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[U] Wagner v. Wagner

Superior Court of Pennsylvania

January 6, 2013



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




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 breached the contract?

Husband's Brief at 4.

We review an order denying a motion to vacate a divorce decree for an abuse of discretion. Danz v. Danz, 947 A.2d 750, 752 (Pa.Super. 2008). Vacating a divorce decree is permitted as follows:

A motion to open a decree of divorce or annulment may be made only within [the thirty day period in which a trial court may amend or rescind an order pursuant to 42 Pa.C.S.A. § 5505] 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. 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. After thirty days, the trial court is without authority to vacate the decree absent extrinsic fraud, lack of subject matter jurisdiction, or a fatal defect on the face of the record. Ratarsky v. Ratarsky, 557 A.2d 23, 25 (Pa.Super. 1989); see Melton v. Melton, 831 A.2d 646, 651 (Pa.Super. 2003).

Extrinsic fraud has been defined as follows:

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 or 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.

Justice v. Justice, 612 A.2d 1354, 1358 (Pa.Super. 1992). Examples of extrinsic fraud include intimidation or duress in coercing a party to agree to enter a divorce decree, but not concealment of the value of an asset in equitable distribution. Id. at 1359-60.

Husband's motion was filed outside of the thirty days within which the trial court could modify or amend its decree. Therefore, Husband was required to plead and prove extrinsic fraud, lack of subject matter jurisdiction, or a fatal defect. Husband's motion challenges neither subject matter jurisdiction nor raises a fatal defect on the face of the record.

At best, it might be argued that Husband attempted to plead extrinsic fraud. Husband asserted that Wife agreed never to remarry as part of their agreement. However, Husband does not contend that Wife engaged in fraud, but rather, that her remarriage violated their agreement.[1]

Husband also pled that Wife's attorney engaged in misconduct in crossing out the language in the agreement. However, this allegation does not rise to the level of extrinsic fraud sufficient to vacate the divorce decree. Husband did not allege that the attorney engaged in intimidation or that he acted without authority or against Wife's interests. The trial court's finding was that the attorney merely crossed out the language that Husband had added to the agreement without Wife's consent.[2]

Based upon the record before us, Husband did not plead sufficient reasons to enable the trial court to vacate the divorce decree. The trial court did not abuse its discretion in dismissing Husband's motion.

Order affirmed.

Judgment Entered.

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