J-S39007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REBECCA J. TYLER,                             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

ZANE M. TYLER,

                                                   No. 835 WDA 2016


                Appeal from the Order Entered May 19, 2016
              In the Court of Common Pleas of McKean County
                    Civil Division at No(s): 962 C.D. 1995


REBECCA J. TYLER,                             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

ZANE M. TYLER,

                         Appellant                 No. 876 WDA 2016


                Appeal from the Order Entered May 19, 2016
              In the Court of Common Pleas of McKean County
                    Civil Division at No(s): 962 C.D. 1995


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

CONCURRING MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 01, 2017

     I join the majority’s decision to affirm the order awarding Wife the

$17,224.17 balance of the amount outlined in the June 1999 qualified

domestic relations order (“QDRO”) pursuant to a payment plan.     I write

separately to clarify that, unless Husband and Wife expressly merged the

* Retired Senior Judge assigned to the Superior Court.
J-S39007-17



QDRO into their January 1999 divorce decree, Husband’s attempt to invoke

§ 3332 of the Domestic Relations Code as a bar to Wife’s petition for relief is

misplaced. Stated plainly, 23 Pa.C.S. § 3332 relates specifically to opening

or vacating a decree, which neither party sought to achieve herein.

      To the extent that the majority memorandum could be read as leaning

upon § 3332 as authority for the trial court to grant Wife’s request for

special relief, filed January 2013, that reliance is defective.        Unlike the

jurisprudence that flows from 42 Pa.C.S. § 5505, which applies to all trial

court orders, § 3332 imposes a time-bar that requires any petitioner seeking

to vacate a divorce decree to assert fraud or a fatal defect within five years

of the date that the decree is entered. Specifically, the statute provides, “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.” 23 Pa.C.S. § 3332. While the majority is silent as

to the consequences of the five-year requirement herein, it is obvious that

the time bar precludes the trial court from invoking § 3332 to modify the

QDRO    fourteen   years   after   the    court   entered   the   divorce   decree.

Accordingly, to avoid any confusion regarding the basis of our decision to

affirm the trial court’s modification herein, I would reject Husband’s attempt

to invoke the time bar under § 3332 explicitly because that provision is

inapplicable.

                                         -2-
J-S39007-17



      In contrast to the decree-specific provisions of § 3332, this Court’s

interpretation of § 5505 in Hayward v. Hayward, 808 A.2d 232, 235

(Pa.Super. 2002), and Stockton v. Stockton, 698 A.2d 1334, 1337

(Pa.Super. 1997), authorizes trial courts to open or vacate QDROs upon,

inter alia, a showing of a fatal defect apparent on the face of the record. In

both of the foregoing cases, we applied § 5505 rather than § 3332 to

address belated attempts to modify a QDRO. In Stockton, supra at 1337-

1338, we reasoned, “we find that [42 Pa.C.S. § 5505] applies to a trial

court’s review of a QDRO. Accordingly, the trial court has broad discretion

to modify or rescind a QDRO within thirty days of the entry of the QDRO, but

after thirty days the trial court may reconsider a QDRO only if there is a

showing of extrinsic fraud or other extraordinary cause.”      Since § 3332

typically is inapplicable to QDROs, I would rely explicitly upon the ensconced

precedents in Hayward and Stockton, rather than § 3332, to reject

Husband’s contention that the trial court lacked the authority to modify the

QDRO.




                                    -3-
