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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DARYL C. BARRY                               :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                      v.                     :
                                             :
JACQUELINE M. BARRY,                         :         No. 870 MDA 2015
                                             :
                            Appellant        :


                    Appeal from the Decree, April 22, 2015,
               in the Court of Common Pleas of Dauphin County
                     Civil Division at No. 2014-CV-429-DV


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED DECEMBER 30, 2015

      Jacqueline M. Barry (“Wife”) appeals from the decree of divorce

entered April 22, 2015, in the Court of Common Pleas of Dauphin County.

      In 2007, Wife was adjudicated to be an incapacitated person after a

hearing   before      the   Dauphin     County   Orphan’s   Court.1   Thereafter,

Neighborhood Services, Inc., was appointed to serve as plenary guardian of

appellant’s estate.

      Wife was incarcerated from 2012 to 2014 for stalking a neighbor.

While Wife was incarcerated, her husband, Daryl C. Barry (“Husband”), filed




* Former Justice specially assigned to the Superior Court.
1
  By all accounts, Wife was “diagnosed with schizoaffective disorder, is very
paranoid and suspicious, and can be very disruptive and argumentative.”
(See motion to open and vacate divorce decree, 5/7/15 ¶ 11 at 3.)
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for divorce.2     The parties entered into a settlement agreement.         On

February 25, 2015, the orphan’s court held a hearing. The parties agreed

that Wife would receive a portion of the equity in the home, minus costs of

repairs and other expenses, and 50% of the net proceeds from the sale of a

vacant lot the parties owned. On April 22, 2015, a final decree of divorce

was entered.

        On May 7, 2015, Wife, through her guardian, filed a motion to open

and vacate the divorce decree.       Wife alleged that during the settlement

discussions Husband failed to disclose the fact that he will receive a pension

when he retires from employment with the Commonwealth of Pennsylvania.

On May 18, 2015, the orphan’s court issued a rule upon Husband to show

cause why the relief requested should not be granted.          The rule was

returnable within five days. On May 20, 2015, prior to any ruling on Wife’s

motion to open and vacate the divorce decree, Wife filed a notice of appeal

from the April 22, 2015 divorce decree. On May 26, 2015, Husband filed a

timely answer to the motion to open and vacate the divorce decree with new

matter and requesting enforcement of the post-nuptial agreement.          The

orphan’s court did not have a chance to rule on the outstanding motion to

open and vacate the divorce decree because it was precluded from taking

any further action on the matter once the appeal from the divorce decree




2
    The parties were married for 39 years.


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was filed.    See Pa.R.A.P. 1701(a).       Wife raises the following issues on

appeal:

             1.      Did the Court err as a matter of law and abuse
                     its discretion when it entered a divorce decree
                     when intrinsic fraud existed or new evidence
                     came to light after the entry of the divorce
                     decree, as one of the parties’ assets was not
                     disclosed and Wife suffers from a mental
                     illness, which prevented her from taking part in
                     the process in any meaningful manner?

             2.      Consolidated   with   Issue   Number     1   by
                     Appellant.

             3.      Did the Court err as a matter of law and abuse
                     its discretion when it entered a divorce decree
                     where extrinsic fraud existed, whereby the
                     nondisclosure of an asset prevented a fair
                     submission of the controversy?

Wife’s brief at 4.

      Wife is improperly asking this court to determine, in the first instance,

whether the April 22, 2015 divorce decree should be opened or vacated.

She alleges that new evidence came to light after entry of the divorce

decree; specifically, the existence of a pension belonging to Husband, which

had not been disclosed during negotiations for the divorce. Wife’s counsel

argues that although Wife was evidently aware that a pension existed, the

symptoms of Wife’s schizoaffective disorder included paranoia and secrecy,

and she never told her caseworker of this asset until after the divorce decree

was entered.




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      This court is without jurisdiction to make credibility determinations or

decide the merits of a petition to open or vacate a divorce decree. Rather,

procedurally, it is the function of the orphan’s court to exercise its equitable

powers under 23 Pa.C.S.A. § 3323 (regarding equitable power of the

orphan’s court in all matrimonial causes) to determine whether a divorce

decree should be opened or vacated.        The test for opening or vacating a

divorce decree is set forth in 23 Pa.C.S.A. § 3332:

            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 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.A. § 3332.

      In a case very similar to the present case, we remanded a divorce

matter for specific findings of fact where the orphan’s court refused to

consider a petition to open a decree of divorce or make findings of fact

because an appeal had already been filed in this court.         In Douglas v.

Douglas, 371 A.2d 979 (Pa.Super. 1977), Curtis Douglas (the husband)


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filed a complaint in divorce against Edith Douglas (the wife). Counsel for the

parties entered into negotiations regarding a property settlement.        The

parties agreed that no divorce decree would be entered until a settlement

agreement was reached.      Id. at 980.    A hearing before a master was

scheduled and continued. The wife’s counsel was reassured that no divorce

decree would be entered until an agreement was reached.            The wife’s

counsel was thereafter involved in a car accident. When he returned to his

office approximately one month later, he found that a divorce decree had

been entered at the recommendation of the master. The wife filed an appeal

and a petition to open judgement.      The judge refused to rule upon the

petition to open because an appeal had been filed with this court. Id. On

appeal, the wife argued that the divorce decree was obtained in violation of

agreement between counsel and that she was deprived of her right to

hearing.   On appeal from the divorce decree, this court noted that there

were insufficient facts to enable us to decide the appeal.     Therefore, we

remanded the matter to allow the orphan’s court to consider the wife’s

petition to open judgment, in view of the fact that the lower court had not

ruled on the wife’s allegations and the record on appeal contained

insufficient facts to enable this court to decide the wife’s appeal. See also

Stachurski v. Stachurski, 239 A.2d 846 (Pa.Super. 1968) (where appeal

and petition to open divorce decree were filed, this court remanded to the

Philadelphia County Court of Common Pleas, Family Division, to consider the



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petition to open the divorce decree on the merits and allow the petitioner to

offer testimony in defense of the action).

      Here, Wife apparently filed a notice of appeal in order to preserve her

right of appeal from the decree of divorce. However, at the time, there was

pending before the orphan’s court a petition to open or vacate the divorce

decree for the purpose of allowing appellant to offer evidence of an

undisclosed marital asset; namely, Husband’s pension. Because the merits

of Wife’s petition were not considered, the record is remanded to the

orphan’s court with directions to pass upon the merits of the petition to open

or vacate the divorce decree.

      Appeal quashed.      Record remanded with directions.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2015




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