McDonough, E. v. McDonough, L. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD JOSEPH MCDONOUGH, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LYNN F. MCDONOUGH,
Appellant No. 1554 WDA 2013
Appeal from the Order August 28, 2013
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 10050 OF 2012, C.A.
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 12, 2014
Lynn F. McDonough (Wife) appeals from the August 28, 2013 order
order that had denied her Petition Nunc Pro Tunc for Bifurcation to allow for
remand.
Husband and Wife were married on January 13, 1995, and separated
on September 3, 2009. On January 17, 2012, Husband filed a complaint in
Husband filed an Affidavit and Waiver of Notice of
Intention to Request Entry of a Divorce Decree, pursuant to §
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*
Former Justice specially assigned to the Superior Court.
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3301(d) of the Divorce Code on October 3, 2012. An Affidavit of
Service of Husband's Affidavit and Waiver was filed a week later
on October 10, 2012. Wife was served with a § 3301(d)
Affidavit on October 5, 2012. Husband then filed an Affidavit of
Plaintiff's Notice of Intention to Request Entry of a Divorce
Decree on February 26, 2013. A Praecipe to Transmit the
Record was subsequently filed by Husband on March 18, 2013,
and a final Decree in Divorce was entered by this [c]ourt on
March 20, 2013.
From this case's conception [sic] on January 17, 2012,
Wife did not file an Answer or Counter-claim to Husband's
Complaint. Wife did not raise economic claims or seek
alternative relief with the [c]ourt. Wife did file a Notice to
Resume Prior Surname following the entry of the Divorce Decree
on April 4, 2013. Subsequently, on April 19, 2013, Wife filed a
Petition Nunc Pro Tunc For Bifurcation. In her Petition, Wife
alleged that the parties had ongoing discussions regarding a
resolution of their economic issues. Wife stated that although
she did not object to the entry of a Divorce Decree, it was not
her intention to forego her claims for economic relief.
Trial Court Opinion (T.C.O.), 8/28/13, at 2 (unnumbered).
On the same day that Wife filed her Petition Nunc Pro Tunc for
Bifurcation, Husband filed an answer, and the trial court issued its order
Petitioned the Court, Nunc Pro Tunc, to bifurcate this divorce action and in
ess
1
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1
Section 3332 of the Divorce Code provides:
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
(Footnote Continued Next Page)
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i.e., within thirty
days of the date the divorce
Id.
at ¶ 4. The court also noted that Wife was represented by counsel and had
e entered.
Next, on May 15, 2013, Wife filed a timely Motion for Reconsideration
of the April 19, 2013 order, which the trial court expressly granted that
same day. See Trial Court Order, 5/15/13. The court requested that the
parties submit briefs and it also scheduled a hearing for June 5, 2013. At
the hearing, evidence of the economic issues and settlement negotiations
was presented. However, on August 28, 2013, the
Motion for Reconsideration and affirmed its April 19, 2013 order denying
bifurcation. In its opinion accompanying its August 28 th order, the court
provided its reasoning, stating:
_______________________
(Footnote Continued)
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. § 3332.
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In order to consider untimely-filed economic claims, the
divorce decree must be either opened or vacated. Justice v.
Justice, 612 A.2d 1354, 1357 (Pa. Super. 1992). Petitions to
open the decree must be filed within 30 days. Id. (citing 42
Pa.C.S.A. § 5505). During this 30-day period, the court holds
wide discretion to modify or rescind its decree. Justice, 612 A.2d
the court fails to act within 30 days. After this 30-day period, an
order can only be opened or vacated if there is fraud or some
other circumstance so grave or compelling as to constitute
Id.
(citations omitted).
In her argument to the Court, Wife contends that her
Petition for Bifurcation was filed within thirty days from the entry
of the Divorce Decree, and the Court had broad discretion to act
on her petition, without requiring proof of intrinsic fraud or new
evidence. Husband alternatively argues that Wife's Motion for
Reconsideration is outside the time limitations of 42 Pa.C.S.A. §
5505, and the Divorce Decree is final.
that while Wife filed a Petition Nunc Pro Tunc For Bifurcation
within thirty days of the Divorce Decree being entered, Wife did
not file a petition to open or vacate the Decree. Furthermore,
assert grounds which would warrant opening the Decree
pursuant to 23 Pa.C.S.A. § 3332. The reasons set forth in Wife's
Petition Nunc Pro Tunc For Bifurcation are economic in nature
and do not establish sufficient justification to vacate the Decree
efore
DENIED.
T.C.O. at 3-4 (unnumbered).
Wife filed a timely appeal and raises the following three issues for our
review:
I. Did the trial court err and abuse its discretion in concluding
that Wife was compelled to rely strictly on fraud or other
compelling circumstances to open the divorce decree and assert
her economic claims where her Petition Nunc Pro Tunc to
Bifurcate and Open the Divorce Decree was timely filed within
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thirty days of the divorce decree, affording the court wide
discretion to open the decree under Pennsylvania law?
II. Did the trial court err and abuse its discretion in denying
Decree where Wife presented evidence that Husband was aware
of and was negotiating for settlement of her economic claims,
Husband admitted these facts, and Husband nevertheless
misrepresented to the court that Wife had no economic claims?
III. Did the trial court err and abuse its discretion in denying
te and Open the Divorce
Decree where Husband was aware of and was negotiating for
settlement of her economic claims, Husband admitted these
facts, Husband nevertheless misrepresented to the court that
Wife had no economic claims, Husband would not be prejudiced
by granting the relief, and Wife lost substantial rights?
in which she claims that she was also requesting the court to open the
divorce decree. She asserts that the parties had been discussing economic
ifically
request the opening of the decree, she recognizes that to consider untimely-
filed economic claims, the decree must be either opened or vacated, citing
Melton v. Melton, 831 A.2d 646, 651 (Pa. Super. 2003). The Melton court
explains that:
In order to consider untimely-filed economic claims, the divorce
decree must be either opened or vacated. Justice [v. Justice],
612 A.2d [1354, 1357 (Pa. Super. 1992)]. Petitions to open the
decree must be filed within 30 days. Id., citing, 42 Pa.C.S.A. §
5505; see also, 23 Pa.C.S.A. § 3332. During this 30-day
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period, the court holds wide discretion to modify or rescind its
decree. Justice
discretion is lost, however, if the court fails to act within 30
days. After this 30-day period, an order can only be opened or
vacated if there is fraud or some other circumstance so grave or
compelling as to constitute extraordinary cause justifying
Id.
days, the divorce decree may be vacated only as a result of
extrinsic fraud, lack of subject matter jurisdiction, or a fatal
defect apparent on the face of the record. 23 Pa.C.S.A. § 3332;
Justice, supra.
Id. at 651. It is apparent that the trial court relied on this statement of the
law.
We are also cognizant that
Wang v. Feng, 888 A.2d 882, 892
(Pa. Super. 2005) (quoting Wagoner v. Wagoner, 538 Pa. 265,
269, 648 A.2d 299, 301 (1994)). Additionally, case law instructs
that the equitable purposes which underlie the Divorce Code
allow for liberal interpretation of its provisions. Id. (citing
Wagoner, supra). The Divorce Code has long authorized the
severance of economic issues from the divorce itself. See, e.g.,
Prall v. Prall, 698 A.2d 1338, 1340 (Pa. Super. 1997)
(explaining that bifurcation is permitted within the discretion of
the trial court based on a thorough review of the record).
Significantly, the legislature very recently amended the Divorce
Code to allow for bifurcation based merely on consent of both
parties. 23 Pa.C.S.A. § 3323(c.1).
Lowers v. Lowers, 911 A.2d 553, 555 (Pa. Super. 2006).
der, 4/19/13, at ¶ 2. The April 19th order
also indicated that although Wife filed this petition within thirty days of the
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Id. at ¶ 4. Despite these stat
April 19th order, its opinion issued on August 28, 2013, indicates that no
petition to open or vacate the decree was filed and implies that since only
on
determinations in this case. Although Wife acknowledged that she did not
quest for economic
Moreover, she averred that she was receiving spousal and child support and
identified specific economic issues that the parties had been discussing. 2
bifurcation was not granted, and Husband would not be prejudiced by the
resolution of the economic factors. Id.
Notably, the divorce decree contains the following language:
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2
Wife filed a motion with this Court to supplement the record, which was
granted by order dated June 19, 2014. The supplement apprises this Court
attorney, which provides that $22,000 of the settlement was to be an
advance for equitable distribution purposes. See Reproduced Record at 60a
(N.T., 6/5/13, at 38).
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The Court hereby retains jurisdiction of any claims raised by the
parties to this action for which a final order has not been
entered.
Any existing spousal support order shall hereafter be deemed an
Order for alimony pendent lite if any economic claims remain
pending.
Divorce Decree, 3/21/13.
This recognition by the court, and its wide discretion to modify or
rescind its decree during the initial thirty-day period following the entry of
the d
prior to the passage of the thirty-day period provided the court with the
consistent with the equitable purposes of the Divorce Code. The court had
wide discretion to grant relief in this case and did not do so. Under the
circumstances, we conclude that the court abused its discretion in failing to
reverse the order appealed from and remand this matter for further
proceedings.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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