NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

MICHAEL T. VICTOR 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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J-A25024-22  

v. 

 

 

. CRAIGE PEPPER       

 

Appellant 

 No. 13 WDA 2022 

Appeal from the Order Entered December 9, 2021 
In the Court of Common Pleas of Erie County Civil Division at No(s):  
12932-2019 

EFORE:  PANELLA, P.J., NICHOLS, J., and McCAFFERY, J. 

MEMORANDUM BY NICHOLS, J.: 

 

 

     FILED: MARCH 22, 2023 

Appellant  J.  Craige  Pepper  (Wife)  appeals  from  the  order  granting,  in 

part,  the  request  for  attorneys’  fees  filed  by  Michael  T.  Victor  (Husband), 

denying Wife’s counterclaim for attorneys’ fees and motion for modifications 

to the prenuptial agreement, and resolving all economic claims in connection 

with the parties’ divorce action.  We affirm. 

By  way  of  background,  Husband  and  Wife  executed  a  prenuptial 

agreement  in  June  of  2004.    The  agreement  stated  that  both  parties  were 

“giving up any and all rights he or she may have in the estate of the other 

except as provided in this [a]greement or in the other’s [w]ill, documents [of] 

a testamentary nature or lifetime documents that are executed in the future 

by the parties[.]”  Prenuptial Agreement, 6/25/04, at 2.  In relevant part, the 

parties agreed to waive “[a]ny and all interest that either party has, or may 

acquire at any time during marriage, or thereafter, in any pension plan, profit 

     

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sharing  plan,  individual  retirement  account,  or  other  retirement  plan  or 

account, including the increase in value thereof[.]”  Id. at 4.  Additionally, the 

agreement  provided  that  if  either  party  retained  counsel  for  purposes  of 

enforcing  or  preventing  a  breach  of  the  parties  agreement,  “the  prevailing 

party shall be entitled to be reimbursed by the losing party for all costs and 

expenses incurred thereby, including, but not limited to, reasonable attorneys’ 

fees and expenses for the services rendered to such prevailing party.”  Id. at 

13-14.  The parties were subsequently married on July 14, 2004.   

Husband filed a divorce action on October 25, 2019.  On July 22, 2021, 

the trial court issued an order granting a bifurcated divorce.1  See Trial Ct. 

Order, 7/22/21.  The trial court scheduled an evidentiary hearing to resolve 

the parties’ unresolved economic claims.  See Trial Ct. Order, 7/28/21. 

Prior to the evidentiary hearing, Wife filed interrogatories in which she 

requested  information  concerning  Husband’s  retirement  funds  and  the 

beneficiary designation for each account.  Husband filed an objection stating 

that “said discovery is not reasonably calculated to lead to the discovery of 

admissible evidence” and was “sought in bad faith.”  See Husband’s Obj. to 

Interrog., 8/23/21, at 2. 

On  September  14,  2021,  Wife  filed  a  motion  to  compel  Husband’s 

response  to  her  first  set  of  interrogatories.    See  Wife’s  Mot.  to  Compel, 

9/14/21.    Therein,  Wife  reiterated  that  Husband  had  named  her  as  the 

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1 See 23 Pa.C.S. § 3323(c.1). 

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beneficiary on certain retirement accounts during their marriage.  Id. at ¶ 6.  

Further, although Husband claimed that the requested information would not 

lead to admissible evidence, Wife argued that the beneficiary designation was 

relevant  because  it  constituted  “a  valid  modification  of  the  [p]re-[m]arital 

[a]greement thus providing her with a vested interest in said accounts.”  Id. 

at ¶¶ 6-7.  In response, Husband filed an answer stating that the information 

sought by Wife pertained to accounts that were “owned solely by [Husband], 

by virtue of the parties’ prenuptial agreement” and reiterated that it would not 

“lead to the discovery of admissible evidence.”  Husband’s Answer to Mot. to 

Compel, 9/22/21. 

The  trial  court  conducted  an  evidentiary  hearing  on  September  30, 

2021.    At  that  time,  Wife  argued  that  the  information  about  Husband’s 

retirement accounts was necessary in order for the court to determine whether 

the parties had modified their prenuptial agreement.  N.T. Hr’g, 9/30/21, at 

2-6.  Therefore, Wife requested that the trial court allow additional discovery 

on that issue.  Id.  Husband argued that, in the absence of a written document 

signed  by  both  parties,  there  could  be  no  modification  to  the  parties’ 

prenuptial  agreement.    Id.  at  7-8.    Further,  Husband  asserted  that  even  if 

Wife were listed as the beneficiary on  his retirement accounts, it would not 

give  Wife  any  right  to  those  funds  under  the  Employee  Retirement  Income 

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Security Act,2 (ERISA).  Id. at 8.  At the conclusion of the hearing, the trial 

court took the matter under advisement.  Id. at 10. 

On  October  24,  2021,  the  trial  court  issued  an  order  denying  Wife’s 

motion to compel discovery, which stated that “if [Husband] identified [Wife] 

as  a  beneficiary  on  any  of  his  retirement  benefit  accounts  from  date  of 

marriage  to  date  of  separation[,]  then  such  designation  is  inconsequential 

[and] that such retirement benefit accounts remain the separate property of 

[Husband] under the [June 24, 2004] premarital agreement[.]”  See Trial Ct. 

Order, 10/4/21.   

The trial court held a second evidentiary hearing on November 30, 2021.  

Among  other  issues,  the  parties  presented  evidence  in  support  of  their 

respective claims for attorneys’ fees.  See N.T. Hr’g, 11/30/21, at 44, 59, 76.  

Additionally,  although  Wife  attempted  to  cross-examine  Husband  about  his 

retirement accounts, the trial court sustained Husband’s objection based on 

its prior ruling.  Id. at 57-58.  

Ultimately,  on  December  9,  2021,  the  trial  court  issued  an  order  (1) 

granting  Husband’s  motion  for  attorneys’  fees  in  part,  (2)  denying  Wife’s 

motion for attorneys’ fees and modification of the premarital agreement, and 

(3) resolving all claims between the parties in connection with their divorce.  

See Trial Ct. Order, 12/9/21.  The trial court also issued an opinion explaining 

the basis for its conclusions.  See Trial Ct. Op., 12/9/21. 

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2 29 U.S.C. §§ 1001-1461. 

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opinion. 

Wife filed a timely notice of appeal and a Pa.R.A.P. 1925(b) statement.  

The trial court issued a Rule 1925(a) order incorporating its December 9, 2021 

 

On appeal, Wife raises the following issues for review: 

1.  Did  the  trial  court  err  by  denying  Wife’s  request  to  conduct 
discovery  into  the  existence  of  beneficiary  designations  for 
Husband’s retirement accounts in its order of October 4, 2021, 
where  Wife  alleged  that  Husband  did  name  her  as  his 
beneficiary, and by doing so created a binding modification of 
the  premarital  agreement  and/or  an  irrevocable  appointment 
which under ERISA was not subject to exclusion from marital 
assets by the premarital agreement?  

2.  Did the trial court err by awarding attorney’s fees to Husband 
in its order of December 9, 2021, even though Wife had a good 
faith basis, and was procedurally obligated, to file the petition 
to claim rights under the Divorce Code, to preserve issues of 
asset  distribution  and 
interpretation  of  the  premarital 
agreement? 

Wife’s Brief at 5. 

Discovery Request / Prenuptial Agreement 

 

In  her  first  claim,  Wife  argues  that  the  trial  court  erred  by  “failing  to 

allow  discovery  into  Husband’s  retirement  plan  accounts  and  beneficiary 

designations.”    Id. at 16.  Specifically, she claims that  the information was 

“relevant to [her] claims for equitable distribution and support,” and that she 

“had the right to establish, with testimony and with the forms Husband and 

Wife  executed  and  submitted  to  Husband’s  retirement  plan  administrators, 

that  the  parties  modified  the  premarital  agreement  to  grant  her  survivor 

benefits.”  Id. at 17.  In support, Wife contends that her rights to Husband’s 

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retirement  funds  are  protected  by  ERISA  and  that,  although  the  trial  court 

treated the premarital agreement “as waiving all of Wife’s economic rights, . 

. . the trial court failed to recognize that the [a]greement, though valid, could 

not  waive  Wife’s  rights  protected  under  federal  law.”    Id.  at  19.    She  also 

argues  that  “even  if  the  [a]greement  could  somehow  override  federal  law, 

Wife’s discovery was relevant to whether the parties modified the [a]greement 

by their actions.”  Id. 

“Generally, discovery is liberally allowed with respect to any matter, not 

privileged, which is relevant to the cause being tried.”  PECO Energy Co. v. 

Insurance Co. of North America, 852 A.2d 1230, 1233 (Pa. Super. 2004) 

(citation  and  quotation  marks  omitted).    “[I]n  reviewing  the  propriety  of  a 

discovery order, our standard of review is whether the trial court committed 

an  abuse  of  discretion.    However,  to  the  extent  that  we  are  faced  with 

questions of law, our scope of review is plenary.”  Gormley v. Edgar, 995 

A.2d 1197, 1202 (Pa. Super. 2010) (citation omitted). 

In the context of prenuptial agreements, this Court has explained: 

The determination of marital property rights through prenuptial, 
post-nuptial and settlement agreements has long been permitted, 
and  even  encouraged.    Where  a  prenuptial  agreement  between 
the parties purports to settle, fully discharge, and satisfy any and 
all  interests,  rights,  or  claims  each  party  might  have  to  the 
property  or  estate  of  the  other,  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 found, 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.  

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Sabad v. Fessenden, 825 A.2d 682,  686 (Pa. Super. 2003) (citations  and 

quotation marks omitted).   

Further, it is well settled that premarital agreements  are governed by 

contract  law.    Paroly  v.  Paroly,  876  A.2d  1061,  1063  (Pa.  Super.  2005).  

When  the  words  of  a  prenuptial  agreement  are  clear  and  unambiguous,  we 

must  ascertain  the  parties’  intent  based  on  the  express  language  of  the 

agreement.  Sabad, 825 A.2d at 688.  “In determining whether the trial court 

properly applied contract principles, the reviewing Court must decide, based 

on all the evidence, whether the trial court committed an error of law or abuse 

of discretion.”  Lewis v. Lewis, 234 A.3d 706, 711 (Pa. Super. 2020) (citation 

omitted). 

ERISA  is  a  federal  law  that  ensures  the  uniform  and  efficient 

administration  of  benefit  plans  to  plan  participants  and/or  designated 

beneficiaries.  See 29 U.S.C. § 1002(8) (stating that the term “beneficiary” 

refers  to  a  person  who  is  designated  as  the  recipient  of  benefits  under  an 

individual’s  pension,  employee  benefit,  life  insurance,  or  retirement  plan).  

ERISA  requires  plan  participants  to  obtain  spousal  consent  before  changing 

the beneficiary designation on a benefit plan.  See 29 U.S.C. § 1055(c)(2)(A).  

Further,  when  an  individual  is  named  as  the  primary  beneficiary  on  their 

spouse’s pension plan, the entry of a divorce decree does not terminate that 

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interest.3    See  29  U.S.C.  §  1104(a)(1)(d)  (requiring  the  administrator  of 

benefits to make payments to a beneficiary “in accordance with the documents 

and instruments governing the plan”). 

However,  this  Court  has  held  that  ERISA’s  spousal  benefit  waiver 

requirements pertain  only  to a beneficiary’s  survivor benefits.   See Sabad, 

825 A.2d at 684-85, 697.  Therefore, a party “can effectively waive rights to 

the equitable distribution of the marital portion of pension plans which are 

subject  to  ERISA,”  by  signing  a  valid  prenuptial  agreement.    Id.  at  684 

(emphasis added). 

In reaching that conclusion, the Sabad Court explained: 

[The h]usband and [the w]ife signed and had notarized a written 
antenuptial  agreement,  which  purported  to  waive  any  interest 
either  party  might  ordinarily  acquire  in  the  other’s  property  by 
virtue  of  the  marriage.    The  parties  employed  unambiguous 
language in their agreement providing that the property they had 
or  would  acquire  was  to  remain  their  separate  property.    The 
parties retained their absolute and unrestricted right to dispose of 
their  separate  property.    Included  in  that  waiver  were  [the 
h]usband’s  and/or  [the  w]ife’s  rights  to  pension  benefits  that 
could eventually be considered marital property.  Having carefully 

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3 We note that ERISA preempts state laws that automatically sever a spouse’s 
beneficiary status in the event of divorce.  See 29 U.S.C. § 1144(a) (providing 
that ERISA applies notwithstanding “any and all” state laws that relate to any 
employee  benefit  plan);  see  also  Kennedy  v.  Plan  Administrator  For 
Dupont Savings & Investment Plan, 555 U.S. 285, 302-04 (2009) (holding 
that ERISA preempts state laws revoking the designation of the ex-spouse as 
plan  beneficiary on  divorce, and that, if ERISA  governs the 401(k) or  other 
retirement plan, the ex-spouse will have the right to the plan proceeds); In 
re  Estate  of  Sauers,  32  A.3d  1241,  1246,  1257  (Pa.  2011)  (holding  that 
ERISA  preempts  state  law  purporting  to  revoke  the  beneficiary  status  of  a 
surviving ex-spouse by operation of law). 
 

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considered the reasoning and outcome in the preceding cases in 
light of the facts of the instant case, we conclude that the parties’ 
agreement  represented  an  effective  waiver  of  their  rights  to 
equitable distribution of the marital portion of their pension plans 
that are subject to ERISA. 

Id. at 697.  Further, the Sabad Court noted that the parties’ waiver of rights 

in  the  prenuptial  agreement  “did  not  extend  to  their  respective  survivor 

benefits  under  ERISA,  because  the  parties  were  not  married  when  the 

antenuptial agreement was created.”  Id. at 697 n.9. 

Here,  as  in  Sabad,  it  is  undisputed  that  the  parties  executed  a 

prenuptial agreement in which they waived “[a]ny and all interest that either 

party has, or may acquire at any time during marriage, or thereafter, in any 

pension  plan,  profit  sharing  plan,  individual  retirement  account,  or  other 

retirement  plan  or  account,  including  the  increase  in  value  thereof[.]”  

Prenuptial Agreement, 6/25/04, at 4.  In denying Wife’s request for discovery, 

the trial court concluded that any beneficiary designation was “inconsequential 

[and] that such retirement benefit accounts remain the separate property of 

[Husband]  under  the  [June  25,  2004]  premarital  agreement  between  the 

parties.”  See Trial Ct. Order, 10/4/21. 

Based on our review of the record, we discern no abuse of discretion or 

error of law in the trial court’s conclusions.  See Sabad, 825 A.2d at 686; see 

also Lewis, 234 A.3d at 711.  As noted by the trial court, the parties executed 

a valid prenuptial agreement in which they waived their rights to any interest 

in  the  other  party’s  retirement  funds  that  would  ordinarily  be  subject  to 

equitable distribution.  Therefore, the premarital agreement was “an effective 

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waiver of their rights to equitable distribution of the marital portion of their 

pension plans that are subject to ERISA.”  See Sabad, 825 A.2d at 685, 697. 

However,  the  parties  retained  their  absolute  and  unrestricted  right  to 

dispose of their separate property, and the agreement did not preclude either 

party  from  transferring  separate  property  to  the  other  after  the  agreement 

was executed.  See Prenuptial Agreement, 6/25/04, at 2.  Therefore, even if 

Husband  listed  Wife  as  the  beneficiary  on  one  or  more  of  his  retirement 

accounts, that designation would not constitute a modification of the parties’ 

prenuptial agreement, which only resolved property rights that arose by virtue 

of the parties’ marriage.4  See id. at 2, 4; see also Sabad, 825 A.2d at 686.  

Therefore, the trial court did not err in rejecting Wife’s request for additional 

discovery.  Accordingly, Wife is not entitled to relief on this claim. 

Attorneys’ Fees 

In her remaining claim, Wife argues that the trial court erred in awarding 

attorneys’ fees to Husband.  Wife’s Brief at 25.  In support, she contends that 

“[e]ven  if  this  Court  affirms  the  trial  court’s  discovery  order,  it  should  still 

reverse the award of counsel fees[,]” because Wife “had good faith grounds 

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4  As  noted  previously,  the  Sabad  Court  held  that  a  waiver  of  rights  in  a 
premarital  agreement  “did  not  extend  to  [the  parties’]  respective  survivor 
benefits  under  ERISA,  because  the  parties  were  not  married  when  the 
antenuptial  agreement  was  created.”    Sabad,  825  A.2d  at  697  n.  9.  
Therefore,  although  Wife  waived  her  right  to  the  portion  of  Husband’s 
retirement  funds  to  which  she  would  otherwise  be  entitled  to  by  virtue  of 
marriage, that waiver did not extend to survivorship benefits that would arise 
under  ERISA.    As  such,  ERISA  does  not  affect  the  terms  of  the  parties’ 
premarital agreement, which solely pertains to property claims that arose due 
to the parties’ marriage and under state law. 

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to pursue a share  of Husband’s retirement assets based  on existing federal 

and state law.”  Id. at 25-26.  Therefore, Wife contends that if her “position 

was  mistaken,  it  was  a  good-faith  mistake  that  the  trial  court  should  have 

considered when shifting fees.”  Id. at 26. 

Our  Supreme  Court  has  explained  that  in  Pennsylvania,  “each  side  is 

responsible for the payment of its own costs and counsel fees absent bad faith 

or vexatious conduct.  This so-called ‘American Rule’ holds true unless there 

is express statutory authorization, a clear agreement of the parties or some 

other  established  exception.”    McMullen  v.  Kutz,  985  A.2d  769,  775  (Pa. 

2009) (citations and some quotation marks omitted).  Further, in reviewing a 

request  for  counsel  fees,  “the  trial  court  may  consider  whether  the  fees 

claimed to have been incurred are reasonable, and to reduce the fees claimed 

if appropriate.”  Id. at 777. 

provision concerning attorneys’ fees: 

Here,  the  parties’  prenuptial  agreement  contained  the  following 

Should  any  party  hereto  retain  counsel  for  the  purpose  of 
enforcing  or  preventing  the  breach  of  any  provision  hereof, 
including,  but  not  limited  to,  by  instituting  any  action  or 
proceeding  to  enforce  any  provision  hereof,  for  damages  by 
reason  of  any  alleged  breach  of  any  provision  hereof,  for  a 
declaration of such party’s rights or obligations hereunder or for 
any  other  judicial  remedy,  then  the  prevailing  party  shall  be 
entitled  to  be  reimbursed  by  the  losing  party  for  all  costs  and 
expenses  incurred  thereby,  including,  but  not  limited  to, 
reasonable attorneys’ fees and expenses for the services rendered 
to such prevailing party. 

Prenuptial Agreement, 6/25/04, at 12-13. 

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explained: 

 

In  granting  Husband’s  request  for  attorneys’  fees,  the  trial  court 

[Wife’s] claims and challenges to the agreement regarding alleged 
oral  modification(s)  and  entitlement  to  share  in  Husband’s 
nonmarital retirement accounts were wholly without merit.  Wife 
began litigating those meritless claims in earnest when she filed 
her  counter-motion  for  special  relief  on  July  16,  2021.    Wife’s 
pursuit  of  a  claim  against  Husband’s  nonmarital  retirement 
accounts constituted a clear breach of the [a]greement, entitling 
Husband to attorney fees and costs from July 16, 2021 through 
the date of receipt of the court’s October 4, 2021 order disposing 
of the claim.  Attorney fees and costs incurred from July 16, 2021 
through  October  5,  2021  in  the  amount  of  $9,388.25  will  be 
awarded in favor  of Husband.   Standby counsel fees are  denied 
because  they  are  not  sufficiently  itemized  to  identify  fees  and 
costs incurred during the relevant time period. 

Trial Ct. Op. at 5-6. 

 

Following  our  review  of  the  record,  we  agree  with  the  trial  court  that 

Husband was entitled to attorneys’ fees under the express terms of the parties’ 

agreement.    See  McMullen,  985  A.2d  at  775.    As  noted,  the  parties’ 

agreement  stated  that  if  either  party  retained  “counsel  for  the  purpose  of 

enforcing  or  preventing  the  breach  of”  the  agreement,  the  prevailing  party 

would  be  “entitled  to  be  reimbursed  by  the  losing  party  for  all  costs  and 

expenses incurred thereby, including, but not limited to, reasonable attorneys’ 

fees and expenses for the services rendered to such prevailing party.”   See 

Prenuptial Agreement, 6/25/04, at 12-13.  Although Wife sought to enforce 

“modifications” to the agreement which would entitle her to some portion of 

Husband’s retirement accounts, the trial court concluded that Wife’s claim was 

meritless and ruled in Husband’s favor.  Therefore, under the express terms 

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of the parties’ agreement, Husband was entitled to legal fees as the prevailing 

party.  See McMullen, 985 A.2d at 775.  Accordingly, Wife is not entitled to 

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relief on this claim. 

Order affirmed. 

Judgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate:  3/22/2023    

 

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