BRUCE R. BARDINE Appellant
DONNA J. BARDINE
from the Order Entered October 20, 2016 In the Court of
Common Pleas of Blair County Civil Division at No(s): 2009 GN
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
Bruce R. Bardine (Husband), appeals from an order entered on
October 20, 2016 that granted a petition filed by Donna J.
Bardine (Wife) to vacate the parties' divorce decree and
modify their property settlement agreement. We reverse.
and Wife were married on September 4, 1976 and separated on
June 20, 2009. Husband filed a divorce complaint on November
5, 2009. Thereafter, in August 2012, the parties appeared
before a hearing master to divide their marital assets,
including funds held in Husband's Kmart Corporation
Employee Pension Plan (pension). At the hearing, the parties
agreed to equally divide the monthly payment benefit issued
from Husband's pension and further agreed to incorporate
this "equal division" term into their marital
settlement agreement. The record of the hearing contains no
discussion of, or agreement to, a specific monetary sum that
Husband or Wife expected to receive from the pension. Wife
later filed exceptions to the hearing master's report and
recommendation but did not raise an issue related to the
pension. The trial court entered a final divorce decree on
December 19, 2012. The decree incorporated the parties'
marital settlement agreement, including their agreement to
divide equally the monthly payment benefits issued from
Qualified Domestic Relations Order (QDRO) was subsequently
prepared and executed by Wife, as an alternate payee, on
October 29, 2013 and by Husband, as a participant, on
November 20, 2013. With the preparation of the QDRO, the
parties learned that they each would receive a monthly
payment of $480.52 from Husband's pension. See
QDRO, 12/3/13, at 2. On November 14, 2013, Wife filed a
petition for permanent alimony seeking an additional monthly
payment of $314.50 from Husband. Wife claimed that,
throughout the proceedings, Appellant misrepresented the
anticipated monthly pension benefit as $788.05 and she came
to rely on that sum in accepting the parties' marital
settlement agreement. Lengthy negotiations aimed at resolving
the parties' dispute ensued but, ultimately, proved
unsuccessful. After a hearing, the trial court, on October
20, 2016, vacated the parties' divorce decree and
modified their marital settlement agreement by directing
Husband to pay Wife an additional $157.25 each
month. The court also determined that it retained
continuing jurisdiction to conduct oversight and enforcement
of the parties' marital settlement agreement because of
Husband's alleged fraud and the parties' mutual
mistake of fact. See Trial Court Opinion, 10/20/16,
at 3; see also Trial Court Opinion, 6/30/17, at 2.
filed a timely notice of appeal on November 21,
2016. On May 17, 2017, the trial court directed
Husband to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Husband filed his
concise statement on June 2, 2017 and the trial court issued
a brief opinion on June 20, 2017.
raises two issues in this appeal:
Did the trial court commit reversible error in opening and
modifying the [p]arties' [m]arital [s]ettlement
[a]greement and opening the [f]inal [d]ivorce [d]ecree and
[QDRO] when [Wife] failed to file a petition to open said
final order within the thirty (30) day required time period
under 23 Pa.C.S.A. § ?
Were the [trial c]ourt's findings offered in support of
modifying and opening the [f]inal [d]ivorce [d]ecree,
[m]arital settlement [a]greement, and [QDRO] insufficient and
inadequate as a matter of law and were said findings
supported by the record?
Husband's Brief at 6.
raises two interrelated claims that challenge an order
granting Wife's petition to vacate the parties'
divorce decree and modify their marital settlement agreement.
Hence, we shall review his claims in a single discussion. A
trial court's exercise or refusal to exercise its
authority to open, vacate, or strike a divorce decree is
reviewable on appeal for an abuse of discretion. See
Ratarsky v. Ratarsky, 557 A.2d 23, 25-27 (Pa. Super.
1989), affirmed, 581 A.2d 1377 (Pa. 1990).
claims in this appeal center upon the application of 23
Pa.C.S.A. § 3332, which governs a trial court's
authority to open or vacate a divorce decree. Specifically,
Husband points out that because Wife filed her petition more
than 30 days after entry of the parties' divorce decree,
intrinsic fraud was no longer available as a justification to
open or vacate the decree. Additionally, Husband asserts that
Wife failed to establish extrinsic fraud, or any other ...