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[U] Wagner v. Wagner

Superior Court of Pennsylvania

January 6, 2013

GARY WAGNER JR. Appellant
v.
ROSE M. WAGNER Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered on January 28, 2013 In the Court of Common Pleas of Mifflin County Civil Division at No.: CP-44-CV-0001241-2010

BEFORE: BENDER, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

WECHT, J.

Gary Wagner ("Husband") appeals a January 28, 2013 order. That order dismissed his motion to withdraw his divorce decree. We affirm.

Husband and Rose Wagner ("Wife") married on July 10, 1975. On August 23, 2010, Wife filed a complaint for divorce. On September 23, 2011, the parties filed a property settlement agreement with the court. At the end of a paragraph detailing that each party shall have sole claim to any property acquired by that party after the execution of the agreement, there is a handwritten statement: "Rose agree's to never remarrye as long as she lives." Property Settlement Agreement, 9/23/2011, at 8 (verbatim). That statement is lined through, with a notation "Not agreed to, " followed by the signature of Wife's attorney. Id. Both parties signed the agreement at the end of the document. Id. at 12. On September 26, 2011, the divorce decree was filed.

On December 3, 2012, Husband filed a pro se pleading that the trial court deemed to be a motion to withdraw the divorce decree. In that pleading, Husband avers that Wife violated the agreement by re-marrying. Husband requested that the divorce decree be declared null and void and that he be awarded $25, 000 for "emotional pain and suffering and mental stress." Motion, 12/3/2012, at 1 (unpaginated).

The trial court scheduled a hearing on Husband's motion for January 28, 2013. Following the hearing, the trial court dismissed Husband's motion, finding that there was no agreement reached by the parties on that issue, that the language added was contrary to public policy, and that there was nothing to indicate that Wife had ever agreed to the added language. Order, 1/28/2013. Unfortunately, Husband has not ordered or provided a transcript of that hearing.

On February 1, 2013, Husband filed a notice of appeal with the Pennsylvania Supreme Court that did not identify the order from which he was appealing. An order was issued by the Supreme Court on February 5, 2012, identifying the January 28, 2013 order as the order being appealed, and directing that the appeal be transferred to this Court.

The trial court did not order Husband to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, on February 20, 2013, Husband sua sponte filed a sixteen-point list of complaints. On May 28, 2013, the trial court filed a statement in lieu of a Rule 1925(a) opinion.

Husband raises two issues on appeal:

A. Whether the lower court erred in dismissing the Husband's petition to set aside the divorce decree?
B. Whether the Husband alleged sufficient facts that the Wife ...

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