author: FORD ELLIOTT, Judge: ROWLEY, Judge,

text:
    592 A.2d 55
    In the Interest of R.T. and A.T., Minor Children. Appeal of C.H., Sr., E.R.H. and J.J. and K.J., Appellants.
    Superior Court of Pennsylvania.
    Argued October 17, 1990.
    Filed May 28, 1991.

      Cynthia Cline, Uniontown, for appellants.
    Anthony Dedola, Uniontown, for Children and Youth Services, participating party.
    Before ROWLEY, WIEAND and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from an order adjudicating R.T. a dependent child and A.T. a dependent and abused child. The children were placed in the care, custody and control of the Fayette County Children and Youth Services for foster home placement. Appellants in this matter are the children’s maternal grandparents and maternal aunt and uncle. The natural father has not filed a brief in this case, and the natural mother is deceased. The agency has filed a brief in support of the trial court’s order. As appellants contend that the trial court abused its discretion in this matter, and we have reviewed the record, the briefs and the applicable law, we agree that the trial court abused its discretion in adjudging the children dependent and therefore, reverse.

The tragic tale of R.T.’s, age eight, and A.T.’s, age six, circumstances began on January 7, 1990, when their natural mother, J.T., was murdered by their natural father, R.T., Sr., as she slept in the family’s mobile home. The children were present in the home when the murder took place. As R.T., Sr. was taken into police custody, the maternal grandparents and a maternal aunt and uncle, K.J. and J.J., took custody of the children. On January 22, 1990, appellants were granted temporary custody and guardianship of R.T. and A.T. by an order of court. Due to the proximity of the maternal grandparents’ home to the murder site, R.T. and A.T. resided with their maternal aunt and uncle along with their two boy cousins, ages eight and nine. However, they visited their grandparents twice a week and usually were accompanied by their cousins. During their stay with their aunt and uncle, R.T. and A.T. shared a bedroom and their cousins shared an adjacent bedroom. Both bedrooms were situated above the bedroom of the aunt and uncle. As the uncle was a light sleeper, he contended that he could hear all activities in the children’s bedrooms.

While living with their aunt and uncle, R.T. and A.T. attended church and Sunday school, showed improvement in their school work, participated in family outings of roller skating and hiking, and R.T. joined the cub scouts. Due to R.T.’s and A.T.’s presence in their home, K.J. quit her job so that she could care for the children and J.J. took a new ministry with the Fairchance Free Methodist Church to supplement their income.

Initially, R.T. and A.T. experienced distress due to their fear of their father shooting them. Also during this time, the maternal aunt noticed A.T.’s frequent urination and complaints about her “private parts” being sore. Within a few days of A.T. being taken off soda pop, the urination problem dissipated, but the redness surrounding A.T.’s vaginal area did not. A.T. explained the redness was caused by “daddy’s belt buckle.”

In conjunction with R.T. and A.T. resuming their school attendance, and in an effort to help them cope with their mother’s death, their aunt and uncle took them to Chestnut Ridge Counseling Services. The children were seen by a therapist, John Connors. During one of the children’s visits with Mr. Connors, the aunt and uncle discussed their suspicion of possible sexual abuse. At the advice of Mr. Connors and their attorney, K.J. and J.J. did not report the alleged sexual abuse to Children and Youth Services because of concern for the trauma the children already had experienced.

On February 27, 1990, in anticipation of a full custody hearing with the natural father, the maternal aunt, K.J., and the maternal grandmother took R.T. and A.T. to Children’s Hospital of Pittsburgh for an evaluation and examination. During her evaluation, A.T. disclosed that she had had sexual contact with her brother, R.T., and her two boy cousins while living in the home of her maternal aunt and uncle. Upon her physical examination, A.T. displayed redness and swelling in her vaginal area as well as chronic and repeated abuse of rectal penetration. Due to these findings, Children’s Hospital contacted the Fayette County Children and Youth Services, CYS, which started an immediate investigation of the matter.

Ms. Traci Mari, the CYS caseworker, interviewed A.T. the following day about the sexual abuse. At this time, A.T. excluded any contact with her brother, R.T., and disclosed that she had engaged in sexual behavior only with her cousins. However, the behavior that A.T. described that took place between her and her cousins could not have included anal penetration as A.T. described, due to the boys being unable anatomically to perform such acts. R.T. at this time did not discuss any such behavior with Ms. Mari as he made no disclosures.

Subsequently on March 1, 1990, CYS filed a petition declaring A.T. a dependent and abused child and R.T. a dependent child thereby seeking temporary custody of the children until a hearing could be held on the matter. The trial court granted the CYS petition and conducted a hearing on March 20, 1990. The court heard testimony from Ms. Traci Mari, Dr. Casrasco, the treating physician at Children’s Hospital, the maternal aunt and uncle as well as the maternal grandfather and grandmother. On March 23, 1990, the trial court adjudicated R.T. a dependent child and A.T. a dependent and abused child. The trial court ordered that the Fayette County Children and Youth Services take the children into its care, custody, and control for foster home placement.

Appellants filed their notice of appeal on April 16, 1990. The following day the trial court ordered appellants to file a concise statement of the matters complained of on appeal. Appellants complied with the trial court order on April 30, 1990, and on May 25, 1990, the trial court filed its Pa.R.A.P. 1925 opinion. During oral argument in this matter, it was reported that the trial court entered an order on August 28, 1990, placing the children, R.T. and A.T., in the home of another maternal aunt in New York.

Appellants raise the following issues for our review:

I. Did the lower court err as a matter of law and abuse its discretion in finding that the Fayette County Children and Youth Service proved by clear and convincing evidence that [A.T.] was a dependent and abused child and that she should be removed from the custody the [Js]’ and of [Hs’]?
II. Did the lower court err as a matter of law and abuse its discretion in finding that the Fayette County Children and Youth Service proved by clear and convincing evidence that [R.T., Jr.] was dependent and should be removed from the care of the [Hs’] and [Js’]?
III. Did the lower court err as a matter of law and abuse its discretion in finding that Children and Youth Service utilized reasonable efforts in investigating the case before the court and that it used reasonable efforts in preventing the placement of both children in foster care?
IV. Did the lower court err as a matter of law and abuse its discretion in refusing to permit appellants to call character witnesses on their behalf?
V. Did the lower court err and abuse its discretion by ex parte continuing the initial hearing set in this matter without notice to appellants or to counsel for appellant?

Due to our disposition of appellant’s first and second arguments, we need not address the remaining issues in this case.

In In re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983), we stated our standard of review as follows:

[t]he standard of review which this Court employs in cases of dependency is broad. In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. In Re Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); In Re Kunkle, 265 Pa.Super. 605, 402 A.2d 1037 (1979). Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence. Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972).

Moreover,

[i]n reviewing an adjudication of dependency, we are guided by the manifest intent of the legislature in drafting the Juvenile Act, which was to preserve unity of the family whenever possible. 42 Pa.C.S.A. § 6301(b)(1). In Re Interest of Ryan Michael, C., 294 Pa.Super. 417, 440 A.2d 535 (1982). Consequently, a child will only be declared dependent when he is presently without proper parental care and when such care is not immediately available. In Re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). A court may not find a child to be dependent absent clear and convincing evidence. 42 Pa.C.S.A. § 6341(c). This standard has been defined as testimony that is so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue. Matter of Jackson, 302 Pa.Super. 369, 374, 448 A.2d 1087, 1089 (1982); In Re Jackson, 267 Pa.Super. 428, 406 A.2d 1116 (1979).

Id. (Emphasis added). However, before we can review effectively a dependency adjudication premised on abuse, we need to reflect upon the interaction between the Juvenile Act and the Child Protective Services Law.

Initially, it must be noted that the primary purpose of the Juvenile Act is to preserve the family unity whenever possible 42 Pa.C.S. § 6301(b); In the Interest of Ryan, Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982). Only upon allegations of dependency or delinquency are the provisions and procedures set forth in the Juvenile Act applicable. 42 Pa.C.S. § 6303. Our legislature has defined a dependent child as “a child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.” 42 Pa.C.S. § 6302(1). (Emphasis added). As noted above, the Juvenile Act will permit a finding of dependency only upon clear and convincing evidence. 42 Pa.C.S. § 6341(c). Thus, if clear and convincing evidence has not been presented to the court, then the court must “dismiss the petition and order the child discharged from any detention or other protection theretofore ordered in the proceeding.” 42 Pa.C.S. § 6341(a). However, upon a clear and convincing finding of dependency the court must order a disposition of the child within the provisions of 42 Pa.C.S. § 6351(a). It provides:

(a) General rule.—If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.
(3) Without making any of the foregoing orders transfer custody of the child to the juvenile court of another state if authorized by and in accordance with section 6363 (relating to ordering foreign supervision.

The Child Protective Services Law, CPSL, is a complement to the Juvenile Act. Its purpose is “to facilitate the protection of abused children, and to preserve and stabilize the family life of abused children” In the Interest of Justin, S., 375 Pa.Super. 88, 97, 543 A.2d 1192, 1196 (1988). In fact, 11 P.S. § 2202 fully expresses the purpose of the CPSL as:

[ajbused children are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment. It is the purpose of this act to encourage more complete reporting of suspected child abuse and to establish in each county a child protective service capable of investigating such reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child’s well-being and to preserve and stabilize family life wherever appropriate. However, nothing in this act shall be construed to restrict the generally recognized existing rights of parents to use reasonable supervision and control when raising their children.

The CPSL has defined child abuse as meaning:

serious physical or mental injury which is not explained by the available medical history as being accidental, or sexual abuse or sexual exploitation, or serious physical neglect, of a child under 18 years of age, if the injury, abuse or neglect has been caused by the acts or omissions of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent provided, however, no child shall be deemed to be physically or mentally abused for the sole reason he is in good faith being furnished treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof or is not provided specified medical treatment in the practice of religious beliefs, or solely on the grounds of environmental factors which are beyond the control of the person responsible for the child’s welfare such as inadequate housing, furnishings, income, clothing and medical care.

11 P.S. § 2203. Also, the CPSL requires that the court appoint a guardian ad litem for the child when a proceeding has been initiated alleging child abuse. 11 P.S. § 2223. Although CPSL hearings are generally governed by the procedures and evidentiary rules of the Juvenile Act, the CPSL itself provides for additional rules of evidence to govern in child abuse proceedings in juvenile or family court. 11 P.S. § 2222. Moreover, upon petition from a guardian ad litem the court in a CPSL proceeding can order appropriate protective services for a child in need or terminate or alter the condition of any placement, temporary or permanent, of the child. 11 P.S. § 2223.

Even though the Juvenile Act and the CPSL are complementary in nature, neither of the acts provide for an independent action of “abuse.” In the Interest of Justin, S., supra; In the Interest of R.M.R., 366 Pa.Super. 243, 530 A.2d 1381 (1987); In the Interest of M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986) affirmed per curiam 517 Pa. 459, 538 A.2d 495 (1988). In fact, “we have held that CPSL does not create or include a separate action for child abuse, and, under the Juvenile Act, a finding of abuse can only be made as a part of [a] dependency proceeding in which abuse is alleged.” In the Interest of Justin, S., supra, 375 Pa.Super. at 98, 543 A.2d at 1197, citing In the Interest of R.M.R., supra. In In the Interest of M.B., supra, 356 Pa.Super. at 260, 514 A.2d at 601, we stated:

[t]he issues before the Court in an abuse and dependency proceeding are distinct. The proof and argument on one would not necessarily match the proof and argument for the other. In an abuse case, the evidence revolves around the alleged incident of abuse, and the decision which must be reached is whether that evidence meets the standard defined in the Child Protective Services Law.
On the other hand, a dependency proceeding focuses on whether the child at the time of the proceeding is without proper parental care or control____

Therefore, even though “abuse is alleged as a part of a dependency proceeding, [and] a court’s finding of 'abuse’ as defined by the CPSL would be sufficient evidence under most circumstances to support an adjudication of dependency,” it is not determinative in adjudicating a child dependent. In the Interest of Justin, S., supra, 375 Pa.Super. at 103, 543 A.2d at 1199. The evidentiary burden for a finding of abuse is less stringent under the CPSL due to the need for immediate intervention for protection of the child. However, as discussed above, under the Juvenile Act the court in a dependency hearing must make a further determination by clear and convincing evidence that the abused child is presently without proper care and control necessary for physical, mental, or emotional health or morals. 11 P.S. § 2222; In the Interest of R.M.R., supra; 42 Pa.C.S. § 6302(1).

We agree with the trial court’s finding, as do appellants, that A.T. unquestionably is an abused child. Dr. Casrasco’s testimony is unequivocal in that A.T. has suffered chronic and severe symptoms of rectal penetration. However, we disagree with the trial court’s finding that clear and convincing evidence exists that A.T.’s abuse occurred while in appellants’ custody, thus leading to a finding of dependency.

The trial court gave great weight to A.T.’s testimony that sexual activity occurred between her and her boy cousins. However, even as related by the trial court, A.T.’s disclosures concerning her abuse have changed many times. Initially, A.T. implicated her brother R.T. and her cousins. Later, she excluded her brother. And then, even later, she disclosed that the sexual behavior occurred a long time ago in her parent’s trailer before her mother’s death. In fact, A.T. explained the source of the redness surrounding her vagina as “daddy’s belt buckle.” Moreover, when A.T.’s cousins were evaluated at Children’s Hospital following A.T.’s examination, they were found to be well-adjusted boys who spoke openly and freely and were assessed as not likely to have committed the abuse perpetrated on A.T. Additionally, medical testimony established that the ages of the two cousins would indicate that they were unable anatomically to have perpetrated the certain acts which constituted the abuse. Finally, at oral argument before this court, CYS stated its belief that A.T. suffered the sexual abuse at the hands of her natural father, R.T., Sr.

The trial court further based its determination of dependency on the fact that the delay in reporting the abuse to CYS by appellants represented inaction on their part thereby supporting a finding that A.T. did not, and would not, receive the special services needed to address her abuse. Trial court opinion, 5/25/90 at 13. Initially, we note the short span of time, a mere seven weeks, from the murder of the children’s mother to the referral to CYS by Children’s Hospital. Recognizing that the entire family was in a crisis of-sorts following the murder of J.T.—having lost a daughter, a sister, or a parent, we cannot agree that the circumstances surrounding the delay in reporting in this case represented inaction. K.J. and J.J., the maternal aunt and uncle, initiated the discussion on the abuse issue by taking the children to Chestnut Ridge Counseling Services. While at Chestnut Ridge, the children were seen by two staff members for evaluation and therapy. K.J. and J.J. were advised at that time by the counselor and their attorney, not to report any of their concerns to CYS due to the trauma the children already had suffered. Also, once the children were taken by CYS, the aunt and uncle endeavored to insure that the children continued with their counseling at Chestnut Ridge. In addition, the aunt and the grandmother initiated the examination at Children’s Hospital which uncovered the extent of the abuse. The testimony indicates that this was done in anticipation of a custody hearing involving the children’s father. Also, once A.T. made the allegations involving her cousins, it was K.J. and J.J., although expressing disbelief regarding the incidents, who insisted that their two boys be examined at Children’s Hospital.

Finally, we need to address the trial court’s very legitimate concern that A.T. and R.T. should have been adjudicated dependent based merely on the fact that A.T. had suffered abuse and the perpetrator had not been identified. Both the trial court and Children and Youth Services rely upon In the Interest of Justin S., supra, to support the proposition that a child can be found dependent even though the perpetrator has not been identified. However, we find In the Interest of Justin, S., supra, distinguishable from the instant case. First of all, In Re Justin S., supra, concerned a determination of abuse and thereafter a change of custody to a non-custodial parent without an initial determination of dependency. It was uncontraverted that the abused child was in the custody of his mother and her paramour the entire period in which the abuse could have occurred. Further, the court had narrowed the list of potential perpetrators of the abuse to someone in the mother’s household. Finally, the child victim’s brother in this case had reported to the court-appointed psychologist that his mother knew that her paramour had physically abused his brother, but that she had not reported this to the court.

Contrary to Justin, S., the testimony in the instant case reflects that A.T.’s symptoms of assault indicated that the assaults perpetrated upon her could have ended as early as a year before her examination at Children’s Hospital. In fact, Dr. Casrasco’s testimony reveals that it is highly unlikely that the abuse occurred solely within the mere seven weeks appellants had custody of A.T. Finally, as noted above and contrary to the trial court’s conclusion, we can find no clear and convincing evidence based on this record, that the unknown perpetrator who inflicted the rectal injuries on A.T. resided in appellants’ households.

This court is very cognizant of the tremendous burden placed on the trial court in this case. The court had before it clear evidence that a child had been abused and having no clear indication as to who the abuser was, it exercised its best judgment and erred in favor of protecting both A.T. and R.T. However, we are constrained to decide this case as we do today based upon our careful and exhaustive examination of the record, and our inability to find “testimony that is so direct and unambiguous as to enable the [trial court] to come to a sure determination, without conjecture of the truth of the exact facts at issue” so as to have adjudicated A.T. a dependent child. See In re Frank W.D., supra, 315 Pa.Super. at 516, 462 A.2d at 711. Also, as the record is devoid of any clear and convincing evidence of abuse or dependency on part of R.T., and a child should not be found dependent simply because his siblings are, we cannot uphold the trial court’s adjudication of R.T. as a dependent child. See In the Interest of Theresa, E., 287 Pa.Super. 162, 429 A.2d 1150 (1981).

Based on the foregoing, we reverse the trial court’s adjudication of dependency in regard to A.T. and R.T. Further, based on the record presently before this court we find no clear and convincing evidence of sexual abuse of A.T. and R.T. occurring while in appellants’ custody. However, A.T. is undeniably an abused child and subject to protection in our courts. On remand, CYS should update its investigation as to the identity of A.T.’s abuser, and present any new evidence to the court if necessary consistent with its responsibilities under the CPSL. Although we have reversed the trial court’s order adjudicating A.T. and R.T. dependent children, our order is in no way a permanent order in regard to their present custodial arrangement. “[I]n the interest of safeguarding the permanent welfare of the child, decrees concerning children are temporary and subject to modification to meet changing conditions.” In the Interest of Black, 273 Pa.Super. 536, 549, 417 A.2d 1178, 1185 (1980); In re Frank W.D., supra.

Accordingly, we remand for a custody proceeding in order to determine the best interests and welfare of the children involved herein. Jurisdiction relinquished.

Reversed.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I concur in the majority’s decision to reverse the adjudication of dependency but write separately to address aspects of the majority’s decision, involving both analysis and result, in which I respectfully decline to join.

With regard to the analysis of the merits, I am principally concerned with the majority’s apparent rejection of the allegations that A.T., who was six years old during the events in question, engaged in sexual activity with her brother, then age eight, and their male cousins, then ages nine and eight. To clarify my concerns, it is regrettably necessary that those allegations be examined in some detail.

On January 7,1990, the father of A.T. and R.T. murdered the children’s mother. K.J., the children’s maternal aunt, and her husband, J.J., who are the parents of the cousins mentioned above, immediately took A.T. and R.T. into their home. By order of court entered January 22, 1990, the children’s aunt and uncle, together with the children’s maternal grandparents, C.H., Sr. and E.R.H., were granted temporary custody and guardianship of the children.

K.J., the children’s aunt, testified that immediately after she took A.T. into her home, A.T. complained that her private area was sore. Examining the area, K.J. observed “[s]ome redness basically” (N.T. at 54). A.T.’s explanation was that “daddy’s belt buckle hurt me” (N.T. at 54). On February 27, 1990, almost two months later, A.T. was examined by Dr. Mary Carrasco, a pediatrician and director of the Family Intervention Center at Children’s Hospital. During an examination of the child’s vaginal area, Dr. Carrasco observed that the hymenal tissue was swollen and reddened. The condition did not appear to be the type of normal irritation that might result from poor hygiene, Dr. Carrasco testified, and it was possible but unlikely that the condition had been caused by masturbation.

According to Dr. Carrasco, when she asked A.T. when she had last been touched in that area, A.T. replied that she thought it had been the previous night. Dr. Carrasco explained that the child’s response was consistent with what she had said when interviewed earlier by Dr. Marcy Gerson, a staff psychologist. A.T. told Dr. Carrasco that her brother and her cousins had touched her in the vaginal area, that both cousins had attempted vaginal intercourse with her, and that one of the cousins had penetrated her rectally. As related by Dr. Carrasco, A.T. had also told Dr. Gerson that such activity had occurred more than once. In Dr. Carrasco’s opinion A.T. had recently been subjected to some sort of touching in the vaginal area. Dr. Carrasco also stated that “I would doubt that there was penetration by an adult size penis, but I cannot tell whether there would have been penetration or irritation of that general area” (N.T. at 21).

The physical examination also revealed that, in Dr. Carrasco’s opinion, A.T. had been subjected to “long-term, chronic ... penetration of the rectal area” (N.T. at 6). It was unlikely that this abuse had ended more than one year ago, Dr. Carrasco testified, because if that had been the case the rectal muscles, the dilation of which was “quite unusual” (N.T. at 6), would have begun to regain normal tone. Dr. Carrasco explained that although she had seen no evidence of recent penetration, the absence of evidence did not mean that such penetration had not occurred. Also noted by Dr. Carrasco was an irregularity of the rectal opening which would have been caused by trauma and which had to have been more than three or four weeks old. Dr. Carrasco offered the opinion that it was possible but highly unlikely that this abuse had only begun in January of that year. She was also of the opinion that the rectal abuse could not have been committed by a pre-pubescent male “[u]nless they were inserting a foreign object, which is not a history we got” (N.T. at 23).

With regard to A.T.’s statements concerning the vaginal touching, Dr. Carrasco testified that “I found her disclosure to be very credible. She was very spontaneous” (N.T. at 30). This was not true, however, with regard to A.T.’s denial that she had ever been subjected to touching in the rectal area; Dr. Carrasco stated that “[s]he said no to me with a perfectly straight face, but I didn’t believe her because of the physical evidence I saw” (N.T. at 41). Dr. Carrasco related the views of other staff members who had interviewed A.T.’s cousins and brother: the cousins were seen as open and well adjusted, and R.T. “vehemently denied” (N.T. at 32) the allegations of sexual abuse.

Tracy Mari, a caseworker for Fayette County Children and Youth Services, testified that on February 27, 1990, she received a report, the source of which she was not permitted to disclose, that A.T. had been subjected to sexual abuse in the home of her aunt and uncle. The report implicated A.T.’s brother and cousins and indicated that A.T. had been touched in her vaginal area the night before. During the course of an interview with Ms. Mari the following day, A.T. gave a description of sexual activity between herself and her cousins that was very similar to that given to Dr. Carrasco. A.T. also said that although her brother and her cousins were “stripping and kissing naked” (N.T. at 20), she touched her cousins’ private parts but not her brother’s. A.T. told Ms. Mari that “the incidents occurred alot [sic] of times up in the [cousins’] room ...” (N.T. at 21). She did not say whether force was involved, nor did she specify who had initiated the sexual contact. Ms. Mari also interviewed R.T., who refused to talk about anything related to physical or sexual abuse.

On March 1, 1990, CYS obtained temporary custody of A.T. and R.T., and they were placed in foster care. On March 15, 1990, Ms. Mari interviewed A.T. a second time and was told

[t]hat the sex occurred at her trailer in Smithfield, prior to her mothers’ [sic] death, and not her aunt’s house. She stated that it happened a long time ago when they were little, and not recently. She implicated [her cousins], but not [R.T.]. And she would not go into detail as to what happened.

N.T. at 22-23. When Ms. Mari asked her why she had changed her story, A.T. replied “that she would not be able to go back to her aunt’s house” (N.T. at 23). In Ms. Mari’s opinion A.T. was then under a lot of pressure and “[was] going to say anything that she can to get back [to her aunt’s house]” (N.T. at 10). Ms. Mari expressed the belief that A.T. had been sexually assaulted by an adult and “that she has been engaging in sexual activities with her cousins. I am not sure if she is covering up for her brother because she wants to protect him or not, but I do believe that some type of sexual activities have occurred between the four of them” (N.T. at 37).

Having heard the testimony of Dr. Carrasco and Ms. Mari, as well as that of the maternal aunt, uncle, and grandparents of A.T. and R.T., the trial court reached the following conclusion:

In addition to the unknown perpetrator [of the repeated rectal abuse], we have the known commission of sexual acts by and between [the cousins, R.T., and A.T.]. Although [A.T.] has indicated that the only sexual acts occurred by and between these four, Dr. Carrasco’s conclusion was that these three boys could not have inflicted [A.T.’s] rectal injury. Thus, we have competent evidence that sexual activity took place within the [aunt and uncle’s] or [the grandparents’] households, and that the rectal injury, caused by an unknown perpetrator, could have occurred in those households.

Trial Court Opinion at 12. The court also feared that the aunt and uncle would not provide the special services needed by the children, as they had waited seven weeks after learning of the possible sexual abuse of A.T. before having her examined and they did not believe that their sons had engaged in any sexual activity with A.T. These factors led the trial court to conclude that the protection of the children’s well-being required that they remain in the custody of CYS.

In this appeal, the allegations of sexual abuse are addressed by the majority as follows:

The trial court gave great weight to A.T.’s testimony that sexual activity occurred between her and her boy cousins. However, even as related by the trial court, A.T.’s disclosures concerning her abuse have changed many times. Initially, A.T. implicated her brother R.T. and her cousins. Later, she excluded her brother. And then, even later, she disclosed that the sexual behavior occurred a long time ago in her parent’s trailer before her mother’s death. In fact, A.T. explained the source of the redness surrounding her vagina as “daddy’s belt buckle.” Moreover, when A.T.’s cousins were evaluated at Children’s Hospital following A.T.’s examination, they were found to be well-adjusted boys who spoke openly and freely and were assessed as not likely to have committed the abuse perpetrated on A.T. Additionally, medical testimony established that the ages of the two cousins would indicate that they were unable anatomically to have perpetrated the certain acts which constituted the abuse. Finally, at oral argument before this court, CYS stated its belief that A.T. suffered the sexual abuse at the hands of her natural father, R.T., Sr.

Majority Opinion at 11-12.

In my view, there are two problems with this analysis. First, it is essential that we distinguish between the types of abuse to which A.T. has been subjected. Although A.T.’s father has apparently been identified as the perpetrator of the severe rectal abuse, it is less certain that he was responsible for the vaginal condition seen by Dr. Carrasco when she examined A.T. almost two months after the child had been taken away from her father.

Second, I do not consider A.T.’s disclosures concerning sexual activity with her cousins and/or brother to be so internally inconsistent as to warrant being summarily dismissed. In her conversations with Dr. Carrasco and Ms. Mari, A.T. said that her brother was present during the sexual activity between herself and her cousins. Although she told Dr. Carrasco but not Ms. Mari that her brother had participated in the activity, I question whether the significance of this particular fact would loom as large in the thinking of a six-year-old child as it does in the thinking of the adults who are reviewing her statements. With regard to the inconsistency of time and location, I consider Ms. Mari’s explanation to be entirely reasonable: after A.T. was removed from the home of her aunt and uncle and placed in foster care, she related that the sexual activity had occurred in a more distant time and place because she feared being unable to return to her relatives’ home if she admitted that the activity had taken place there. In addition, as noted earlier, Dr. Carrasco found A.T.’s disclosures concerning the vaginal touching to be “very credible,” and it was Ms. Mari’s opinion that “some type of sexual activities have occurred between the four [children].”

The reservations just expressed do not lead me to the conclusion that the trial court’s order should be affirmed. It is important to note that A.T., her brother, and her cousins did not testify. Therefore, the trial court did not have the opportunity to evaluate the credibility of A.T. herself, but instead could only evaluate, secondhand, what A.T. had said to the witnesses who testified at the hearing. In light of this fact, along with the uncertainties inherent in A.T.’s disclosures as related by Dr. Carrasco and Ms. Mari, I join the majority in disagreeing “with the trial court’s finding that clear and convincing evidence exists that A.T.’s abuse occurred while in appellants’ custody, thus leading to a finding of dependency” (Majority Opinion at 11). In my view, however, it would not serve the welfare of A.T. and R.T., who will surely need extensive help in coping with the traumatic events of their recent past, for this Court to conclude that A.T.’s disclosures concerning sexual activity with her brother and cousins are totally unworthy of belief.

I concur in the result reached by the majority insofar as they conclude that the trial court’s adjudication of dependency in regard to A.T. and R.T. must be reversed and the case remanded for a custody proceeding. However, absent any indication that CYS will not discharge the responsibilities entrusted to it, I do not consider it necessary for this Court to advise CYS to update its investigation into the identity of A.T.’s abuser.

      . As appellants had temporary custody of A.T. and R.T., we find that they have standing to appeal to this court. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983).

      . The Child Protective Services Law, 11 P.S. § 2201-2224, was repealed by Act of December 19, 1990, and reenacted as Part VII of the Domestic Relations Code, 1990, December 19, P.L. 1240, No. 206, § 2. See 23 Pa.C.S.A. § 6301-6384 (Purdon Supp.1991). As the arguments before this court were premised on the former statute, we believe that our holding is unaffected by the statute’s repeal and reenactment. 1 Pa.C.S.A. § 1962 (Purdon Supp.1991).

      . Dr. Carrasco testified in a videotaped deposition. The transcript of her testimony is numbered separately from that of the adjudicatory hearing.

      . In their brief on appeal, appellants state that "Angela has subsequently admitted that her father was the adult perpetrator” (Brief for Appellants at vi f). We cannot rely on this statement, of course, as it appears only in the appellate brief and not in the original record. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974).


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    592 A.2d 64
    Gloria KARKARIA v. Navroz J. KARKARIA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1990.
    Filed May 31, 1991.

      Lea E. Anderson, Pittsburgh, for appellant.
    Denise W. Ford, Pittsburgh, for appellee.
    Patricia G. Miller, Pittsburgh, amicus curiae.
    Before CIRILLO, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, President Judge:

This appeal calls upon us to decide an issue not yet explicitly addressed by the appellate courts of this Commonwealth: whether an antenuptial agreement entered into after enactment of the Divorce Code, 23 P.S. §§ 101-801, may properly limit or waive the economic rights which the parties would otherwise possess under the Code’s provisions and, if so, what standards govern the enforceability of such an agreement. Upon careful study of the arguments advanced by the parties, amicus curiae and the trial court, we conclude that the trial court erred by departing from the principles which have traditionally been applied by the courts of this Commonwealth in assessing marital agreements and by substituting alternative standards adopted from the law of other jurisdictions.

The parties to this action are Navroz J. Karkaria (“husband”), and Gloria Karkaria (“wife”). They married on August 22, 1981, and separated on December 1, 1986. The marriage was husband’s second and wife’s third. No children were born of the union, but both parties had minor children from their prior marriages, three of whom resided with them during this marriage. Both parties were in their forties at the time of their marriage and had a history of financial independence through employment, husband having worked as a civil engineer for Consolidation Coal Company since 1966, and wife having worked for twenty years as a nurse and for several years as a police officer. At the time of the marriage, however, wife was unemployed and receiving disability payments due to a back injury suffered in her employment as a police officer. The parties had begun living together in husband’s residence in May, 1981, and wife asserts that during this period of cohabitation, husband helped her meet her living expenses, but periodically presented her with bills for repayment, with interest, of the money he had advanced her. This pattern continued throughout the marriage, with wife paying half of all household expenses.

For several months prior to the marriage, the parties discussed the possibility of entering into a prenuptial agreement regarding their rights in the event of divorce, and in February, 1981, husband provided wife with a preliminary draft of the terms he wished included in such an agreement. At the same time, he delivered the draft to his lawyer, requesting that a legally binding agreement be prepared. Wife immediately consulted an attorney, who advised her that she should return to legal counsel for assistance if the draft were reduced to a formal agreement. The proposed agreement was completed by husband’s attorney in mid-August, 1981, at which time the attorney met with both parties, attempted to explain the agreement’s provisions to wife and advised her that she should have the document reviewed by independent counsel before signing it. In addition, wife spoke about the agreement with an attorney representing her in connection with her disability claim; this attorney advised her that the agreement should not be signed without a full review by counsel, but that he would be unable to conduct such a review without more time. On August 19, 1981, when wife found that her chosen attorney would not be able to meet with her to review the agreement before the parties’ scheduled wedding day of August 22, she signed the agreement without counsel because she believed that husband would not go through with the marriage unless she did so. In essence, the agreement provided that the parties’ marriage was to have no economic consequences: the parties were to remain financially separate during their marriage and any statutory rights which either party might otherwise have claimed in the event of death or divorce were waived.

This action was initiated in November of 1986, when wife filed a complaint in divorce alleging that the marriage was irretrievably broken and requesting equitable distribution, alimony pendente lite, alimony, counsel fees, and expenses. Husband filed a timely answer and new matter in which he agreed that the marriage should be dissolved, but maintained that wife’s economic claims were barred by the antenuptial agreement. Thereafter, wife filed a reply in which she admitted that she signed an antenuptial agreement but argued that the agreement was not binding because it was not entered into voluntarily, because she had not had the advice of counsel in executing it, and because husband had not fully disclosed his financial status to her prior to its execution.

At a conciliation conference conducted by the Honorable R. Stanton Wettick, Jr., the case was designated complex and it was determined that the issue of the validity of the antenuptial agreement should be decided prior to further proceedings on the wife’s claims for alimony and equitable distribution. Her claim for alimony pendente lite was permitted to proceed, however, and on March 2, 1988, following proceedings before a master and a hearing by the court on exceptions to the master’s recommendation, counsel for both parties signed a consent order, entered by the Honorable Eugene B. Strassburger, III on March 4, 1988, stating that the previously filed exceptions were withdrawn. Accordingly, alimony pendente lite was set at $125.00 per month, retroactive to September 23, 1987, with arrearages of $569.00 through February 12, 1988 to be repaid at $100.00 per month.

Discovery in connection with the issue of the validity of the antenuptial agreement had been going on meanwhile, and after hearing argument on the legal issues involved, Judge Wettick filed an opinion and order holding that the agreement could not be set aside on the grounds that husband had failed to make a full and fair disclosure of his financial worth or that wife had not entered into it knowingly and voluntarily. Judge Wettick found that the agreement had been intended to bar all of wife’s claims for economic relief, but concluded that, to the extent that the agreement contravened public policy favoring economic equity .between divorcing parties, it was unenforceable.

Noting that the validity of broad waivers of the statutory rights created by the Divorce Code had not yet been determined by the appellate courts of Pennsylvania, Judge Wet-tick looked to the law of other jurisdictions for guidance. Surveying the law of some of our sister states, Judge Wettick noted that many courts have found that the public policy in favor of insuring economic equity between parties to a divorce is contravened by enforcement of a marital agreement which is not substantively fair. This standard, he noted, differs from the standards of procedural fairness by which agreements determining the parties’ rights upon the death of one spouse are usually judged. Judge Wettick acknowledged that the decisions of Pennsylvania courts which have addressed the validity of prenuptial waivers of economic rights incident to divorce have, without exception, assessed such agreements by the same standards applied to agreements in contemplation of death. See, e.g., Gula v. Gula, 380 Pa.Super. 249, 551 A.2d 324 (1988); Simeone v. Simeone, 380 Pa.Super. 37, 551 A.2d 219 (1988), affirmed, 525 Pa. 392, 581 A.2d 162 (1990); Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986). He distinguished those cases, however, on the basis that the agreements in question were entered into prior to the enactment of the Divorce Code, which stated a strong public policy of effectuating economic justice between parties who are divorced and mitigating the harm caused by dissolution of the marriage. In addition, he noted that section 103 of the Code, 23 P.S. § 103, explicitly removes agreements executed prior to the Code’s enactment from the operation of its provisions. Judge Wettick reasoned that because the agreement in this case, unlike those addressed in previous Pennsylvania decisions, must be weighed against the stated goals of the Divorce Code, the standards of procedural fairness used in scrutinizing agreements in contemplation of death were no longer sufficient to comport with public policy. Instead, he stated, Pennsylvania should adopt a substantive fairness standard to be applied, in addition to the traditional tests, in determining the validity of an antenuptial agreement waiving statutory rights upon divorce. Accordingly, Judge Wet-tick held that antenuptial agreements waiving equitable distribution rights are violative of public policy, and hence unenforceable, if a spouse shows either that the agreement was unfair at execution or that there are significant changed circumstances that render the agreement unfair as of the date of enforcement. With respect to alimony rights, the trial court concluded that an agreement violates public policy and will not be enforced if its enforcement would create an unjust result at the time alimony is sought.

Applying these legal conclusions to the instant agreement, Judge Wettick found that the validity of the specific waivers here could not be finally determined without the development of additional evidence. He therefore held that wife’s economic claims could not be dismissed based upon the antenuptial agreement, but that at the hearing on each claim, the agreement would be assessed to determine whether its enforcement would violate public policy under the circumstances of this case.

Additional hearings were conducted in November and December of 1988, at the conclusion of which the trial court held that the agreement validly waived alimony, counsel fees and distribution of the value, including appreciation during the marriage, of property owned separately by the parties prior to marriage. However, Judge Wettick ruled that the waiver of rights to property acquired by the other spouse during the marriage was unenforceable because it gave an unfair advantage to the spouse working outside the home, who would be moré likely to have the funds to acquire such property, and thereby contravened the policy that gives recognition to the value of services performed in the home and seeks to protect the economic interests of the spouse who performs such services instead of working for pay. Accordingly, he ruled that the entire marital portion of husband’s pension fund should be awarded to wife and that wife should receive $50,000.00 from his investment plan, a figure that represented one-half of that portion of the plan’s value which the trial court attributed to contributions made during the marriage. Post-trial motions were filed by both parties, but these were .denied with the exception of adjustments made by the trial court in the source and manner of payment of the equitable distribution order. A final decree was entered, and this timely appeal by husband followed.

Husband frames four issues for our consideration:

1. Was the antenuptial agreement executed by the parties on August 19, 1981 a valid and enforceable waiver of all economic claims raised by Wife under the Pennsylvania Divorce Code of 1980?
2. Is the validity of an antenuptial agreement made after 1980 to be determined by application of the traditional test of full and fair disclosure of assets and rights waived or a reasonable provision for the intended spouse?
3. Under Section 401(e)(2) of the Divorce Code, can a party waive his rights to property acquired during the marriage in an antenuptial agreement?
4. Should Wife be required to repay to Husband the entire amount of alimony pendente lite she received during this litigation?

We agree with husband that the application of a substantive fairness standard to determine the validity of this agreement was improper. We therefore reverse the equitable distribution order entered by the trial court.

The determination of property rights through marital agreements has long been permitted, and, indeed, encouraged in Pennsylvania, see, e.g., Fishblate v. Fishblate, 238 Pa. 450, 86 A. 469 (1913) (settlements between husband and wife are favored in law as tending to adjust family disputes and in the absence of mistake or fraud will not be set aside), and a substantial body of case law governing their validity and enforceability has developed over the years. The right to enter into antenuptial agreements and have them recognized by our courts, thus allowing individuals to order their personal affairs as they see fit, is an essential element of the rights to privacy and to contract. These rights are central to our society, and antenuptial agreements are thus presumed to be valid and binding upon the parties. In Re Estate of Hillegass, 431 Pa. 144, 149, 244 A.2d 672, 675 (1968). While the enforcement of such agreements is generally a matter of contract law, our courts have recognized that because of the close relationship and emotional involvement of the parties to a marital agreement, they do not deal with each other at arm’s length. For this reason, and because the very purpose of many marital agreements is to alter the property rights which our legislature has determined to be proper incidents of the marriage relationship, Emery’s Estate, 362 Pa. 142, 147, 66 A.2d 262 (1949), the traditional contract requirement that an agreement be entered into without fraud, misrepresentation or duress was broadened in the context of marital contracts. Thus, a party to an antenuptial agreement could avoid its terms if he or she could show by clear and convincing evidence that the proponent of the agreement failed to make either a reasonable provision for the other party or a full and fair disclosure of his or her financial worth. In Re Estate of Geyer, 516 Pa. 492, 501, 533 A.2d 423, 427 (1987), quoting In Re Estate of Hillegass, supra; see also Simeone v. Simeone, 380 Pa.Super. 37, 551 A.2d 219 (1988).

Our supreme court granted allocatur in Simeone, and in its decision clarified the standard to be applied in determining the validity of antenuptial agreements. See Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). In Simeone, the supreme court addressed the validity of a prenuptial agreement executed by the parties in 1975, prior to enactment of the 1980 Divorce Code. The court reexamined the foundations of Geyer, id. 525 Pa. at 398, 581 A.2d at 165, and determined that judicial inquiry into the reasonableness of the parties’ antenuptial agreement was inappropriate. 525 Pa. at 400, 581 A.2d at 166. The court retained the “full and fair disclosure” analysis, and stated that absent this disclosure, “a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted. Id., 525 Pa. at 403, 581 A.2d at 167, citing Hillegass, 431 Pa. at 152-53, 244 A.2d at 676-77.

Prior to our supreme court’s pronouncement in Simeone, the courts of Pennsylvania held that the standards enunciated above governed the validity of all marital agreements, whether entered into before marriage, during the relationship, or upon separation. In Re Ratony’s Estate, 443 Pa. 454, 277 A.2d 791 (1971); see also In Re Kester’s Estate, 486 Pa. 349, 405 A.2d 1244 (1979). Further, with the exception of agreements found to constitute collusion to defeat the fault requirement of our former Divorce Law, see, e,g., Miller v. Miller, 284 Pa. 414, 131 A. 236 (1925), those standards had been applied both to provisions contemplating dissolution of a marriage and those contemplating death of a spouse. In Re Ratony’s Estate, supra; Gula v. Gula, supra; Simeone v. Simeone, supra; Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 535 A.2d 664, appeal denied, 520 Pa. 589, 551 A.2d 216 (1988); Laub v. Laub, supra. Although the trial court was aware of this established case law, it determined that the present case was distinguishable because it presents an issue of first impression with respect to antenuptial agreements entered into after enactment of the Divorce Code. The trial court held that the policy goals of the Code require a radical departure from the treatment traditionally accorded marital agreements in this Commonwealth. We cannot agree.

The Divorce Code’s policy of promoting economic equity and protecting financially dependent spouses in the context of a marital dissolution is virtually indistinguishable from that underlying the statutory right of a surviving spouse to elect against the decedent’s will. In each case, the legislature has sought to protect a financially disadvantaged spouse from being left destitute by the designs of a marriage partner who has controlled the couple’s finances during the course of the relationship. Similarly, underlying each statute is the recognition that the contributions of a spouse who does not work outside the home are valuable to the marriage and entitle that spouse to economic recompense in the event that the marriage ends. In the context of a spouse’s right to elect against a will, the courts of this Commonwealth have long held that the requirement of what the trial court has designated as “procedural fairness,” i.e., either a fair provision for the challenging spouse or a full and fair disclosure of the proponent spouse’s financial worth, is sufficient protection to insure that a waiver or modification of the statutory right was knowingly and voluntarily made. We can conceive of no reason to impose an additional requirement of “substantive fairness” to protect the identical policy concerns in the context of divorce.

We are able to discern no indication in the Divorce Code itself that any other result was intended by the legislature. The Code makes specific reference to marital agreements in three contexts: in section 103, which provides that the Code is to have no effect on agreements entered into prior to its effective date; in section 402(e), which provides that the parties may, by agreement, exclude property from the marital estate subject to equitable distribution; and in section 401.1, which provides that marital agreements may be enforced by any mechanism available to enforce a court order and that agreements regarding property rights, alimony, alimony pendente lite, counsel fees, or expenses may be modified only in accordance with their own terms. Each of these provisions reflects a deferential attitude on the part of the legislature towards the parties’ ordering of their affairs by agreement and a reluctance to interfere with the parties’ freedom to contract. Simeone, too, recognizes the sanctity of the parties’ decision to contract.

A court should not ignore the parties’ expressed intent by proceeding to determine whether a prenuptial agreement was, in the court’s view, reasonable at the time of its inception or the time of divorce. These are exactly the sorts of judicial determinations that such agreements are designed to avoid.

525 Pa. at 402, 581 A.2d at 166. The approach adopted by the trial court, far from treating such agreements with deference, would render them virtually meaningless because the enforceability of an agreement’s provisions would be determined largely by events unknown and unknowable to the parties at the time they executed the agreement.

Although the Divorce Code is a relatively recent enactment, the policies it promotes did not spring into being overnight. This court’s decision in Gula v. Gula, supra, and our supreme court’s decision in Simeone v. Simeone, supra, albeit addressing agreements which were insulated from the Code’s provisions by operation of section 103, required attention to the issue of whether statutory rights central to the Code could be validly waived by a party who did not know that they would arise. In Simeone, our supreme court held that a prenuptial agreement entered into prior to enactment of the Divorce Code would not be declared void on grounds that one party did not consult with independent counsel. As stated above, the court also discarded the prior approach which permitted inquiry into the reasonableness of a prenuptial agreement, noting that “the reasonableness of a prenuptial bargain is not a proper subject for judicial review.” Simeone, 525 Pa. at 401, 581 A.2d at 166.

Contracting 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 good bargains, [citation omitted]____ To impose a per se requirement that parties entering a prenuptial agreement must obtain independent legal counsel would be contrary to traditional principles of contract law, and would constitute a paternalistic and unwarranted interference with the parties’ freedom to enter contracts.

Id., 525 Pa. at 400-401, 581 A.2d at 165-66. The court clarified an earlier opinion, Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987) (Opinion Announcing Judgment of the Court), and reexamined the foundations upon which Geyer and its predecessors rested. See In re Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968). The court delineated the standards by which the validity of prenuptial agreements will be judged, noting that society’s enlightenment has rendered meaningless the concepts upon which those earlier decisions were based.

[T]he law has advanced to recognize the equal status of men and women in our society. See, e.g., Pa. Const, art. 1, § 28 (constitutional prohibition of sexual discrimination in laws of the Commonwealth). Paternalistic presumptions and protections that arose to shelter women from the inferiorities and incapacities which they were perceived as having in earlier times have, appropriately, been discarded.

Id., 525 Pa. at 399, 581 A.2d at 165.

The decision in Simeone recognizes that both parties to an antenuptial agreement, regardless of gender, stand on equal ground in the bargaining posture. The courts need not intervene to “protect” the intended wife from a deceiving suitor. See Geyer, supra, 516 Pa. at 511, 533 A.2d at 432 (Nix, C.J., dissenting). Paternal intervention, in the form of judicial determinations of whether the agreement was “reasonable,” i.e., whether the contesting spouse was protected, has been discarded. Simeone, 525 Pa. at 399, 581 A.2d at 165.

Despite these expressions, the court cautioned that it was not departing from “the longstanding principle that a full and fair disclosure of the financial positions of the parties is required.” Id., 525 Pa. at 402-403, 581 A.2d at 167, citing Hillegass Estate, 431 Pa. 144, 152-53, 244 A.2d 672, 676-77 (1968). The concept of “full and fair disclosure” includes disclosure of statutory rights. Geyer, 516 Pa. at 506, 533 A.2d at 429.

[I]t is fair and reasonable, as well as sound judicial policy, to require that any agreement which seeks to change the duly enacted public policy of this Commonwealth must be based on nothing less than full and fair disclosure. Such disclosure must include both the general financial pictures of the parties involved, and evidence that the parties are aware of the statutory rights which they are relinquishing.

Id. (footnotes omitted).

Here, in determining that a waiver of statutory rights could occur so long as the traditional “full and fair disclosure” test was met, we can not be blind to the public policy favoring protection of a financially dependent spouse even though the actual statutory enactments of the Code could not affect the agreement. Because the public policy upon which the trial court based its decision was applicable in Gula and Simeone, we cannot agree that the fact that the Code’s actual provisions did not apply was a sufficient distinction to allow the departure from precedent upon which the trial court embarked. Accordingly, in accordance with the longstanding principles set forth by our Supreme Court and most recently refined in Simeone, we hold that an antenuptial agreement waiving rights to equitable distribution, alimony, alimony pendente lite, counsel fees or expenses under the Divorce Code is presumed valid and will be given effect by our courts unless the contesting party can show that the proponent spouse failed to make a full and fair disclosure of his or her financial worth at the time the agreement was executed. This is consistent with traditional principles of contract law and our Supreme Court’s recent pronouncement in Simeone.

This holding ends our inquiry with respect to the validity of the agreement in this case, for the trial court concluded that wife had failed to make such a showing in this case, and wife, by abandoning her cross-appeal, has not preserved any challenge to that conclusion. Husband’s final claim, that wife should be required to repay all alimony pendente lite that she received, may also be rejected summarily. Although it is clear that the agreement was intended to bar any claim by wife for alimony pendente lite and that, under the foregoing analysis, that provision was valid and enforceable, it is equally clear that, on March 2, 1988, husband’s counsel signed on his behalf a consent order withdrawing any objections to the award of alimony pendente lite. A party who has acquiesced in an order or judgment will not later be heard to challenge it. Brown v. Commonwealth, Department of Health, 495 Pa. 456, 434 A.2d 1179 (1981), quoting 9 Standard Pennsylvania Practice Ch. 38, § 162, pp. 134-35.

The order of the trial court is reversed, and the case is remanded for entry of a decree dismissing all economic claims by wife on the basis that they are barred by the parties’ antenuptial agreement.

FORD ELLIOTT, J., concurs in the result.

      . Paragraph 11 of the antenuptial agreement is a statement of full disclosure, and provides that wife "waives all presumption of fraud that may arise with full knowledge of her rights under the intestate laws and the Divorce Reform Code of the Commonwealth of Pennsylvania ... and further that she has certain rights which have been disclosed to her regarding the Pennsylvania Divorce Reform Code, all of which she has waived by this agreement.” Paragraph 12 of the agreement is a reciprocal provision for the husband.

      . Wife filed a cross-appeal, but discontinued it prior to argument.

      . We refer to section 401.1, enacted February 12, 1988, only as a reflection of the policy considerations underlying the Divorce Code. We need not, and do not, decide whether that section could be invoked with regard to this agreement, which was executed prior to the section's effective date.


author: OLSZEWSKI, Judge: WIEAND, Judge

text:
    592 A.2d 72
    WEST DEVELOPMENT GROUP, LTD., Appellant, v. HORIZON FINANCIAL, F.A. and Patrick M. McKernan and Samuel E. Colavita, Appellees.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed May 31, 1991.
    Reargument Denied Aug. 8, 1991.

      David H. Moskowitz, Devon, for appellant.
    Steven H. Sailer, Newtown, for Horizon Financial, appellees.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge:

This dispute arises out of a loan commitment agreement between West Development Group, Ltd. (West) and Horizon Financial, F.A. (Horizon), whereby Horizon agreed to loan West funds for the purchase of certain property. At closing, Horizon would not approve the form of the documents creating a junior mortgage. The owners of the property, Samuel E. Colavita and Patrick M. McKernan, walked out of the closing when West was unable to pay the purchase price. The property was sold the next business day to another party.

West filed suit against Horizon alleging breach of contract, Horizon joined Colavita and McKernan as additional defendants. West’s motion for partial summary judgment was denied. At trial, Horizon’s motion for a compulsory non-suit was granted at the close of West’s case. Timely post-trial motions were filed and denied, this appeal followed.

The factual history of this case can be summarized as follows: On April 15, 1986, West entered into an agreement of sale for the purchase from McKernan and Colavita of a 52.7-acre tract of land in Perkasie Borough, Bucks County, Pennsylvania. (Trial court opinion at 3.) Said agreement of sale divided the parcel of ground into two separate phases, I and II. (Id.) The purchase price was $369,000 for Phase I and $532,875 for Phase II. (Id.) The agreement provided that the price for Phase I was to be paid by West to McKernan and Colavita at settlement, originally scheduled for July 22, 1986. (Id.) Payment for Phase II was to be paid at a second settlement one year later, on or before July 22, 1987. (Id.) The original agreement also provided in paragraph 3(c) that: “Time shall be of the essence under this settlement paragraph and this Agreement.” (Id.)

In June 1986, West entered into a second supplemental agreement with McKernan and Colavita, which contained the following provision:

22. Paragraph 3(b) is hereby revised to read as follows: (b) the purchase price for Phase II ... shall be paid at settlement by way of a one (1) year note, without interest, executed by BUYER [West] to SELLER [McKernan and Colavita], secured by a mortgage on the land contained in Phase II, which shall be a second lien behind the first lien for the ground acquisition, site improvement and construction loan and the personal guarantees of Rudolf M. Haas and David Shubin, the principal officers, directors and shareholders of Buyer.

(Id. at 4.)

On August 27, 1986, Horizon issued a loan commitment letter to West agreeing to lend West $3,900,000 for the purchase of the land. (Id. at 5.) The loan commitment letter contained detailed special conditions requiring that the contemplated loan be secured by a first mortgage to Horizon, and that any “junior financing” secured, or to be secured, by an interest in the property, was prohibited unless specifically agreed to in writing by Horizon. (Id.)

Section 1.2 of the loan commitment letter provided:

1.2 The purchase money mortgage [to McKernan and Colavita] detailed in Paragraph 22 of the agreement of sale ... shall be permitted provided said mortgage is subordinate in lien priority to the mortgage [to Horizon] contemplated herein. No further junior financing shall be permitted, and the purchase money mortgage and note shall be delivered to [Horizon], for approval by [Horizon’s] counsel prior to the loan closing. If [Horizon’s] counsel does not approve said mortgage and note, [Horizon] may, at [Horizon’s] sole option, withdraw this commitment or accept changes in said mortgage and note from the purchase money mortgage.

(Id. at 5-6.) West promptly accepted the loan commitment letter and agreed that final closing would occur within thirty days of acceptance (by September 26, 1986). (Id.)

Settlement having been delayed, McKernan and Colavita sent West the following letter on September 5, 1986:

This letter is to serve as formal notice that unless settlement takes place on September 12, 1986, the sellers will declare the Agreement null and void and request that all deposit monies be paid to Sellers as liquidated damages

(Id. at 4-6.) McKernan and Colavita agreed that West’s counsel, Bell, would prepare the second mortgage documents which would secure the note specified in the supplemental agreement of sale. (Id. at 7.) Bell prepared the documents and submitted them to Horizon’s counsel, (Id.) The documents provided that the security interest of the junior mortgage was limited to the Phase II property and any improvements thereon. (Id.) Horizon’s counsel approved these documents with minor changes not material here. (Id.)

At the closing on September 12, 1986, McKernan and Colavita raised concerns regarding the absence of the personal guarantees of Shubin and Haas. (Id.) Paragraph 22 of the supplemental agreement specifically provides for such guarantees. McKernan and Colavita proposed, and West agreed, that the note be modified to allow for the personal guarantees and that the second mortgage be similarly modified. (Id. at 7-8.) Horizon, unrepresented by counsel at the closing, refused to agree to the changes and suggested that the settlement be postponed to allow further time for review. (Id. at 8.) McKernan and Colavita refused to delay and left the closing. (Id.) The property was sold to an uninvolved party on the next business day. (Id.)

Initially, we note that West appeals both the granting of the compulsory non-suit and the denial of its motion for summary judgment. (Appellant’s brief at 2.) West, however, has failed to provide any argument on the propriety of the denial of summary judgment. In fact, in its statement of the questions involved, West fails to even mention the denial of summary judgment. Accordingly, as West has not properly presented this issue, we hold it waived. See, Commonwealth v. Duden, 326 Pa.Super. 73, 80-82, 473 A.2d 614, 618 (1984) (citing, Pa.R.A.P. 2116, 42 Pa.C.S.A.).

Our standard for review on an appeal from the grant of a compulsory non-suit is clear. This Court must view the record in the light most favorable to plaintiff, who is entitled to the benefit of all reasonable inferences of fact; all doubts must be resolved in favor of plaintiff. Kallman v. Triangle Hotel Co., 357 Pa. 39, 42, 52 A.2d 900, 902 (1947) (citations omitted). “[A] compulsory non-suit can be entered only in a clear case when all the facts and inferences lead unerringly to but one conclusion.” Schneider v. Sheldon, 380 Pa. 360, 363-65, 110 A.2d 226, 228 (1955). With this standard in mind, we examine West’s claims.

West’s first point is that Horizon had no legal basis to refuse to loan the funds under the terms of the commitment letter. West argues that Section 1.2 of the commitment letter specifically refers to the supplemental agreement; the supplemental agreement requires personal guarantees by Haas and Shubin; therefore, West concludes, Horizon could foresee that personal guarantees would appear in the documents securing the second mortgage and cannot refuse to provide the loan only because the guarantees are present. We agree. While inartfully presented, West’s position, in essence, is that Horizon’s promise in the loan commitment letter must be read in light of the language in the supplemental agreement of sale to which it refers.

The language of the commitment letter, which was drafted by Horizon, specifically permitted the purchase money mortgage “detailed in Paragraph 22 of the agreement of sale dated April 7, 1985 (and revised April 15, 1986),” provided “said mortgage was subordinate in lien priority to” Horizon’s mortgage. (Trial court opinion at 5.) The revised agreement of sale specifically provides that Haas and Shubin would personally guarantee the note for the purchase of the land in addition to the junior mortgage. (Id. at 4.) Horizon encourages us to construe this loan commitment contract to operate as follows: the purchase money mortgage, which, as detailed in the sale agreement, specifically calls for the personal guarantees, is permitted so long as that mortgage is subordinate to Horizon’s; yet Horizon has the power to refuse to loan the funds because the personal guarantees are part of the loan documentation. This we will not do.

It is a well-settled principle of contract construction that terms are construed contra proferentum, that is, against the drafter. Central Transportation, Inc. v. Bd. of Assessment Appeals of Cambria County, 490 Pa. 486, 496-98, 417 A.2d 144, 149 (1980) (citations omitted); Reid v. Sovereign Camp, W.O.W., 340 Pa. 400, 400, 17 A.2d 890, 891 (1941) (citations omitted). It is equally well settled that a contract must be construed, if at all possible, to give effect to all of its terms. Cerceo v. DeMarco, 391 Pa. 157, 161-62, 137 A.2d 296, 298 (1958) (citations omitted); DeChicchis v. School District of Borough of Elizabeth, 142 Pa.Super. 94, 95-97, 15 A.2d 492, 493 (1940) (citation omitted). Finally, when a contract refers to a separate document, a court may examine the language of the other document to ascertain the intent of the parties. International Organization Master, Mates and Pilots of America, Local No. 2 v. International Organization Master, Mates and Pilots of America, Inc., 497 Pa. 102, 109-11, 439 A.2d 621, 625 (1981) (citation omitted).

These principles lead to the following conclusion as regards the loan commitment letter. To give effect to the clause allowing Horizon to refuse to loan the funds, any provision in the purchase money mortgage documentation which Horizon’s counsel found objectionable was grounds for Horizon to withdraw the commitment. Nonetheless, Horizon could not withdraw the commitment because of the presence of the personal guarantees because Horizon had previously specifically agreed to allow the guarantees (as they are detailed in Paragraph 22). So long as the mortgage granted to McKernan and Colavita is junior to the mortgage granted Horizon, and does not contain language objectionable to Horizon’s counsel (other than the personal guarantees), the documents comply with the condition imposed by the language Horizon used. In effect, the clause approving the agreement in Paragraph 22 creates an exception to the power to withdraw the commitment. See, Fogel Refrigerator Co. v. Oteri, 10 Pa.D. & C.2d 511, 525 (1957), aff’d 391 Pa. 188, 137 A.2d 225, 233 (1958) (court should not construe one part of a contract so as to annul another part). Accord, Appeal of Powell, 385 Pa. 467, 474-75, 123 A.2d 650, 654-655 (1956) (citation omitted).

To construe the loan commitment letter as contended by Horizon renders the commitment letter a “rope of sand.” The funds will be advanced if the sellers’ mortgage is junior to Horizon’s; Horizon knows when making this commitment that personal guarantees are required; the funds will not be advanced if the personal guarantees are present even though the sellers’ mortgage is subordinate to Horizon’s mortgage. We will not adopt such a construction which would extinguish the effect of Horizon’s previously expressed acquiescence in the terms of the supplemental agreement of sale. Fogel, supra; Powell, supra.

Horizon correctly contends that West cannot recover on its claim if West itself has breached the contract; a party who has breached the contract may not recover on it. Wetherstein v. Gordon, 287 Pa. 436, 135 A. 116 (1926); Sprout v. Mints, 128 Pa. 163, 18 A. 509 (1889); Morrow v. Waltz, 18 Pa. 118 (1851). Horizon contends that West’s obligation to provide the mortgage and note for prior approval is a condition precedent to Horizon’s obligations under the commitment letter, and contends further that West failed to present the final form of the mortgage and note to be given McKernan and Colavita until closing. Therefore, Horizon argues, they were under no obligation to provide the loan funds. West contends that this is not a breach, as the loan commitment letter does not call for the documents to be in their final form and further, that submission of the documents was not a condition precedent, but part of West’s promise to perform.

Generally, an event mentioned in a contract will not be construed as a condition precedent unless expressly made such a condition. American Leasing v. Morrison Co., 308 Pa.Super. 318, 325-27, 454 A.2d 555, 559 (1982) (citations omitted). The loan commitment letter makes no mention that the delivery of the mortgage and note for prior approval is to serve as a condition precedent. Accordingly, we will not construe the language in that manner. See also, Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3rd Cir.1980).

Nonetheless, the promise to submit the documents for prior approval remains part of West’s promised performance. Contractual terms are to be construed according to their common meaning. Pines Plaza Bowling, Inc. v. Rossview, 14 Pa.D. & C.2d 459, 464-65 (1957) aff’d, 394 Pa. 124, 145 A.2d 672, 676 (1958) (citations omitted); Byrne v. Bushkoff, 177 Pa.Super. 101, 102-04, 110 A.2d 813, 814 (1955) (citation omitted). The loan commitment letter clearly requires that West deliver “the purchase money mortgage, and note” to Horizon for prior approval. (Trial court opinion at 5.) We agree with Horizon that this means the mortgage and note in their final form. To construe these terms otherwise would allow West to submit a mortgage and note for approval, then employ a substantially different note and mortgage at closing to the detriment of Horizon. As Horizon states, the term “the” denotes “particular, specified ... things.” (Appellee’s brief at 14, quoting, The American Heritage Dictionary, 2d Ed.). The parties clearly intended the specific mortgage and note which would be used at settlement be submitted for prior approval.

Our analysis now turns to an inquiry of whether West’s acts or omissions constitute breach preventing a recovery. What is sufficient performance and what is a breach depends upon the surrounding circumstances and the construction given the contract involved. Hewes v. McWilliams, 412 Pa. 270, 275-76, 194 A.2d 339, 342 (1963). Here we have construed the contract as not allowing Horizon to refuse to perform under the loan commitment letter merely because personal guarantees were required. The mortgage and note submitted by West to Horizon for approval were in their final form, except for the inclusion of these guarantees. As the inclusion of these guarantees did not empower Horizon to withdraw its commitment, submission of the note and mortgage without them is not a material breach. Therefore, there was substantial performance by West. Sgarlat v. Griffith, 349 Pa. 42, 45-47, 36 A.2d 330, 332 (1944) {citing, RESTATEMENT (FIRST) CONTRACTS § 274, an immaterial failure of performance by one party does not discharge the other party). It is true that the doctrine of substantial performance cannot be invoked by one who has willfully, carelessly or in bad faith failed to perform. Mort Co. v. Paul, 167 Pa.Super. 532, 534-36, 76 A.2d 445, 447 (1950). Nonetheless, absent a willful omission, a question of substantial performance is one for the jury, not the court. Typhoon Air Conditioning Co. v. Fried, 147 Pa.Super. 605, 606-08, 24 A.2d 926, 927 (1942) (citations omitted). There is no allegation or evidence that West has acted willfully.

Horizon argues that West is not entitled to the benefit of the doctrine of substantial performance because the changes to be made to the loan documents, the addition of personal guarantees, are substantial changes to those documents. We agree that the addition of the guarantees substantially changes the legal significance of the documents in question. The issue presented, however, is whether the changes, substantial as they are, are material to the obligations and powers of the respective parties under the loan commitment letter. As analyzed above, they are not.

Horizon’s final argument is that West’s losses, if any, arose from the conduct of McKernan and Colavita in strictly enforcing the letter stating that settlement had to occur on September 12, 1986. In essence, Horizon’s argument is one of causation. It is arguable that McKernan and Colavita breached their agreement of sale with West. Nonetheless, it is clearly inferable from the state of the record that McKernan and Colavita walked out of the settlement because Horizon failed to perform its obligations under the commitment letter by steadfastly asserting that it would not advance the funds if the mortgage and note contained personal guarantees. In other words, Horizon’s breach may have caused the breach, if any, by McKernan and Colavita. At this point in the proceedings, it is West who is entitled to all favorable, reasonable inferences of fact. Kallman, supra. This is not a case where all the facts and inferences lead one unerringly to conclude that West’s losses were not caused by Horizon’s acts; therefore, a compulsory non-suit was improper. Sheldon, supra.

Order granting non-suit lifted. Case remanded for further proceedings in accord with the above decision. Jurisdiction relinquished.

WIEAND, J., files dissenting statement.

WIEAND, Judge

dissenting:

I respectfully dissent. West Development Group, Ltd. (West) had agreed that the closing documents in this transaction would be submitted to counsel for the lender, Horizon Financial, F.A. (Horizon) for approval prior to closing. Horizon was represented at the closing by a representative who was a non-lawyer. When the mortgage documents were changed during the closing, Horizon’s representative announced that he would not complete the closing without approval of the revised mortgage documents by counsel. When he asked for additional time so that Horizon’s counsel might review the altered documents, the sellers objected and walked out of the closing. Under these circumstances, West, the buyer, failed to show a breach of the loan agreement by Horizon, and the trial court correctly so held.

I would affirm the order of the trial court which denied the buyer’s post-trial motion to remove the compulsory nonsuit entered in the buyer’s action against the lender.

      . West's use of the term foreseeability is unfortunate. When construing a contract, the intent of the contracting parties is the paramount consideration. Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963); O'Farrell v. Steel City Piping Co., 266 Pa.Super. 219, 403 A.2d 1319 (1978). Therefore, the language used in the supplemental agreement is relevant, not because Horizon could foresee the troublesome personal guarantees, but because, as part of the surrounding circumstances and the objective to be attained by the contract, it illuminates the intent of the parties at the time of contracting. Silverstein v. Hirst, 376 Pa. 536, 103 A.2d 734 (1954); Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Super. 565, 352 A.2d 148 (1975).

      . Funk, A Hog on Ice and Other Curious Expressions, Harper, 1948, p. 127.