Barry, D. v. Barry, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DARYL C. BARRY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JACQUELINE M. BARRY, : No. 870 MDA 2015
:
Appellant :
Appeal from the Decree, April 22, 2015,
in the Court of Common Pleas of Dauphin County
Civil Division at No. 2014-CV-429-DV
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 30, 2015
Jacqueline M. Barry (“Wife”) appeals from the decree of divorce
entered April 22, 2015, in the Court of Common Pleas of Dauphin County.
In 2007, Wife was adjudicated to be an incapacitated person after a
hearing before the Dauphin County Orphan’s Court.1 Thereafter,
Neighborhood Services, Inc., was appointed to serve as plenary guardian of
appellant’s estate.
Wife was incarcerated from 2012 to 2014 for stalking a neighbor.
While Wife was incarcerated, her husband, Daryl C. Barry (“Husband”), filed
* Former Justice specially assigned to the Superior Court.
1
By all accounts, Wife was “diagnosed with schizoaffective disorder, is very
paranoid and suspicious, and can be very disruptive and argumentative.”
(See motion to open and vacate divorce decree, 5/7/15 ¶ 11 at 3.)
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for divorce.2 The parties entered into a settlement agreement. On
February 25, 2015, the orphan’s court held a hearing. The parties agreed
that Wife would receive a portion of the equity in the home, minus costs of
repairs and other expenses, and 50% of the net proceeds from the sale of a
vacant lot the parties owned. On April 22, 2015, a final decree of divorce
was entered.
On May 7, 2015, Wife, through her guardian, filed a motion to open
and vacate the divorce decree. Wife alleged that during the settlement
discussions Husband failed to disclose the fact that he will receive a pension
when he retires from employment with the Commonwealth of Pennsylvania.
On May 18, 2015, the orphan’s court issued a rule upon Husband to show
cause why the relief requested should not be granted. The rule was
returnable within five days. On May 20, 2015, prior to any ruling on Wife’s
motion to open and vacate the divorce decree, Wife filed a notice of appeal
from the April 22, 2015 divorce decree. On May 26, 2015, Husband filed a
timely answer to the motion to open and vacate the divorce decree with new
matter and requesting enforcement of the post-nuptial agreement. The
orphan’s court did not have a chance to rule on the outstanding motion to
open and vacate the divorce decree because it was precluded from taking
any further action on the matter once the appeal from the divorce decree
2
The parties were married for 39 years.
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was filed. See Pa.R.A.P. 1701(a). Wife raises the following issues on
appeal:
1. Did the Court err as a matter of law and abuse
its discretion when it entered a divorce decree
when intrinsic fraud existed or new evidence
came to light after the entry of the divorce
decree, as one of the parties’ assets was not
disclosed and Wife suffers from a mental
illness, which prevented her from taking part in
the process in any meaningful manner?
2. Consolidated with Issue Number 1 by
Appellant.
3. Did the Court err as a matter of law and abuse
its discretion when it entered a divorce decree
where extrinsic fraud existed, whereby the
nondisclosure of an asset prevented a fair
submission of the controversy?
Wife’s brief at 4.
Wife is improperly asking this court to determine, in the first instance,
whether the April 22, 2015 divorce decree should be opened or vacated.
She alleges that new evidence came to light after entry of the divorce
decree; specifically, the existence of a pension belonging to Husband, which
had not been disclosed during negotiations for the divorce. Wife’s counsel
argues that although Wife was evidently aware that a pension existed, the
symptoms of Wife’s schizoaffective disorder included paranoia and secrecy,
and she never told her caseworker of this asset until after the divorce decree
was entered.
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This court is without jurisdiction to make credibility determinations or
decide the merits of a petition to open or vacate a divorce decree. Rather,
procedurally, it is the function of the orphan’s court to exercise its equitable
powers under 23 Pa.C.S.A. § 3323 (regarding equitable power of the
orphan’s court in all matrimonial causes) to determine whether a divorce
decree should be opened or vacated. The test for opening or vacating a
divorce decree is set forth in 23 Pa.C.S.A. § 3332:
A motion to open a decree of divorce or annulment
may be made only within the period limited by
42 Pa.C.S. § 5505 (relating to modification of orders)
and not thereafter. The motion may lie where it is
alleged that the decree was procured by intrinsic
fraud or that there is new evidence relating to the
cause of action which will sustain the attack upon its
validity. A motion to vacate a decree or strike a
judgment alleged to be void because of extrinsic
fraud, lack of jurisdiction over the subject matter or
a fatal defect apparent upon the face of the record
must be made within five years after entry of the
final decree. Intrinsic fraud relates to a matter
adjudicated by the judgment, including perjury and
false testimony, whereas extrinsic fraud relates to
matters collateral to the judgment which have the
consequence of precluding a fair hearing or
presentation of one side of the case.
23 Pa.C.S.A. § 3332.
In a case very similar to the present case, we remanded a divorce
matter for specific findings of fact where the orphan’s court refused to
consider a petition to open a decree of divorce or make findings of fact
because an appeal had already been filed in this court. In Douglas v.
Douglas, 371 A.2d 979 (Pa.Super. 1977), Curtis Douglas (the husband)
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filed a complaint in divorce against Edith Douglas (the wife). Counsel for the
parties entered into negotiations regarding a property settlement. The
parties agreed that no divorce decree would be entered until a settlement
agreement was reached. Id. at 980. A hearing before a master was
scheduled and continued. The wife’s counsel was reassured that no divorce
decree would be entered until an agreement was reached. The wife’s
counsel was thereafter involved in a car accident. When he returned to his
office approximately one month later, he found that a divorce decree had
been entered at the recommendation of the master. The wife filed an appeal
and a petition to open judgement. The judge refused to rule upon the
petition to open because an appeal had been filed with this court. Id. On
appeal, the wife argued that the divorce decree was obtained in violation of
agreement between counsel and that she was deprived of her right to
hearing. On appeal from the divorce decree, this court noted that there
were insufficient facts to enable us to decide the appeal. Therefore, we
remanded the matter to allow the orphan’s court to consider the wife’s
petition to open judgment, in view of the fact that the lower court had not
ruled on the wife’s allegations and the record on appeal contained
insufficient facts to enable this court to decide the wife’s appeal. See also
Stachurski v. Stachurski, 239 A.2d 846 (Pa.Super. 1968) (where appeal
and petition to open divorce decree were filed, this court remanded to the
Philadelphia County Court of Common Pleas, Family Division, to consider the
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petition to open the divorce decree on the merits and allow the petitioner to
offer testimony in defense of the action).
Here, Wife apparently filed a notice of appeal in order to preserve her
right of appeal from the decree of divorce. However, at the time, there was
pending before the orphan’s court a petition to open or vacate the divorce
decree for the purpose of allowing appellant to offer evidence of an
undisclosed marital asset; namely, Husband’s pension. Because the merits
of Wife’s petition were not considered, the record is remanded to the
orphan’s court with directions to pass upon the merits of the petition to open
or vacate the divorce decree.
Appeal quashed. Record remanded with directions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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