J-A19007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD JOSEPH MCDONOUGH,                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LYNN F. MCDONOUGH,

                            Appellant                 No. 1554 WDA 2013


                     Appeal from the Order August 28, 2013
               In the Court of Common Pleas of Lawrence County
                   Civil Division at No(s): 10050 OF 2012, C.A.


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 12, 2014

        Lynn F. McDonough (Wife) appeals from the August 28, 2013 order



order that had denied her Petition Nunc Pro Tunc for Bifurcation to allow for




remand.

        Husband and Wife were married on January 13, 1995, and separated

on September 3, 2009. On January 17, 2012, Husband filed a complaint in



              Husband filed an Affidavit and Waiver of Notice of
        Intention to Request Entry of a Divorce Decree, pursuant to §
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        3301(d) of the Divorce Code on October 3, 2012. An Affidavit of
        Service of Husband's Affidavit and Waiver was filed a week later
        on October 10, 2012.       Wife was served with a § 3301(d)
        Affidavit on October 5, 2012. Husband then filed an Affidavit of
        Plaintiff's Notice of Intention to Request Entry of a Divorce
        Decree on February 26, 2013. A Praecipe to Transmit the
        Record was subsequently filed by Husband on March 18, 2013,
        and a final Decree in Divorce was entered by this [c]ourt on
        March 20, 2013.

               From this case's conception [sic] on January 17, 2012,
        Wife did not file an Answer or Counter-claim to Husband's
        Complaint.     Wife did not raise economic claims or seek
        alternative relief with the [c]ourt. Wife did file a Notice to
        Resume Prior Surname following the entry of the Divorce Decree
        on April 4, 2013. Subsequently, on April 19, 2013, Wife filed a
        Petition Nunc Pro Tunc For Bifurcation. In her Petition, Wife
        alleged that the parties had ongoing discussions regarding a
        resolution of their economic issues. Wife stated that although
        she did not object to the entry of a Divorce Decree, it was not
        her intention to forego her claims for economic relief.

Trial Court Opinion (T.C.O.), 8/28/13, at 2 (unnumbered).

        On the same day that Wife filed her Petition Nunc Pro Tunc for

Bifurcation, Husband filed an answer, and the trial court issued its order



Petitioned the Court, Nunc Pro Tunc, to bifurcate this divorce action and in

ess
                                                                            1


____________________________________________


1
    Section 3332 of the Divorce Code provides:


        the period limited by 42 Pa.C.S. § 5505 (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
(Footnote Continued Next Page)


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                                                             i.e., within thirty

days of the date the divorce

                                                                            Id.

at ¶ 4. The court also noted that Wife was represented by counsel and had

                                                     e entered.

      Next, on May 15, 2013, Wife filed a timely Motion for Reconsideration

of the April 19, 2013 order, which the trial court expressly granted that

same day. See Trial Court Order, 5/15/13. The court requested that the

parties submit briefs and it also scheduled a hearing for June 5, 2013. At

the hearing, evidence of the economic issues and settlement negotiations

was presented.         However, on August 28, 2013, the

Motion for Reconsideration and affirmed its April 19, 2013 order denying

bifurcation.   In its opinion accompanying its August 28 th order, the court

provided its reasoning, stating:


                       _______________________
(Footnote Continued)

      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. § 3332.



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           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). During this 30-day period, the court holds
     wide discretion to modify or rescind its decree. Justice, 612 A.2d

     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
                                                                      Id.
     (citations omitted).

            In her argument to the Court, Wife contends that her
     Petition for Bifurcation was filed within thirty days from the entry
     of the Divorce Decree, and the Court had broad discretion to act
     on her petition, without requiring proof of intrinsic fraud or new
     evidence. Husband alternatively argues that Wife's Motion for
     Reconsideration is outside the time limitations of 42 Pa.C.S.A. §
     5505, and the Divorce Decree is final.


     that while Wife filed a Petition Nunc Pro Tunc For Bifurcation
     within thirty days of the Divorce Decree being entered, Wife did
     not file a petition to open or vacate the Decree. Furthermore,

     assert grounds which would warrant opening the Decree
     pursuant to 23 Pa.C.S.A. § 3332. The reasons set forth in Wife's
     Petition Nunc Pro Tunc For Bifurcation are economic in nature
     and do not establish sufficient justification to vacate the Decree
                                                                  efore
     DENIED.

T.C.O. at 3-4 (unnumbered).

     Wife filed a timely appeal and raises the following three issues for our

review:

     I. Did the trial court err and abuse its discretion in concluding
     that Wife was compelled to rely strictly on fraud or other
     compelling circumstances to open the divorce decree and assert
     her economic claims where her Petition Nunc Pro Tunc to
     Bifurcate and Open the Divorce Decree was timely filed within


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      thirty days of the divorce decree, affording the court wide
      discretion to open the decree under Pennsylvania law?

      II.    Did the trial court err and abuse its discretion in denying

      Decree where Wife presented evidence that Husband was aware
      of and was negotiating for settlement of her economic claims,
      Husband admitted these facts, and Husband nevertheless
      misrepresented to the court that Wife had no economic claims?

      III.  Did the trial court err and abuse its discretion in denying
                                                te and Open the Divorce
      Decree where Husband was aware of and was negotiating for
      settlement of her economic claims, Husband admitted these
      facts, Husband nevertheless misrepresented to the court that
      Wife had no economic claims, Husband would not be prejudiced
      by granting the relief, and Wife lost substantial rights?




in which she claims that she was also requesting the court to open the

divorce decree. She asserts that the parties had been discussing economic




                                                                       ifically

request the opening of the decree, she recognizes that to consider untimely-

filed economic claims, the decree must be either opened or vacated, citing

Melton v. Melton, 831 A.2d 646, 651 (Pa. Super. 2003). The Melton court

explains that:

      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

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       period, the court holds wide discretion to modify or rescind its
       decree. Justice
       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
                                     Id.
       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. It is apparent that the trial court relied on this statement of the

law.

       We are also cognizant that


                                       Wang v. Feng, 888 A.2d 882, 892
       (Pa. Super. 2005) (quoting Wagoner v. Wagoner, 538 Pa. 265,
       269, 648 A.2d 299, 301 (1994)). Additionally, case law instructs
       that the equitable purposes which underlie the Divorce Code
       allow for liberal interpretation of its provisions.    Id. (citing
       Wagoner, supra). The Divorce Code has long authorized the
       severance of economic issues from the divorce itself. See, e.g.,
       Prall v. Prall, 698 A.2d 1338, 1340 (Pa. Super. 1997)
       (explaining that bifurcation is permitted within the discretion of
       the trial court based on a thorough review of the record).
       Significantly, the legislature very recently amended the Divorce
       Code to allow for bifurcation based merely on consent of both
       parties. 23 Pa.C.S.A. § 3323(c.1).

Lowers v. Lowers, 911 A.2d 553, 555 (Pa. Super. 2006).




                                    der, 4/19/13, at ¶ 2. The April 19th order

also indicated that although Wife filed this petition within thirty days of the


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                       Id. at ¶ 4. Despite these stat

April 19th order, its opinion issued on August 28, 2013, indicates that no

petition to open or vacate the decree was filed and implies that since only

                                                                        on




determinations in this case. Although Wife acknowledged that she did not

                                                         quest for economic




Moreover, she averred that she was receiving spousal and child support and

identified specific economic issues that the parties had been discussing. 2



bifurcation was not granted, and Husband would not be prejudiced by the

resolution of the economic factors. Id.

       Notably, the divorce decree contains the following language:

____________________________________________


2
  Wife filed a motion with this Court to supplement the record, which was
granted by order dated June 19, 2014. The supplement apprises this Court


attorney, which provides that $22,000 of the settlement was to be an
advance for equitable distribution purposes. See Reproduced Record at 60a
(N.T., 6/5/13, at 38).



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        The Court hereby retains jurisdiction of any claims raised by the
        parties to this action for which a final order has not been
        entered.

        Any existing spousal support order shall hereafter be deemed an
        Order for alimony pendent lite if any economic claims remain
        pending.

Divorce Decree, 3/21/13.

        This recognition by the court, and its wide discretion to modify or

rescind its decree during the initial thirty-day period following the entry of

the d




prior to the passage of the thirty-day period provided the court with the



consistent with the equitable purposes of the Divorce Code. The court had

wide discretion to grant relief in this case and did not do so.     Under the

circumstances, we conclude that the court abused its discretion in failing to



reverse the order appealed from and remand this matter for further

proceedings.

        Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




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