J-A14006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS M. GAUBY, JR.,                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANGELA M. GAUBY, NOW ANGELA M.
BRODI,

                            Appellant                  No. 1718 MDA 2014


               Appeal from the Order Entered September 8, 2014
                 In the Court of Common Pleas of Berks County
                        Civil Division at No(s): 13-20918


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 17, 2015

        Angela M. Gauby, now Angela M. Brodi, (Wife) appeals from the

September 8, 2014 order that denied her “Petition for Special Relief in the

Nature of a Request to Vacate the Post Nuptial Agreement for Lack of

Disclosure.”     Wife’s arguments on appeal concern her allegations that

Thomas M. Gauby (Husband) did not provide full and fair disclosure related

to the value of his pension. We affirm.

        We begin by setting forth the trial court’s recitation of the facts, which

provides:

              The instant action concerns a Post Nuptial Agreement
        entered into between the parties on September 11, 2013, and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A14006-15


      merged into the divorce decree entered on February 28, 2014.
      The parties in the instant action were married on October 21,
      2000, in Berks County, Pennsylvania. In August of 2013, the
      Defendant (hereinafter “Wife”) informed the Plaintiff (hereinafter
      “Husband”) that she desired to divorce him The parties met
      together, without counsel, and discussed dissolution of their real
      and personal property, including disposition of the parties’
      respective pension and retirement accounts. As a result of that
      meeting, Wife prepared a document which she titled “Divorce
      Agreement[.]” Wife listed “His pension(s) w/ Amity Township” in
      the Divorce Agreement under “Tom’s Financial Obligations[.]”
      She also listed “Her 403(b) with Morgan Stanley” under “Angie's
      Financial Obligations[.]”    The Divorce Agreement contained
      detailed information regarding bank accounts, debts of the
      parties, personal property and other assets and obligations of
      the parties. Subsequently, Husband produced this document to
      his counsel for the preparation of the Post Nuptial Agreement.
      Husband’s counsel prepared the Post Nuptial Agreement which
      the parties executed on September 11, 2013. Page One of the
      Post Nuptial Agreement contains language that Wife has been
      advised to seek representation and has been provided sufficient
      time to seek counsel and review the Agreement. The Post
      Nuptial Agreement also provided that “the parties shall retain
      any pension(s) and retirement accounts, savings and checking
      accounts in their respective names. Each party waives any claim
      against the other part[y’s] pension, retirement accounts, savings
      and/or checking accounts...[.]”[] The Praecipe to Transmit the
      Record was filed on January 7, 2014 and this Court signed the
      Divorce Decree on February 28, 2014.

             After the parties’ divorce was finalized, Wife consulted an
      attorney and on April 10, 2014, Wife filed a Petition for Special
      Relief in the Nature of a Request to Vacate the Post-Nuptial
      Agreement for Lack of Disclosure. Wife alleges that Husband
      failed to disclose the value of his pension and this value should
      have been included in the property division. Husband alleges
      that neither of the parties knew the value of Husband’s pension
      at the time of the Agreement and that the Agreement was
      entered into without any fraud, coercion, duress or undue
      influence by either of the parties. This Court held a brief hearing
      on Wife’s Petition on June 25, 2014 and on September 8, 2014,
      issued an Order denying Wife's Petition.

Trial Court Opinion (T.C.O.), 1/2/14, at 1-2.


                                     -2-
J-A14006-15



      Wife appealed from the denial of her petition and timely responded to

the court’s order to file a concise statement of errors complained of on

appeal. She now raises the following issues for our review:

      1.   Did the Trial Court err in finding that [Wife] had not
      overcome the presumption of disclosure raised by the Post
      Nuptial Agreement’s statement of full disclosure when [Husband]
      made no disclosure, when no value was ever suggested for
      [Husband’s] police pension, and [Wife] had no ability to know
      the value of the pension?

      2. Did the Trial Court err in denying [Wife’s] Petition for Special
      Relief in the Nature of a Request to Vacate the Post Nuptial
      Agreement despite clear evidence of lack of full and fair
      disclosure by [Husband] in not disclosing the value of his Amity
      Township Police Pension that only he could know?

      3. Did the Trial Court err in denying [Wife’s] Petition for Special
      Relief in the Nature of a Request to Vacate the Post Nuptial
      Agreement in light of the fact that [Husband] made no financial
      disclosure whatsoever when the caselaw requires affirmative
      disclosure of relevant financial information?

      4. Did the Trial Court err in denying [Wife’s] request that the
      value of the undisclosed police pension martial [sic] asset be
      disclosed by [Husband] for the consideration of the parties and
      the Court, and so [Wife] could determine the size and
      significance of [Husband’s] non-disclosure?

      5. Did the Trial Court err by not allowing a full and fair hearing
      on the record on [the] issue of the undisclosed martial [sic]
      asset, and the validity of the post nuptial agreement?

Wife’s brief at 3.

      Wife essentially claims that Husband failed to provide full and fair

disclosure of the value of his pension, although she must initially challenge

the trial court’s refusal to strike and/or open the divorce decree.         In



                                     -3-
J-A14006-15



Bingman v. Bingman, 980 A.2d 155 (Pa. Super. 2009), this Court set forth

the following legal princples that guides our review of this case:

             Our standard of review is whether the trial court abused its
      discretion when it denied Wife's [petition]. 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).

              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. § 55054 (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….
                4
                  “Except as otherwise provided or prescribed
                by law, a court upon notice to the parties may
                modify or rescind any order within 30 days after
                its entry, notwithstanding the prior termination
                of any term of court, if no appeal from such
                order has been taken or allowed.” 42 Pa.C.S.A.
                § 5505.

      23 Pa.C.S.A. § 3332.

Id. at 157.




                                      -4-
J-A14006-15



      Neither party disputes the fact that Wife failed to file her petition

within 30 days of the entry of the divorce decree. Melton v. Melton, 831

A.2d 646, 651 (Pa. Super. 2003).       Therefore, it is evident that she was

required to prove extrinsic fraud.      In the Melton decision, this Court

explained the distinction between the filing of a petition to open or vacate

the decree before or after the 30 day period, stating:

      In order to consider untimely-filed economic claims, the divorce
      decree must be either opened or vacated. Justice [v. Justice],
      612 A.2d [1354,] 1357 [(Pa. Super. 1992)]. Petitions to open
      the decree must be filed within 30 days.          Id., citing, 42
      Pa.C.S.A. § 5505; see also, 23 Pa.C.S.A. § 3332. During this
      30-day period, the court holds wide discretion to modify or
      rescind its decree. Justice, 612 A.2d at 1357. “The trial court's
      broad discretion is lost, however, if the court fails to act within
      30 days. After this 30-day period, an order can only be opened
      or vacated if there is fraud or some other circumstance so grave
      or compelling as to constitute extraordinary cause justifying
      intervention by the court.” Id. (citations omitted). … Moreover,
      a general plea to economic justice will not satisfy the stringent
      standard set forth above. Id. After 30 days, the divorce decree
      may be vacated only as a result of extrinsic fraud, lack of subject
      matter jurisdiction, or a fatal defect apparent on the face of the
      record. 23 Pa.C.S.A. § 3332; Justice, supra.

Id. at 651 (emphasis added).

      In its opinion here, the trial court recognized that “[t]here is no

question that this [c]ourt has subject matter jurisdiction and no fatal defect

[is] apparent on the face of the record….”      T.C.O. at 4.   Therefore, the

remaining issue was “whether there was extrinsic fraud by Husband [in] not

disclosing the value of his pension when neither party was aware of the

value.” Id. The court further explained that:



                                     -5-
J-A14006-15


      It is abundantly clear to this Court that Husband did disclose the
      fact that he had a pension. Wife was aware of the pension and
      Wife was also aware of the fact that neither she[] nor Husband
      knew the value of Husband's pension. This Court finds that
      because Wife knew of the existence of Husband’s pension and
      signed the Post Nuptial Agreement, of which she drafted the
      initial documents, Wife has waived any right she may have had
      to a full disclosure of the value of Husband's pension. It is
      apparent that Wife was aware that Husband did not disclose the
      value of his pension. This alleged lack of disclosure cannot
      constitute fraud or misrepresentation when Wife was aware
      there was no such disclosure and proceeded to finalize the Post
      Nuptial Agreement.

      ...

      In this case, Wife has failed to meet her burden of proof to set
      aside the Post Nuptial Agreement. Wife has a college education.
      Wife was aware of the existence of Husband’s pension.
      Additionally, Wife played an integral part in the creation of the
      terms of the Post Nuptial Agreement. She negotiated with
      Husband for the terms of the Post Nuptial Agreement whereby
      Wife retained her retirement plan and Husband retained his.
      Wife freely chose to represent herself leading up to the execution
      of the Agreement and freely chose to enter into the Agreement.
      As such, this Court does not find the Post Nuptial Agreement to
      be invalid where at the time the Agreement was signed, Wife
      had specific knowledge that Husband had not disclosed the value
      of his pension because neither of the parties knew the value of
      the pension. Wife was aware Husband had not disclosed the
      value of his pension and this Court cannot find Wife was induced
      to enter the agreement through fraud or misrepresentation. The
      record is devoid of evidence of extrinsic fraud and this Court has
      properly denied [Wife’s] Petition.

T.C.O. at 4-6.

      Much of Wife’s argument in her first four issues centers on non-

disclosure and on the fact that Husband did not provide Wife with at least an

estimate of the worth of his pension. Wife relies on Hess v. Hess, 580 A.2d

357 (Pa. Super. 1990), wherein the husband estimated the value of a


                                    -6-
J-A14006-15



property at $45,000 in connection with the parties property settlement

agreement (PSA), even though he was negotiating its sale to a third party

for $800,000. The suit brought by the wife alleged both fraud and breach of

contract, seeking compensatory and punitive damages.          On appeal, this

Court stated that “[f]air and full disclosure [relating to a PSA] … requires

that a reasonable estimate of the worth of the assets must be attempted so

that the general financial resources of the parties are not obscured.” Id. at

359. Therefore, because the husband did not even attempt to disclose the

real value of the property, this Court determined that this evidence was

sufficient to find that the husband had breached the PSA. This Court also

determined that sufficient evidence was presented for the jury to find that

the husband had committed fraud.         However, the Hess case does not

involve whether fraud was intrinsic or extrinsic in relation to the opening or

vacating of a divorce decree.    The case is therefore not applicable to the

issue before us.

      Wife also relies on Nitkiewicz v. Nitkiewicz, 535 A.2d 664 (Pa.

Super. 1988), a case in which this Court held that the husband had failed to

disclose to the wife the amounts he earned from a second source and,

therefore, had not provided full and fair disclosure relating to a postnuptial

agreement. The Court noted that although “full and fair disclosure does not

require disclosure of the exact amount of property, … there must be a

sufficient disclosure of assets to allow the other party to make an intelligent

decision concerning the rights which will be given up under the terms of the

                                     -7-
J-A14006-15



agreement.”    Id. at 667.   Again, the Nitkiewicz case does not involve a

petition to vacate or open the decree and provides no discussion about

extrinsic or intrinsic fraud, which Wife here must prove in order to allow the

decree to be opened.

      In response, Husband specifically addresses the extrinsic fraud that

Wife was required to prove so that the decree could be vacated or opened.

We note that in the Justice case, this Court quoted our Supreme Court’s

discussion in McEvoy v. Quaker City Cab Co., 110 A. 366 (Pa. 1920),

which distinguished intrinsic fraud from extrinsic fraud, stating:

      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.
      The reason for the rule is that there must be an end to litigation;
      and, where a party has had his day in court and knows what the
      issues are, he must be prepared to meet and expose perjury
      then and there: Pico v. Cohn, 91 Cal. 129 [25 P. 970 (1891)].
      Where the alleged perjury relates to a question upon which there
      was a conflict, and it was necessary for the court to determine
      the truth or falsity of the testimony, the fraud is intrinsic and is
      concluded by the judgment, unless there be a showing that the
      jurisdiction of the court has been imposed upon, or that by some
      fraudulent act of the prevailing party the other has been
      deprived of an opportunity for a fair trial. Bleakley v. Barclay,
      75 Kansas 462 [89 P. 906 (1907)].

Justice, 612 A.2d at 1358-59 (quoting Fenstermaker v. Fenstermaker,

502 A.2d 185, 188 (Pa. Super. 1985)).

                                     -8-
J-A14006-15


      Husband also relies on Paroly v. Paroly, 876 A.2d 1061 (Pa. Super.

2005), which directs that “[i]f an agreement provides that full disclosure has

been made, a presumption of full disclosure arises. If a spouse attempts to

rebut this presumption through an assertion of fraud or misrepresentation

then this presumption can be rebutted if it is proven by clear and convincing

evidence.” Id. at 1066 (quoting Simeone v. Simeone, 581 A.2d 162, 167

(Pa. 1990)). Based on this caselaw, Husband contends that the burden of

proof was on Wife and that she failed to prove that he committed extrinsic

fraud by not revealing the value of his pension.

      To further support this proposition, Husband relies on Ratarsky v.

Ratarsky, 557 A.2d 23 (Pa. Super. 1989), a case dealing with the “alleged

concealment of the cash surrender value of … insurance policies.” Id. at 25.

This Court stated that “[e]ven assuming arguendo that the [husband] did

conceal the cash surrender value [of the policies], the [husband’s] acts did

not constitute extrinsic fraud under the Divorce Code.”     Id.    Rather, the

opinion states that extrinsic fraud was not proven because the wife “knew of

the policies[‘] existence and should have specifically inquired concerning

their cash surrender value.”   Id. at 26 (emphasis in original).    Thus, the

Ratarsky Court concluded that without proof of extrinsic fraud the trial

court had no authority to vacate the divorce decree.

      Here, as quoted above, the trial court followed this same line of

reasoning. Both parties knew about the other’s pension/retirement account,


                                    -9-
J-A14006-15


but did not know about the values contained in the accounts. Nor did they

inquire about these amounts.      Rather, the parties entered into the PSA

without raising these questions. Moreover, nothing appears in the record to

show that Husband intentionally misled Wife. Accordingly, we conclude that

Wife’s first four issues that revolve around her allegations of non-disclosure

are without merit.   Wife failed to convince this Court that she had proven

extrinsic fraud existed that would have allowed the trial court to open/vacate

the divorce decree when the petition was filed beyond the thirty day time

period.

      In her last issue, Wife argues that the trial court did not provide for a

full and fair hearing on the non-disclosure of the value of Husband’s pension.

As a result, Wife claims that the trial court made “groundless assumptions”

about Husband’s lack of knowledge of the value of his pension and that Wife

knew that Husband did not know the value of his pension. Wife relies on

McClenen v. McClenen, 193 A. 83, 85 (Pa. Super. 1937), which states that

“[t]he orderly course was to have a full hearing on the merits, make findings

of fact from the evidence received in court, and on the basis of those

findings, enter a decision and order.” Thus, Wife asserts that because the

trial court abdicated its factfinding duty, we should remand for a hearing.

      This we will not do. It was the duty of Wife, as Appellant, to provide a

complete record so that this Court is able to review what occurred below.

Although the trial court mentions that it “held a brief hearing on Wife’s


                                    - 10 -
J-A14006-15


[p]etition on June 25, 2014[,]” T.C.O. at 2, no transcript of that hearing is

provided in the certified record.

      [I]t remains the appellant's responsibility to ensure that a
      complete record is produced for appeal.           Inclusion in the
      reproduced record is not an acceptable substitute for the original
      certified record. The failure of the appellant to ensure that the
      original record certified for appeal contains sufficient information
      to conduct a proper review may constitute a waiver of the issues
      sought to be examined.            Stewart v. Owens-Corning
      Fiberglas, 806 A.2d 34, n.3 (Pa. Super. 2002) (citations
      omitted).

Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004). Since Wife failed

to provide a transcript of the “brief hearing,” this Court is unable to

determine whether a full and fair hearing was held and whether Wife, who

had the burden of proof in this matter, provided support for her allegations

of a lack of full disclosure that rose to the level of extrinsic fraud.

Accordingly, due to Wife’s failure to provide a complete record, we are

unable to assess the merits of her last issue.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015



                                     - 11 -
