Real, J. v. Real, L. ( 2015 )

J-A28036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOYCE REAL, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LAWRENCE REAL,
Appellee No. 299 EDA 2015
Appeal from the Order Entered December 22, 2014
In the Court of Common Pleas of Montgomery County
Domestic Relations at No(s): 2005-20886
BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 14, 2015
Appellant, Joyce Real (“Wife”), appeals pro se from the order entered
on December 22, 2014. We affirm.1
In its Pa.R.A.P. 1925(a) opinion, the trial court provided a thorough
recitation of the relevant facts and procedural history of this matter, which
were set forth as follows:
____________________________________________
1
On October 19, 2015, following the October 6, 2015 oral argument on this
matter, Wife filed a motion with this Court requesting that we read her brief.
Motion, 10/16/15, at 1. Wife’s prayer for relief in the motion is as follows:
“[Wife] respectfully requests that this Honorable Court read [Wife’s] Brief
and Reviews Evidence [Wife] has on the Record and Reverses the Order of
the Lower Court in its Entirety.” Motion, 10/19/15, at 6. As the members of
this panel have carefully read and reviewed Wife’s brief, we DENY her
motion as moot.
J-A28036-15
On November 9, 2007, an equitable distribution hearing
was held on the equitable distribution claims of [Wife] and
Defendant/Appellee Lawrence Real (hereinafter “[Husband]”)
before Master in Equitable Distribution Bruce Goldenberg,
Esquire. On February 8, 2008, Mr. Goldenberg issued a report
deciding the parties’ economic issues. [Wife] filed exceptions to
the report on March 3, 2008, and her exceptions were denied
after hearing by the Honorable Arthur R. Tilson on May 16, 2008.
A final divorce decree and order w[ere] entered by Judge Tilson
on July 25, 2008. [Wife] did not file a motion for reconsideration
of the decree and order, nor did she file a notice of appeal.
Paragraph 1 of the July 25, 2008 decree and order states
in part:
“The property located at 75 West Levering Mill
Road, Bala Cynwyd, Pennsylvania shall be sold. The
evidence reflects that the house will not be able to
be sold as long as Wife is residing there. Therefore,
Husband will be granted exclusive possession of the
property for the purpose of preparing the property
ready for sale.”
Paragraph 8 of the decree and order states in part:
“Husband will pay alimony to Wife for a period
of eight (8) years following the entry of this Divorce
Decree. The amount of the alimony will be in the
amount of $3,500.00 per month.”
On October 15, 2008, [Husband] filed a Petition for Special
Relief requesting enforcement of paragraph 1 of the July 25,
2008 divorce decree and order since [Wife] refused to vacate the
marital residence. While [Husband’s] petition was pending, on
May 20, 2009 Judge Tilson issued an order finding [Wife] to be
an “incapacitated person who is not represented in the action”
and appointed Maria Gibbons, Esquire as a guardian ad litem for
[Wife]. The underlying matter was stayed by the court while the
issue of [Wife’s] competence was litigated in the Montgomery
County Orphan’s Court.
[Husband] filed a second petition for special relief on
March 17, 2010 requesting that the stay order be vacated and
requesting that [Wife] be held in contempt, that [Wife] be
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evicted from the marital residence so that it could be sold
pursuant to the terms of the July 25, 2008 decree and order,
and that [Husband] receive credit for payments made to [Wife]
and to third parties on her behalf, against his alimony obligation
as set forth in the decree and order.
On November 24, 2010, The Honorable Lois E. Murphy of
the Montgomery County Orphan’s Court declared [Wife] “a
totally incapacitated person” and appointed Cheryl L. Austin,
Esquire as guardian ad litem for [Wife].1 On December 7, 2011,
Judge Murphy issued an order vacating the appointment of Ms.
Austin as [Wife’s] guardian ad litem, and appointed Jacqueline J.
Shafer, Esquire as counsel for [Wife].2 On January 21, 2011, a
stipulation for agreed order vacating appointment of guardian ad
litem was entered as an order of the court, removing Ms.
Gibbons appointment as [Wife’s] guardian ad litem. On January
30, 2012, Judge Murphy vacated the November 24, 2010 order
lifting the finding of [Wife’s] incapacitation and the matter was
referred to family court.
1
By agreement of counsel for both parties’, as
stated on the record at the June 4, 2014 hearing, the
court took judicial notice of the orders issued in the
Orphan’s Court matter.
2
The Honorable Cheryl L. Austin was elected to the
bench of the Court of Common Pleas of Montgomery
County in November, 2011.
On February 3, 2014, [Wife] filed a Petition to Modify
divorce order and decree in the nature of a nunc pro tunc
Petition. In her petition, [Wife] requested that the court modify
the July 25, 2008 decree and order by “permitting discovery of
the up to now hidden assets”, and “to hold in abeyance a
decision regarding the distribution of these assets pending
receipt of the information concerning them ...”
The court held hearings in this matter on March 25, 2014,
June 4, 2014 and October 14, 2014. At the hearings, [Wife] was
represented by Lauren H. Kane, Esquire, and [Husband] was
represented by Harry M. Byrne, Esquire.
At the March 25, 2014 hearing, [Husband] testified that he
has attempted to obtain possession and title to the marital
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residence at 75 West Levering Mill Road in Bala Cynwyd,
Pennsylvania since 2008 when the parties[’] divorce decree was
entered granting him exclusive possession of the property.
[Husband] testified that on March 16, 2011, a stipulation for
agreed order was entered which gave him credit on his alimony
payments of $3,500.00 per month for 29 months, from August
1, 2008 until December 31, 2010. N.T. March 25, 2014 at 12-14.
[Husband] testified that he has made additional payments for
the support and maintenance of the marital residence by paying
the mortgage, a home equity loan homeowner’s insurance, and
taxes from 2011 until the time of the hearing. N.T. March 25,
2014 at 14-26. [Husband] testified that the marital residence
has fallen into a state of disrepair since 2006, the last time he
was inside the property. N.T. March 25, 2014 at 26-31.
At the June 4, 2014 hearing, counsel for both parties made
oral argument on [Wife’s] February 3, 2014, Petition to Modify
divorce order and decree in the nature of a nunc pro tunc
petition. In her argument, counsel for [Wife] argued that the
petition was based on extrinsic fraud only, “We’re not talking
about intrinsic fraud here. We’re talking about extrinsic fraud.”
N.T. June 4, 2014 at 22. [Wife’s] counsel alleged that there were
hidden assets which were not disclosed at the time of the
equitable distribution hearing, and, therefore, her petition to
open the divorce decree should be granted. [Wife’s] counsel also
argued that the statute of limitations pursuant to 23 Pa.C.S.A.
§3332, “Opening or vacating decrees”, was tolled from the date
of Judge Tilson’s May 20, 2009 order until [Wife] was declared
by Judge Murphy to be competent on January 30, 2012. N.T.
June 4, 2014 at 23.
Defense counsel argued to the court that [Wife]’s
allegations as to hidden assets of [Husband’s] had no basis,
especially in light of the fact that [Wife], although declared
incompetent, was represented from May 20, 2009 until January
30, 2012 by counsel and/or guardians ad litem, and had retained
a financial expert, Gregory Cowhey, at the time of equitable
distribution. Defense counsel argued that [Wife] alleged that
there are hidden assets since 2005 when she filed a complaint in
divorce. Her allegations in the February 3, 2014 Petition to
Modify divorce order and decree were raised before, and had
been investigated by prior counsel for [Wife]. N.T. June 4, 2014
at 31-35. Defense counsel also argued that, contrary to [Wife’s]
counsel’s assertion, there had never been an agreement or
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stipulation to stay [Wife’s] eviction from the marital residence.
N.T. June 4, 2014 at 45.
At the June 4, 2014 hearing, the court asked counsel on
the record: “Does anybody have any objection if I look at the
Orphan’s Court record?” The Court added: “I could take judicial
notice of Orphan’s Court record. Am I allowed to do that?”
Counsel for both parties stated that they had no objection to the
court doing so.
At the October 14, 2014 hearing, [Wife] provided
testimony that she had “... lots of other evidence to substantiate
that [Husband] was running a phantom business...” and
engaging in “cyber laundering”, and using “fake label credit
cards”, however, no persuasive nor dispositive substantive
evidence was presented to the court, and Defense counsel’s
objections to [Wife’s] statements were sustained. N.T. October
14, 2014 at 47-48.
On December 22, 2014, the court issued an order which
stated as follows:
AND NOW, this 22nd day of December, 2014,
upon consideration of [Husband’s] October 15, 2008
Petition for Special Relief, Contempt, and Other
Relief, [Wife’s] February 3, 2014 Petition to Modify
Divorce Order and Decree in the Nature of a Nunc
Pro Tunc Petition, [Wife’s] April 16, 2014 Brief In
Support of Petition to Modify Divorce Order and
Decree in the Nature of a Nunc Pro Tunc Petition,
[Husband’s] April 17, 2014 Memorandum of Law RE
Opening Decree, and following hearings on March
25, 2014, June 4, 2014 and October 14, 2014, it is
hereby ORDERED and DECREED as follows:
[Wife’s] February 3, 2014 Petition is DENIED.
[Husband’s] October 15, 2008 Petition for
Special Relief is GRANTED in part as follows:
[Wife] is found in contempt of the July 25,
2008 Decree and Order.
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[Wife] shall vacate the martial [sic] residence
at 75 West Levering Mill Road, Bala Cynwyd, PA
19004 and execute a quit-claim deed in [Husband’s]
favor no later than ninety (90) days from the date of
this Order.
By virtue of the direct payments made to
[Wife] or on her behalf, [Husband] shall receive a
credit for one monthly alimony payment ($3,500.00)
for each month from January 1, 2011 to the date
that [Wife] vacates the martial [sic] residence.
[Husband] shall, as per the terms of the July
25, 2008 Decree and Order, commence alimony
payments to [Wife] contemporaneous with [Wife]
vacating the marital residence.
[Husband’s] request for counsel fees is
DENIED.
Trial Court Opinion, 3/27/15, at 1-6.
Wife filed a timely notice of appeal on January 20, 2014. On January
22, 2014, the trial court ordered Wife to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 28,
2014, Wife filed a six-page document entitled “[Wife’s] Concise Statement of
Errors Complained of on Appeal,” which contained numerous accusations of
fraud, allegations of hidden assets, and claims of trial court error. On March
27, 2015, the trial court filed its Pa.R.A.P. 1925(a) opinion.
We have reviewed the record, the briefs of the parties, and the
applicable legal authority, and we discern no abuse of discretion or error of
law in this matter. While we are sensitive to the factual circumstances
evident in the case at bar, we are nevertheless convinced that the trial court
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aptly addressed and properly disposed of the issues Wife has raised on
appeal. As such, we affirm the December 22, 2014 order on the basis of the
trial court’s well-reasoned opinion.2
Order affirmed.3
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
____________________________________________
2
The parties are hereby directed to attach a copy of the trial court’s March
27, 2015 opinion in the event of further proceedings in this matter.
3
Husband’s October 1, 2015 Motion to Quash is DENIED.
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J-A28036-15
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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
CIVIL ACTION - LAW
JOYCE REAL, SUPERIOR COURT
PLAINTIFF/APPELLANT DOCKET NO. 299 EDA 2015
v.
LOWER COURT
LAWRENCE REAL DOCKET NO. 2005-20886
DEFENDANT/APPELLEE
OPINION
COONAHAN, J. MARCH 27, 2015
On November 9, 2007, an equitable distribution hearing was held on
the equitable distribution claims of Plaintiff/Appellant Joyce Real (hereinafter
"Plaintiff") and Defendant/Appellee Lawrence Real (hereinafter "Defendant")
before Master in Equitable Distribution Bruce Goldenberg, Esquire. On
February 8, 2008, Mr. Goldenberg issued a report deciding the parties'
economic issues. Plaintiff filed exceptions to the report on March 3, 2008,
and her exceptions were denied after hearing by the Honorable Arthur R.
Tilson on May 16, 2008. A final divorce decree and order was entered by
Judge Tilson on July 25, 2008. Plaintiff did not file a motion for
reconsideration of the decree and order, nor did she file a notice of appeal.
Paragraph 1 of the July 25, 2008 decree and order states in part:
"The property located at 75 West Levering Mill Road,
Bala Cynwyd, Pennsylvania shall be sold. The evidence
reflects that the house will not be able to be sold as long
as Wife is residing there. Therefore, Husband will be
granted exclusive possession of the property for the
purpose of preparing the property ready for sale."
Paragraph 8 of the decree and order states in part:
1111 ~M1``11~1lllI
2005-20886-0200 3/27/2015 12:32 PM # 10235558
Opinion
Rcpt#Z2365369 F~e:$0.00
Mark Levv - MontCo Prothonotary
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"Husband will pay alimony to Wife for a period of
eight (8) years following the entry of this Divorce
Decree. The amount of the alimony will be in the
amount of $3,500.00 per month."
On October 15, 2008, Defendant filed a Petition for Special Relief
requesting enforcement of paragraph l of the July 25, 2008 divorce decree
and order since Plaintiff refused to vacate the marital residence. Whlle
Defendant's petition was pending, on May 20, 2009 Judge Tilson issued an
order finding Plaintiff to be an "incapacitated person who is not represented
in the action" and appointed Maria Gibbons, Esquire as a guardian ad litem
for Plaintiff. The underlying matter was stayed by the court while the issue of
Plaintiff's competence was litigated in the Montgomery County Orphan's
Court.
Defendant filed a second petition for special relief on March 17, 2010
requesting that the stay order be vacated and requesting that Plaintiff be
held in contempt, that Plaintiff be evicted from the marital residence so that
it could be sold pursuant to the terms of the July 25, 2008 decree and order,
and that Defendant receive credit for payments made to Plaintiff and to third
parties on her behalf, against his alimony obligation as set forth in the decree
and order.
On November 24, 2010, The Honorable Lois E. Murphy of the
Montgomery County Orphan's Court declared Plaintiff "a totally incapacitated
person" and appointed Cheryl L. Austin, Esquire as guardian ad litem for
2
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Plaintiff.1 On December 7, 2011, Judge Murphy issued an order vacating the
appointment of Ms. Austin as Plaintiff's guardian ad litem, and appointed
Jacqueline J. Shafer, Esquire as counsel for Plaintiff.2 On January 21, 2011,
a stipulation for agreed order vacating appointment of guardian ad litem was
entered as an order of the court, removing Ms. Gibbons appointment as
Plaintiff's guardian ad litem. On January 30, 2012, Judge Murphy vacated the
November 24, 2010 order lifting the finding of Plaintiffs incapacitation and
the matter was referred to family court.
On February 3, 2014, Plaintiff filed a Petition to Modify divorce order
and decree in the nature of a nunc pro tune Petition. In her petition, Plaintiff
requested that the court modify the July 25, 2008 decree and order by
"permitting discovery of the up to now hidden assets", and "to hold in
abeyance a decision regarding the distribution of these assets pending
receipt of the information concerning them ... "
The court held hearings in this matter on March 25, 2014, June 4,
2014 and October 14, 2014. At the hearings, Plaintiff was represented by
Lauren H. Kane, Esquire, and Defendant was represented by Harry M. Byrne,
Esquire.
At the March 25, 2014 hearing, Defendant testified that he has
attempted to obtain possession and title to the marital residence at 75 West
Levering Mill Road in Bala Cynwyd, Pennsylvania since 2008 when the parties
I
By agreement of counsel for both parties', as stated on the record at the June 4, 2014
hearing, the court took judicial notice of the orders issued in the Orphan's Court matter.
2
The Honorable Cheryl L. Austin was elected to the bench of the Court of Common Pleas of
Montgomery County in November, 2011.
3
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divorce decree was entered granting him exclusive possession of the
property. Defendant testified that on March 16, 2011, a stipulation for
agreed order was entered which gave him credit on his alimony payments of
$3,500.00 per month for 29 months, from August 1, 2008 until
December 31, 2010. N.T. March 25, 2014 at 12-14. Defendant testified that
he has made additional payments for the support and maintenance of the
marital residence by paying the mortgage, a home equity loan homeowner's
insurance, and taxes from 2011 until the time of the hearing. N.T. March 25,
2014 at 14-26. Defendant testified that the marital residence has fallen into
a state of disrepair since 2006, the last time he was inside the property. N.T.
March 25, 2014 at 26-31.
At the June 4, 2014 hearing, counsel for both parties made oral
argument on Plaintiff's February 3, 2014, Petition to Modify divorce order and
decree in the nature of a nunc pro tune petition. In her argument, counsel for
Plaintiff argued that the petition was based on extrinsic fraud only, "We're
not talking about intrinsic fraud here. We're talking about extrinsic fraud."
N.T. June 4, 2014 at 22. Plaintiff's counsel alleged that there were hidden
assets which were not disclosed at the time of the equitable distribution
hearing, and, therefore, her petition to open the divorce decree should be
granted. Plaintiff's counsel also argued that the statute of limitations
pursuant to 23 Pa.C.S.A. §3332, "Opening or vacating decrees", was tolled
from the date of Judge Tilson's May 20, 2009 order until Plaintiff was
declared by Judge Murphy to be competent on January 30, 2012. N.T.
June 4, 2014 at 23.
4
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Defense counsel argued to the court that Plaintiff's allegations as to
hidden assets of Defendant's had no basis, especially in light of the fact that
Plaintiff, although declared incompetent, was represented from May 20, 2009
until January 30, 2012 by counsel and/or guardians ad litem, and had
retained a financial expert, Gregory Cowhey, at the time of equitable
distribution. Defense counsel argued that Plaintiff alleged that there are
hidden assets since 2005 when she filed a complaint in divorce. Her
allegations in the February 3, 2014 Petition to Modify divorce order and
decree were raised before, and had been investigated by prior counsel for
Plaintiff. N.T. June 4, 2014 at 31-35. Defense counsel also argued that,
contrary to Plaintiff's counsel's assertion, there had never been an agreement
or stipulation to stay Plaintiff's eviction from the marital residence. N.T.
June 4, 2014 at 45.
At the June 4, 2014 hearing, the court asked counsel on the record:
"Does anybody have any objection if I look at the Orphan's Court record?"
The Court added: "I could take judicial notice of Orphan's Court record. Am I
allowed to do that?" Counsel for both parties stated that they had no
objection to the court doing so.
At the October 14, 2014 hearing, Plaintiff provided testimony that she
had " ... lots of other evidence to substantiate that [Defendant] was running a
phantom business... " and engaging in "cyber laundering", and using "fake
label credit cards", however, no persuasive nor dispositive substantive
evidence was presented to the court, and Defense counsel's objections to
Plaintiff's statements were sustained. N .T. October 14, 2014 at 47 -48.
5
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On December 22, 2014, the court issued an order which stated as
follows:
AND NOW, this 22nd day of December, 2014, upon
consideration of Defendant's October 15, 2008 Petition for
Special Relief, Contempt, and Other Relief, Plaintiff's
February 3, 2014 Petition to Modify Divorce Order and
Decree in the Nature of a Nunc Pro Tune Petition,
Plaintiff's April 16, 2014 Brief In Support of Petition to
Modify Divorce Order and Decree in the Nature of a Nunc
Pro Tune Petition, Defendant's April 17, 2014
Memorandum of Law RE Opening Decree, and following
hearings on March 25, 2014, June 4, 2014 and October
14, 2014, it is hereby ORDEREDand DECREED as follows:
Plaintiff's February 3, 2014 Petition is DENIED.
Defendant's October 15, 2008 Petition for Special
Relief is GRANTEDin part as follows:
Plaintiff is found in contempt of the July 25, 2008
Decree and Order.
Plaintiff shall vacate the martial residence at 75 West
Levering Mill Road, Bala Cynwyd, PA 19004 and execute
a quit-claim deed in Defendant's favor no later than
ninety (90) days from the date of this Order.
By virtue of the direct payments made to Plaintiff or
on her behalf, Defendant shall receive a credit for one
monthly alimony payment ($3,500.00) for each month
from January 1, 2011 to the date that Plaintiff vacates the
martial residence.
Defendant shall, as per the terms of the July 25,
2008 Decree and Order, commence alimony payments to
Plaintiff contemporaneous with Plaintiff vacating the
marital residence.
Defendant's request for counsel fees is DENIED.
On January 20, 2015 Plaintiff filed a Notice of Appeal to the Superior
Court of Pennsylvania of the December 22, 2014 Order issued by this court.
On January 22, 2015, the trial court issued an Order directing Plaintiff to file
with the trial court a Concise Statement of Errors Complained of on Appeal
pursuant to Pa. R.A.P. 1925 (b) within twenty one (21) days of the date of
the Order. On January 28, 2015, Plaintiff filed her Concise Statement of
6
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Matters Complained of on Appeal setting forth her matters complained of on
appeal which are as follows3:
"A. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY REFUSING TO RULE DEFENDANT BE ORDERED
TO PAY ALIMONY, WHICH HE RECEIVED FALSE CREDIT FOR
PAYING. DEFENDANT IS PAYING A MORTGAGE AND HOME
EQUITY LOAN. BOTH ARE HOME EQUITY LINES OF CREDIT HE
IS PAYING TO HIMSELF. ONE IS DEPOSITED INTO A DIRECT
DEPOSIT ACCOUNT (THIS IS ON THE RECORD BUT NOT
ADMITTED INTO EVIDENCE). ALTHOUGH HE MAKES
WITHDRAWALS FROM THE OTHER SAID CREDIT LIEN (WHICH
WAS ADMITTED INTO EVIDENCE), TO OSTENSIBLY PAY THE
MORTGAGE ON THE MARITAL HOME, HE SUBSEQUENTLY AND
CONSISTENTLY DEPOSITS MONIES BACK INTO THE ACCOUNT
FOR HIS OWN PERSONAL USE. AS A RESULT, THE HOME
EQUITY LINE OF CREDIT NEVER DECREASED OR DECREASES.
AS SUCH, HUSBAND SHOULD NOT HAVE BEEN RECEIVING
CREDIT FOR ALIMONY PAYMENTS NOR SHOULD IT BE
ATTRIBUTED TO HIM THAT HE HAS PAID DOWN THE MARITAL
DEBT OF A MORTGAGE ON THE MARITAL HOME. THE PLAINTIFF
IS ENTITLED TO RECEIVE THE ALIMONY PAYMENTS, AND ANY
CREDIT DEFENDANT WAS FALSELY GIVEN SHOULD BE
RETROACTIVELY ERASED. THE COURT SHOULD RECOGNIZE
THAT DEFENDANT IS NOT HIDING HIS FRAUD, JUST RESISTING
DISCOVERY. DEFENDANT'S DISHONESTY OF PURPOSE, INTENT
TO DECEIVE AND ACTUAL FRAUD SHOULD FINALLY BE
EXPOSED, THROUGH A FORENSIC ACCOUNTING. PLAINTIFF
3
TheCourt notes that Plaintiff's concise statement does not comply with Pa.R.A.P.
1925(b )( 4) (iv) which states in part: "The Statement should not be redundant or provide
lengthy explanations as to any error." Plaintiff's concise statement is also a lengthy recitation
of information, some of which was not admitted as evidence at the hearings, it refers to
hearings before other judges, transcripts of which were not made part of the record before
this court, and it contains unsubstantiated allegations, characterizations, and argument.
7
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SPENT THREE YEARS, FROM 2008 TO 2011, ORGANIZING
TWENTY-NINE YEARS OF CASH FLOW DATA SHOWING HOW
DEFENDANT MOVED ASSETS OUT OF THE MARITAL ESTATE
AND UNDER HIS CONTROL. A FORENSIC ACCOUNTING MUST BE
DIRECTED BY AN ATIORNEY. THE DEFENDANT HAS
SUCCESSFULLY RESISTED A FORENSIC ACCOUNTING THREE
TIMES, BY COVERTLY AGGRESSING PLAINTIFF'S ATIORNEYS
AND MANIPULATING PLAINTIFF'S FUNDS. SUBSEQUENTLY HE
WAS ABLE TO DEFLECT ATIENTION FROM THE DISCOVERY TO
A DOCKET FULL OF FALSE CHARGES AND PETITIONS
ATTACKING THE PLAINTIFF. THIS RESULTED IN HEARINGS
BASED ON HE SAID SHE SAID, INSTEAD OF FACTS.
B. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION - AS WELL AS DENIED PLAINTIFF DUE PROCESS -
BY LIMITING THE NUMBER OF MARITAL ASSETS PLAINTIFF WAS
ALLOWED TO BRING IN VIA NUNC PRO TUNC (INCLUDING THE
PHANTOM RESTAURANT, JARDIN, LISTED ON EXPERIAN CREDIT
REPORT AS A BUSINESS LOCATED AT MARITAL RESIDENTIAL
ADDRESS). PLAINITFF'S ATTORNEY ONLY MENTIONED THE.
PENN MUTUAL ANNUITY AND PUTNAM ACCOUNTS AS THE TIP
OF THE ICEBERG. PLAINTIFF SEEKS TO RECOVER HER HALF OF
THE PARTIES MARITAL ESTATE. PLAINTIFF'S ATTORNEY, AT
THAT TIME, DID NOT WANT TO GIVE AWAY EVERYTHING
PLAINTIFF KNEW IN THE MOTION FOR NUNC PRO TUNC,
BECAUSE EVERY TIME DEFENDANT HAS HAD KNOWLEDGE OF
EVIDENCE AGAINST HIM, HE HAS MANAGED TO SQUASH IT.
THE PLAINTIFF HAS EVERY RIGHT TO HAVE A FULL FORENSIC
ACCOUNTING (DESPITE THE RESISTANCE DEFENDANT
CREATED) AND AN EQUITABLE DIVISION OF HER MARITAL
ASSETS. THIS COURT SHOULD NOT BE ALLOWED TO
PERPETRATE THE DEFENDANT'S FRAUD. DR. REAL'S FRAUD IS
8
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PARTICULARLY REPUGNANT AS HE AND HIS SUPERLAWYER,
HAVE CONSISTENTLY OPERATED BEHIND THE COURT AND
ABOVE THE LAW TO OBFUSCATE THE BIG PICTURE, EVADE
PROPERTY DIVISION AND PREVENT PLAINTIFF'S DUE PROCESS,
NOT ONLY TO DEFRAUD HER, BUT ALSO TO TRY TO HOODWINK
THE COURT.
C. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY NOT SAYING WHETHER OR NOT THE FRAUD
STATUTE WOULD BE TOLLED DURING THE TIME THE PLAINTIFF
WAS DEEMED MENTALLY INCAPACITATED.
D. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY SAYING THAT IT WOULD LOOK INTO WHAT
HAPPENED IN THE ORPHANS COURT IN THE THREE PREVIOUS
HEARINGS BEFORE THE LAST AND NOT FOLLOWING THROUGH.
HAD THE TRIAL COURT FOLLOWED IT'S INTIAL INSTINCTS AND
LOOKED INTO THE TRANSCRIPTS OF THE ORPHANS COURT, IT
WOULD SEE PLAINTIFF SHOWED EVIDENCE THAT THE LED THE
HONORABLE ORPHAN'S COURT JUDGE TO CONCLUDE: THAT
THE FOUNDATION OF THE DEFENDANT'S CASE IS BUILT ON
FRAUD, THAT THE DEFENDANT WAS LYING AND ATTACKING
HER LAWYERS/GUADIANS SO SHE COULDN'T MAKE HER CASE,
THAT HE WAS DELIBERATELY KEEPING HER OUT OF FUNDS
AND THAT IT WAS THE DEFENDANT/PSYCHIATRIST WHO WAS
BEHIND THE INCAPACITATED PERSON'S DECREE TO BEGIN
WITH. ALL THIS LED THE ORPHANS' COURT TO VACATE THE
INCAPACITATED PERSON DECREE.
E. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY SAYING PLAINTIFF SHOULD SIGN A QUIT
CLAIM DEED TO DEFENDANT. PLAINTIFF IS ENTITLED TO HER
9
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SHARE OF THE MARITAL HOME AS ORDERED IN THE ORIGINAL
AND VAGUE DECREE, WHICH SHE WOULD NOT GET IF FORCED
TO SIGN OVER TO DEFENDANT. PLAINTIFF WAS NOT
REPRESENTED BY COUNSEL AT THE TIME OF EQUITABLE
DISTRIBUTION. THE DEFENDANT PROCEEDED TO DISMANTLE
THE ORIGINAL DECREE THROUGH THE PLAINTIFF'S COURT
APPOINTED GUARDIANS, WHILE HAVING PLAINTIFF TIED UP IN
ORPHANS' COURT, STIGMATIZED AS MENTALLY ILL, DECLARED
INCAPACITATED, AND ON THE BRINK OF AN EVICTION ORDER.
PLAINTIFF PREVIOUSLY DEMONSTRATED TO THE HONORABLE
TRIAL COURT JUDGE TILSON, DEFENDANT USED EQUITY IN
THE MARITAL HOME TO INVEST IN OTHER PROPERTIES, LIKE
THE ABN AMRO MORTGAGE, PAID IN FULL, IN BOTH PARTIES
NAMES. SAID MORTGAGE IS NOT PART OF MARITAL
RESIDENCE RECORD OF DEED WHICH THE DEFENDANT IS
OPERATING HIS MORTGAGE/ALIMONY SCAM OFF OF. JU.OGE
TILSON STAYED THE EVICTION AND APPOINTED THE
GUARDIANS FOR THE PURPOSE OF AFFORDING TIME AND
ASSISTANCE TO HELP THE PLAINTIFF PROVE FRAUD. THE
DEFENDANT, ONCE AGAIN COVERTLY AGGRESSED PLAINTIFF'S
GUARDIANS/COUNSEL TO POISON THEIR PERCEPTION OF HER,
CREATE FEAR AND ANTIPATHY TOWARDS HER, IGNORE HER
AND UNWITTINGLY SWITCH THEIR ALLEGIANCE TO THE
DEFENDANTS AGENDA, TO REDUCE ALL RESISTANCE TO
EVERYTHING BEING HIS. FOLLOWING THE MONEY THROUGH A
FORENSIC ACCOUNTING AND CASH FLOW ANALYSIS (OF
PLAINTIFF'S DISCOVERY) WOULD LAY ALL ARGUMENTS TO
REST. IT WOULD CLEARLY SHOW THE DEFENDANTS MOTIVE,
HIS INABILITY TO SHARE, HIS CONSCIOUSNESS OF GUILT,
EXTREME "WINNER TAKES ALL" MENTALITY, AND THE
DETAILED PLANNING THAT WENT INTO STOCKPILING ASSETS
THEN MOVING THEM OUT OF THE MARITAL ESTATE AND UNDER
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HIS SOLE CONTROL. DR. REAL'S SUPERLAWYER EXPENSES
HAVE TO BE IN EXCESS OF $300,000.00 OVER THE PAST NINE
AND A HALF YEARS. IF HE HAS NOTHING TO HIDE, WHY IS HE
INVESTING SO MUCH TO HIDE IT?
F. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN BELIEVING DEFENDANT WILL PAY ALIMONY
CONTEMPORANEOUSLY WITH DEFENDANT LEAVING THE
HOUSE. THE DEFENDANT ALREADY VOCALIZED THAT THE
TRIAL COURT WAS WRONG AND THAT HE IS DONE PAYING
ALIMONY. EVEN THOUGH THE BULK OF THOSE ALIMONY
CREDITS WERE PROVEN TO BE FAKE. DEFENDANT IS ON
ORPHANS' COURT RECORD CLAIMING HE ACCELERATED
ALIMONY PAYMENTS THROUGH ARRANGEMENTS WITH
PLAINTIFF'S GUARDIANS AND WAS FINISHED PAYING IN
02/2013. IF PLAINTIFF IS FORCED TO LEAVE HER HOME,
DEFENDANT PLANS TO PAY HER NOTHING. DEFENDANT
SHOULD BE FORCED TO WRITE A ONE TIME CHECK COVERING
ALL FUTURE ALIMONY OWED AS WELL AS PAST ALIMONY HE
SHOULD NOT HAVE RECEIVED CREDIT FOR. PLAINTFF
DEMONSTRATED TO THE COURT SHE SOUGHT TO DOWNSIZE
TO A SMALLER RESIDENCE IMMEDIATLEY FOLLOWING THE
DEFENDANT'S ABANDONMENT. THE DEFENDANT REFUSED TO
TALK TO HER, FORCING THE HER TO BE SUBJECT TO HIS
ALIMONY/MORTGAGE SCAM. THAT IS ON THE RECORD THOUGH
THE HONORABLE TRIAL COURT JUDGE DID NOT ADMIT THE
PLAINTIFF'S PROOF INTO EVIDECNE. THIS DEMONSTRATES DR.
REAL'S CALLOUS INDIFFERENCE TO SPOUSE, HIS INTENT TO
DEPRIVE WIFE OF MARITAL ASSETS, INCLUDING A HOME AND
ANY KIND OF LIFESTYLE.
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G. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY ENFORCING THE PLAINTIFF AND HER SON TO
BE EVICTED FROM THE FAMILY HOME ON AN ORDER BASED ON .
THE DEFENDANTS MALICIOUS FRAUD, WHICH DISCOVERY
PROVES HE PLANNED THROUGHOUT THE COURSE OF THE
PARTIES TWENTY-THREE YEAR MARRIAGE, AND
SUBSEQUENTLY CARRIED OUT THROUGH THE COURT FOR
ALMOST TEN YEARS. WITHOUT SOME KIND OF EQUITABLE
DIVISION OF PROPERTY AND PROTECTION FROM THE
DEFENDANT'S OPPRESSION AND ABUSE, DR. REAL'S FORMER
SPOUSE AND FAMILY WILL NEVER BE ABLE TO RECOVER AND
START SOME KIND OF LIFE AGAIN. THE SEVERE DAMAGE
CAUSED BY DEFENDANTS DELIBERATE INFLICTION OF MENTAL
ANGUISH CAN ONLY BE EXPOSED IN A COURT OF EQUITY,
AFTER EXPOSING HIS RELATIONSHIP TO MONEY WHICH
REQUIRES AN ANALYSIS OF THE MARITAL CASH FLOW. IT IS
AWFULLY HARD TO INSIST ON PLAINTIFF'S ADHERENCE TO
THE RULE OF LAW WHILE THE DEFENDANTS COMMITMENT TO
THE RULE OF LAW IS HOW TO GO BEHIND IT, GET AROUND IT,
RISE ABOVE IT AND EVADE IT. THE COURT EXISTS TO LEVEL
THE PLAYING FIELD. IN THIS CASE, THE DEFENDANT COVERTLY
PUSHED THE PLAINTIFF OFF THE FIELD."
This opinion is filed pursuant to and is in compliance with Pa. R.A.P.
1925 (a).
When reviewing an appeal from a contempt order, the appellate court
"must place great reliance upon the sound discretion of the trial judge."
Godfrey v. Godfrey, 894 A.2d 776, 2006 Pa. Super. 39 (2006); Langendorfer
v. Spearman, 797 A.2d 303, 2002 Pa. Super. 93 (2002). The scope of review
for the appellate court is very narrow, and the appellate court is limited to
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"determining whether the trial court committed an abuse of discretion."
Godfrey, 2006 PA Super (2006). The trial court abuses its discretion in a
contempt case if it "misapplies the law or exercises its discretion in a manner
lacking reason." Godfrey, 2006 Pa. Super. 39 (2006); Hopkins v. Byes, 954
A.2d 654, 2008 Pa. Super. 172 (2008). In order to support a finding of civil
contempt, the petitioner must prove that the contemnor had notice of the
specific order or decree which is alleged to have been disobeyed; that the act
constituting the contemnor's violation was volitional; and that the contemnor
acted with wrongful intent. Harcar v. Harcar, 982 A.2d 1230, 2009 Pa. Super.
203 (2009). A party alleging contempt of a court order has the burden to
show a party violated an order by a preponderance of the evidence. Hopkins,
2008 Pa. Super. 172 (2008).
There are two limitations on attacks upon divorce decrees. The first,
23 Pa.C.S.A. § 3331, "Limitations on attacks upon decrees", states:
"The validity of a decree of divorce or
annulment issued by a court shall not be
questioned, except by appeal, in any court or place
in this Commonwealth after the death of either
party to the proceeding. If it is shown that a party
who subsequently attempts to question the validity
of the decree had full knowledge of the facts and
circumstances the latter complained of at the time
of the issuance of the decree or failed to take any
action despite this knowledge within two years
after the date of the decree, the party shall be
barred from questioning the decree, and it shall be
valid in all courts and places within this
Commonwealth."
The second limitation on an attack of a divorce decree is set forth in 23
Pa.C.S.A. §3332, "Opening or vacating decrees". Pursuant to23 Pa.C.S.A.
§3332, the first basis for vacating a divorce decree is proof of intrinsic fraud
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which must be raised within thirty days of the entry of the decree. A general
plea to economic justice will not satisfy the requirements for opening or
vacating a divorce decree after the expiration of the thirty day period. Melton
v. Melton , 831 A.2d 646, Super. 2003.
Beyond the thirty day limitation period, a party may rely on the second
basis under 23 Pa.C.S,A. §3332, where a party must prove extrinsic fraud,
lack of jurisdiction over the subject matter, or a fatal defect apparent from
the record in order to vacate or open a divorce decree. Justice v. Justice, 612
A.2d 1354, 417 Pa.Super.581, Super. 1992. A divorce decree cannot be
vacated beyond the thirty day limitation period absent extrinsic fraud which
is collateral to the proceedings and which arises from actions taken by the
prevailing party. Justice v. Justice, 612 A.2d 1354."Extrinsic fraud" that
permits opening of a divorce decree more than thirty days after its entry
extends to situations in which one party coerces another into relinquishing
economic claims arising from the marriage. Justice v. Justice, 612 A.2d 1354.
While a trial court has equitable powers in divorce proceedings, they do not
extend to ignoring limited statutory circumstance in which a final divorce
decree can be vacated. Justice v. Justice, 612 A.2d 1354.
The court addresses the Plaintiff's claims, as best as the court is able
to discern them, as follows;
"A. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY REFUSING TO RULE DEFENDANT BE ORDERED
TO PAY ALIMONY, WHICH HE RECEIVED FALSE CREDIT FOR
PAYING. DEFENDANT IS PAYING A MORTGAGE AND HOME
EQUITY LOAN. BOTH ARE HOME EQUITY LINES OF CREDIT HE
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IS PAYING TO HIMSELF. ONE rs DEPOSITED INTO A DIRECT
DEPOSIT ACCOUNT (THIS rs ON THE RECORD BUT NOT
ADMITTED INTO EVIDENCE). ALTHOUGH HE MAKES
WITHDRAWALS FROM THE OTHER SAID CREDIT LIEN (WHICH
WAS ADMITTED INTO EVIDENCE), TO OSTENSIBLY PAY THE
MORTGAGE ON THE MARITAL HOME, HE SUBSEQUENTLY AND
CONSISTENTLY DEPOSITS MONIES BACK INTO THE ACCOUNT
FOR HIS OWN PERSONAL USE. AS A RESULT, THE HOME
EQUITY LINE OF CREDIT NEVER DECREASED OR DECREASES.
AS SUCH, HUSBAND SHOULD NOT HAVE BEEN RECEIVING
CREDIT FOR ALIMONY PAYMENTS NOR SHOULD IT BE
ATTRIBUTED TO HIM THAT HE HAS PAID DOWN THE MARITAL
DEBT OF A MORTGAGE ON THE MARITAL HOME. THE PLAINTIFF
IS ENTITLED TO RECEIVE THE ALIMONY PAYMENTS, AND ANY
CREDIT DEFENDANT WAS FALSELY GIVEN SHOULD BE
RETROACTIVELY ERASED. THE COURT SHOULD RECOGNIZE
THAT DEFENDANT IS NOT HIDING HIS FRAUD, JUST RESISTING
DISCOVERY. DEFENDANT'S DISHONESTY OF PURPOSE, INTENT
TO DECEIVE AND ACTUAL FRAUD SHOULD FINALLY BE
EXPOSED, THROUGH A FORENSIC ACCOUNTING. PLAINTIFF
SPENT THREE YEARS, FROM 2008 TO 2011, ORGANIZING
TWENTY-NINE YEARS OF CASH FLOW DATA SHOWING HOW
DEFENDANT MOVED ASSETS OUT OF THE MARITAL ESTATE
AND UNDER HIS CONTROL. A FORENSIC ACCOUNTING MUST BE
DIRECTED BY AN ATTORNEY. THE DEFENDANT HAS
SUCCESSFULLY RESISTED A FORENSIC ACCOUNTING THREE
TIMES, BY COVERTLY AGGRESSING PLAINTIFF'S ATTORNEYS
AND MANIPULATING PLAINTIFF'S FUNDS. SUBSEQUENTLY HE
WAS ABLE TO DEFLECT ATTENTION FROM THE DISCOVERY TO
A DOCKET FULL OF FALSE CHARGES AND PETITIONS
ATTACKING THE PLAINTIFF. THIS RESULTED IN HEARINGS
BASED ON HE SAID SHE SAID, INSTEAD OF FACTS.
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Contrary to Plaintiff's claim in paragraph "A" of her 1925(b) Concise
Statement that the court "erred and abused its discretion by refusing to rule
Defendant be ordered to pay alimony", the court ordered on December 22,
2014 that Defendant shall pay alimony, "contemporaneous with Plaintiff
vacating the marital residence". Defendant's obligation to pay alimony to
Plaintiff was previously ordered in the July 25, 2008 decree and order,
(which was not appealed from) and, the issue of whether or not Defendant
should be "ordered" to pay alimony to Plaintiff was not an issue which was
before the court at the March 25, 2014, June 4, 2014 and October 14, 2014
hearings. The issues before this court at the hearings were enforcement of
the exclusive possession clause of the July 25, 2008 decree and order, and,
whether or not to open or vacate the July 25, 2008 decree and order.
Furthermore, credit which Defendant received for alimony and other
payments that he had made between August 1, 2008 and December 31,
2010 were ordered pursuant to the March 17, 2011 stipulation for agreed
order for alimony credits. The court notes that this agreed order was signed
by Plaintiff's guardian ad litem at the time, Ms. Austin (now Judge Austin).
If Plaintiff is referring in paragraph "A" of her 1925(b) Concise
Statement to the December 22, 2014 order in which the court ordered that
Defendant receive a credit "for one monthly alimony payment ($3,500.00)
for each month from January 1, 2011 to the date that Plaintiff vacates the
marital residence", Defendant testified that he had made additional
payments for the support and maintenance of the marital residence by
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paying the mortgage, a home equity loan, homeowner's insurance, and
taxes from 2011 until the time of the hearing. N.T. March 25, 2014 at 14-
26. The evidence showed that for 2011 through 2013, Defendant made
payments on behalf of Plaintiff and to maintain the marital residence; of
$187,875.00, which is $61,875.00 above the court ordered alimony figure of
4
$42,000 per year. The court found that Defendant's payments from 2011 to
the time of the hearings were made in order to benefit and support Plaintiff.
The court also found that the payments were made to maintain the marital
home in which Plaintiff continued to reside for several years despite the
2008 court order giving Defendant exclusive possession of the marital home.
Therefore, the court did not err or abuse its discretion by ordering that
Defendant receive alimony credit for the payments he made between 2011
and 2013 as testified to at the March 25, 2014 hearing.
Plaintiff's claims as raised in paragraph "A" of her 1925(b) Concise
Statement are without merit, contain evidence not admitted at the hearings
before this court, are speculative, and, therefore, should be dismissed.
B. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION - AS WELL AS DENIED PLAINTIFF DUE PROCESS -
BY LIMITING THE NUMBER OF MARITAL ASSETS PLAINTIFF WAS
ALLOWED TO BRING IN VIA NUNC PRO TUNC (INCLUDING THE
PHANTOM RESTAURANT, JARDIN, LISTED ON EXPERIAN CREDIT
REPORT AS A BUSINESS LOCATED AT MARITAL RESIDENTIAL
ADDRESS). PLAINITFF'S ATTORNEY ONLY MENTIONED THE
4
In 2011, Defendant made a payment of $14,000.00 towards a new car for Plaintiff and he
parties' son, however, Defendant testified that that amount "should be subtracted .. .I did not
· consider that as part of the total [alimony and marital residence payments]."
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PENN MUTUAL ANNUITY AND PUTNAM ACCOUNTS AS THE TIP
OF THE ICEBERG. PLAINTIFF SEEKS TO RECOVER HER HALF OF
THE PARTIES MARITAL ESTATE. PLAINTIFF'S ATTORNEY, AT
THAT TIME, DID NOT WANT TO GIVE AWAY EVERYTHING
PLAINTIFF KNEW IN THE MOTION FOR NUNC PRO TUNC,
BECAUSE EVERY TIME DEFENDANT HAS HAD KNOWLEDGE OF
EVIDENCE AGAINST HIM, HE HAS MANAGED TO SQUASH IT.
THE PLAINTIFF HAS EVERY RIGHT TO HAVE A FULL FORENSIC
ACCOUNTING (DESPITE THE RESISTANCE DEFENDANT
CREATED) AND AN EQUITABLE DIVISION OF HER MARITAL
ASSETS. THIS COURT SHOULD NOT BE ALLOWED TO
PERPETRATE THE DEFENDANT'S FRAUD. DR. REAL'S FRAUD IS
PARTICULARLY REPUGNANT AS HE AND HIS SUPERLAWYER,
HAVE CONSISTENTLY OPERATED BEHIND THE COURT AND
ABOVE THE LAW TO OBFUSCATE THE BIG PICTURE, EVADE
PROEPRTY DIVISION AND PREVENT PLAINTIFF1S DUE PROCESS,
NOT ONLY TO DEFRAUD HER, BUT ALSO TO TRY TO HOODWINK
THE COURT.
In Plaintiffs February 3, 2014, Petition to Modify divorce order and
decree, Plaintiff lists two assets which Defendant allegedly did not report at
the time of equitable distribution: a "Penn Mutual Annuity", and "Putnam
Accounts". Defendant was on notice that he should be prepared at the
hearing on Plaintiff's petition to address Plaintiff's allegations with regard to
these two alleged assets. Paragraph 14 of the petition states that these
assets are "just the proverbial 'tip of the iceberg."' The court limited Plaintiff
at the hearings to the allegations as set forth in her petition. At the hearings,
Plaintiff's counsel again used the term "tip of the iceberg" to describe alleged
missing assets. As stated by the court at the June 4, 2014 hearing," .. .I don't
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know if you think that this is just going to be a never-ending, open ended
inquiry ... so now we're going to get into other things that maybe somebody,
or other people, find along the way." N.T. June 4, 2014 at 85-86. The court
stated: "So I'm going to stick with this, with this petition .. .I'm not opening
everything up at this point." N.T. June 4, 2014 at 86-87.
Additionally, Plaintiff's argument ignores the fact that Plaintiff's
petition, on its face, is untimely pursuant to 23 Pa.C.S.A. §3332, as it was
filed more than five years from the date of the entry of the divorce decree.
Therefore, the court did not err or abuse its discretion in "limiting the number
of marital assets Plaintiff was allowed to bring in" at the time of the hearings
since Plaintiff did not meet the threshold requirement of timeliness pursuant
to 23 Pa.C.S.A. §3332.
Plaintiff's petition was also untimely pursuant to 23 Pa.C.S.A. §3331
which states:
"If it is shown that a party who subsequently
attempts to question the validity of the decree had
full knowledge of the facts and circumstances the
latter complained of at the time of the issuance of
the decree or failed to take any action despite this
knowledge within two years after the date of the
decree, the party shall be barred from questioning
the decree, and it shall be valid in all courts and
places within this Commonwealth."
Plaintiff herself states in paragraph "A" of her 1925(b) Concise
Statement that she has "spent three years, from 2008-2011, organizing
twenty-nine years of cash flow data showing how Defendant moved assets
out of the marital estate and under his control." She also alleges in her
1925(b) Concise Statement numerous times that evidence of alleged hidden
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assets and alleged financial fraud by Defendant has been presented at prior
hearings in this matter, both in Family Court and in Orphan's Court.
Therefore, prior to the filing of her petition in 2014, Plaintiff had full
knowledge of the allegations she now raises and those allegations could have
been pursued within the statutory time limits.
Plaintiff's claims as raised in paragraph "B" of her 1925(b) Concise
Statement are without merit, speculative, and, therefore, should be
dismissed,
C. THE HONORABLE TRIAL COURT ERRED AND ABSUED ITS
DISCRETION BY NOT SAYING WHETHER OR NOT THE FRAUD
STATUTE WOULD BE TOLLED DURING THE TIME THE PLAINTIFF
WAS DEEMED MENTALLY INCAPACITATED.
Pursuant to 23 Pa.C.S.A. §3332, the only basis for vacating a divorce
decree within thirty days of its entry is intrinsic fraud; beyond the thirty day
limitation period, a party must show extrinsic fraud, lack of jurisdiction over
the subject matter, or a fatal defect apparent from the record. Allegations of
extrinsic fraud require the bringing of a petition to open or vacate within five
years of the entry of the decree. 23 Pa.C.S.A. §3332; Ratarsky v. Ratarsky,
557 A.2d 23 (1990).
Plaintiffs counsel argued at the hearings that there was financial
information pertaining to two accounts that Defendant had not disclosed prior
to the divorce decree being entered and did not testify to at the equitable
distribution hearing. Plaintiff's counsel referred to this as extrinsic fraud.
However, Plaintiff's allegations, if true, would represent intrinsic fraud,
20
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requiring a petition to open or vacate to be filed within 30 days of the entry
of the decree.
Intrinsic fraud is defined in 23 Pa.C.S.A. §3332 as dealing with
allegations of perjury and false testimony. By arguing that Defendant lied
about his assets and did not disclose all the assets he had at the time of
equitable distribution, Plaintiff is arguing that the decree should be opened
and vacated due to intrinsic fraud. Therefore, her petition to open and vacate
the decree should have been brought within thirty days of the entry of the
decree. "[W]here the intrinsic fraud or new evidence attacking the validity of
the decree is alleged, a motion to open must be filed within 30 days after the
entry of the decree ... " Hassick v. Hassick, 695 A.2d 851 (1997). Even if
Plaintiff had alleged extrinsic fraud, her February 3, 2014 petition to modify
divorce order and decree was filed beyond the five year statute of limitations.
At the hearings, Plaintiff argued, and continues to argue in her
1925(b) Concise Statement, that she was not mentally incapacitated at any
time during the course of these proceedings, and that it was the Defendant
who deceived the courts, and Plaintiff's attorneys and guardians ad litem,
into concluding that she was mentally incapacitated. From the date of Judge
Tilson's May 20, 2009 order finding Plaintiff to be an incapacitated person,
until Judge Murphy's January 30, 2012 order lifting Plaintiff's incapacitation,
the Plaintiff was represented by guardians ad litem, and counsel. From May,
2009, until January, 2012, none of Plaintiff's legal representatives filed a
petition to open or vacate the July 25, 2008 divorce decree.
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The court finds Plaintiff's argument to be disingenuous when she
alleges that Defendant deceived and manipulated the Orphan's Court judge
into an unsupported finding of incompetency, yet, she wants this court to toll
the statute of limitations on her February 3, 2014 Petition to Modify divorce
order and decree since she was found to be incompetent. Furthermore,
Plaintiff was represented during the Orphan's Curt proceedings by guardians
ad !item and counsel. Plaintiff's argument that the statute of limitations for
the filing of her February 3, 2014 petition to modify divorce order and decree
should be tolled is, therefore, without merit and her claim in paragraph "C" of
her 1925(b) Concise Statement should be dismissed.
D. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY SAYING THAT IT WOULD LOOK INTO WHAT
HAPPENED IN THE ORPHANS COURT IN THE THREE PREVIOUS
HEARINGS BEFORE THE LAST AND NOT FOLLOWING THROUGH.
HAD THE TRIAL COURT FOLLOWED IT'S INTIAL INSTINCTS AND
LOOKED INTO THE TRANSCRIPTS OF THE ORPHANS COURT, IT
WOULD SEE PLAINTIFF SHOWED EVIDENCE THAT THE LED THE
HONORABLE ORPHAN'S COURT JUDGE TO CONCLUDE: THAT
THE FOUNDATION OF THE DEFENDANT'S CASE IS BUILT ON
FRAUD, THAT THE DEFENDANT WAS LYING AND ATTACKING
HER LAWYERS/GUADIANS SO SHE COULDN'T MAKE HER CASE,
THAT HE WAS DELIBERATELY KEEPING HER OUT OF FUNDS
AND THAT IT WAS THE DEFENDANT/PSYCHIATRIST WHO WAS
BEHIND THE INCAPACITATED PERSON'S DECREE TO BEGIN
WITH. ALL THIS LED THE ORPHANS' COURT TO VACATE THE
INCAPACITATED PERSON DECREE.
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At the June 4, 2014 hearing, the court asked counsel on the record:
"Does anybody have any objection if I look at the Orphan's Court record?"
The Court added: ''I could take judicial notice of Orphan's Court record. Am I
allowed to do that?" Counsel for both parties stated that they had no
objection to the court doing so. The court raised this issue so that the court
could review specific orders and rulings which were made in the Montgomery
County Orphan's Court in connection with the matters before the family
court. The court did not state on the record that it would "look into what
happened in the Orphan's Court in the three previous hearings", or look "into
the transcripts of the Orphan's Court" in order to revisit or relitigate the
findings and rulings which were made and issued in Orphan's Court. The
Orphan's Court litigation was not the subject of the inquiry before the court
at the March 25, 2014, June 4, 2014 and October 14, 2014 hearings. The
inquiry before the court was limited to the merits of Defendant's October 15,
2008 Petition for special relief, and Plaintiff's February 3, 2014 Petition to
Modify divorce order and decree in the nature of a nunc pro tune petition.
Plaintiff's claims as raised in paragraph "D" of her 1925(b) Concise
Statement are without merit, contain evidence not admitted at the hearings
before this court, refer to legal proceedings which did not occur before this
court, are speculative, and, therefore, should be dismissed.
E. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY SAYING PLAINTIFF SHOULD SIGN A QUIT
CLAIM DEED TO DEFENDANT. PLAINTIFF IS ENTITLED TO HER
SHARE OF THE MARITAL HOME AS ORDERED IN THE ORIGINAL
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AND VAGUE DECREE, WHICH SHE WOULD NOT GET IF FORCED
TO SIGN OVER TO DEFENDANT. PLAINTIFF WAS NOT
REPRESENTED BY COUNSEL AT THE TIME OF EQUITABLE
DISTRIBUTION. THE DEFENDANT PROCEEDED TO DISMANTLE
THE ORIGINAL DECREE THROUGH THE PLAINTIFF'S COURT
APPOINTED GUARDIANS, WHILE HAVING PLAINTIFF TIED UP IN
ORPHANS' COURT, STIGMATIZED AS MENTALLY ILL, DECLARED
INCAPACITATED, AND ON THE BRINK OF AN EVICTION ORDER.
PLAINTIFF PREVIOUSLY DEMONSTRATED TO THE HONORABLE
TRIAL COURT JUDGE TILSON, DEFENDANT USED EQUITY IN
THE MARITAL HOME TO INVEST IN OTHER PROPERTIES, LIKE
THE ABN AMRO MORTGAGE, PAID IN FULL, IN BOTH PARTIES
NAMES. SAID MORTGAGE IS NOT PART OF MARITAL
RESIDENCE RECORD OF DEED WHICH THE DEFENDANT IS
OPERATING HIS MORTGAGE/ALIMONY SCAM OFF OF. JUDGE
TILSON STAYED THE EVICTION AND APPOINTED THE
GUARDIANS FOR THE PURPOSE OF AFFORDING TIME AND
ASSISTANCE TO HELP THE PLAINTIFF PROVE FRAUD. THE
DEFENDANT, ONCE AGAIN COVERTLY AGGRESSED PLAINTIFF'S
GUARDIANS/COUNSEL TO POISON THEIR PERCEPTION OF HER,
CREATE FEAR AND ANTIPATHY TOWARDS HER, IGNORE HER
AND UNWITTINGLY SWITCH THEIR ALLEGIANCE TO THE
DEFENDANTS AGENDA, TO REDUCE ALL RESISTANCE TO
EVERYTHING BEING HIS. FOLLOWING THE MONEY THROUGH A
FORENSIC ACCOUNTING AND CASH FLOW ANALYSIS (OF
PLAINTIFF'S DISCOVERY) WOULD LAY ALL ARGUMENTS TO
REST. IT WOULD CLEARLY SHOW THE DEFENDANTS MOTIVE,
HIS INABILITY TO SHARE, HIS CONSCIOUSNESS OF GUILT,
EXTREME "WINNER TAKES ALL'' MENTALITY, AND THE
DETAILED PLANNING THAT WENT INTO STOCKPILING ASSETS
THEN MOVING THEM OUT OF THE MARITAL ESTATE AND UNDER
HIS SOLE CONTROL. DR. REAL'S SUPERLAWYER EXPENSES
24
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HAVE TO BE IN EXCESS OF $300,000.00 OVER THE PAST NINE
AND A HALF YEARS. IF HE HAS NOTHING TO HIDE, WHY IS HE
INVESTING SO MUCH TO HIDE IT?
The evidence presented at the March 25, 2014, June 4, 2014 and
October 14, 2014 hearings proved that Plaintiff, without justification, has
refused to vacate the marital residence and provide Defendant with exclusive
possession as required under paragraph 1 of the July 25, 2008 decree and
order. Plaintiff did not file a motion for reconsideration of the July 25, 2008
decree and order, and she did not file a notice of appeal of the decree and
order. Plaintiff did not present any persuasive evidence as to why she has
refused to comply with the decree and order since 2008, but simply testified
that she would have no place to go if she moved out of the marital residence.
Paragraph 1 of the July 25, 2008 decree and order states that the
marital property shall be .sold. Defendant was granted exclusive possession of
the marital residence in 2008, according to the decree and order, "for the
purpose of preparing the property ready for sale." Defendant testified at the
hearings that due to Plaintiff's failure to vacate the marital residence for over
six years, and due to the condition of the marital residence, he has been
unable to sell the marital property. Therefore, the court did not err or abuse
its discretion in ordering Plaintiff to vacate the marital residence and to sign a
quit claim deed, which would allow Defendant to proceed with the sale of the
marital residence, as previously ordered in the July 25, 2008 decree and
order.
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The court notes that Paragraph 1 of the decree and order states that
the sale of the marital property will result in "a deficiency as there is not
enough equity in the property to pay off the first mortgage lien and the home
equity loan". Therefore, the parties' life insurance policy was to be sold to
satisfy the debts on the marital property. Plaintiff would, therefore, only be
entitled to a "share of the marital home" only "in the event that there is
remaining cash value from the life insurance policy after the mortgage and
home equity are paid." It is therefore unclear as to what "share" of the
marital home Plaintiff would "not get" if required to sign a quit-claim deed for
the property, or how her signing the quit-claim deed would prevent her
receiving any potential remaining cash value in the life insurance policy after
the home equity loan and mortgage are paid off.
Plaintiff's claims as raised in paragraph "E" of her 1925(b) Concise
Statement are without merit, contain evidence not admitted at the hearings
before this court, refer to legal proceedings which did not occur before this
court, are speculative, and, therefore, should be dismissed.
F. THE HONORABLE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN BELIEVING DEFENDANT WILL PAY ALIMONY
CONTEMPORANEOUSLY WITH DEFENDANT LEAVING THE
HOUSE. THE DEFENDANT ALREADY VOCALIZED THAT THE
TRIAL COURT WAS WRONG AND THAT HE IS DONE PAYING
ALIMONY. EVEN THOUGH THE BULK OF THOSE ALIMONY
CREDITS WERE PROVEN TO BE FAKE. DEFENDANT IS ON
ORPHANS' COURT RECORD CLAIMING HE ACCELERATED
ALIMONY PAYMENTS THROUGH ARRANGEMENTS WITH
PLAINTIFF'S GUARDIANS AND WAS FINISHED PAYING IN
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.;·
02/2013. IF PLAINTIFF IS FORCED TO LEAVE HER HOME,
DEFENDANT PLANS TO PAY HER NOTHING. DEFENDANT
SHOULD BE FORCED TO WRITE A ONE TIME CHECK COVERING
ALL FUTURE ALIMONY OWED AS WELL AS PAST ALIMONY HE
SHOULD NOT HAVE RECEIVED CREDIT FOR. PLAINTFF
DEMONSTRATED TO THE COURT SHE SOUGHT TO DOWNSIZE
TO A SMALLER RESIDENCE IMMEDIATLEY FOLLOWING THE
DEFENDANT'S ABANDONMENT. THE DEFENDANT REFUSED TO
TALK TO HER, FORCING THE HER TO BE SUBJECT TO HIS
ALIMONY/MORTGAGE SCAM. THAT IS ON THE RECORD THOUGH
THE HONORABLE TRIAL COURT JUDGE DID NOT ADMIT THE
PLAINTIFF'S PROOF INTO EVIDECNE. THIS DEMONSTRATES DR.
REAL'S CALLOUS INDIFFERENCE TO SPOUSE, HIS INTENT TO
DEPRIVE WIFE OF MARITAL ASSETS, INCLUDING A HOME AND
ANY KIND OF LIFESTYLE.
Defendant's petition for special relief which was before the court at
the hearings on March 25, 2014, June 4, 2014 and October 14, 2014,
requested enforcement of the parties' July 25, 2008 divorce decree and
order. Paragraph 8 of the decree and order requires Defendant to pay
alimony to Plaintiff for a "period of eight (8) years following the entry of this
Divorce Decree."
Even though Plaintiff refuses to vacate the marital residence, as
required under paragraph 1 of the decree and order, Defendant continued to
make alimony and other payments to Plaintiff until and through December,
2010. Defendant's payments to Plaintiff during that time were in excess of
over $61,000.00 beyond his court-ordered alimony obligation to Plaintiff.
Even when Defendant ceased making alimony payments to Plaintiff in 2011,
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he continued to make payments for the support and maintenance of the
marital residence by paying the mortgage, a home equity loan homeowner's
insurance, and taxes from 2011 until the time of the hearing.
There was no persuasive evidence presented at the hearings that
Defendant "vocalized that the trial court was wrong and that he is done
paying alimony", as Plaintiff claims. Plaintiff's allegation that Defendant will
refuse to pay alimony when she vacates the marital residence per the 2008
order is speculative, and is not based on any evidence presented to the court
at the hearings. The court does not have a "belief" one way or another as to
what may or may not occur in the future with regard to the parties' divorce
decree and order. By ordering in the December 22, 2014 order that
Defendant commence alimony payments once Plaintiff vacates the marital
residence, the court was merely enforcing the terms of the parties' divorce
decree and order, not speculating or forming a "belief" as to whether or not
the parties will comply with the decree in the future.
Plaintiff's claims as raised in paragraph "F" of her 1925 (b) Concise
Statement are without merit, contain evidence not admitted at the hearings
before this court, refer to legal proceedings which did not occur before this
court, are speculative, and, therefore, should be dismissed.
G. THE HONORABLE TRIAL COURT ERRED AND ABUSED
ITS DISCRETION BY ENFORCING THE PLAINTIFF AND
HER SON TO BE EVICTED FROM THE FAMILY HOME ON
AN ORDER BASED ON THE DEFENDANTS MALICIOUS
FRAUD, WHICH DISCOVERY PROVES HE PLANNED
THROUGHOUT THE COURSE OF THE PARTIES TWENTY-
28
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THREE YEAR MARRIAGE, AND SUBSEQUENTLY CARRIED
OUT THROUGH THE COURT FOR ALMOST TEN YEARS.
WITHOUT SOME KIND OF EQUITABLE DIVISION OF
PROPERTY AND PROTECTION FROM THE DEFENDANT1S
OPPRESSION AND ABUSE, DR. REAL'S FORMER SPOUSE
AND FAMILY WILL NEVER BE ABLE TO RECOVER AND
START SOME KIND OF LIFE AGAIN. THE SEVERE DAMAGE
CAUSED BY DEFENDANTS DELIBERATE INFLICTION OF
MENTAL ANGUISH CAN ONLY BE EXPOSED IN A COURT
OF EQUITY, AFTER EXPOSING HIS RELATIONSHIP TO
MONEY WHICH REQUIRES AN ANALYSIS OF THE MARITAL
CASH FLOW. IT IS AWFULLY HARD TO INSIST ON
PLAINTIFF'S ADHERENCE TO THE RULE OF LAW WHILE
THE DEFENDANTS COMMITMENT TO THE RULE OF LAW IS
HOW TO GO BEHIND IT, GET AROUND IT, RISE ABOVE IT
AND EVADE IT. THE COURT EXISTS TO LEVEL THE
PLAYING FIELD. IN THIS CASE, THE DEFENDANT
COVERTLY PUSHED THE PLAINTIFF OFF THE FIELD."
Plaintiff states that she is being "evicted ... on an order based on the
Defendant's malicious fraud ... without some kind of equitable division of
property". As previously stated in this opinion, an equitable distribution
hearing was held before Master in Equitable Distribution Bruce Goldenberg,
Esquire on November 9, 2007, and on February 8, 2008, Mr. Goldenberg
issued a report deciding the parties' economic issues. Plaintiff filed exceptions
to the report on March 3, 2008, and her exceptions were denied by Judge
Tilson on May 16, 2008. A final divorce decree and order was entered on July
25, 2008. Plaintiff did not file a motion for reconsideration of the decree and
order, nor did she file a notice of appeal.
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There has been no finding that the July 25, 2008 order was "based on
the Defendant's malicious fraud'', and Plaintiff has had a full and fair
opportunity to litigate her equitable division of marital property issues before
the court. Therefore, the court did not err or abuse its discretion by enforcing
the terms of the July 25, 2008 decree and order which gives Defendant
exclusive possession of the marital residence.
Plaintiff's claims as raised in paragraph "G" of her 1925(b) Concise
Statement are without merit, contain evidence not admitted at the hearings
before this court, and, therefore, should be dismissed.
In sum, Plaintiff's claims as raised in her Concise Statement are
without merit, contain evidence not admitted at the hearings before this
court, refer to legal proceedings which did not occur before this court, and
are speculative. For the above reasons, the court respectfully requests that
Plaintiff's appeal to the Superior Court of Pennsylvania be denied, and the
court's December 22, 2014 order be affirmed.
BY THE COURT:
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PATRICIA E. COONAHAN, J.
Copies of the above Opinion sent
on 3/ ~1 /15 to the following:
By First-Class Mail:
Harry M. Byrne, Jr., Esquire
Joyce Real, 75 W. Levering Mill Road, Bala Cynwyd, PA 19004
L1ren~e Real, 212 Idri Road, Apt. 2A, Merion Station, PA 19066
~ '
Sec
30