J-S55023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CLINTON W. SPENCER                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LYNNETTE D. SPENCER                        :
                                               :
                       Appellant               :   No. 1831 MDA 2016

                  Appeal from the Order Dated October 7, 2016
                 In the Court of Common Pleas of Centre County
                        Civil Division at No(s): 2011-1931


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                                FILED OCTOBER 27, 2017

       Appellant, Lynnette D. Spencer, appeals from the order entered October

7, 2016,1 denying her petition to open divorce proceedings and vacate an

equitable distribution order entered February 29, 2016. We affirm.

       The parties were married on October 31, 1998. The parties separated

in August 2010, and in April 2011, Appellee filed a Complaint in Divorce, which

included a claim for equitable distribution of property. In August 2012, the

court entered a decree in divorce and reserved jurisdiction over the issue of

equitable distribution of marital property.

       An equitable distribution hearing was held in January 2016.       Neither

Appellant nor her counsel attended the hearing. On February 29, 2016, the

____________________________________________


1While the trial court dated the order October 6, 2016, it was docketed the
next day, October 7, 2016. Therefore, we refer to the order as having been
entered on October 7, 2016.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S55023-17



court entered an equitable distribution order. Appellant subsequently filed a

petition to open the divorce proceedings and vacate the February 29, 2016

order. A hearing on Appellant’s petitions was held in August 2016. On October

6, 2016, the court denied Appellant’s motions.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a Pa.R.A.P. 1925(a) opinion relying on its

Opinion and Order entered October 6, 2016.

      Appellant raises the following issues for our review:

      1. Whether the Trial Court abused its discretion in denying the
         petition as to vacating the order, providing for equitable
         distribution of the marital estate, on the ground of extrinsic
         fraud in the service of the notice of the hearing on equitable
         distribution, inasmuch as the service of notice was defective
         and/or misleading, and was sent to an address that was known,
         or should have been known, to be no longer valid, rather than
         the effective address of the appellant, the defendant below,
         and so prejudiced appellant, all of which the appellant provided
         by the requisite standard?

      2. Whether the Trial Court abused its discretion in denying the
         petition as to opening the order, providing for equitable
         distribution of the marital estate, on the ground of intrinsic
         fraud perpetrated by misrepresentation of marital assets by the
         appellee, the plaintiff below, including but not limited to, a
         personal injury settlement and tangible property items, all of
         which the appellant, the defendant below, provided by the
         requisite standard?

      3. Whether the Trial Court abused its discretion in denying the
         petition for an extension of time in which to comply with the
         order, providing for equitable distribution of the marital estate,
         inasmuch the stay therein requested was merited based on
         demonstrated extrinsic fraud in procuring the equitable
         distribution order?

Appellant’s Brief at 4.

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      Our standard of review is well settled. “[A] proceeding to open a divorce

decree is equitable in nature, and the appellate court will not reverse an order

entered in such a proceeding unless there has been a clear abuse of

discretion.” Egan v. Egan, 759 A.2d 405, 407 (Pa. Super. 2000) (quoting

Foley v. Foley, 572 A.2d 6, 9 (Pa. Super. 1990)).

      Section 3332 of the Divorce Code “sets out clear evidentiary

requirements which must be met by the parties before the court may exercise

its authority to open, vacate, or strike a divorce decree[.]”        Justice v.

Justice, 612 A.2d 1354, 1358 (Pa. Super. 1992) (citation omitted).

      A motion to open a decree of divorce or annulment may be made
      only within 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 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 the entry of the final decree. Intrinsic fraud relates to
      a matter adjudicated by the judgement, 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.

      Appellant first seeks to vacate the equitable distribution order on the

ground of extrinsic fraud.    Specifically, Appellant asserts that she did not

receive notice of the equitable distribution hearing. See Appellant’s Brief at

12 (citing in support Roach v. Roach, 418 A.2d 742 (Pa. Super. 1980)).

      Extrinsic fraud is defined as follows:

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      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.

Id. (quoting Fenstermaker v. Fenstermaker, 502 A.2d 185, 188 (Pa.

Super. 1985)).

      In Roach, neither the defendant nor her attorney was notified of a

divorce proceeding before the appointed master. Roach 418 A.2d at 733.

Notice of a hearing mailed to the defendant was returned to the master,

undelivered and marked “unknown”. Id. Nevertheless, the master knowingly

proceeded with the hearing ex parte.         Id. at 744.     Considering these

circumstances, this Court affirmed the trial court’s decision to open the divorce

proceedings, discerning no abuse of discretion. Id.

      In the instant case the trial court noted:

      [Appellant] claims she did not receive notice of the equitable
      distribution hearing. On July 10, 2015, [Appellee] sent by both
      regular mail and certified mail, notification of a hearing scheduled
      for a Petition for Return of Firearms to [Appellant] at 58 Clark
      Street, Clearfield, Pennsylvania 16830 and 3761 Allport Cutoff
      Highway, Morrisdale, Pennsylvania, 16858. [Appellant] refused
      service at the 3761 Allport Cutoff Highway, Morrisdale address on
      four separate occasions.       In current pleadings, [Appellant]
      concedes that this address is correct and even as such, failed to
      accept service. The [c]ourt then entered an Order rescheduling
      the hearing and notice was sent to [Appellant’s] last known
      address of 1221 Woodland Road, Clearfield, Pennsylvania 16830.
      [Appellant] appeared for the hearing following receipt of the notice
      sent to 1221 Woodland Road, Clearfield. Following the hearing
      the [c]ourt sent an Order scheduling an equitable distribution
      hearing to that same 1221 Woodland Road, Clearfield address and
      to then attorney George Stenhach, Esquire. [Appellant] failed to

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      appear for the equitable distribution hearing.        [Appellant]
      contends that she previously provided the 3761 Allport Cuttoff,
      Morrisdale address, the address where service was not accepted
      on four occasions, as her current address to Court Administration.
      There is no indication from the record of this ever happening.
      Given [Appellant’s] demonstrated contempt for orders of this
      [c]ourt, the [c]ourt believes notice was likely received and
      ignored.

Trial Court Opinion, 10/7/16 at 2-3.

      Appellant’s reliance on Roach is misplaced because in this case the trial

court determined that Appellant had received notice but chose to ignore it.

The record supports the court’s finding that Appellant refused service on four

occasions at her address of record. Thereafter, Appellant accepted service at

1221 Woodland Road and appeared for a hearing. Reasonably, the court sent

notice of the equitable distribution hearing to 1221 Woodland Road; yet on

this occasion, Appellant failed to appear. Accordingly, there was no evidence

of extrinsic fraud, and we discern no abuse of the court’s discretion.

      Appellant next contends that Appellee committed intrinsic fraud in

misrepresenting his marital assets.      The trial court declined to address

Appellant’s claims regarding intrinsic fraud, as her petition was filed more than

thirty days after the entry of the order. See Trial Court Opinion, 10/7/16 at

3. Appellant concedes that her petition is untimely; however, she argues that

the trial court abused its discretion in not extending the thirty-day limitation

period. See Appellant’s Brief at 14.

      The trial court lacks discretion in this regard. Absent extrinsic fraud,

lack of subject matter jurisdiction, or a fatal defect on the face of the record,



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a divorce decree may not be opened after thirty days. Justice, 612 A.2d at

1357; 23 Pa.C.S. §3332. Appellant’s petition was filed on June 2, 2016, more

than three months after the decree was entered. Accordingly, it was untimely,

and the lower court properly denied it as such.

      Appellant’s final claim is that the trial court abused its discretion in

denying her petition for extension of time within which she must comply with

the equitable distribution order. In light of the foregoing analysis, we discern

no abuse of discretion.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




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