Kundratic, A. v. Kundratic, S. ( 2014 )

J-A14022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDREW KUNDRATIC, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SOPHIA KUNDRATIC,
Appellee No. 2057 MDA 2013
Appeal from the Order Entered October 31, 2013
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2006-04975
BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 26, 2014
Appellant, Andrew Kundratic, appeals from the order entered on
October 31, 2013. We affirm.
on May 9, 1992. On May 2, 2006, Appellant filed a complaint in divorce
against Ms. Kundratic, seeking a decree in divorce and an order equitably
dividing the marital property. Complaint in Divorce, 5/2/06, at 1-4. The
trial court appointed a master to determine the equitable distribution issues
and the master held a three-day equitable distribution hearing, which
spanned the days of January 12, 2009, July 2, 2009, and July 9, 2009.
During the equitable distribution hearing, the parties presented various
real estate valuations for the marital residence. As is relevant to the current
appeal, Ms. Kundratic presented evidence of an expert real estate appraisal,
* Retired Senior Judge assigned to the Superior Court.
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prepared in May 2007 by a person named Joan Conrad, which appraised the
property at $279,000.00. N.T. Hearing, 7/2/09, at 59-65. The master also
received a competing expert report, prepared in January 2007 by a person
named Tom Leighton, which appraised the property at $359,000.00. Id. at
65.
On November 10, 2009, the master issued his report and
recommendation and, with respect to the value of the marital residence, the
Report and Recommendation, 11/10/09, at 4. The master recommended
that the trial court award Ms. Kundratic 55% of the entire marital estate
(including the marital residence) and Appellant 45% of the entire marital
estate. Id. at 8.
improperly valued the marital residence. The trial court denied this
particular exception because, it declared, the parties had only submitted one
appraisal of the marital residence which was the $279,000.00 appraisal
performed by Ms. Conrad. Trial Court Opinion, 8/2/10, at 8. Therefore, the
trial court held, since only one appraisal was submitted to the master, the
marital residence was properly valued at $279,000.00. Id. However, the
trial court remanded the case to the master for further proceedings. Id. at
1-18.
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On July 18, 2011, the master issued a supplemental report and
recommendation, wherein the master made additional factual findings and
recommendations in the case. On September 21, 2011, the trial court
entered its divorce decree, decreeing that Appellant and Ms. Kundratic were
divorced and that the trial court was incorporating the November 10, 2009
supplemental report and recommendation into the decree. Trial Court
Decree, 9/21/11, at 1.
Appellant filed a notice of appeal to this Court. On appeal, Appellant
the value of the marital residence because it failed to consider both
See Kundratic v. Kundratic, 62 A.3d
463 (Pa. Super. 2012) (unpublished memorandum) at 3. A three-judge
meritless. Yet, with respect to A
failing to consider both of the marital home appraisals, the panel observed
numbers and that both appraisals were entered into evidence during the
equitable distribution hearing. Thus, we held:
Because the record does contain evidence of the entry of
the exhibits, the trial court erred in finding there was only
one submitted appraisal. We remand for the court to
consider all of the evidence of record as to the issue and
determine the fair market value for the marital residence for
equitable distribution purposes.
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Kundratic v. Kundratic, 62 A.3d 463 (Pa. Super. 2012) (unpublished
memorandum) at 4 (internal footnotes omitted).
Nevertheles
must examine the two appraisals and review the testimony of the parties on
Id. at 4 n.3. We affirmed the
decree. Id. at 9.
While the case was on remand to the trial court and despite the fact
that our remand order specifically limited the scope of remand to a
for equitable
on September 23, 2013, Appellant filed a petition in
the trial court to vacate the September 22, 2011 divorce decree. Within this
d]ecree, [Appellant] learned of [] instances of extrinsic fraud which
counsel were ineffective while representing Appellant.1 Id. at 2-5.
____________________________________________
1
Specifically, Appellant claimed: 1) during a protection from abuse hearing,
reasonable actio
(Footnote Continued Next Page)
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vacate the divorce decree without a hearing and, on November 15, 2013,
2
Appellant Appellant now
raises one claim on appeal:
Did the trial court err by denying the petition to vacate
divorce decree without hearing any evidence on the merits.
_______________________
(Footnote Continued)
dy rights with his minor child until
contempt proceedings against Ms. Kundratic on two separate occasions; 6)
disability;
a stipulation that valued an asset at a lower amount than it was worth; 8)
the [o]rde
prior counsel erroneously advised
to Vacate Divorce Decree, 9/23/13, at 2-5. The only allegations that pertain
eys are that: in April
2007, Appellant was excluded from the marital residence and, as a result,
[master] that [Ms. Kundratic] had a co-signer to re-finance the mortgage on
Id. at 2-3.
2
While the case was on remand, the trial court explicitly considered both
1-2. Further, after considering all the evidence of record, on October 1,
2013, the trial court again concluded that the value of the marital residence
was $279,000.00. Trial Court Order, 10/1/13, at 1. We note that Appellant
Kundratic v. Kundratic,
___ A.3d ___, 1888 MDA 2013 (unpublished memorandum) at 1-9.
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apitalization omitted).
As explained above, our original remand order was limited in scope.
Specifically, we ordered a remand so that the trial court could determine
Kundratic v. Kundratic, 62 A.3d 463 (Pa. Super. 2012)
(unpublished memorandum) at 4. Notwithstanding the limited scope of our
remand order, Appellant attempted to raise additional issues on remand
before the trial court. Specifically, Appellant attempted to claim that the
-5.
However, since our remand order carried an express limitation, the trial
court was not permit
Quaker State Oil Ref. Co. v. Talbot
remanding a case for rehearing, [the Supreme Court] may limit the scope
thereof to certain defined issues. This limitation restricts the power of the
Levy v. Senate of Pa.,
here a case is
remanded for a specific and limited purpose, issues not encompassed within
the remand order may not be decided on remand. A remand does not
and citations omitted); see also Commonwealth v. Lawson, 789 A.2d
ited
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issue, only matters related to the issue on remand may be appealed [to the
attempted to raise issues that were not encompassed within our limited
remand order, the
hearing.
Further, we note that even if the trial court had the authority to
the trial court properly denied the petition, as
the petition is meritless. Accordin
Petition to Vacate Divorce Decree, 9/23/13, at 1-5. As our Supreme Court
has explained:
s meant
some act or conduct of the prevailing party which has
prevented a fair submission of the controversy. Among
these are the keeping of the defeated party away from court
by false promise of compromise, or fraudulently keeping
him in ignorance of the action. Another instance is where
an attorney without authority pretends to represent a party
and corruptly connives at his defeat, or where an attorney
has been regularly employed and corruptly sells out his
client's interest. The fraud in such case is extrinsic or
collateral to the question determined by the court. The
reason for the rule is that there must be an end to litigation.
. . . Where [an] alleged perjury relates to a question upon
which there was a conflict, and it was necessary for the
court to determine the truth or falsity of the testimony, the
fraud is intrinsic and is concluded by the judgment, unless
there be a showing that the [jurisdiction] of the court has
been imposed upon, or that by some fraudulent act of the
prevailing party the other has been deprived of an
opportunity for a fair trial.
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McElvoy v. Quaker City Cab Co., 110 A. 366, 368 (Pa. 1920); Justice v.
Justice, 612 A.2d 1354, 1358 (Pa. Super. 1992); see also BLACK S LAW
DICTIONARY 686 (8th
that is collateral to the issues being considered in the case; intentional
misrepresentation or deceptive behavior outside the transaction itself
(whether a contract or a lawsuit), depriving one party of informed consent or
The allegation
Appellant. Yet, as we have held, allegations of ineffective assistance of
counsel do not amount to extrinsic fraud. Ratarsky v. Ratarsky, 557 A.2d
Stockton v.
Stockton, 6
dissatisfaction with his counsel does not [constitute extrinsic fraud]. . . . [A]
) (internal citations
omitted); Melton v. Melton, 831 A.2d 646, 651-652 (Pa. Super. 2003)
(holding that mere ineffective assistance of counsel does not constitute
extrinsic fraud). Thus, the trial court did not err when it denied the
ineffective assistance of counsel claims without a hearing.
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The trial court also did not err when it denied the remaining claims in
of undeveloped declarations that: 1) in April 2007, Appellant was excluded
from the marital residence and, as a result, Appellant could not retrieve
had a co-signer to re-
-5. However,
with respect to these final two allegations, Appellant failed to claim that the
actions or inactions caused Appellant any sort of prejudice or that the events
See McElvoy, 110 at 368
conduct of the prevailing party which has prevented a fair submission of the
controversy
the papers harmed Appel See
Divorce Decree, 9/23/13, at 2-5. Further, with respect to the alleged
-signer to re-
did not sign the mortgage
or that Ms. Kundratic was somehow unable to refinance the mortgage on the
marital residence. See id. Therefore, with respect to these final two
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3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
____________________________________________
3
requests that we remand the
fees.
Although meritless, we cannot conclude that the appeal was totally frivolous.
some point.
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