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BUNCHER v. BUNCHER (03/24/66)

decided: March 24, 1966.

BUNCHER
v.
BUNCHER, APPELLANT



Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1964, No. 1871, in case of Jack G. Buncher v. Elaine Buncher.

COUNSEL

Allen N. Brunwasser, for appellant.

Clyde P. Bailey, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.

Author: Wright

[ 207 Pa. Super. Page 324]

We are here concerned with an appeal by the wife from an order of the Court of Common Pleas of Allegheny County refusing to strike and vacate a decree in divorce. It will be necessary to briefly outline the history of the proceeding.

On August 17, 1964, at No. 1871 October Term 1964, Jack G. Buncher filed a complaint in divorce a.v.m. against his wife, Elaine Buncher, on the ground of adultery. Following the filing of an answer by the wife and a bill of particulars by the husband, the court below, on November 12, 1964, waived its rule respecting the appointment of a master and referred the case to Judge Olbum for hearing and disposition. This order was entered because Judge Olbum had heard the testimony at No. 1494 October Term 1964, which was a habeas corpus proceeding involving the custody of Stephen Buncher, minor child of the parties.*fn1 On November 19, 1964, written notice was served on Rasha

[ 207 Pa. Super. Page 325]

Rodell, correspondent named in the divorce complaint, that the case would be tried in Court Room No. 7 on December 2, 1964, at 3:00 p.m. At that time the husband and wife appeared with their attorneys. The correspondent did not appear. Because of conflict with a jury trial then in progress, the hearing was continued until December 17, 1964, on which date testimony was taken. On December 22, 1964, a final decree in divorce was entered. On April 5, 1965, present counsel for the wife presented a petition to strike and vacate the divorce decree, to which petition the husband, on April 21, 1965, filed an answer. On July 12, 1965, an order was entered, with opinion, in which the petition to strike and vacate was denied. On the same date an order was filed making the record at No. 1494 October Term 1964 a part of the record in the divorce action. On September 16, 1965, a petition for reconsideration was refused. This appeal followed.

Appellant first contends that the decree should be stricken because the testimony in the divorce action as to her commission of adultery was "vague, undetailed, and not clear and convincing". On the contrary, we agree with the court below that there is ample evidence in the record of the divorce proceeding to establish that appellant committed adultery with the named correspondent. The decree is clearly valid on its face. Appellant's brief expressly states: "This is not a petition to open but to strike". The distinction between petitions to open and petitions to strike is set forth in Nixon v. Nixon, 329 Pa. 256, 198 A. 154. While there is no time limit within which to act in striking off or vacating a decree, other than it must be within a reasonable time after knowledge, an application to open must be made within term time except in extraordinary equitable circumstances: Wisecup v. Wisecup, 190 Pa. Superior Ct. 384, 154 A.2d 332. A decree will not be opened after term time absent a showing of extrinsic

[ 207 Pa. Super. Page 326]

    fraud, which means conduct by the prevailing party preventing a fair submission of the controversy: Masciulli v. Masciulli, 194 Pa. Superior Ct. 646, 169 A.2d 562. Alleged insufficiency of evidence is not a contention which may be raised after the expiration of the term in which the decree was entered. Cf. Contakos v. Contakos, 204 Pa. Superior Ct. 445, 205 A.2d 619.

Appellant further contends that it was improper for the court below to incorporate the record in the habeas corpus action. We have carefully reviewed the testimony in both proceedings. The matter of appellant's adultery had been thoroughly aired in the custody case, in which the record contains over 400 pages of testimony.*fn2 Counsel for both parties therefore chose to limit the testimony in the divorce case to a minimum. This was done to avoid further embarrassment to the appellant. As aptly stated in the opinion below: "In light of the testimony we have heard in the habeas corpus action, we feel that it would be unconscionable to permit this divorce decree to be challenged or disturbed on the ground that adultery has ...


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