Melanie Sue Rolon, v. Richard L. Rolon

Melanie Sue Rolon, v. Richard L. Rolon

Civil Action-Family Law-Divorce-Equitable Distribution-Marital Settlement Agreement- Authority of Counsel to Act on Behalf of Client-Oral Agreement-Enforceability-Essential Terms

The parties married on March 14, 1998 and separated on December 16, 2021.  Melanie Sue Rolon (“Wife”) filed a Complaint for Divorce on January 28, 2022 that included a request for equitable distribution.  Counsel for Wife communicated to counsel for Richard L. Rolon (“Husband”) in March of 2023 that an agreement had been reached to divide funds resulting from the sale of the marital residence in an escrow account equally.  When this agreement was memorialized and forwarded to Wife for her signature, she refused to sign the agreement.  Husband has filed a Motion seeking to enforce the agreement regarding the distribution of the funds from the sale of the marital residence.

1.  Attorneys serve as the agents of the clients they represent.

2.  What an attorney does in the course of his or her business is presumed to be by the authority of his or her client.

3.  A suit will not be permitted by a dissatisfied client against his or her attorney following a settlement to which that client agreed unless the client can show that he or she fraudulently was induced to settle the action.

4.  Settlements in disputes are favored by the law and must be sustained in the absence of fraud and mistake.

5.  The actions taken by Wife’s counsel in communicating agreement with regard to the division of the funds were in the course of her representation of Wife and were authorized by Wife.

6.  Enforcement of an agreement in the context of a divorce is governed by the general rules applicable to enforcement of contracts.

7.  Parties may bind themselves to an oral agreement prior to the memorialization of the terms of the written document.

8.  If the parties have agreed upon the essential terms, an agreement is enforceable even though recorded only in an informal memorandum that requires future approval or negotiation of incidental terms.

9.  If a purported agreement does not reflect a quid pro quo regarding all essential issues, the proposed agreement is a proposal.

10.  If the essence of the parties’ dispute is addressed by the parties’ deal, the deal can be enforced even if there are details of which still must be resolved.

11.  The parties’ agreement with regard to distribution of the funds from the sale of the marital residence is enforceable, as the record establishes that Wife agreed to the same in light of the fact that she wanted to end the divorce as promptly as possible to end her obligation to pay alimony pendente lite to Husband, Wife knew her counsel recommended an equal distribution and Husband had a claim for rental value credit that potentially could offset Wife’s request for payment of expenses to maintain the marital residence after separation.

L.C.C.C.P. No. 2012-20710, Opinion by Bradford H. Charles, Judge, September 26, 2023.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – DIVORCE

MELANIE SUE ROLON,                           :           NO. 2012-20710

Plaintiff                                                          :

                                                                        :          

                        v.                                                         :                      

                                                                                    :

RICHARD L. ROLON,                                            :       

Defendant                                                     :   

                                                            ORDER OF COURT

            AND NOW, this 26^th day of September, 2023, in accordance with the attached Opinion, the Order of this Court is as follows:

1. The Petition of Richard L. Rolon (hereafter HUSBAND) to enforce an agreement reached by the parties’ counsel in March of 2023, is GRANTED.  The terms of the Marital Settlement Agreement signed by HUSBAND on March 21, 2023, will be enforceable effective on the date Melanie Sue Rolon (hereafter WIFE) signs the agreement or in thirty (30) days, whichever occurs sooner.  If WIFE files an appeal of this decision, the terms of this Order will be stayed until the appeal can be resolved by the Pennsylvania Superior Court.
2. As soon as WIFE signs the Marital Settlement Agreement, or as soon as possible following thirty (30) days from today’s date, counsel for either party is to procure a Final Decree of Divorce.  As soon as the Final Decree of Divorce is entered, WIFE’s obligation to pay Alimony Pendente Lite will be terminated. 
3. HUSBAND’s request that WIFE reimburse him for counsel fees is DENIED. 

                                                                        BY THE COURT,

                                                                        ______________________________, J.

                                                                        BRADFORD H. CHARLES

BHC/pmd

cc:        Court Administration

            Loreen Burkett, Esquire

Heather Eggert, Esquire

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – DIVORCE

MELANIE SUE ROLON,                           :           NO. 2012-20710

Plaintiff                                                          :

                                                                        :          

                        v.                                                         :                      

                                                                                    :

RICHARD L. ROLON,                                            :       

Defendant                                                     :   

APPEARANCES:

HEATHER EGGERT, ESQUIRE FOR PLAINTIFF

LOREEN BURKETT, ESQUIRE                          FOR DEFENDANT

Opinion, Charles, J., September 26, 2023

            At what point is an agreement an agreement?  That is the question that is presented to us via the above-referenced divorce litigation.  As we will address in far more detail within the body of this Opinion, Melanie Sue Rolon (hereafter WIFE) and Richard L. Rolon (hereafter HUSBAND) reached consensus that a marital escrow fund should be distributed on a 50-50 basis.  Moreover, they reached this consensus knowing that each would have been able to proffer arguments regarding “credits”  and other ancillary issues had they proceeded to a hearing before a Special Master (SM).  Thus, even though the parties had not signed a written document to memorialize their agreement, we will enter an Order today that recognizes and enforces the deal they reached.

I.          FACTS

             HUSBAND and WIFE were married on March 14, 1998.  They separated on December 16, 2021.  On January 28, 2022, WIFE filed a Complaint for Divorce that included a request for equitable distribution.  During the divorce litigation, WIFE was represented by Attorney Heather Eggert (hereafter EGGERT).  HUSBAND was represented by Attorney Loreen Burkett (hereafter BURKETT).  Beginning in November of 2022, EGGERT and BURKETT communicated with one another with the goal of reaching an agreement.

            The parties’ primary marital asset was the residence that was occupied by WIFE following separation.  At first, WIFE wanted to retain the marital residence.  Later, the parties agreed that the residence should be sold, with the proceeds to be placed in an escrow account pending final distribution.  Eventually, the house was sold in January of 2023 for $165,000.  After all liens and expenses were paid, the sum of $100,645.35 was placed in an escrow fund maintained by EGGERT.  Following an agreed upon interim distribution of $10,000 to both parties, roughly $80,000 remains in EGGERT’s escrow fund. 

            Both before and after the martial house was sold, discussions were undertaken between the parties about a resolution of their equitable distribution dispute.  Simultaneous with these discussions was a proceeding for Alimony Pendente Lite (APL) that HUSBAND filed against WIFE.  WIFE was eventually required to pay HUSBAND the sum of $691 per month in APL.  This decision infuriated WIFE. 

            Copies of all emails sent between BURKETT and EGGERT relating to equitable distribution were provided to the Court.  The following chart summarizes those emails:

DATE	AUTHOR of EMAIL	SUBSTANCE
3-9-22	Burkett	Introduces herself as counsel for HUSBAND.
3-31-22	Eggert	Counsel acknowledges that WIFE was not cooperative with answering discovery.
4-1-22	Eggert & Burkett	Counsel expresses desire for an “amicable” process, but WIFE’s counsel indicates that she is angry and may not be cooperative.
6-14-22	Eggert	Expresses desire for divorce to be concluded as promptly as possible.
6-22-22	Burkett	Addresses concern that WIFE charged $10,000 on HUSBAND’s Discover Card.
10-18-22	Eggert	Expresses that WIFE is willing to turn possession of marital residence over to HUSBAND for an agreed upon price.
Unknown in October of 2022	Eggert	WIFE reports that someone had offered her $40,000 for the marital residence.
10-28-22	Burkett	Suggests that if neither party desires the marital residence, it should be listed for sale at an appraised price.
11-16-22	Eggert	Reports that the parties have agreed to list the marital property with Coldwell Banker for $160,000.  WIFE proposes a 70-30 split of marital proceeds.  WIFE indicates that she will be seeking credits for mortgage, insurance, taxes, repairs and other expenses she has paid pertaining to the house.
11-17-22	Burkett	States that HUSBAND has a “strong claim” for rental value that would “more than offset” the preservative expenses paid by WIFE.
11-17-22	Burkett	Proposes a 50-50 division of marital proceeds.
11-17-22	Eggert	Indicates that Eggert encouraged a 50-50 split, but WIFE stated No.
11-23-22	Eggert	Reiterates that counsel recommended a 50-50 split but stated “I am not confident she’ll take my advice.”
11-25-22	Eggert	WIFE offers to settle “everything” by paying HUSBAND $20,000.
11-28-22	Burkett	HUSBAND rejected WIFE’s offer to pay $20,000.
12-2-22	Eggert	Communicates that the parties received an offer of $165,000 for the house.
12-2-22	Burkett	Confirms agreement that the house will be sold for $165,000 with the proceeds to be placed in escrow.
1-18-23	Eggert	Indicates that WIFE is tired of the dispute and wants it ended.
1-19-23	Burkett	Confirms that settlement for the marital house is scheduled for January 30, 2023.
2-1-23	Eggert	Confirms that the settlement proceeds are being held in escrow at her office and that the mortgagee had signed a document evidencing satisfaction of the mortgage.
2-1-23	Eggert	WIFE offered HUSBAND $30,000 from the proceeds of the house to finalize the divorce.
2-8-23	Burkett	HUSBAND rejected WIFE’s proposal to pay $30,000. HUSBAND reiterates her claim of rental value.
2-14-23	Burkett	Proposed that both parties take $30,000 and that the balance remain in escrow pending further negotiations.
2-14-23	Eggert	Indicates that Eggert believes that proposal to divide some of the proceeds and retain the balance in escrow is a good one.
2-17-23	Eggert	WIFE refuses to agree to any partial distribution of proceeds.
2-22-23	Eggert	WIFE is willing to sign an Affidavit of Consent and agree to disperse $10,000 from the escrow fund to each party.  She also indicated that she is willing to “almost” divide the remaining proceeds equally.  WIFE proposed that she would pay HUSBAND $41,272.67.  Counsel indicated: “I don’t think she’ll be willing to go any higher than the $41,272.67.”
2-23-23	Burkett	Discusses drawing up an agreement for partial distribution of $10,000 to each party.
3-14-23	Eggert	“Pursuant to my correspondence with Ms. Rolon, can you please draft a Marital Settlement Agreement to reflect a 50/50 split of the proceeds from the marital residence.  It is my understanding that she will sign and MSA to that effect, at least as of today, so the sooner you can get that to me, the better.”
3-16-23	Eggert	Forwards draft MSA to Burkett.
3-16-23	Burkett	Proposes two minor changes to paragraphs of the MSA that do not relate to the marital home.
3-16-23	Eggert	Communicates that she made the changes suggested by Burkett.
3-22-23	Burkett	Communicates that HUSBAND signed the MSA.
3-27-23	Eggert	Communicates that WIFE met with another lawyer and “changed her mind and wants to proceed with a Divorce Master.”
3-27-23	Burkett	Communicates that she will file a Motion to Enforce the Agreement.
3-31-23	Eggert	Indicates that she asked WIFE to reconsider her position and that WIFE said she would get back to Eggert.
4-12-23	Burkett	Indicates that WIFE authored a FaceBook post in which she stated she would not sign the MSA.
4-12-23	Eggert	WIFE agreed to split the proceeds from the house 50-50 “if Richard will also pay half of the marital debt.” Eggert referenced some student loans and a ring as comprising the marital debt.
4-25-23	Eggert	WIFE proposed that another $1,800 be divided to the parties on an interim basis.

            As reflected in the chart, EGGERT communicated to BURKETT in March of 2023 that an agreement had been reached to divide the escrow fund on a 50-50 basis.  Once a Marital Settlement Agreement (MSA) was prepared to memorialize the deal, it was forwarded to WIFE.  She refused to sign it.  Thereafter, HUSBAND filed a Motion Seeking to Enforce what he referred to as a binding agreement. 

            An initial hearing regarding HUSBAND’s Motion was conducted on July 18, 2023.  Following that hearing, this Court declared that it would be necessary to hear from both EGGERT and BURKETT regarding their communications with one another.  Another hearing was scheduled for August 21, 2023, in order to receive testimony from EGGERT and BURKETT. 

            Both attorneys agreed that most of their substantive negotiations were undertaken via email.  Both attorneys agreed that EGGERT had communicated in March that WIFE assented to a 50-50 division of the escrow fund.  Both counsel also agreed that the proposed MSA to effectuate the 50-50 split was prepared by EGGERT and forwarded to BURKETT.  Thereafter, BURKETT communicated that she had several minor changes to propose, none of which altered the basic 50-50 division paradigm.  EGGERT made the proposed changes and forwarded a revised MSA to both her client and BURKETT.  Everyone agreed that HUSBAND signed the revised MSA and WIFE would not.

            EGGERT provided testimony regarding her communications with WIFE.  Initially, EGGERT acknowledged that WIFE was “very upset” about how the divorce dispute had evolved.  WIFE considered herself to be aggrieved by what she perceived to be an unfair system of justice.  During initial conversations, WIFE advised Eggert that she would “never” agree to a 50-50 split of assets.  WIFE apparently believed that the monies she invested into the marital house after separation required that she receive the bulk of the proceeds from the sale of the marital residence.  WIFE also had concerns about a ring and some student loans.

            A hearing regarding Alimony Pendente Lite occurred in Court during March of 2023.  The result of this hearing was that HUSBAND would continue to receive APL.  EGGERT testified that WIFE was infuriated by this decision.  Following the conclusion of the APL hearing, and recognizing that APL would end as soon as the divorce was finalized, WIFE stated to EGGERT: “Fine.  I’ll agree.”  Because EGGERT was wary about the impulsive nature of this decision, she sent an email to WIFE to confirm the conversation and double-check about whether WIFE still wished to agree to a 50-50 split of proceeds from the marital home.  According to EGGERT, WIFE responded: “I am done with this.  Finalize the divorce.” 

            Following the confirmation she received from WIFE, EGGERT sent an email to BURKETT in which she communicated that a settlement that effectuated at 50-50 distribution of the escrow fund had been agreed upon.   EGGERT said she considered this settlement to be “final” and that it encompassed a resolution of all of WIFE’s claims, including those pertaining to what WIFE characterized as “marital debt.”

            Even though WIFE attempted to argue that EGGERT’s communication about the existence of a deal was unauthorized, EGGERT stated that she would not have communicated the existence of an agreement unless she believed she had the authority of her client.  EGGERT also stated that the minor changes to the initial MSA proposed by BURKETT were never an issue for WIFE.  Rather, WIFE remained focused upon the perceived injustice of a 50-50 distribution.

            We have had the benefit of a brief filed by HUSBAND in support of his Petition.  We have also undertaken independent research regarding the issue now before us.  We author this Opinion in order to address the request by HUSBAND to enforce the agreement he says was reached.

II.        DISCUSSION

We will begin with the recognition that lawyers serve as the agents of the clients they represent.  See, e.g., Hanington v. Trustees of University of Pennsylvania, 809 A.2d 406 (Pa. Super. 2002); Reutzel v. Douglas, 582 Pa. 149, 870 A.2d 787 (Pa. 2005); Condemnation of Land v. Big Spring School District, 699 A.2d 1331, 1334 (Pa. Cmwlth. 1997).    “What an attorney does in the course of his business is presumed to be by the authority of his client.” Himelright v. Himelright, 22 Pa.D&C 4^th 483 (1994) citing Township of Bensalem v. DiEgidio, 396 A.2d 920 (Pa. Cmwlth. 1979).  A client seeking to disavow the actions of a lawyer taken on his/her behalf has a heavy burden:

“In Muhammad v. Strassburger, et al., 526 Pa. 541, 587 A.2d 1346 (1991), our Supreme Court decided, “we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action.” Id. at 546, 587 A.2d at 1348. Further,

Settlement of matters in dispute [is] favored by the law and must, in the absence of fraud and mistake, be sustained. Otherwise any settlement agreement will serve no useful purpose. It is also clear that where a litigant does not attempt to repudiate immediately the authority of his counsel to enter into a settlement, but rather accepts the benefits flowing from the settlement, he ratifies the act of the attorney and will not be later heard to claim that his attorney acted without authority.

Greentree Cinemas, Inc. v. Hakim, 289 Pa.Super. 39, 432 A.2d 1039, 1041 (1981) (internal quotations and citations omitted).

Piluso v. Cohen, 2000 PA Super 335, ¶ 7, 764 A.2d 549, 551 (2000).”

            In this case, EGGERT was clearly acting as attorney for WIFE.  EGGERT provided credible testimony that her communications on behalf of WIFE were all authorized.  Because of WIFE’s emotional volatility, EGGERT even undertook the additional action of confirming her client’s desires in writing before communicating anything to BURKETT.  To the extent that WIFE’s testimony contradicted the testimony of EGGERT, we do not find that testimony to be credible.  Therefore, we determine as a Finding of Fact that all of EGGERT’s actions chronicled in this Opinion were undertaken with the authority of WIFE.

            Reaching the above conclusion does not end our analysis.  We must also determine whether the parties reached a “final” agreement.  This type of decision can be complicated in a Domestic Relations context, where issues pertaining to distribution of assets, alimony, Alimony Pendente Lite, child support and custody often intercept.  We must be aware of the reality that sometimes a spouse will agree to one component of a dispute, such as equitable distribution, only because the other spouse will grant concessions regarding other matters that may be independent of but related to the parties’ equitable distribution dispute.

            Pennsylvania law is clear that enforcement of a purported agreement in a divorce context is governed by general rules applicable to enforcement of contracts.  In Mease v. Mease, No.2020-20272 (Tylwalk 5-11-22), President Judge Tylwalk of this Court summarized the law as follows:

“In Pennsylvania, a property settlement agreement is enforceable by using the same legal principles utilized in determining the validity of a contract.  Luber v. Luber, 614 A.2d 771, 773 (Pa. Super. 1992), allocator denied 631 A.2d 1008 (Pa. 1993).  Parties may bind themselves to an oral contract prior to the memorialization of the terms to a written document. Id. at page 773. However, “not every term of a contract must always be stated in complete detail.” Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601, 611 (Pa. Super. 2009), citing Snaith v. Snaith, 282 Pa. Super. 450, 422 A.2d 1379, 1382 (1980).  If the parties have agreed on the essential terms, the contract is enforceable even though recorded only in an informal memorandum that requires future approval or negotiation of incidental terms. Helpin at 611, citing Yellow Run Coal Co. v. Alma-Elly-Yv Mines, Ltd., 426 A.2d 1152, 1155 (Pa. Super. 1981).”

            Mease, like the case at hand, involved a purported agreement by a husband and wife to divide their property on a 50-50 basis.  Before the agreement was signed, the wife disavowed it.  The wife apparently felt that “nothing had actually been agreed upon as nothing had been signed.”  In addition, because details of the MSA between the parties were still being discussed, wife believed “the parties were still involved in negotiations…”

            Judge Tylwalk undertook an extensive analysis of the parties’ negotiations in an effort to determine whether the agreement was comprehensive or simply a part of continuing negotiations.  Even though details of the MSA were still being discussed and negotiated, Judge Tylwalk concluded:

“We believe this evidence established that the parties had come to a final agreement on the essential terms of this divorce settlement…and they intended to be bound to those terms.” (Slip Opinion at page 17).

            A similar decision was reached by former Lebanon County President Judge John Walter, in the case of Himelright v. Himelright, supra.  In that case, the parties had reached an agreement that was confirmed in writing by both attorneys.  The husband apparently felt that some of his arguments were not adequately addressed in the agreement, and he refused to abide by it until every one of his claims was addressed.  Like Judge Tylwalk in Mease, Judge Walter ascertained the essence of the parties’ dispute and determined that enough evidence of a firm agreement existed and he enforced its terms. 

            The lesson imparted by Mease and Himelright is that a Court facing an issue such as the one now before us should work to ascertain the “essence” of the dispute.  If a purported agreement does not reflect a quid pro quo regarding all “essential” issues, then the proposed agreement should be considered just that – a proposal.  If, on the other hand, the “essence” of the parties’ dispute is addressed by the parties’ deal, then that deal can be enforced even if there are details that need to be worked out. 

            In this case, the parties presented emails between EGGERT and BURKETT as well as between EGGERT and WIFE.  We read each and every one of those emails.  Cumulatively, the emails reveal the following:

• The only marital asset of substance that needed to be divided was the marital home.  When the marital home was sold, the proceeds from that sale became the locus of the parties’ dispute.
• HUSBAND was well aware that he possessed a potential claim for rental value that could have been proffered to an SM. 
• WIFE was well aware that she had a potential argument for payment of mortgage, taxes, repair and maintenance expenses pertaining to the marital home that she could have presented to an SM.
• WIFE was aware that the APL Order that infuriated her would evaporate as soon as a Divorce Settlement was reached. 
• At all times pertinent hereto, EGGERT had recommended to WIFE that she agree to a 50-50 division of proceeds.

In addition, EGGERT testified that all of her discussions with WIFE included references to a ring that HUSBAND retained as well as preservative expenses that WIFE paid after separation.  Within the context of all of these discussions, EGGERT was confident that WIFE had agreed to “give up those arguments” as part of her willingness to divide the escrow fund on a 50-50 basis.

It is within the context provided by the above that WIFE instructed EGGERT to agree with HUSBAND’s 50-50 distribution proposal.  The fact that WIFE was emotionally distraught about APL when she communicated this authority to EGGERT is irrelevant.  Even if it were not, EGGERT undertook the additional step of confirming WIFE’s agreement in writing at a time when WIFE’s emotions had somewhat dissipated.  It is crystal-clear to this Court that WIFE was well aware of the arguments that could have been made before an SM that she was foregoing.  It is also crystal-clear that WIFE knew that a settlement of the divorce would end her obligation to pay APL.  Stated simply, WIFE wanted to end the divorce as promptly as possible.  Knowing that her attorney had always recommended a 50-50 distribution, knowing that HUSBAND had a claim for rental value credit that could potentially offset her request for preservative expenses, and knowing that a divorce would end APL, WIFE agreed to a 50-50 division of the escrow fund, which was the “essence” of the parties’ dispute.  Once agreed upon, WIFE should not be able to retract her assent.

In the parlance of Pennsylvania law, we conclude that WIFE had agreed to a 50-50 distribution of marital proceeds, we believe that WIFE’s additional issues were encompassed in the 50-50 distribution agreement or were collateral to the essence of the parties’ dispute, we believe that EGGERT at all times acted with the authority of her client, and we believe that WIFE’s current efforts represent little more than an effort on her part to “change her mind”.  We therefore believe that the parties’ agreement as reflected in MSA signed by HUSBAND should be enforceable. 

III.       CONCLUSION

            We conclude that the parties reached an agreement regarding the essence of the equitable distribution dispute.  WIFE’s desire to “change her mind” is not a legally supportable reason for us to disavow the agreement.  We will therefore grant HUSBAND’s Motion to Enforce Agreement. 

            Before we end this decision, we must also address HUSBAND’s Request for Counsel Fees.  We recognize that the MSA that incorporated the essence of the parties’ agreement contained a clause authorizing an award of counsel fees predicated upon a breach.  However, the dispute before us is not about breach of the MSA; it is about whether the MSA was in fact enforceable.  We will not award counsel fees based upon a clause in the written agreement.

            The only other conceivable basis for an award of counsel fees to HUSBAND is a Statute in Pennsylvania’s Judiciary Code that enables a Court to award fees when an opponent’s behavior is “obdurate, vexatious or harassing.” See, 42 Pa.C.S.A. § 2503.  This Statute has been described as an extraordinary remedy that should be invoked only in the most extreme of cases. 

“[42 Pa.C.S.A. § 2503] serves not to punish all those who initiate legal actions that are not ultimately successful, or which may seek to develop novel theories in the law, as such a rule would have a chilling effect on the right to bring suit for real legal harms suffered. Rather, the statute focuses attention on the conduct of the party from whom counsel fees are sought and on the relative merits of that party’s claims. Thunberg v. Strause, supra.”

Dong Yuan Chen v. Saidi, 100 A.3d 587(Pa. Super. 2014). 

While we certainly disagree with the positions WIFE has taken relative to the Motion now before us, we will not declare those positions to rise to the level of justifying an award of counsel fees under 42 Pa.C.S.A. § 2503.  We will therefore enforce the so-called “American Rule” that requires counsel fees to be paid by the party who hired counsel, regardless of which of those parties is ultimately successful in the litigation.

            An Order to effectuate all of the above will be entered today’s date.