J-S21007-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ATEF V. JELASSI,                           :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                Appellee                   :
                                           :
                   v.                      :
                                           :
NANCY NINEL VULAKH,                        :
                                           :
                Appellant                  :      No. 688 WDA 2016

                     Appeal from the Order April 15, 2016
              in the Court of Common Pleas of Cameron County,
                      Civil Division, at No(s): 2013-1889

BEFORE:     LAZARUS, DUBOW, and STRASSBURGER, JJ.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED: May 30, 2017

      Because the trial court erred by failing to vacate the divorce decree, I

respectfully dissent and offer the following analysis.

      I agree with the trial court and the Majority that the only way Vulakh

can prevail on her petition to vacate the divorce decree is if she can

demonstrate extrinsic fraud. One type of extrinsic fraud is found where one

party has kept another “away from court by false promise of compromise.”

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

(quoting McEvoy v. Quaker City Cab Co., 110 A. 366, 368 (Pa. 1920)).

      In Fenstermaker, this Court held that the trial court did not err in

concluding there was extrinsic fraud caused by the husband’s “continued

representations to [the wife] evidencing his ‘intention’ to finalize their

property settlement.” Id. at 190. The Court held that the trial court could



*Retired Senior Judge assigned to the Superior Court.
J-S21007-17


exercise its “equitable power to effectuate economic justice” where the wife

“did not have the opportunity to litigate these economic claims.” Id.

       Similarly,   Vulakh   testified   that   she   “reviewed   the   postnuptial

agreement, and [] discussed [with Attorney Grannan] that that was

supposed to be incorporated together.” N.T., 1/6/2016, at 10.               Vulakh

testified that her soon-to-be ex-husband “verbally agreed to it, but he hasn’t

done anything for it.” Id. at 11. Attorney Grannan testified that after Vulakh

confronted him about the fact that the post-nuptial agreement was not

included, he told her that he would “be happy to testify at any hearing that

was conducted in this about the communications, about her intentions and

about what actually happened.”1 Id. at 16.

       Based on the foregoing, Jelassi’s assurances that he would sign a

postnuptial agreement, coupled with the troubling nature of Attorney

Grannan’s representation of the parties to this divorce,2 I conclude that the

trial court erred in denying Vulakh’s petition to vacate.




1
  Jelassi did not appear or testify at the hearing because he is living out of
the country with his new wife and baby.
2
    See Majority Memorandum, at n.4.


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