J-A02026-18

                              2018 PA Super 220

BRUCE R. BARDINE                        :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
DONNA J. BARDINE                        :   No. 1787 WDA 2016

             Appeal from the Order Entered October 20, 2016
In the Court of Common Pleas of Blair County Civil Division at No(s): 2009
                                GN 4150

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY OLSON, J.:                               FILED AUGUST 2, 2018

     Appellant, Bruce R. Bardine (Husband), appeals from an order entered

on October 20, 2016 that granted a petition filed by Donna J. Bardine (Wife)

to vacate the parties’ divorce decree and modify their property settlement

agreement. We reverse.

     Husband and Wife were married on September 4, 1976 and separated

on June 20, 2009. Husband filed a divorce complaint on November 5, 2009.

Thereafter, in August 2012, the parties appeared before a hearing master to

divide their marital assets, including funds held in Husband’s Kmart

Corporation Employee Pension Plan (pension).      At the hearing, the parties

agreed to equally divide the monthly payment benefit issued from Husband’s

pension and further agreed to incorporate this “equal division” term into

their marital settlement agreement. The record of the hearing contains no

discussion of, or agreement to, a specific monetary sum that Husband or

Wife expected to receive from the pension. Wife later filed exceptions to the
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hearing master’s report and recommendation but did not raise an issue

related to the pension.        The trial court entered a final divorce decree on

December 19, 2012. The decree incorporated the parties’ marital settlement

agreement, including their agreement to divide equally the monthly payment

benefits issued from Husband’s pension.

       A Qualified Domestic Relations Order (QDRO) was subsequently

prepared and executed by Wife, as an alternate payee, on October 29, 2013

and by Husband, as a participant, on November 20, 2013.1               With the

preparation of the QDRO, the parties learned that they each would receive a

monthly payment of $480.52 from Husband’s pension. See QDRO, 12/3/13,

at 2. On November 14, 2013, Wife filed a petition for permanent alimony

seeking an additional monthly payment of $314.50 from Husband.             Wife

claimed that, throughout the proceedings, Appellant misrepresented the

anticipated monthly pension benefit as $788.05 and she came to rely on that

sum in accepting the parties’ marital settlement agreement.             Lengthy

negotiations aimed at resolving the parties’ dispute ensued but, ultimately,

proved unsuccessful. After a hearing, the trial court, on October 20, 2016,

vacated the parties’ divorce decree and modified their marital settlement

agreement by directing Husband to pay Wife an additional $157.25 each


____________________________________________


1 The trial judge entered the QDRO as an order of court on December 3,
2013.




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month.2 The court also determined that it retained continuing jurisdiction to

conduct oversight and enforcement of the parties’ marital settlement

agreement because of Husband’s alleged fraud and the parties’ mutual

mistake of fact.      See Trial Court Opinion, 10/20/16, at 3; see also Trial

Court Opinion, 6/30/17, at 2.

       Husband filed a timely notice of appeal on November 21, 2016. 3 On

May 17, 2017, the trial court directed Husband to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Husband

filed his concise statement on June 2, 2017 and the trial court issued a brief

opinion on June 20, 2017.

       Husband raises two issues in this appeal:

       Did the trial court commit reversible error in opening and
       modifying the [p]arties’ [m]arital [s]ettlement [a]greement and
       opening the [f]inal [d]ivorce [d]ecree and [QDRO] when [Wife]
       failed to file a petition to open said final order within the thirty
       (30) day required time period under 23 Pa.C.S.A. § [3332]?

       Were the [trial c]ourt’s findings offered in support of modifying
       and opening the [f]inal [d]ivorce [d]ecree, [m]arital settlement
       [a]greement, and [QDRO] insufficient and inadequate as a
       matter of law and were said findings supported by the record?
____________________________________________


2 The trial court reasoned that Wife was entitled to an additional monthly
payment of $157.25 because that sum equaled approximately one-half of
the difference between Wife’s reasonable expectation of $788.05 and her
actual pension award, $480.52. See Trial Court Opinion, 10/20/16, at 2-3.

3 Because the 30-day appeal period from the trial court’s October 20, 2016
order ended on Saturday, November 19, 2016, Husband had until Monday,
November 21, 2016 to file his notice. See 1 Pa.C.S.A. § 1908 (computation
of time).



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Husband’s Brief at 6.

      Husband raises two interrelated claims that challenge an order

granting Wife’s petition to vacate the parties’ divorce decree and modify

their marital settlement agreement. Hence, we shall review his claims in a

single discussion. A trial court’s exercise or refusal to exercise its authority

to open, vacate, or strike a divorce decree is reviewable on appeal for an

abuse of discretion. See Ratarsky v. Ratarsky, 557 A.2d 23, 25-27 (Pa.

Super. 1989), affirmed, 581 A.2d 1377 (Pa. 1990).

      Husband’s claims in this appeal center upon the application of 23

Pa.C.S.A. § 3332, which governs a trial court’s authority to open or vacate a

divorce decree. Specifically, Husband points out that because Wife filed her

petition more than 30 days after entry of the parties’ divorce decree,

intrinsic fraud was no longer available as a justification to open or vacate the

decree. Additionally, Husband asserts that Wife failed to establish extrinsic

fraud, or any other basis, that would authorize the trial court to vacate the

divorce decree outside the 30-day period found in § 3332. We agree.

      Section 3332 provides:

      A motion to open a decree of divorce or annulment may be made
      only within the period limited by 42 Pa.C.S.[A] § 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

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        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.

        Section 3332 sets forth clear evidentiary requirements and time

constraints on a court’s authority to open or vacate a divorce decree. “For a

petition to open, the motion must be made within thirty days [of the divorce

decree and allege] intrinsic fraud or new evidence. For a motion to vacate,

the petition must be filed within five years [of the divorce decree] where the

attack is based on extrinsic fraud, lack of jurisdiction over the subject matter

or a fatal defect apparent upon the face of the record.” Fenstermaker v.

Fenstermaker, 502 A.2d 185, 188 (Pa. Super. 1985).              “The intent of

[section 3332 is] to codify the extraordinary circumstances which will

outweigh the interests of the parties and the court in finality, and to delimit

the time periods which within such circumstances must be established.”

Anderson v. Anderson, 544 A.2d 501, 505 (Pa. Super. 1988).

        Here, Wife challenged the marital settlement agreement in a petition

for permanent alimony that she filed on November 14, 2013, approximately

11 months after the entry of the parties’ divorce decree on December 19,

2012.     Since she filed her petition more than 30 days after entry of the

divorce decree, her submission cannot be construed as a timely motion to

open and the question of whether intrinsic fraud existed is moot. See 23



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Pa.C.S.A. § 3332; Ratarsky, 557 A.2d at 25. Thus, the trial court lacked

authority to open the divorce decree because of intrinsic fraud.

       Wife offers alternate grounds in defense of the trial court’s decision to

vacate the parties’ divorce decree and modify their marital settlement

agreement. Specifically, Wife alleges that Husband induced her reliance on

his representations that she would receive $788.05 each month if the parties

agreed to divide equally the pension.          In addition, Wife argues that these

same facts show a mutual mistake of fact that allowed the trial court to alter

the terms of the parties’ marital settlement agreement.4

       This is not a case where extrinsic fraud precluded Wife’s opportunity

for a fair hearing. Even if we assume that Wife relied upon Husband’s

inaccurate information about the value of anticipated pension benefits, these

circumstances would not constitute extrinsic fraud under the Divorce Code.

In Fenstermaker, supra, we explained the distinction between extrinsic

fraud and intrinsic fraud as defined by our Supreme Court in McEvoy v.

Quaker City Cab Co., 110 A. 366, 368 (Pa. 1920):

       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 of
____________________________________________


4 As additional support for her claims, Wife alleges that Husband removed
funds from insurance policies and 401(k) retirement plans. These actions,
however, are wholly unrelated to the relief ordered by the trial court and,
therefore, would not support affirmance even if the claims proved
meritorious. Hence, we shall not consider them further.



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      compromise, or fraudulently keeping him in ignorance of the
      action. Another instance is where an attorney without authority
      pretends to represent a party and corruptly connives at his
      defeat, or where an attorney has been regularly employed and
      corruptly sells out his client's interest. The fraud in such case is
      extrinsic or collateral to the question determined by the court.
      The reason for the rule is that there must be an end to litigation;
      and, where a party has had his day in court and knows what the
      issues are, he must be prepared to meet and expose perjury
      then and there: Pico v. Cohn, [27 P. 537 (Cal. 1891)]. Where
      the alleged perjury relates to a question upon which there was a
      conflict, and it was necessary for the court to determine the
      truth or falsity of the testimony, the fraud is intrinsic and is
      concluded by the judgment, unless there be a showing that the
      jurisdiction of the court has been imposed upon, or that by some
      fraudulent act of the prevailing party the other has been
      deprived of an opportunity for a fair trial. Bleakley v. Barclay,
      [89 P. 906 (Kan. 1907)].

Fenstermaker, 502 A.2d at 188, quoting McEvoy, 110 A. at 368.

      A review of the record reveals that Husband’s actions did not

constitute extrinsic fraud and did not prevent a fair hearing. Wife principally

relies on a document dated October 27, 2011 and entitled, “Kmart Pension

Benefit Calculation Summary.”     According to one of the payment options

listed in the summary, labeled as “100% Joint and Survivor Annuity,” both

Husband and his beneficiary would be entitled to monthly payments equal to

$788.05.   Wife claims that she and her attorney received this document

prior to the parties’ August 2012 hearing and that she relied upon it in

entering the marital settlement agreement at issue.

      The property settlement in question was entered into by the parties

following extensive, counseled negotiations.     At the August 2012 hearing,

Wife agreed to divide equally Husband’s pension benefit.            No specific

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payment was discussed on the record at the hearing and no specific,

anticipated sum was introduced into the record.        Neither Wife nor her

counsel stated that Wife’s agreement to the “equal division” term was

contingent upon her receipt of a specific sum or made in reliance upon the

Kmart calculation summary. Wife also confirmed that she received a full and

complete disclosure of the marital assets available for distribution, that the

agreement constituted a full and final settlement of the parties’ marital

property issues, and that she approved of the terms of the settlement. Wife

does not allege that Husband participated in the preparation of the benefits

summary calculation nor does she assert that Husband harbored doubts

about the accuracy of its prediction of future benefits payments. She also

fails to allege that Husband fraudulently transferred any funds out of his

pension plan, after the summary was prepared, or otherwise manipulated or

diverted part of this asset, thereby causing a reduction of his pension

benefit.

      The record is thus clear that, at the time of the August 2012 hearing

when the marital settlement agreement was reached, Husband made full,

complete, and accurate disclosure of the known facts surrounding his

pension. Moreover, both Wife and her counsel were aware of Wife’s marital

interest in Husband’s pension and the identity of the organization that




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J-A02026-18


administered his account.5        If Wife or her attorney wanted to know more

about Husband’s pension benefit, all they (or a retained actuary or

accountant) needed to do was to contact the administrator of the pension

plan. In the alternative, Wife or her counsel could have demanded a sum

certain as payment from Husband. Neither Wife nor her attorney, however,

saw fit to pursue these options.           Since property settlement negotiations

remain an adversarial process, and counsel has a duty to protect his client's

best interests by fully investigating the extent and nature of marital assets,

we cannot impute fraud onto Husband under the present circumstances.

Accordingly, we conclude that the trial court lacked authority to vacate the

parties’ divorce decree on the basis of extrinsic fraud. See Fenstermaker,

502 A.2d at 188-189.

       Finally, we reject Wife’s claim that an alleged mutual mistake of fact

justified the trial court’s decision to vacate the parties’ divorce decree and

modify their property settlement. Although Wife is correct that we construe

property settlement agreements pursuant to principles of contract law, see,

e.g., Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998) (marital

settlement agreement that is incorporated but not merged into divorce

decree is subject to the law of contracts), that is not the issue we confront in

____________________________________________


5 The calculation summary lists a telephone number for the Kmart Pension
Service and states that revised calculations could be obtained from the
organization.



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this case. Here, we must decide whether Wife made the necessary threshold

showing under § 3332 to trigger the trial court’s authority to open or vacate

the divorce decree and modify the property settlement agreement. As we

stated above, a petition to open that alleges intrinsic fraud or new evidence

must be made within 30 days of the divorce decree. Fenstermaker, 502

A.2d at 188.      A motion to vacate or strike a decree that alleges extrinsic

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

record must be filed within five years of the divorce decree. Id. at 188. Our

prior case law has held that a mutual mistake of fact “is not equivalent to

new evidence that will sustain an attack on the validity of [a] decree” made

within 30 days of entry.6 Holteen v. Holteen, 605 A.2d 1275, 1276 (Pa.

Super. 1992) (failure of marital settlement agreement to predict every

eventuality is no basis for modification).         Moreover, we have declined to

review mutual mistakes of fact as a form of extrinsic fraud.        See id.   For

these reasons, the trial court erred to the extent it relied on a mutual

mistake of fact to revisit the parties’ divorce decree and modify their marital

settlement agreement.

       In sum, Wife could not rely on intrinsic fraud to open the parties’

divorce decree because she filed her petition more than 30 days after the

decree was entered.        In addition, Wife failed to adduce sufficient facts to
____________________________________________


6 Mutual mistake, of course, displaces fraud given the very different mental
states at play in these alternate grounds for opening a divorce decree.



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establish extrinsic fraud for a petition filed within five years of a divorce

decree. Since the trial court lacked authority under § 3332 to open, vacate,

or strike the parties’ divorce decree, Wife’s petition should have been

denied.

     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/2/2018




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