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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SCOTT M. ROTHMAN
IN THE SUPERIOR COURT OF
PENNSYLVANIA
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Appellant
v.
ARA JOHNSON ROTHMAN
No. 2225 EDA 2022
Appeal from the Decree Entered July 29, 2022
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2021-02309
EFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.:
FILED MARCH 21, 2023
Appellant Scott M. Rothman (“Husband”) appeals from the July 29,
2022, divorce decree, which made final the trial court’s October 1, 2021,
order. That order granted the petition of Appellee Sara Johnson Rothman
(“Wife”) to confirm the validity and enforceability of the parties’ Postnuptial
Agreement, as well as dismissed Husband’s claim for equitable distribution.1
After a careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
We note the trial court’s July 29, 2022, divorce decree, which incorporated
the terms of the Postnuptial Agreement, rendered appealable the prior order
related to the validity thereof, as well as the dismissal of Husband’s claim for
equitable distribution. See Sneeringer v. Sneeringer, 876 A.2d 1036
(Pa.Super. 2005).
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The relevant facts and procedural history are as follows: The parties
were married on May 28, 2005, and they have two minor children.2 On July
7, 2021, Wife filed a complaint in divorce averring the marriage is irretrievably
broken. She sought spousal support, alimony pendente lite, and alimony in
accordance with the parties’ Postnuptial Agreement, which was executed on
July 23, 2020. Further, in accordance with the provisions of the Postnuptial
Agreement, Wife requested the Postnuptial Agreement be incorporated but
not merged into the divorce decree. Wife attached the Postnuptial Agreement
to her complaint as an exhibit.
On July 29, 2021, Husband filed an answer with a counterclaim. Therein,
Husband agreed the parties’ marriage is irretrievably broken; however, in his
answer, he “specifically denied that the Postnuptial Agreement is a valid,
enforceable agreement.” Husband’s Answer, filed 7/29/21, at 1.
In his counterclaim, Husband requested the trial court equitably divide
the marital property. He averred:
Husband disputes that the Postnuptial Agreement provided by
Wife is a valid, enforceable Agreement. In the event that the
parties are able to reach a future valid, enforceable agreement,
Husband desires that such written agreement be approved by the
Court and incorporated into any divorce decree which may be
entered dissolving the marriage between the parties.
d. at 4.
I
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2 The parties reached a custody agreement as it relates to their minor children,
and the trial court entered a final custody order on May 3, 2021.
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On August 5, 2021, Wife filed a petition for special relief wherein she
sought a declaratory judgment. Specifically, Wife sought an order declaring
that the parties’ July 23, 2020, Postnuptial Agreement is valid, binding, and
enforceable. Wife averred Husband, who is an attorney specializing in contract
law, knowingly and voluntarily entered into the Postnuptial Agreement after a
series of negotiations between Husband and Wife, as well as between
Husband3 and Wife’s counsel. Wife asserted Husband provided no basis to
support his bald allegation that the Postnuptial Agreement is invalid.
On August 24, 2021, Husband filed an answer in opposition to Wife’s
petition for special relief. Therein, as it relates to the Postnuptial Agreement,
Husband asserted the following (verbatim):
Wife has only just filed her Petition for a Declaratory Judgment on
Husband’s statement that he does not believe the Agreement is
valid. Husband submits the agreement is valid[4] due to not being
voluntary, duress, lack of consideration and/or failure to perform
consideration. The Agreement is unconscionable and impossible
to perform.
usband’s Answer, filed 8/24/21, at 1 (footnote added).
By order filed on October 1, 2021, the trial court provided the following
in its entirety (verbatim):
[A]fter review of briefs and the record in the above
captioned matter, it is hereby ORDERED and DECREED that
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3 The cover page of the July 23, 2020, Postnuptial Agreement indicates
Husband was pro se.
As discussed infra, Husband asserts the word “valid” is a typographical error,
and he intended to use the word “invalid”.
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Plaintiff/Wife Sara Johnson Rothman’s Petition for Special Relief
for Declaratory Judgment in the above captioned matter is
GRANTED, and the Court holds the parties’ July 23, 2020,
Postnuptial Agreement is a valid and enforceable contract.
In addition, pursuant to the above, Defendant/Husband
Scott M. Rothman’s claims for Equitable Distribution are hereby
DISMISSED.
Trial Court Order, filed 10/1/21 (bold omitted).
On October 1, 2021, Husband filed a motion for reconsideration
requesting the trial court vacate its order to afford Husband a “full and fair”
hearing, as well as permit him to amend his answer in opposition to Wife’s
petition to properly reflect his contention that the Postnuptial Agreement is
“invalid”. On October 26, 2021, Husband filed a notice of appeal from the trial
court’s October 1, 2021, order.
Meanwhile, the parties entered into a stipulation for payments under the
Postnuptial Agreement, and on October 29, 2021, the trial court entered an
order, which memorialized the parties’ stipulated payments. Moreover, on
January 28, 2022, Husband filed a petition for leave to amend the
typographical error, which he made in his answer to Wife’s petition as
discussed supra. The trial court denied Husband’s petition for leave to amend
the typographical error pursuant to the law of the case doctrine.
On January 3, 2022, this Court sua sponte quashed Husband’s October
26, 2021, notice of appeal on the basis it was taken from a non-appealable
interlocutory order. Specifically, this Court noted that a divorce decree had
not been entered, so the economic issues were not yet reviewable.
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On March 23, 2022, Wife filed an Affidavit under Section 3301(d) of the
Divorce Code indicating the date of the parties’ separation was on or after
December 5, 2016, and a divorce decree should be entered since the marriage
is irretrievably broken. On April 8, 2022, Husband filed a Counter-Affidavit
under Section 3301(d) of the Divorce Code indicating he opposed the entry of
a divorce decree since economic claims remain pending. He specifically
indicated he wished to pursue economic claims. He noted he had previously
claimed economic relief in the matter, but the same was erroneously
dismissed in contravention to 23 Pa.C.S.A. § 3502 and without a proper
opportunity to be heard.
On May 11, 2022, Wife filed a motion to strike Husband’s Section
3301(d) Counter-Affidavit so that she could proceed with the filing of a Notice
of Intent to Request Divorce Decree. Wife averred there are no economic
claims pending. By order entered on June 14, 2022, the trial court granted
Wife’s motion to strike Husband’s Section 3301(d) Counter-Affidavit on the
basis Husband’s economic claims had been dismissed by the order filed on
October 1, 2021.
Upon praecipe by Wife, on July 29, 2022, the trial court entered a
divorce decree, and on August 24, 2022, Husband filed a notice of appeal, as
well as a Pa.R.A.P. 1925(b) statement. On September 23, 2022, the trial
court filed a responsive Rule 1925(a) opinion.
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On appeal, Husband sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
1. Did the trial court commit an error of law and/or abuse its
discretion by entering the [October 1,] 2021, Order “after
review of briefs and the record” when no briefs were filed, nor
was either party afforded the opportunity to present a brief on
the issue and underlying petition, nor was any hearing held,
record developed, nor any party afforded the opportunity to
present testimony, nor was Husband afforded the opportunity
to be heard regarding his claims of involuntariness, duress, lack
of consideration, unconscionability, and impossibility, as
guaranteed by the right to due process?
2. Did the trial court commit an error of law and/or abuse its
discretion by basing its [October 1,] 2021, Order upon one
typographical error amidst [Husband’s] entire pleading which
contested the validity of the Postnuptial Agreement and
pleaded
lack of consideration,
involuntariness, duress,
unconscionability, and impossibility?
3. Did the trial court commit an error of law and/or abuse its
discretion by entering the [October 1,] 2021, Order granting
declaratory relief in the instant divorce action in contravention
of the clear language of 42 Pa.C.S.A. § 7541(c)(1)?
4. Did the trial court commit an error of law and/or abuse its
discretion by entering the [October 1,] 2021, Order dismissing
for equitable distribution and by
[Husband’s] claim
subsequently entering the Divorce Decree granting no other
relief in contravention to the clear language of 23 Pa.C.S.A. §
3502?
Husband’s Brief at 4-5 (suggested answers omitted).
Initially, we address Husband’s third issue. Husband contends Wife
procedurally erred in filing a special petition seeking declaratory relief
regarding the validity of the Postnuptial Agreement. He specifically asserts
the validity or enforceability of the parties’ Postnuptial Agreement was not a
proper issue to be disposed of as a declaratory judgment action.
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We note Husband did not object to Wife’s petition on this basis in the
trial court. In any event, this Court has previously recognized that parties
may file special petitions for declaratory judgment to determine the validity
and enforceability of marital property settlement agreements. See Bianchi v.
Bianchi, 859 A.2d 511, 515 (Pa.Super. 2004) (reviewing declaratory
judgment action regarding parties’ property settlement agreement); Sabad
v. Fessenden, 825 A.2d 682 (Pa.Super. 2003) (reviewing declaratory
judgment action regarding validity of parties’ antenuptial agreement). See
also Halsey v. Halsey, No. 1293 MDA 2019, 2020 WL 1492587 (Pa.Super.
2020) (unpublished memorandum)5 (reviewing trial court’s order regarding
petition for declaratory judgment as it relates to validity of prenuptial
agreement, which was made final by entry of divorce decree).
Turning to Husband’s first issue, Husband contends the trial court did
not afford him due process when it entered the October 1, 2021, order, which
granted Wife’s request to declare the parties’ Postnuptial Agreement valid and
dismissed Husband’s claim for equitable distribution. In his second issue,
which is intertwined with his first issue, Husband contends the trial court erred
in failing to read the totality of his answer in opposition to Wife’s special
petition for declaratory judgment. Husband contends that, in context, the
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5 We note Pa.R.A.P. 126(b), amended effective, May 1, 2019, provides that
non-precedential decisions of this Court filed after May 1, 2019, may be cited
for their persuasive value.
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word “valid” was clearly a typographical error, and the trial court erred in
The thrust of Husband’s first and second issues is that the totality of
Husband’s pleadings, including his answer and counterclaim to the divorce
complaint, as well as his answer in opposition to Wife’s special petition for
declaratory judgment, reveals he presented viable defenses to the validity and
enforcement of the Postnuptial Agreement, i.e., he did not voluntarily enter
into it, he was under duress, there was no consideration, it is unconscionable,
and it is impossible to perform. He contends that, since he raised valid
defenses, he was entitled to due process, and in light of genuine issues of
material fact regarding his defenses, the trial court erred in granting Wife’s
petition without holding a hearing to take testimony, receive evidence, and
The determination of marital property rights through
prenuptial, postnuptial and settlement agreements has long been
permitted, and even encouraged. Both prenuptial and postnuptial
agreements are contracts and are governed by contract law.
Moreover, a court’s order upholding the agreement in divorce
proceedings is subject to an abuse of discretion or error of law
standard of review. An abuse of discretion is not lightly founded,
as it requires clear and convincing evidence that the trial court
misapplied the law or failed to follow proper legal procedures. We
will not usurp the trial court’s fact-finding function.
aroly v. Paroly, 876 A.2d 1061, 1063 (Pa.Super. 2005) (citations and
P
quotation marks omitted). See Lewis v. Lewis, 234 A.3d 706 (Pa.Super.
2020) (noting settlement agreements are subject to contract principles).
permit cross-examination before ruling on the issue.
Initially, we note the following relevant legal precepts:
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recognizing it as such.
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As with other contracts, to form an enforceable postnuptial agreement,
“there must be an offer, acceptance, consideration, or mutual meeting of the
minds.” McIlwain v. Saber Healthcare Group, Inc., 208 A.3d 478, 485
(Pa.Super. 2019). “Under Pennsylvania law, it is presumed that an adult is
competent to enter into an agreement, and a signed document gives rise to
the presumption that it accurately expresses the state of mind of the signing
party.” See Cardinal v. Kindred Healthcare, Inc., 155 A.3d 46, 50
(Pa.Super. 2017). As such, “[c]ontracting parties are normally bound by their
agreements, without regard to whether the terms thereof were read and fully
understood and irrespective of whether the agreements embodied reasonable
or good bargains.” Nicholas v. Hofmann, 158 A.3d 675, 693 (Pa.Super.
2017) (internal quotation marks omitted).
Nonetheless, as is the case in any action upon a contract, defenses such
as fraud, duress, unconscionability, or impossibility are available to challenge
the validity of a postnuptial agreement. Lewis, supra. “Mutual assent is
necessary to enter into a contract; mutual assent does not exist however,
when one of the contracting parties elicits the assent of the other contracting
party by means of duress.” Id. at 714 (citation omitted). Further, any
contract may be found void if it is unconscionable. Taylor v. Extendicare
Health Facilities, Inc., 637 Pa. 163, 147 A.3d 490, 504, 509 (2016). Also,
this Court has recognized that, as with other contracts, legal impossibility, as
defined in Section 261 of the Restatement (Second) of Contracts, is available
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as a defense to a marital settlement agreement. Luber v. Luber, 614 A.2d
771, 774 (Pa.Super. 1992). “Because settlement agreements are presumed
valid and binding, the party seeking to avoid or nullify the agreement has the
burden of proving the invalidity of the agreement by clear and convincing
evidence.” Lewis, 234 A.3d at 714 (citation omitted).
Accordingly, based on the aforementioned, since Husband is the party
seeking to avoid or nullify the parties’ Postnuptial Agreement, he has the
burden of sufficiently pleading his defenses and then proving the defenses by
clear and convincing evidence. See id. Husband acknowledges this legal
precept, but he contends he was denied the opportunity to prove his defenses
when the trial court cancelled its conference on the matter. He notes the trial
court initially scheduled the matter for a zoom conference; however, the trial
court sua sponte cancelled the conference and entered the October 1, 2021,
order based on its review of the parties’ pleadings and exhibits. Husband
contends this was error. Specifically, he asserts that, particularly when the
trial court properly recognizes he made an inadvertent typographical error in
his answer in opposition to Wife’s special pleading, he sufficiently pled his
defenses such that he was entitled to a hearing to resolve factual disputes.
In response to Husband’s contention, the trial court relevantly indicated
the following:
Husband argues that the trial court erroneously based its
entire [October 1, 2021] ruling upon “one typographical error
amidst Husband’s entire pleadings which contested the validity of
the Postnuptial Agreement, pleaded involuntariness, duress, lack
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impossibility.” This
of consideration, unconscionability and
allegation of error is a red herring. Husband’s entire Answer is
insufficiently plead (sic).
Husband’s Answer to [Wife’s divorce complaint merely
denied the Postnuptial Agreement is a valid, enforceable
agreement]….To explain, duress,
consideration,
[unconscionability], and impossibility are affirmative defenses
which must be pled under New Matter, or such defenses are
waived per Pennsylvania Rule of Civil Procedure 1030(a).[6]
Husband’s Answer [to Wife’s divorce complaint] does not plead
duress, lack of consideration, impossibility, [or unconscionability
in any respect, let alone] under New Matter, thus they were
waived.
lack of
Further, Husband [attempted to raise his defenses for the
first time in his] Answer [to Wife’s special petition for declaratory
judgment; however,] Husband’s Answer to Wife’s Petition
provides no facts in support of any of the defenses, in violation of
Pennsylvania Rule of Civil Procedure 206.2(a)[,] which mandates
that an answer to a petition must state the material facts which
constitute the defense to the petition. Accordingly, per Rule
206.2(a), Husband waived the defenses of involuntariness,
[unconscionability], and
duress,
consideration,
lack of
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6 Pa.R.C.P. 1030 provides:
Rule 1030. New Matter.
(a) Except as provided by subdivision (b), all affirmative
defenses including but not limited to the defenses of accord and
satisfaction, arbitration and award, consent, discharge
in
bankruptcy, duress, estoppel, failure of consideration, fair
comment, fraud, illegality, immunity from suit, impossibility of
performance, justification, laches, license, payment, privilege,
release, res judicata, statute of frauds, statute of limitations, truth
and waiver shall be pleaded in a responsive pleading under the
heading “New Matter”. A party may set forth as new matter any
other material facts which are not merely denials of the averments
of the preceding pleading.
(b) The affirmative defenses of assumption of the risk,
comparative negligence and contributory negligence need not be
pleaded.
Pa.R.C.P. 1030 (bold in original).
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impossibility by failing to plead any material facts constituting any
of these affirmative defenses.
rial Court Opinion, filed 9/23/22, at 7-8 (footnote added).
We find no abuse of discretion or error of law in the trial court’s analysis.
T
Husband was given ample opportunity to present and develop his defenses in
his answer to Wife’s divorce complaint, as well as his answer to Wife’s special
petition for declaratory judgment. However, he failed to raise the defenses in
any manner in his answer to the divorce complaint. See Pa.R.C.P. 1030. Also,
giving his answer to Wife’s special petition a liberal reading, and recognizing
he intended to use the word “invalid” instead of “valid”, he, at best, raised the
defenses in his answer to the special petition in a bald, conclusory manner
without any supporting material facts. See Pa.R.C.P. 206.2(a).
Under these circumstances, the trial court did not err in determining the
validity of the Postnuptial Agreement based on the pleadings and exhibits
without holding an evidentiary hearing. Simply put, contrary to his assertion,
Husband was not denied due process due to the trial court’s failure to hold an
evidentiary hearing or order briefs. See Vogt v. Liberty Mut. Fire Ins. Co.,
900 A.2d 912 (Pa.Super. 2006) (noting the procedures mandated for petition
and pleading practice, including the filing of answers, under the Rules of Civil
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Procedure provide sufficient safeguards to protect one’s constitutional right to
notice and an opportunity to be heard).7
In his fourth issue, Husband avers the trial court erred in dismissing his
equitable distribution counterclaim. He contends the trial court violated 23
Pa.C.S.A. § 3502, which relevantly holds:
(a) General rule.--Upon the request of either party in an action
for divorce or annulment, the court shall equitably divide,
distribute or assign, in kind or otherwise, the marital property
between the parties without regard to marital misconduct in such
percentages and in such manner as the court deems just after
considering all relevant factors.
23 Pa.C.S.A. § 3502(a) (bold in original). Husband contends the Postnuptial
Agreement is invalid, and in denying Husband’s equitable distribution claim,
the trial court did not consider “all relevant factors.” Id.
We note the parties’ Postnuptial Agreement, which the trial court found
valid, set forth in detail the equitable distribution of the parties’ marital
property. Husband does not challenge the trial court’s interpretation of this
provision. Rather, his claim is premised upon his previous arguments that, in
light of his alleged defenses, the trial court should have held a hearing to
determine the validity of the Postnuptial Agreement. Given our analysis set
forth supra, we find it unnecessary to address this issue further.
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7 Also, as the trial court noted, inasmuch as Wife’s special petition sought
declaratory relief, absent an issue of fact, a hearing was not required. See
Trial Court Opinion, filed 12/16/21, at 4 (citing 42 Pa.C.S.A. § 7539(b)).
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For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
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oseph D. Seletyn, Esq.
Prothonotary
ate: 3/21/2023
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