August 31, 2009
ROBERT E. BINGAMAN, JR., APPELLEE
KELLY BINGAMAN, APPELLANT
Appeal from the Order entered August 14, 2008 In the Court of Common Pleas of Cumberland County Civil Division at No. 05-1200 CIVIL TERM.
The opinion of the court was delivered by: Cleland, J.
BEFORE: ORIE MELVIN, GANTMAN AND CLELAND, JJ.
¶ 1 Kelly Bingaman (Wife) appeals the trial court's order entered August 14, 2008 denying her Motion to Strike and/or Re-Open Decree in Divorce. After careful review, we hold the trial court should have vacated that portion of the divorce decree that held it did not retain jurisdiction over the alimony claim. The trial court should have done so because a fatal defect appears on the face of the record. We reverse and remand.
¶ 2 The parties were married June 1, 1984. Robert Bingaman, Jr. (Husband) filed a divorce complaint on March 8, 2005 raising counts in divorce and equitable distribution. Wife filed an answer on May 6, 2005 denying that the marriage was irretrievably broken, an amended answer on June 8, 2005 requesting counsel fees, and an additional petition on December 20, 2006 requesting equitable distribution, spousal support, alimony pendente lite, alimony and costs and expenses. After a hearing on September 4, 2007, a Master issued a report and recommendation (Master's Report) entered September 10, 2007 recommending, inter alia, Husband's request for divorce be granted, and specifically providing, "The Master, as indicated, is going to leave the alimony issue open and preserved. In the event of a divorce decree, that issue will be preserved on the decree for further adjudication." Master's Report at 10. On October 25, 2007, the trial court adopted the recommendations of the Master and specifically noted, "The claim for alimony is hereby preserved." Order, 10/25/07, at 1. On January 18, 2008, Husband filed a Praecipe to Transmit Record. Husband's praecipe did not substantially comply with the form provided at Pa.R.C.P. 1920.73 because it did not list any "related claims pending" as required by paragraph four.*fn1 If it had, perhaps this appeal could have been avoided.
¶ 3 On January 23, 2008, the trial court entered the divorce decree. The decree included the sentence, "The Court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; [sic] None." Decree In Divorce, 1/23/08, at 1.
The word "none" was handwritten. The trial court's decree followed an old version of the form provided in Pa.R.C.P. 1920.76 which required courts to write-in all claims for which a final order had not been entered. In 1988, the Supreme Court revised the form to read: "The court retains jurisdiction of any claims raised by the parties to this action for which a final order has yet been entered." Pa.R.C.P. 1920.76.*fn2
Date of filing and service of the plaintiff's affidavit upon the respondent: __________.
¶ 4 Seventy days after the decree was entered, on April 2, 2008, Wife filed the Motion to Strike and/or Re-Open Decree in Divorce (the motion). Following argument, on August 14, 2008 the trial court denied the motion.
On September 12, 2008, Wife appealed. On appeal Wife asks us to consider "whether the court erred when it failed to strike and/or open a decree in divorce, which was defective upon its face for failing to keep the issue of alimony open and preserved." Concise Statement of Matters Complained of on Appeal at 1 (capitalization omitted). See also Appellant's Brief at 7.*fn3
¶ 5 Our standard of review is whether the trial court abused its discretion when it denied Wife's motion. Egan v. Egan, 759 A.2d 405 (Pa. Super. 2000). "Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will."
Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000) (citation omitted).
¶ 6 The Divorce Code provides:
A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. § 5505[*fn4 ] (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 made within five years after entry of the final decree. . . .
23 Pa.C.S.A. § 3332.
¶ 7 Our review of the record reveals the following.*fn5 Wife timely raised the issue of alimony. The Master recommended the issue of alimony be preserved even after entry of a divorce decree. The trial court adopted the Master's recommendation and specifically held the issue of alimony was preserved. Husband filed a praecipe to transmit record and failed to point out to the court that the issue of alimony was still pending. The trial court then entered the decree and erroneously ordered that all issues had been resolved. The issue is whether, based on these facts, § 3332 provides Wife a remedy. As explained below, we hold that it does.*fn6
¶ 8 Husband argues Wife is not entitled to have the decree "opened" under § 3332 because she did not make the motion within 30 days, and she is not entitled to have the order "vacated" because, although the motion was made within five years, she has failed to prove there is a fatal defect on the face of the record. Further, Husband argues the decree cannot be vacated because he has remarried.*fn7
¶ 9 In this case, a review of the record readily reveals a fatal defect: Wife properly raised the issue of alimony, and the trial court in an order on October 25, 2007 preserved the issue. Even though it had preserved the alimony issue, the trial court entered a divorce decree stating the issue of alimony had been resolved when it had not. This defect is apparent on the face of the record.*fn8 The trial court had authority under § 3332 to vacate the decree to the extent required to amend it and correct its error to preserve the issue of alimony. The trial court's failure to do so was an abuse of discretion because the trial court did not properly apply the law. See Widmer, supra.*fn9
¶ 10 Accordingly, the Order entered August 14, 2008 is reversed. The case is remanded for the trial court to vacate that portion of the divorce decree that did not retain jurisdiction over the issue of alimony with instructions to specifically rule that the trial court retains jurisdiction over the alimony claim raised by Wife and on which a final order has not yet been entered. Jurisdiction relinquished.