Appeal from the Order Entered May 23, 2012, In the Court of Common Pleas of Potter County, Civil Division, at No. 2011-2804.
The opinion of the court was delivered by: Shogan, J.:
BEFORE: DONOHUE, SHOGAN and WECHT, JJ.
Appellant, Avis L. Reece ("Wife"), appeals from the order denying her motion to vacate the divorce decree. For the reasons that follow, we affirm.
Appellee, Jeffrey S. Reece ("Husband"), filed a complaint for divorce from Wife on May 13, 2011. Acceptance of service was signed by Wife on May 20, 2011, and filed on August 19, 2011. Affidavits of consent and waivers of notice of intention to request entry of a divorce decree were signed by both parties on August 18, 2011, and filed on August 19, 2011. Husband's praecipe to transmit, which alleged 23 Pa.C.S.A. § 3301(c) as grounds for the divorce, was submitted on August 18, 2011. On August 25, 2011, the court entered a divorce decree. Wife subsequently filed a motion to vacate the divorce decree on March 13, 2012 alleging, inter alia, the lower court lacked jurisdiction to enter the divorce decree because the affidavits were signed on the ninetieth day after service of the complaint, rather than ninety-one days or more following service of the complaint. The lower court denied the motion to vacate the divorce decree on May 23, 2012. Wife's appeal followed.
Wife raises the following issue on appeal: Whether the trial court committed an error of law by allowing a Rule of Civil Procedure, namely Pa.R.C.P. No. 1920.42(b)(1), to rule over the statute, namely 23 Pa.C.S.A. §3301(c)?
Our standard of review over an order denying a motion to open or vacate a divorce decree requires us to determine whether an abuse of discretion has been committed. A motion requesting that a divorce decree be opened or vacated lies when the motion alleges the decree suffers from a fatal defect apparent upon the face of the record, was procured by either intrinsic or extrinsic fraud, should be voided in light of newly discovered evidence, or was entered by a court without subject matter jurisdiction.
Danz v. Danz, 947 A.2d 750, 752-753 (Pa. Super. 2008); see also 23 Pa.C.S.A. § 3332.*fn1
The Pennsylvania Divorce Code grants authority to the court to enter a divorce on no-fault grounds, in part, as follows:
§ 3301. Grounds for divorce
(c) Mutual consent.--The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.
Pennsylvania Rule of Civil Procedure 1920.42, which pertains to divorce actions generally and to affidavits ...