Bardine, B. v. Bardine, D.

J-A02026-18
2018 PA Super 220BRUCE R. BARDINE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DONNA J. BARDINE : No. 1787 WDA 2016
Appeal from the Order Entered October 20, 2016
In the Court of Common Pleas of Blair County Civil Division at No(s): 2009
GN 4150
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
OPINION BY OLSON, J.: FILED AUGUST 2, 2018
Appellant, Bruce R. Bardine (Husband), appeals from an order entered
on October 20, 2016 that granted a petition filed by Donna J. Bardine (Wife)
to vacate the parties’ divorce decree and modify their property settlement
agreement. We reverse.
Husband and Wife were married on September 4, 1976 and separated
on June 20, 2009. Husband filed a divorce complaint on November 5, 2009.
Thereafter, in August 2012, the parties appeared before a hearing master to
divide their marital assets, including funds held in Husband’s Kmart
Corporation Employee Pension Plan (pension). At the hearing, the parties
agreed to equally divide the monthly payment benefit issued from Husband’s
pension and further agreed to incorporate this “equal division” term into
their marital settlement agreement. The record of the hearing contains no
discussion of, or agreement to, a specific monetary sum that Husband or
Wife expected to receive from the pension. Wife later filed exceptions to the
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hearing master’s report and recommendation but did not raise an issue
related to the pension. The trial court entered a final divorce decree on
December 19, 2012. The decree incorporated the parties’ marital settlement
agreement, including their agreement to divide equally the monthly payment
benefits issued from Husband’s pension.
A Qualified Domestic Relations Order (QDRO) was subsequently
prepared and executed by Wife, as an alternate payee, on October 29, 2013
and by Husband, as a participant, on November 20, 2013.1 With the
preparation of the QDRO, the parties learned that they each would receive a
monthly payment of $480.52 from Husband’s pension. See QDRO, 12/3/13,
at 2. On November 14, 2013, Wife filed a petition for permanent alimony
seeking an additional monthly payment of $314.50 from Husband. Wife
claimed that, throughout the proceedings, Appellant misrepresented the
anticipated monthly pension benefit as $788.05 and she came to rely on that
sum in accepting the parties’ marital settlement agreement. Lengthy
negotiations aimed at resolving the parties’ dispute ensued but, ultimately,
proved unsuccessful. After a hearing, the trial court, on October 20, 2016,
vacated the parties’ divorce decree and modified their marital settlement
agreement by directing Husband to pay Wife an additional $157.25 each
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1 The trial judge entered the QDRO as an order of court on December 3,
2013.
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month.2 The court also determined that it retained continuing jurisdiction to
conduct oversight and enforcement of the parties’ marital settlement
agreement because of Husband’s alleged fraud and the parties’ mutual
mistake of fact. See Trial Court Opinion, 10/20/16, at 3; see also Trial
Court Opinion, 6/30/17, at 2.
Husband filed a timely notice of appeal on November 21, 2016. 3 On
May 17, 2017, the trial court directed Husband to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Husband
filed his concise statement on June 2, 2017 and the trial court issued a brief
opinion on June 20, 2017.
Husband raises two issues in this appeal:
Did the trial court commit reversible error in opening and
modifying the [p]arties’ [m]arital [s]ettlement [a]greement and
opening the [f]inal [d]ivorce [d]ecree and [QDRO] when [Wife]
failed to file a petition to open said final order within the thirty
(30) day required time period under 23 Pa.C.S.A. § [3332]?
Were the [trial c]ourt’s findings offered in support of modifying
and opening the [f]inal [d]ivorce [d]ecree, [m]arital settlement
[a]greement, and [QDRO] insufficient and inadequate as a
matter of law and were said findings supported by the record?
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2 The trial court reasoned that Wife was entitled to an additional monthly
payment of $157.25 because that sum equaled approximately one-half of
the difference between Wife’s reasonable expectation of $788.05 and her
actual pension award, $480.52. See Trial Court Opinion, 10/20/16, at 2-3.
3 Because the 30-day appeal period from the trial court’s October 20, 2016
order ended on Saturday, November 19, 2016, Husband had until Monday,
November 21, 2016 to file his notice. See 1 Pa.C.S.A. § 1908 (computation
of time).
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Husband’s Brief at 6.
Husband raises two interrelated claims that challenge an order
granting Wife’s petition to vacate the parties’ divorce decree and modify
their marital settlement agreement. Hence, we shall review his claims in a
single discussion. A trial court’s exercise or refusal to exercise its authority
to open, vacate, or strike a divorce decree is reviewable on appeal for an
abuse of discretion. See Ratarsky v. Ratarsky, 557 A.2d 23, 25-27 (Pa.
Super. 1989), affirmed, 581 A.2d 1377 (Pa. 1990).
Husband’s claims in this appeal center upon the application of 23
Pa.C.S.A. § 3332, which governs a trial court’s authority to open or vacate a
divorce decree. Specifically, Husband points out that because Wife filed her
petition more than 30 days after entry of the parties’ divorce decree,
intrinsic fraud was no longer available as a justification to open or vacate the
decree. Additionally, Husband asserts that Wife failed to establish extrinsic
fraud, or any other basis, that would authorize the trial court to vacate the
divorce decree outside the 30-day period found in § 3332. We agree.
Section 3332 provides:
A motion to open a decree of divorce or annulment may be made
only within the period limited by 42 Pa.C.S.[A] § 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
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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.
Section 3332 sets forth clear evidentiary requirements and time
constraints on a court’s authority to open or vacate a divorce decree. “For a
petition to open, the motion must be made within thirty days [of the divorce
decree and allege] intrinsic fraud or new evidence. For a motion to vacate,
the petition must be filed within five years [of the divorce decree] where the
attack is based on extrinsic fraud, lack of jurisdiction over the subject matter
or a fatal defect apparent upon the face of the record.” Fenstermaker v.
Fenstermaker, 502 A.2d 185, 188 (Pa. Super. 1985). “The intent of
[section 3332 is] to codify the extraordinary circumstances which will
outweigh the interests of the parties and the court in finality, and to delimit
the time periods which within such circumstances must be established.”
Anderson v. Anderson, 544 A.2d 501, 505 (Pa. Super. 1988).
Here, Wife challenged the marital settlement agreement in a petition
for permanent alimony that she filed on November 14, 2013, approximately
11 months after the entry of the parties’ divorce decree on December 19,
2012. Since she filed her petition more than 30 days after entry of the
divorce decree, her submission cannot be construed as a timely motion to
open and the question of whether intrinsic fraud existed is moot. See 23
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Pa.C.S.A. § 3332; Ratarsky, 557 A.2d at 25. Thus, the trial court lacked
authority to open the divorce decree because of intrinsic fraud.
Wife offers alternate grounds in defense of the trial court’s decision to
vacate the parties’ divorce decree and modify their marital settlement
agreement. Specifically, Wife alleges that Husband induced her reliance on
his representations that she would receive $788.05 each month if the parties
agreed to divide equally the pension. In addition, Wife argues that these
same facts show a mutual mistake of fact that allowed the trial court to alter
the terms of the parties’ marital settlement agreement.4
This is not a case where extrinsic fraud precluded Wife’s opportunity
for a fair hearing. Even if we assume that Wife relied upon Husband’s
inaccurate information about the value of anticipated pension benefits, these
circumstances would not constitute extrinsic fraud under the Divorce Code.
In Fenstermaker, supra, we explained the distinction between extrinsic
fraud and intrinsic fraud as defined by our Supreme Court in McEvoy v.
Quaker City Cab Co., 110 A. 366, 368 (Pa. 1920):
By the expression ‘extrinsic or collateral fraud’ is 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
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4 As additional support for her claims, Wife alleges that Husband removed
funds from insurance policies and 401(k) retirement plans. These actions,
however, are wholly unrelated to the relief ordered by the trial court and,
therefore, would not support affirmance even if the claims proved
meritorious. Hence, we shall not consider them further.
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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;
and, where a party has had his day in court and knows what the
issues are, he must be prepared to meet and expose perjury
then and there: Pico v. Cohn, [27 P. 537 (Cal. 1891)]. Where
the 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. Bleakley v. Barclay,
[89 P. 906 (Kan. 1907)].
Fenstermaker, 502 A.2d at 188, quoting McEvoy, 110 A. at 368.
A review of the record reveals that Husband’s actions did not
constitute extrinsic fraud and did not prevent a fair hearing. Wife principally
relies on a document dated October 27, 2011 and entitled, “Kmart Pension
Benefit Calculation Summary.” According to one of the payment options
listed in the summary, labeled as “100% Joint and Survivor Annuity,” both
Husband and his beneficiary would be entitled to monthly payments equal to
$788.05. Wife claims that she and her attorney received this document
prior to the parties’ August 2012 hearing and that she relied upon it in
entering the marital settlement agreement at issue.
The property settlement in question was entered into by the parties
following extensive, counseled negotiations. At the August 2012 hearing,
Wife agreed to divide equally Husband’s pension benefit. No specific
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payment was discussed on the record at the hearing and no specific,
anticipated sum was introduced into the record. Neither Wife nor her
counsel stated that Wife’s agreement to the “equal division” term was
contingent upon her receipt of a specific sum or made in reliance upon the
Kmart calculation summary. Wife also confirmed that she received a full and
complete disclosure of the marital assets available for distribution, that the
agreement constituted a full and final settlement of the parties’ marital
property issues, and that she approved of the terms of the settlement. Wife
does not allege that Husband participated in the preparation of the benefits
summary calculation nor does she assert that Husband harbored doubts
about the accuracy of its prediction of future benefits payments. She also
fails to allege that Husband fraudulently transferred any funds out of his
pension plan, after the summary was prepared, or otherwise manipulated or
diverted part of this asset, thereby causing a reduction of his pension
benefit.
The record is thus clear that, at the time of the August 2012 hearing
when the marital settlement agreement was reached, Husband made full,
complete, and accurate disclosure of the known facts surrounding his
pension. Moreover, both Wife and her counsel were aware of Wife’s marital
interest in Husband’s pension and the identity of the organization that
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administered his account.5 If Wife or her attorney wanted to know more
about Husband’s pension benefit, all they (or a retained actuary or
accountant) needed to do was to contact the administrator of the pension
plan. In the alternative, Wife or her counsel could have demanded a sum
certain as payment from Husband. Neither Wife nor her attorney, however,
saw fit to pursue these options. Since property settlement negotiations
remain an adversarial process, and counsel has a duty to protect his client's
best interests by fully investigating the extent and nature of marital assets,
we cannot impute fraud onto Husband under the present circumstances.
Accordingly, we conclude that the trial court lacked authority to vacate the
parties’ divorce decree on the basis of extrinsic fraud. See Fenstermaker,
502 A.2d at 188-189.
Finally, we reject Wife’s claim that an alleged mutual mistake of fact
justified the trial court’s decision to vacate the parties’ divorce decree and
modify their property settlement. Although Wife is correct that we construe
property settlement agreements pursuant to principles of contract law, see,
e.g., Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998) (marital
settlement agreement that is incorporated but not merged into divorce
decree is subject to the law of contracts), that is not the issue we confront in
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5 The calculation summary lists a telephone number for the Kmart Pension
Service and states that revised calculations could be obtained from the
organization.
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this case. Here, we must decide whether Wife made the necessary threshold
showing under § 3332 to trigger the trial court’s authority to open or vacate
the divorce decree and modify the property settlement agreement. As we
stated above, a petition to open that alleges intrinsic fraud or new evidence
must be made within 30 days of the divorce decree. Fenstermaker, 502
A.2d at 188. A motion to vacate or strike a decree that alleges extrinsic
fraud, lack of subject matter jurisdiction, or a fatal defect on the face of the
record must be filed within five years of the divorce decree. Id. at 188. Our
prior case law has held that a mutual mistake of fact “is not equivalent to
new evidence that will sustain an attack on the validity of [a] decree” made
within 30 days of entry.6 Holteen v. Holteen, 605 A.2d 1275, 1276 (Pa.
Super. 1992) (failure of marital settlement agreement to predict every
eventuality is no basis for modification). Moreover, we have declined to
review mutual mistakes of fact as a form of extrinsic fraud. See id. For
these reasons, the trial court erred to the extent it relied on a mutual
mistake of fact to revisit the parties’ divorce decree and modify their marital
settlement agreement.
In sum, Wife could not rely on intrinsic fraud to open the parties’
divorce decree because she filed her petition more than 30 days after the
decree was entered. In addition, Wife failed to adduce sufficient facts to
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6 Mutual mistake, of course, displaces fraud given the very different mental
states at play in these alternate grounds for opening a divorce decree.
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establish extrinsic fraud for a petition filed within five years of a divorce
decree. Since the trial court lacked authority under § 3332 to open, vacate,
or strike the parties’ divorce decree, Wife’s petition should have been
denied.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2018
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