’ s Petition for APL was not barred by the language or content of the Agreement. Husband filed Exceptions which were dismissed by Order dated March 23, 2016. Husband timely appealed at #469 WDA 2016. The Superior Court quashed the appeal as interlocutory by Order dated May 4, 2016, because no divorce decree had been entered.[1] ____________________________________________

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On May 11, 2016, an Order was entered scheduling a conference/hearing to address Wife’s Complaint for Support. At the conference/hearing on July 13, 2016, Hearing Officer Bingman entered an interim order for APL without prejudice to the parties to raise their respective claims at a subsequent complex hearing. By consent of the parties, a complex hearing was held before Special Master Chester Beattie on October 14, 2016. Husband again argued that the Agreement precluded Wife’s claim for APL. On November 21, 2016, Master Beattie issued a Report and Recommendation finding that the Agreement did not bar Wife’s claim for APL. He found Wife to be disabled based on credible evidence and testimony and refused to assign her an earning capacity. Her net monthly income was set at $1211. Husband’s net monthly income was set at $10,034. The Master recommended that Husband pay APL of $3650 per month plus $350 on arrears set at $37,938 effective December 16, 2015. Husband filed Exceptions which were dismissed by Order dated February 23, 2017. The Order was amended on March 15, 2017 to add the appropriate language to allow Husband to file an Interlocutory appeal.[2] On April 6, _______________________ (Footnote Continued) Leister, 684 A.2d 192 (Pa. Super. 1996) (en banc) (holding that spousal support orders, when entered during the pendency of a divorce action, are interlocutory and unappealable, even if entered pursuant to a separately filed complaint for support). Appellant’s counsel argues that the matter is appealable as it involves a marital agreement controlling spousal support and equitable distribution. However, case law holds that orders upholding marital agreements are also interlocutory and unappealable. Kensey v. Kensey, 877 A.2d 1284 (Pa. Super. 2005). Therefore, the appeal is hereby QUASHED, sua sponte. 2 The March 15, 2017 order, filed March 22, 2017, stated as follows: AND NOW, this 15th day of March, 2017, upon consent of the parties hereto, it is hereby ORDERED that the Motion be and hereby is granted. The February 23, 2017 Order is amended as follows: Husband’s Exceptions to the November 21, 2016 Recommendation of Hearing Officer are hereby dismissed. This [c]ourt is of the (Footnote Continued Next Page)

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2017, the [c]ourt granted Husband’s Motion for Supersedeas and stayed his obligation to pay APL pending the outcome of this appeal. Trial Court Opinion, 6/9/17, at 1–3.

Husband filed a “Notice of Appeal of a Collateral Order of Court Pursuant to Pa.R.A.P. 311” [sic]3 on March 24, 2017, in which he averred that he was also filing “a Petition for Permission to Appeal with the Superior Court to preserve all appellate rights in the event that the Superior Court rules that the March 15, 2017 order of court is not appealable as a collateral order, and only appealable as an interlocutory appeal by permission.” Notice of Appeal of a Collateral Order of Court Pursuant to Pa.R.A.P. 311, 3/24/17, at 1 n.1. Both Husband and the trial court complied with Pa.R.A.P. 1925.4

_______________________ (Footnote Continued)

opinion that this Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this Order may materially advance the ultimate termination of this matter. The February 23, 2017 Order be and hereby is certified for an immediate appeal to the Superior Court. 3 The correct rule is Pa.R.A.P. 313 (Collateral Orders). 4 As noted, Husband filed a notice of appeal of a collateral order at the instant docket number while simultaneously filing a Petition for Permission to Appeal, docketed at 32 WDM 2017. During preliminary review, a motions panel of this Court granted the petition for permission to appeal at 32 WDM 2017. Rather than quashing the appeal at 467 WDA 2017 and directing the Prothonotary to assign a new docket number, the Motions Panel granted the petition for permission to appeal and “transferred” the petition for permission to appeal at 32 WDM 2017 to the instant docket number, 467 WDA 2017. Thus, this case is before us upon grant of permission to appeal, not appeal of a collateral order.

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Husband raises the following issues in this appeal:

I. Whether the trial court erred in entering an award of alimony pendente lite over the defense of the parties’ Separation Agreement, which disposed of all rights of support, including alimony pendente lite, and equitable distribution, and by entry of an order for alimony pendente lite where need for such award was precluded and not shown on the record.

II. Whether the trial court erred in its failure to sustain Husband’s objections to a hearsay physician’s statement made beyond basis of knowledge of the physician, and in the determination of Wife’s earning capacity.

III. Whether the trial court erred in the determination of the monthly amount of alimony pendente lite and the calculation of arrears. Husband’s Brief at 6.

“It is well-established that the law of contracts governs marital settlement agreements.” Vaccarello v. Vaccarello, 757 A.2d 909, 914 (Pa. 2000) (quoting Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004)); Stamerro v. Stamerro, 889 A.2d 1251, 1259–1260 (Pa. Super. 2005).

Because contract interpretation is a question of law, this Court is not bound by the trial court’s interpretation. Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as the appellate court may review the entire record in making its decision. However, we are bound by the trial court’s credibility determinations. Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007) (citation omitted). Moreover, our courts observe the following principles in reviewing a trial court’s interpretation of a marital settlement agreement:

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When interpreting a marital settlement agreement, the trial court is the sole determiner of facts and absent an abuse of discretion, we will not usurp the trial court’s fact-finding function. On appeal from an order interpreting a marital settlement agreement, we must decide whether the trial court committed an error of law or abused its discretion. Id.

We have also reiterated this Court’s limited role in interpreting contracts between spouses such as property settlement agreements:

A court may construe or interpret a consent decree as it would a contract, but it has neither the power nor the authority to modify or vary the decree unless there has been fraud, accident or mistake.

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It is well-established that the paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent. When the trier of fact has determined the intent of the parties to a contract, an appellate court will defer to that determination if it is supported by the evidence.

Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004) (internal citations omitted) (quoting Osial v. Cook, 803 A.2d 209, 213– 214 (Pa. Super. 2002)). Further, where . . . the words of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the express language of the agreement itself. Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa. Super. 2004). Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

The trial court concluded that Wife did not waive her right to further alimony, APL, or support. Regarding the Agreement, the court stated that Wife merely “agreed to accept spousal maintenance of $2000 per month from September 1, 2013[,] through September 1, 2015.” Trial Court Opinion, 6/9/17, at 5. Noting that the Agreement provided that “it is

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intended to settle only those matters addressed,” and because APL, alimony, or spousal support after September 1, 2015, were not addressed therein, the trial court determined that Wife was not barred by the Agreement from seeking APL after that date. Id.

Husband’s first issue asserts that the trial court’s award of APL to Wife in the amount of $3,842.14 per month was an error of law because the parties’ Separation Agreement precluded such an award. Husband’s Brief at

19. He maintains that the trial court misconstrued the Agreement and applied a “biased and paternalistic approach as to its construction.” Id. Husband suggests that because the Agreement provided for spousal maintenance from September, 2013, until September 1, 2015, the “plain language” of the Agreement provides that there can be no spousal maintenance after September 1, 2015. Id. at 23. Husband contends that his obligation of support expired on September 1, 2015, and the Agreement precluded Wife from receiving further support, including APL. Id. at 22.

Husband cites Musko v. Musko, 697 A.2d 255 (Pa. 1997), where our Supreme Court reasoned that because the settlement agreement therein precluded alimony or support, it also barred the wife from receiving APL. Husband’s Brief at 25. Husband argues that the present parties specifically set a limited two-year period for Wife to receive spousal maintenance, with no provision for any support thereafter. Id. at 26.

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Husband also avers that the trial court evidenced an “improper paternalistic approach” to construing the Agreement and a bias against Husband. Husband’s Brief at 27, 28. The basis for this claim is that the trial court noted in its opinion that Wife was disabled and collecting disability benefits. Husband contends that Wife’s health condition5 is irrelevant and suggests that “[f]or the trial court to highlight Wife’s medical situation without, in the same breath (or anywhere), giving credit to Husband’s singular gift to her survival, is both paternalistic and biased.” Id. at 28. In support, Husband cites Simeone v. Simeone, 581 A.2d 162 (Pa. 1990), and Stoner v. Stoner, 819 A.2d 529, 533 (Pa. 2003) (former paternalistic approach to evaluating marriage contracts ignored; parties have the right to freely contract). Because the parties may freely bargain “without the court’s paternalistic intervention,” Husband suggests that the trial court was not required “to ensure that Wife was aware of what she was waiving” when she signed the Agreement. Husband’s Brief at 31.

Finally, in his first issue, Husband claims that Wife failed to establish the need for APL. Husband’s Brief at 33. He suggests that because the parties agreed on the division of all of their assets, the only action remaining is the entry of a divorce decree. Id. at 35.

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We agree with the trial court that the parties’ Separation Agreement does not preclude an award of APL. The following provision of the Agreement is relevant: “The terms of this Agreement are intended to settle the matters addressed, but it will not be incorporated into a final decree of divorce. The Husband and Wife agree that a subsequent Separation Agreement will have to be made and duly incorporated into a final decree of divorce.” Agreement, 9/5/13, at ¶ 3 (emphases added). While Husband’s representation that the Agreement “set a limited period of two years for Wife to receive spousal maintenance,” Husband’s Brief at 26, is correct, his claim that it provided “no provision for any other support thereafter” id., flies in the face of the language providing for contemplation of additional, future provisions, as noted above. In our view, the inclusion of this language compels the conclusion that the parties contemplated additional provisions beyond the subjects and/or time periods addressed.

Further, Husband’s reliance on Musko is misguided. Our Supreme Court, at the outset, defined the sole question therein as “whether a valid antenuptial agreement which states that a spouse ‘shall not be entitled to receive any money or property or alimony or support’ in the event of divorce or separation precludes the award of alimony pendente lite (APL).” Musko, 697 A.2d at 255. There is no such definitive exclusionary language before us in the instant case, and we reject the applicability of Musko. The Supreme Court concluded that the words used in the Musko agreement

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were clear and unambiguous. Id. at 256. If the parties had included such a clear provision in the instant Agreement, our result would be otherwise. Here, however, the parties specifically noted that the Agreement addressed only specifically identified subjects within a specifically defined period and included the admission that further provisions would be forthcoming. Musko does not control this matter.

Husband’s suggestion that the trial court revealed a “paternalistic” predilection and “bias” because the court referred to Wife’s medical situation without, “in the same breath (or anywhere), giving credit to Husband’s singular gift to her survival,” the donation of a kidney, Husband’s Brief at 28, likewise requires minimal comment. Husband’s concomitant reliance on a line of cases that dispelled a paternalistic interference with a woman’s freedom to contract, e.g., Simeone, 581 A.2d at 165, is misplaced. The trial court refers to Wife’s disability and her collection of Social Security Disability Benefits only twice in its opinion, and both references were informational explanation. Trial Court Opinion, 6/9/17, at 1, 3. Husband cites nothing to persuade us that the trial court’s reference to Wife’s disability without emphasizing that Husband had donated a kidney to Wife was indicative of a bias against Husband.

Regarding Husband’s final claim of his first issue, that Wife never established the need for APL, we note that Wife testified that she had nearly depleted two small IRA accounts. N.T., 10/14/16, at 43–44, 65–68. This

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evidence was offered and accepted by the trial court for the purpose of showing why Wife had no money to pay counsel fees going forward. Id. at

67. Thus, we reject Husband’s allegation and conclude that Wife proffered evidence that she required APL to defend her interests in the pending divorce action, which is the standard for showing the need for APL. See DeMasi v. DeMasi, 597 A.2d 101, 105 (Pa. 1991) (“APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself.”).

In his second issue, Husband asserts that the trial court erred in failing to sustain Husband’s hearsay objection to Wife’s Physician Verification Form6 (“the Form”). The Form set forth Wife’s permanent disability and inability to work. Husband’s Brief at 36. Referencing Pa.R.C.P. 1910.29(b)(2), which the trial court relied upon in determining that the Form was properly admitted, Husband states that the Form may be admitted into evidence without a physician’s testimony. Husband’s Brief at 37. However, Husband asserts that the Form, on its face, failed to establish a sufficient basis for concluding that Wife was unable to work. Id. Husband also objects to the trial court’s conclusion that the Form was subject to mandatory admission because Husband did not object to it within twenty days of its initial ____________________________________________