J-S71035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COLIN JONES                                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellee

                   v.

JACQUILLINE JONES

                        Appellant                     No. 800 WDA 2015


                   Appeal from the Order March 24, 2015
              In the Court of Common Pleas of Potter County
                     Civil Division at No(s): 2008-6051


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 30, 2015

      Jacquilline Jones (“Wife”) appeals the order entered on March 24,

2015, in the Potter County Court of Common Pleas, denying her motion to

set aside her divorce decree from Colin Jones (“Husband”), entered on

March 5, 2009. On appeal, Wife argues the trial court erred in failing to find

the divorce was fraudulently obtained, because Husband, acting as her agent

under a power of attorney, signed her name to various documents

purportedly without her knowledge.      In response, Husband contends the

appeal is frivolous and vexatious, and requests counsel fees pursuant to

Pa.R.A.P. 2744. For the reasons below, we affirm the order of the trial court

and deny Husband’s request for counsel fees.

      The relevant facts and procedural history underlying this appeal are

aptly summarized by the trial court as follows:
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     1. [The parties were married in October of 1990, and lived in
        Brooklyn, New York until 2005. While they were living in New
        York, Wife executed a Power of Attorney in favor of Husband.
        In November of 2005, Wife moved to North Carolina to set up
        a residency for the parties’ children, who followed her in July
        of 2006, while Husband remained in New York for work.] On
        November 21, 2008 [Husband] filed a Complaint in Divorce in
        Potter County, Pennsylvania. [Husband’s] Change of Address
        tax form dated June 22, 2009 indicates that he lived in
        Pennsylvania for some time prior to returning to New York.
        [He testified that he moved to Pennsylvania in late April 2008,
        and remained there until January of 2009.]

     2. On February 27, 2009, an Acceptance of Service and [Wife’s]
        Waiver of Notice of Intention to Request Entry of a Divorce
        Decree were filed. Such documents appeared to have been
        signed by [Wife]. [Husband] testified at the hearing that he
        had actually signed the document[s] as he believed it was
        permissible for him to do so as [Wife’s] agent under a power
        of attorney. [Husband] testified further that [Wife] gave him
        permission to execute the document for her.

     3. On March 5, 2009, following the filing of a Praecipe to
        Transmit the Record, the parties[’] Divorce Decree was
        entered.

     4. On December 22, 2014, over five years and 9 months after
        the Divorce Decree was entered, [Wife] filed a Complaint to
        Set Aside the Divorce on Jurisdictional Issues.1

     5. On February 6, 2015, prior to argument, [Husband] filed
        Preliminary Objections to [Wife’s] Complaint based on
        untimeliness under 23 Pa.C.S. § 3332. Subsequently, on the
        same day, argument was held on [Husband’s] Preliminary
        Objections and [Wife’s] Complaint.

     6. [Wife] claims that she had no knowledge of the Divorce
        Decree having been issued until November of 2012 when
        mutual friends advised her of the Divorce.
     __________
     1
       While [Wife] designated her filing as a Complaint[,] the Court
     … treat[ed] the filing as a Motion to Vacate as it requests that
     the Court vacate the parties[’] Divorce Decree. As such, 23
     Pa.C.S. § 3332 is applicable to [Wife’s] Complaint.


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Trial Court Opinion, 3/24/2015, at 1-2 (record citations omitted).

        On March 24, 2015, the trial court entered an order denying Wife’s

motion to vacate the divorce decree. This timely appeal follows.1

        On appeal, Wife argues the trial court erred in failing to vacate her

divorce decree because it was fraudulently obtained. She contends Husband

had no authority to sign her name to any divorce filings, particularly the

Waiver of Notice of Entry of a Decree, because the power of attorney was

invalid “the moment the divorce [complaint] was filed.”        Wife’s Brief at 7.

See 20 Pa.C.S. § 5605(c).          Further, Wife notes that, even if, as Husband

alleges, she consented to his use of the Power of Attorney to sign her name,

neither the Power of Attorney Act,2 nor the Domestic Relations Code,3 allow

“for an oral consent to the violation of the Power of Attorney[.]” Wife’s Brief

at 8.    Wife also argues the affidavits in this case, which were signed by

Husband, violated Potter County Local Rule of Court 20, which requires all

affidavits be notarized. Id. at 9. Lastly, although Wife recognizes there is a

five-year limitations period to challenge a divorce decree that was



____________________________________________


1
  On April 23, 2015, the trial court ordered Wife to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Wife
complied with the court’s directive, and filed a concise statement on May 12,
2015.
2
    20 Pa.C.S. §§ 5601-5612.
3
    23 Pa.C.S. § 101, et seq.



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fraudulently obtained, she asserts she did not know the parties’ “divorce was

filed” until 2012. Wife’s Brief at 5. She claims:

      She was divorced; all her issues were litigated, and she had no
      remedies because all of this was done within five years when she
      found out, but five years after the decree was entered.

Id. at 9. Therefore, Wife maintains the trial court erred when it declined to

vacate the divorce decree.

      When reviewing a trial court’s order denying a motion to vacate a

divorce decree,

      [o]ur standard of review … requires us to determine whether an
      abuse of discretion has been committed. A motion requesting
      that a divorce decree be opened or vacated lies when the motion
      alleges the decree suffers from a fatal defect apparent upon the
      face of the record, was procured by either intrinsic or extrinsic
      fraud, should be voided in light of newly discovered evidence, or
      was entered by a court without subject matter jurisdiction.

Danz v. Danz, 947 A.2d 750, 752-753 (Pa. Super. 2008) (citations

omitted).

      Here, the trial court concluded it had no authority to vacate the

divorce decree because Wife’s petition was not “timely filed.”    Trial Court

Opinion, 3/24/2015, at 3. We agree.

      A party who wishes to challenge the entry of a divorce decree must do

so within the time period set forth in the Domestic Relations Code, 23

Pa.C.S. § 101 et seq. Hassick v. Hassick, 695 A.2d 851, 852 (Pa. Super.

1997). Section 3322 provides:

      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

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       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. 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. Accordingly,

       [w]here intrinsic fraud or new evidence attacking the validity of
       a decree is alleged, a motion to open must be filed within 30
       days after the entry of the decree; and, where extrinsic fraud is
       asserted as a basis to vacate, action must be initiated within 5
       years of the entry of the final decree.

Hassick, supra, 695 A.2d at 852.

       In the present case, Wife sought to vacate the divorce decree more

than five years after the decree was entered. Therefore, regardless of the

merits of her argument,4 her challenge to the divorce decree is now time-

barred.


____________________________________________


4
  Pursuant to the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 101 et
seq., a power of attorney designated to a spouse is revoked when either
party files an action in divorce. 20 Pa.C.S. § 5605(c). Therefore, it would
appear that Husband had no authority under the power of attorney to sign
Wife’s name to the Waiver of Notice form. Husband contends, however, that
because the power of attorney was created in New York, the law of that
state applies, and pursuant to New York’s General Obligations Law, “[a]n
agent’s authority terminates when … the agent’s marriage to the principal is
terminated by divorce[.]”        N.Y. Gen. Oblig. Law § 5-1511(2)(c).
Accordingly, he asserts that under New York law, the power of attorney was
(Footnote Continued Next Page)


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      Moreover, as the trial court explained in its opinion:

      The statute offers no exception which allows a party to challenge
      their divorce decree more than five years after it was entered.
      The Court is unaware of any case law which indicates that the
      “know or should have known” standard argued by [Wife] or any
      other exception applies to the time bar of section 3332. The
      Court is sympathetic to [Wife’s] argument and claims that she
      never authorized the execution of the divorce documents.
      However, lacking authority to vacate the Decree, the Court can
      only conclude that [Wife’s] Complaint to Set Aside the Divorce
      on Jurisdictional Issues was not timely filed and must be denied
      pursuant to section 3332.

Trial Court Opinion, 3/24/2015, at 3.

      Wife also asserts the fact that she had no notice of the entry of the

divorce decree until 2012 tolls the limitations period. See Wife’s Brief at 9

(stating she filed the motion to set aside the decree “within five years of

when she first found out she was divorced”). While she does not explicitly

identify it in her argument, Wife implies that the application of the

“discovery rule” is appropriate under these circumstance. The discovery rule

permits a party, in limited circumstances, to circumvent certain statutory

time periods.5 However, Wife makes no specific reference to the discovery
                       _______________________
(Footnote Continued)

valid until the divorce decree was entered. Because we find Wife’s challenge
is time-barred, we need not determine which state’s law controls.
5
  See Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005) (“As the discovery
rule has developed, the salient point giving rise to its application is the
inability of the injured, despite the exercise of reasonable diligence, to know
that he is injured and by what cause.”).




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rule, provides no statutory or case law applying discovery rule principles to

the entry of a divorce decree, and neglects to present any argument that the

discovery rule should apply to the facts herein.      Therefore, any claim that

the statute of limitations period was tolled is now waived. See Chapman-

Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006) (“It is well settled that

a failure to argue and to cite any authority supporting any argument

constitutes a waiver of issues on appeal.”) (quotation omitted).

       Furthermore, we note Wife’s claim seems to invoke the doctrine of

fraudulent concealment set forth at 42 Pa.C.S. § 5532(c). “The doctrine is

based on a theory of estoppel, and provides that the defendant may not

invoke the statute of limitations, if through fraud or concealment, he causes

the plaintiff to relax his vigilance or deviate from his right of inquiry into the

facts.” See Fine, supra, 870 A.2d at 860. However, Section 5532(c), by

its very terms, applies only in “a civil action or proceeding against the

trustee of an express or implied trust.” Id. Accordingly, it is not applicable

here.6

       In addition to Wife’s issues on appeal, Husband requests this Court

award him counsel fees pursuant to Pa.R.A.P. 2744.
____________________________________________


6
  We also note that it appears from the testimony Wife had suspicion
Husband may have filed for divorce as early as 2009. N.T., 2/6/2015, at 23-
24 (Wife describing phone call she received from Husband in which he told
her he had to prove to “Immigration to get his citizenship … that he’s paying
child support[;]” Wife testified she “emphatically asked him if [they] were
divorced… [but h]e said no.”).



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      Rule 2744 provides, in relevant part:

      In addition to other costs allowable by general rule or Act of
      Assembly, an appellate court may award as further costs
      damages as may be just, including

      (1) a reasonable counsel fee …

      if it determines that an appeal is frivolous or taken solely for
      delay or that the conduct of the participant against whom costs
      are to be imposed is dilatory, obdurate or vexatious. …

Pa.R.A.P. 2744.

      This Court has explained that an appeal is frivolous “where it lacks any

basis in law or fact; simply because an appeal lacks merit does not make it

frivolous.” Geiger v. Rouse, 715 A.2d 454, 458 (Pa. Super. 1998) (citation

omitted).   Further, although the term “vexatious” is not defined in the

statute, this Court has previously defined the term, albeit in another context,

“a legal strategy ‘without sufficient ground in either law or in fact and ...

serv[ing] the sole purpose of causing annoyance.’” Pietrini Corp. v. Agate

Const. Co., 901 A.2d 1050, 1053 (Pa. Super. 2006) (defining “vexatious”

conduct with regard to counsel fees under the Prompt Pay Act, 62 Pa.C.S. §

3935).

      We decline to award counsel fees to Husband. His decision to file for

divorce in a remote county in Pennsylvania, a state he lived in for only eight

months, using his status as his Wife’s power of attorney to sign her name to

all relevant documents, is, at the very least, suspect.      Nevertheless, as

discussed above, Wife’s challenge to the divorce decree is untimely.




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Although Wife’s issue on appeal is meritless, we do not find it lacks any basis

in law or fact.

      Order affirmed. Request for imposition of counsel fees denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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