MONTGOMERY COUNTY LAW REPORTER
© 1995 MBA 50
Sokoloff v. Sokoloff
132-393
[132 Montg. Co. L. R.
Sokoloff v. Sokoloff
DOMESTIC RELATIONS
Separation Agreement
CONTRACTS
Interpretation of Contracts
Ambiguity
Extrinsic Evidence
1. An action premised on a support agreement between the parties does not mandate the use of
the state support guidelines as is required under an action in support.
2. When a written agreement is clear and unequivocal, its meaning must be determined by its
contents alone.
3 . Where the intention of the parties is clear, there is no need to resort to extrinsic aids or
evidence.
4. Where the language of an agreement is clear and unambiguous, the focus of interpretation
is upon the terms of the agreement as manifestly expressed, rather than, as perhaps, silently intended.
5. A court must first find an ambiguity in the agreement before allowing testimony to interpret
the intention of the parties regarding any found ambiguity.
6.
In this matter, the court found no such ambiguity, in the agreement.
C. P. Montgomery County, Civil Division. No. 95-01491. Case No. 02391PHL95.
Joel D.Sokoloff v. Frances W. Sokoloff.
Eric J. Cox, for Plaintiff.
Steven T. O’Neill, of Fox, Differ, Callahan, Sheridan & O’Neill, for Defendant.
HODGSON, August 17, 1995.
This opinion is necessitated by husband’s appeal to the Superior Court of Pennsylvania from
our order of June 26, 1995, which denied husband’s Motion for Reconsideration. The denial of this
Motion reaffirmed our order dated May 17, 1995, wherein we granted wife’s Petition to
Enforce Separation/Support Agreement, thereby denying husband’s Petition to Declare Separation
Agreement Null and Void.
On October 23, 1994, husband [“Joel”] and wife [“Frances”] separated.
On November 12, 1994, Joel and Frances signed a one page separation agreement.
The agreement required that, inter alia, Joel pay Frances three thousand two hundred fifty dollars
($3,250.00) every two weeks, for the support and maintenance of the home, Frances, and the parties’
two minor children, Miriam and Daniel. Frances remained in the marital residence in
Lafayette Hill with the parties’ two children. The sixth and seventh paragraphs of the separation
agreement form, in large measure, the basis of the present appeal.
In paragraph six, the agreement states: “[N]othing in this agreement shall prevent either party,
at any time, from seeking support against the other through the Montgomery County Court system.”
The agreement in paragraph seven states: “[T]his agreement does not contemplate a divorce nor a
division of the parties’ marital assets.” See Exhibit P. 1.
On January 26, 1995, Joel filed an action for Divorce.
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On February 2, 1995, a Protection From Abuse order was entered by the
Honorable S. Gerald Corso, wherein it was stated that Joel would pay support in the amount of
$3,250.00 bi-weekly, the same amount as required by the parties’ Separation Agreement, pending a
Court order in the matter.
On February 9, 1995, Frances filed a Petition for Support with the Domestic Relations Office.
However, this Petition for Support was withdrawn on or about March 21, 1995.
Instead, on March 22, 1995, Frances filed a Petition to Enforce the Separation Agreement,
which Joel Answered on March 29, 1995. At that time Joel also Petitioned to Declare the
Separation Agreement Null and Void.
The parties presented evidence at a hearing before the undersigned on May 17, 1995 regarding
the circumstances surrounding the signing of the agreement. Both parties’ testified they had
previously interviewed attorneys, but not with respect to the creation of an agreement.
A mutual friend, who had prepared the parties’ taxes in the past testified that he was asked to help
Joel and Frances arrive at an appropriate figure. He further testified that after a few hours, a figure
was negotiated, and ultimately used in the agreement. Frances testified that she and a social worker
friend worded the agreement without the assistance of an attorney. Joel testified that he knew the
court could formulate a figure to be used, but that he elected to sign the agreement that Frances had
typed, after an attorney had advised him otherwise.
After closing arguments, we announced our decision and rationale. (N.T., 5/17/95, pp. 120-22).
We entered our order dated May 17, 1995, granting the Petition to Enforce the Separation/Support
Agreement, thereby denying the Petition to declare the Separation Agreement Null and Void.
On May 30, 1995, relying on the recent court case Rappaport v. Meridan Bank,
__ Pa.Super., __ 657 A.2d 17 (1995), appellants’ counsel filed a Motion for Reconsideration of our
May 17, 1995 order, asking this Court to reconsider its ruling in light of the decision in Rappaport.
On June 26, 1995, this Court held a reconsideration hearing in which counsel for appellant
argued that patent and/or latent ambiguities existed in the parties’ Separation Agreement. As a result,
he requested testimony be taken in order to determine the exact time period in which Joel was to pay
for the support and maintenance of Frances, the children and the home. This Court found that no
ambiguity, either patent or latent, existed regarding the length of time Joel was to pay Frances support
and maintenance monies. As no ambiguity existed in the contract, this Court declined to hear any
testimony on the issue.
Following closing remarks by both parties, we announced our reasoning and entered an order
denying Joel’s Motion for Reconsideration, thereby upholding the validity and enforcement of the
Separation Agreement. (N.T., 6/26/95, p. 25).
On June 29, 1995, Joel filed a Petition for Reduction of the Separation Agreement Payments.
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Joel filed his notice of appeal on July 6, 1995 whereupon we ordered him to file his concise
statement of matters complained of on appeal. He filed his concise statement on July 24, 1995.
The appellant asserts that this Court erred in several ways. However, in actuality, the points raised in
his concise statement can be separated into two major issues:
I. Whether this Court properly held a hearing on the Petition to Enforce the Separation
Agreement?
II. Whether this Court properly refused to allow testimony regarding alleged patent
and/or latent ambiguities, as well as testimony regarding the intended duration of the contract?
DISCUSSION
I.
This Court properly held a hearing on the Petition to Enforce the Separation Agreement.
[1] An action premised on a support agreement between parties does not mandate the use of the
state support guidelines as is required under an action in support. McGinnis v. McGinnis,
__ Pa.Super. __, 654 A.2d 563 (1995). If a party seeks court enforcement of an agreement, the court
has an “obligation to consider whether allegations of changed circumstances warrant modification of
the agreement under Section 3105(b) of the Code, 23 Pa.C.S. §3105(b).” Id. 654 A.2d at 566.
In his concise statement, appellant argues that this matter should have been resolved through the
Domestic Relations Office since Frances had originally filed a Petition for Support with that office.
Concise Statement I. 1. Rule 6108(5) of the Code, relating to Protection From Abuse (PFA) actions,
provides that after a defendant is directed to pay financial support, the beneficiary of the order must
file a complaint for support within two weeks of the date of the PFA order.
See 23 Pa.C.S.A. §6108(5). If a complaint for support is not filed within that time, the portion of the
PFA order concerning support payments is rendered void.
The Protection From Abuse (PFA) order signed by The Honorable S. Gerald Corso, which was
amicably agreed upon by the parties, directed Joel to “pay support in the sum of $3250.00 bi-weekly
pending Court Order.” See PFA order 2/2/95. It is true that Frances originally filed a Petition for
Support with the Domestic Relations Office, in accordance with the Rules. However, she later
withdrew that Petition, instead electing to proceed with a Petition to Enforce the Separation
Agreement in this Court. Because Frances withdrew the Petition for Support filed with
Domestic Relations, we believe that Frances, therefore, waived her right to receive support pursuant
to the PFA order. As a result of her withdrawal, that portion of the PFA order dealing with the
payment of support became void under §6108(5).
We do not believe, as appellant contends, that the filing and subsequent withdrawal of the
support complaint eliminated Frances’ right to proceed to enforce their written agreement. Appellant
believes that once Frances filed a Petition for Support with Domestic Relations, she could not
thereafter withdraw that Petition and instead elect to proceed in this Court. We disagree. We found
that the withdrawal of the petition for support voided the PFA support provision, but gave Frances
the option to instead proceed with an action to Enforce the Separation Agreement in this Court.
Notwithstanding the PFA order, this Court, after a hearing, entered an order on May 17, 1995 finding
the Separation Agreement to be valid and enforceable. This order directed Joel to continue to make
payments of $3250.00 every two weeks, in accordance with the parties original written agreement.
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Appellant alternatively contends that this Court should have followed the mandates of
23 Pa.C.S.A. §3105(a), et sec., and heard testimony on any possible change of circumstances.
Concise Statement I. 1. We agree. Section 3105(a) of the Divorce Code states that a party to an
agreement may enforce it as though it had been an order of the court, unless the agreement states
otherwise. See 23 Pa.C.S.A. §3105(a). Section 3105(b) continues by stating that a provision of an
agreement concerning child support is subject to modification if changed circumstances are shown.
See 23 Pa.C.S.A. §3105(b).
The agreement in the present case allows the parties to seek support (spousal and child) at any
time. See Exhibit P.1. Therefore, testimony of changed circumstances must be considered in
determining whether the Petition to Enforce the Separation Agreement will be granted, and if so, in
what amount. Initially, it should be noted that no Petition to Modify was filed by appellant’s counsel
at or before the time of the hearing. This issue was, therefore, not before the Court for disposition.
Regardless, we felt compelled to consider any evidence of an alleged change in circumstances.
However, this Court found, in accordance with Pa.R.C.P. §3105(a) and (b), that there was no
evidence of changed circumstances to warrant a modification of their agreement. (N.T., 5/17/95,
p. 105-6).
We specifically asked appellant if he had any reason to believe that his income in 1995 would be
significantly different than his 1994 income. (N.T., 5/17/95, p. 105). Appellant replied that his
income had been dropping about ten percent each year due to a flux in the medical field.
In addition, he testified that his income had dropped each of the past four years. Therefore, we found
that since this drop has occurred in 1992, 1993, as well as in 1994, that this phenomenon had been
considered by Joel when he entered into the agreement in November of 1994. (N.T., 5/17/95, p. 106).
Finding, from his reply, that there had been no significant change in circumstances since the
separation agreement was entered into, we enforced the Separation Agreement as it was originally
written.
II. This Court properly refused to allow testimony regarding alleged patent and/or latent
ambiguities, as well as testimony regarding the intended duration of the contract.
[2], [3], [4], [5] The Supreme Court of Pennsylvania has recognized that a variety of approaches
exist regarding contract interpretation. Willison v. Consolidation Coal Co., 536 Pa. 49, 637 A.2d 979
(1994). However, the Supreme Court recently announced that it would adhere to its long established
precedents by “requiring that the plain meaning of language used by the parties be given effect.”
Id. 637 A.2d at 982. The case most frequently cited for its interpretation of the plain meaning rule is
Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). The Supreme Court in Steuart explained:
“[w]hen a written contract is clear and unequivocal, its
meaning must be determined by its contents alone. It speaks
for itself and a meaning cannot be given to it other than that
expressed. Where the intention of the parties is clear, there
is no need to resort to extrinsic aids or evidence.”
Hence, where language is clear and unambiguous,
the focus of interpretation is upon the terms of the
agreement as manifestly expressed, rather than, as perhaps,
silently intended.
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Sokoloff v. Sokoloff
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[132 Montg. Co. L. R.
498 Pa. __, 444 A.2d at 661 (emphasis in original) (citation omitted). Acknowledging that there
can never be one real or absolute meaning, the Court went on to note that a contract is not ambiguous
if the court can determine its meaning without any guide other than a knowledge of the simple facts
on which the contract depends. Id. As a result, if the trial court determines that the contract terms are
ambiguous and are susceptible to more than one reasonable interpretation, the court may receive
extrinsic (parol) evidence to resolve the ambiguity. Rappaport v. Meridan Bank, supra.
Ambiguity within a contract may be either patent or latent. A patent ambiguity appears on the face of
the contract and results from defective or obscure language. Z & L Lumber Co. of Atlasburg v.
Nordquist, 348 Pa.Super. 580, 502 A.2d 697 (1985). A latent ambiguity arises from collateral facts
which make the meaning of the contract uncertain, although the language appears clear on the face of
the contract. Id. The fact that the parties do not agree on the proper interpretation does not necessarily
render the contract ambiguous. Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624 A.2d 638 (1993)
(citing Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986)). In cautioning against the
introduction of extrinsic evidence too often, the Steuart court reasoned that:
[r]esort to the plain meaning of language hinders parties dissatisfied with their agreement from
creating a myth as to the true meaning of the agreement through subsequently exposed extrinsic
evidence. Absent the plain meaning rule, nary an agreement could be conceived, which, in the event
of a party’s later disappointment with his stated bargain, would not be at risk to having its true
meaning obfuscated under the guise of examining extrinsic evidence of intent. Even if the dissatisfied
party in good faith believes that the agreement, as manifest, did not express the consensus as idem, his
post hoc judgment would be inclined to be colored by belief as to what should have been, rather that
what strictly was, intended.
Steuart 498 Pa. at __, 444 A.2d at 663.
In the present matter, Joel maintains that this Court committed error in not permitting testimony
as to patent and/or latent ambiguities in the contract, and testimony concerning the intended duration
of the contract. See Concise Statement I. 3-5 and II. 1.
[6] It is the trial court’s duty to preliminarily determine if any ambiguity, either patent or latent,
exists within the contract. This Court found, after obtaining, through testimony, a general knowledge
of the circumstances surrounding the agreement, that although the terms of the agreement were
disputed, they were not ambiguous. (N.T.,6/26/95, p. 24-5). We did not find the agreement
reasonably capable of two different interpretations. With this preliminary determination in mind, we
refused to allow any extrinsic testimony on the intent of the parties when entering into this contract.
More specifically, appellant argues ambiguities exist in paragraphs six and seven of the
agreement. Paragraph six of the agreement states that either party may go to Court to seek support
against the other. Assuming that Joel were to lose his job or move into the marital residence with the
children, paragraph six allows him to seek to modify their agreement in the Montgomery County
Court System. This Court simply did not find any ambiguity in paragraph six.
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Furthermore, no ambiguity was found to exist in paragraph seven, which states that their
agreement does not contemplate a divorce or division of the parties’ marital assets. Since the
agreement states it does not contemplate a divorce or division of the assets, it necessarily implies that
the support arrangement will terminate upon either a legal divorce or a division of the assets.
Counsel for appellant wanted to demonstrate through testimony that the agreement was intended to
terminate when either party decided to divorce, not when they were legally and officially divorced.
(N.T., 5/17/95, p. 96). However, the agreement did not state that it terminates when a party decides
to seek a divorce. It clearly stated that the agreement entered into does not contemplate a divorce or
a division of the assets. This Court found that the length of the agreement was, therefore,
unambiguous and clear. This Court explained to counsel for appellant that if Rappaport was to be
interpreted in that manner, then the Steuart Court’s fears have been realized in that any party
dissatisfied with the bargain could claim that extrinsic evidence is needed to explain an alleged latent
ambiguity. (N.T., 6/26/95, p. 15-6). Counsel for Joel mistakenly argues that extrinsic evidence must
be allowed in those cases where there is an issue raised as to latent ambiguity. This Court, following
Steuart and its progeny, disagrees. We found the cases to hold that extrinsic evidence should not be
introduced unless the court first makes a finding that an ambiguity exists. The Court makes no such
finding here.
We now turn to the remaining issues raised by appellant in his concise statement.
He first argues, “The contract was one-sided and uncounselled as to appellant.” Concise Statement
I. 2. It is well settled that it is the function of the fact finder to pass upon the credibility of witnesses
and the weight to be accorded the evidence produced. Commonwealth v. Campbell,
425 Pa.Super. 514, 625 A.2d 1215 (1993). Thus, the trial court, sitting as fact finder, was free to
accept all, part, or none of a witness’s testimony. Commonwealth v. Strutt, 425 Pa.Super. 95, 624
A.2d 162 (1993). This issue was raised and addressed in the hearing conducted on May 17, 1995.
At the May 17th hearing, both Joel and Frances testified that they did not consult an attorney
with respect to the creation or terms to be included in a separation agreement. (N.T., 5/17/95, pp. 52,
86). In addition, their mutual friend Mr. Lukoff testified that neither had told him they had consulted
an attorney. (N.T., 5/17/95, pp. 25-6). Mr. Lukoff testified that he has prepared the parties’ taxes for
a number of years and is, therefore, familiar with their incomes. (N.T., 5/17/95, p. 23). Finally,
Mr. Lukoff testified that he met with the parties and after a few hours, helped them negotiate a figure
based on their expenses and incomes. (N.T., 5/17/95, pp. 21-5).
Frances testified that she typed the agreement after she and a girlfriend, who is a social worker,
created the language. (N.T., 5/17/95, pp. 52-3). Frances then testified that she called Steven O’Neill,
Esq., read the agreement to him, and asked him if it was okay. (N.T., 5/17/95, p. 53). He stated it was
“okay”, and she made no changes to the document before reviewing it with Joel. (N.T., 5/17/95, p.
54). Joel testified that he knew that a formula existed whereby a support amount could be determined
by the court. (N.T., 5/17/95, p. 94). He chose to ignore that option, and instead elected to sign the
written agreement Frances prepared. In addition, an attorney advised him not to sign an agreement
prepared by Frances. (N.T., 5/17/95, p. 100).
After the testimony was concluded, we found the agreement to have been entered into at arm’s
length, with the parties being on equal footing, and without the assistance of counsel.
See (N.T., 5/17/95, p. 120-1).
Next, appellant argues, “The Court erred in failing to apply the Rule of Law that a document
unclear in its meaning is to be construed against the party who wrote it.” Concise Statement I. 6.
Since we found the terms of the agreement to be clear and unambiguous, this rule of law is
inapplicable.
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Thirdly, appellant argues “The Court erred in failing to declare the agreement null and void for
the reason that it is desirable to permit parties to enter into an agreement while considering divorce so
as to permit them to attempt to reconcile.” Concise Statement II. 2. While it is certainly desirable to
permit parties to attempt to reconcile, it is equally desirable to require parties uphold their agreements
until: 1) they choose to mutually modify them; 2) there is a change in circumstances; or 3) the
agreement terminates. In the present case, the Court did not find any of the above to exist and,
therefore, properly declined to void the agreement.
Fourth, appellant argues, “The Court erred in directing counsel for the Appellee to file a
Contempt Petition in this action to enforce a contract at the conclusion of the “hearing” on the Petition
for Reconsideration and at a time when the Court’s Order became final, demonstrating the Court’s
bias against Appellant.” Concise Statement II. 3. First, as is evidenced by the Notes of Testimony,
this Court did not direct counsel for Frances to file a Contempt Petition. (N.T., 6/26/95, p. 26).
Secondly, the Court is at a loss to explain, and the record is devoid of any alleged “bias” against the
appellant.
Fifth and finally, appellant argues, “The Court erred in failing to hold a hearing on Appellant’s
Petition for Reconsideration after ordering that a hearing be held. The Court simply ruled from the
bench regarding each point raised by counsel for Appellant thereby denying Appellant due process of
law.” Concise Statement II. 4. The trial court has broad authority to reconsider its own judgment.
Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (1993). Although the issue in Moore involved child
custody, the Pennsylvania Supreme Court acknowledged: “[S]ince a motion for reconsideration is
addressed to the sound discretion of the trial court, the trial court is obviously in the best position to
decide if additional testimony, briefs or argument are necessary to the court in
reassessing its original motion.”
We granted a hearing on his Motion for Reconsideration because appellant requested an
opportunity to buttress his original position by asking this Court to consider the
recently decided Rappaport case. Counsel for appellant argues Rappaport held that a Court must
hear testimony in those cases where the issue of latent ambiguities existing in the contract is raised.
We disagree. As discussed previously, we view the Rappaport holding as consistent with a long
history of cases that state a court must first find an ambiguity in the contract (agreement) before
allowing testimony to interpret the intention of the parties regarding any found ambiguity.
See Steuart, supra; Krizovensky, supra; and Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991).
We found no such ambiguity to exist and as such, found that further testimony in this matter would
be useless. Therefore, we declined to hear any testimony regarding any so called patent and/or latent
ambiguities within Joel and Frances’ Agreement.
For these reasons, our order dated May 17, 1995 should be affirmed.
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NOTES:
[132 Montg. Co. L. R.