HomeMy WebLinkAbout2003-1100 Civil (2)
JAMES A. DiSILVERIO, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
CANDY L. DiSILVERIO, :
Defendant : NO. 03-1100 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a)
OLER, J., June 11, 2007.
In this divorce case, Defendant Candy L. DiSilverio has appealed to the
Pennsylvania Superior Court from an order denying her petition to vacate a divorce
1
decree entered almost four years ago. Plaintiff James A. DiSilverio, her former husband,
2
has long since remarried.
The decree in divorce was entered pursuant to affidavits of mutual consent executed
34
by the parties, on June 24, 2003. Several years later, when Plaintiff decided to stop
making mortgage payments on the house in which the parties’ daughter, the daughter’s
5
family, and Defendant were living, the daughter secured an uncontested adjudication of
incapacity with respect to her mother, was appointed guardian of her mother’s person and
67
estate, and initiated a petition to vacate the 2003 divorce decree. The basis for the
petition to vacate the divorce decree was said to be “extrinsic fraud” on the part of
8
Plaintiff.
1
Notice of Appeal, filed April 5, 2007.
2
Notes of Testimony, Hearing, March 27, 2007, at pg. 39 (hereinafter N.T. __).
3
Affidavits of Consent, filed June 16, 2003.
4
Decree in Divorce, June 24, 2003.
5
N.T. 13, 33.
6
Order of Court, June 29, 2006.
7
Petition to Vacate Decree in Divorce Granted June 24, 2003, filed December 7, 2006.
8
See generally id.; see also, e.g., N.T. 53.
A hearing on the petition to vacate the divorce decree was held on March 27, 2007.
9
Following the hearing, the court took the matter under advisement. Thereafter, by order
10
of court dated March 28, 2007, the court denied Plaintiff’s petition.
11
From this order Defendant filed a notice of appeal on April 5, 2007. The basis for
the appeal has been expressed in Plaintiff’s statement of matters complained of on appeal
as follows:
The trial court erred in denying Ms. DiSilverio’s
motion to vacate a decree in divorce granted June 24, 2003
where Ms. DiSilverio pled and proved adequate facts to
12
require the decree to be vacated under 23 Pa.C.S. § 3332.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Defendant Candy L. DiSilverio is a resident of Cumberland County, Pennsylvania,
13
and resides at 7 Birch Street, Mechanicsburg, with her daughter and guardian, Monica
14
Bohn, and with Ms. Bohn’s husband and her two children. Plaintiff James A.
DiSilverio is a resident of York County, Pennsylvania, residing at 604 Harrisburg Pike,
15
Dillsburg.
16
The parties were married on November 20, 1976. Three children were born of
17
the marriage, two sons and one daughter.
9
N.T. 55.
10
Order of Court, March 28, 2007.
11
Plaintiff’s Notice of Appeal, filed April 5, 2007.
12
Appellant’s Concise Statement of Matter Complained of Pursuant [to] Pa. R.A.P. 1925, filed April 18,
2007.
13
N.T. 23.
14
N.T. 5.
15
N.T. 26.
16
N.T. 40; but see N.T. 27 (initially providing the date of their nuptials was November 1, 1976).
17
See N.T. 39, 47. The sons’ names do not appear of record. See generally N.T. The daughter’s maiden
name was Monica DiSilverio, and her married name is Monica Bohn. N.T. 5, 29.
2
In either 1997 or 1998, Defendant suffered from complications arising out of a gall
1819
bladder surgery, resulting in a condition known as anoxic encephalopathy. As a result
of her condition, doctors advised Plaintiff that Defendant should be placed in a home, and
20
that her prognosis was poor. Plaintiff, however, refused to do so, and, through
Plaintiff’s efforts, Defendant participated in an outpatient program of rehabilitation at the
21
brain injury ward of a facility known as Mechanicsburg Rehabilitation. During this
time, Defendant and Plaintiff lived in the marital home, and Plaintiff assisted with
Defendant’s rehabilitation on a daily basis, teaching her to walk, talk, eat, clean and care
22
for herself in the event that he himself became unable to care for her.
23
However, the marriage was stressed, and, on March 12, 2003, Plaintiff filed a
24
complaint in divorce with this court. The circumstances surrounding the Defendant’s
25
execution of two documents associated with the divorce—an acceptance of service and
26
an affidavit of consent—form the crux of the issue presented by Defendant’s petition to
vacate the decree in divorce.
At the time Plaintiff presented the documents to Defendant for her execution,
Plaintiff was represented by counsel—Steven K. Portko, Esquire, of Dillsburg, York
27
County. Defendant was not represented by counsel at the time she executed the
18
Compare Petition To Vacate Decree in Divorce Granted June 24, 2003, at ¶ 2, filed December 7, 2006
(providing 1997 as the year of the injury), with, e.g., N.T. 6-7. (providing 1998 as the year of the injury).
19
N.T. 6. “Anoxic” is defined as pertaining to “anoxia”, which, in turn, is defined as the absence of
oxygen or the reduction of oxygen to levels below physiological levels. See Dorland’s Illustrated Medical
th
Dictionary 100 (24 ed. 1965). “Encephalopathy” is defined as any degenerative disease of the brain.
See id. at 485.
20
See N.T. 27.
21
See N.T. 27.
22
N.T. 27.
23
See N.T. 30.
24
Hearing, March 27, 2007, Defendant’s Exhibit 2 (hereinafter Def. Exh. __). The ground provided for
the divorce was irretrievable breakdown of the marriage. See id. at ¶8.
25
Entered into the record as Def. Exh. 3.
26
Entered into the record as Def. Exh. 4.
27
N.T. 46.
3
documents; however, she was accompanied in the process by her daughter, Monica Bohn
28
(hereinafter “Ms. Bohn”).
When Plaintiff decided to seek a divorce from Defendant, he discussed the matter
29
with the parties’ daughter, Ms. Bohn, and indicated his willingness to allow Ms. Bohn
to continue to live in the marital residence, along with Ms. Bohn’s family and
30
Defendant. Plaintiff’s then-counsel, who was not present at the time of the execution of
31
the documents, advised Plaintiff to ensure that the divorce process was transparent and
32
to provide for Defendant. Plaintiff also testified that he wanted to ensure that his
daughter knew everything that was transpiring, and that she be satisfied that her father
33
would not “rip anyone off or make it illegal . . . .”
To that end, Plaintiff ensured that Ms. Bohn was present and witnessed
34
Defendant’s signature on each of the two documents. Plaintiff conferred with
Defendant and Ms. Bohn and explained that he was seeking a divorce and what the
3536
documents were. Plaintiff then presented the documents to Defendant to sign.
When asked at the hearing on cross-examination whether he believed Defendant
had the ability to understand the significance of the documents at the time Defendant
executed them, Plaintiff candidly testified that, due to the fact that Defendant retained
some information and not other information, the question was difficult to answer with
37
certainty. When pressed further, Plaintiff testified that he felt that the Defendant did
28
N.T. 10, 29.
29
Monica DiSilverio at that time. N.T. 29.
30
N.T. 15, 29, 31, 47. Plaintiff testified that he acted, in part, out of concern for his two grandchildren,
whom he had been supporting at that time. Id. at 29.
31
N.T. 46-47.
32
See N.T. 28.
33
N.T. 29-30.
34
N.T. 29-30, 46-47.
35
N.T. 47.
36
See N.T. 47.
37
N.T. 47.
4
have a degree of understanding of the documents, and noted that she (and he) had
38
previously entered into a contractual arrangement involving a refinancing agreement.
In March of 2003, Plaintiff left the marital residence, leaving Defendant, her
daughter/caretaker, Ms. Bohn, Ms. Bohn’s two children, as well as Ms. Bohn’s then-
39
boyfriend, at the marital residence. At that time, the residence had an approximate
value of $170,000.00, and had recently undergone a renovation, which included
40
installation of a new furnace. Plaintiff and Defendant were divorced on June 24, 2003,
41
and Plaintiff subsequently remarried.
Before leaving the residence, Plaintiff paid all outstanding utility bills for the home
42
and assumed all the marital debt. Plaintiff also paid the monthly mortgage obligation of
43
approximately $1,300.00, as well as all the utility bills, for the remainder of 2003. In
late 2003, the Plaintiff asked his daughter, Ms. Bohn, to transfer the utilities into her own
44
name, which she did.
Although Plaintiff continued to pay the mortgage obligation until April, 2006,
during that time Plaintiff sought the assistance of Ms. Bohn in meeting the mortgage
4546
obligation. However, Ms. Bohn made only partial and sporadic contributions. In
order to maintain the financial obligations of two residences—the former marital
47
residence and the home he shared with his new wife—Plaintiff secured a second job.
38
N.T. 47-48. The Plaintiff and Defendant entered into the home refinancing agreement/loan following
Defendant’s injuries in order to remodel the home to accommodate Defendant’s condition. See N.T. 36-
37.
39
N.T. 30.
40
N.T. 30-31.
41
Petition to Vacate Decree in Divorce Granted June 24, 2003, at Exhibit D, filed December 7, 2006.
Plaintiff remarried on June 27, 2003. N.T. 39.
42
N.T. 18, 31, 32.
43
N.T. 32.
44
See N.T. 32.
45
N.T. 33.
46
N.T. 34, 44, 51.
47
N.T. 34.
5
Eventually the financial burden became too great, and Plaintiff made his final mortgage
48
payment on March 31, 2006. The next month, in April of 2006, Ms. Bohn filed a
petition with this court which sought to have Defendant adjudicated an incapacitated
49
person, and to have herself named as guardian of Defendant’s person and estate.
Following an uncontested hearing on the matter, Defendant was so adjudicated, and Ms.
Bohn appointed plenary guardian of her person and estate, by order dated June 29,
50
2006.
Before terminating his mortgage payments, Plaintiff learned that Ms. Bohn had
fallen into arrears with the utilities at the home, and that a sheriff’s sale was being
51
threatened. As a possible solution to the precarious financial situation, Plaintiff
proposed a sale of the house, with all proceeds of the sale to go to the Defendant, Ms.
52
Bohn and Ms. Bohn’s children. To that end, Plaintiff met with a realtor to help arrange
the sale of the home, and, as one condition of the sale, Defendant, Ms. Bohn, as well as
Ms. Bohn’s husband and children, were to remain in possession until suitable
53
replacement housing was procured. Ms. Bohn rejected this proposal, claiming that it
54
amounted to an attempt by Plaintiff to “sell[] the house [from] underneath her.”
Plaintiff’s relationship with his daughter, which had generally been good, became
55
strained and acrimonious when Plaintiff stopped making the mortgage payments.
48
N.T. 43.
49
N.T. 33; see also Def. Exh. 1.
50
N.T. 6; see also Def. Exh. 1.
51
N.T. 33. An official from the Cumberland County Sheriff’s Office visited Plaintiff’s new residence and
informed him that his former marital residence would be sold at a sheriff’s sale due to an outstanding
sewer service bill. Id. At the time of the hearing, the outstanding sewer service bill amounted to
approximately $6,500.00. Id. at 19.
52
N.T. 33, 45. At some point, Plaintiff also offered to transfer the house to Monica Bohn in exchange for
her assumption of the mortgage obligation. N.T. 35. This did not occur.
53
See N.T. 44-45. At that time, the unpaid sewage obligation stood at $3,000.00, with legal action being
threatened to satisfy the debt. See id. at 45.
54
N.T. 33.
55
N.T. 37-38.
6
Plaintiff, having recognized that Ms. Bohn could not afford the financial obligation
associated with the house, again proposed a sale of the house at a meeting with Ms.
56
Bohn’s attorney; however, this proposal was likewise rejected. Defendant, through her
guardian Ms. Bohn, thereafter filed the aforesaid petition to vacate her divorce decree on
57
December 7, 2006, asserting that the decree was the product of extrinsic fraud. At the
time of the hearing on the petition, the house was in foreclosure due to the outstanding
58
mortgage obligation. Additionally, utility bills for electric, heat and sewer services
59
were in arrears.
60
Defendant has monthly income of $429.00 per month from Social Security. Ms.
Bohn, who was unemployed at the time of the divorce, is now employed at an
6162
establishment named Fire Mountain. Her earnings do not appear of record.
Plaintiff has been employed by the United States Postal Service since 1990, and
63
earns approximately $23.00 per hour. Plaintiff also receives a monthly Veterans
64
Administration pension of approximately $1,362.00. Plaintiff’s assets also include a
56
N.T. 38.
57
See generally Petition to Vacate Decree in Divorce Granted June 24, 2003, filed December 7, 2006.
Although the original petition does not expressly state “extrinsic fraud”, the Defendant also filed an
Addendum to Petition to Vacate Decree in Divorce Granted June 24, 2003 Filed on December 7, 2006,
filed January 31, 2007, which expressly provided that the divorce was procured through extrinsic fraud.
See Addendum to Petition to Vacate Decree in Divorce Granted June 24, 2003, at ¶¶ 2-3, filed January
31, 2007.
Plaintiff thereafter filed a motion to strike the addendum. See Motion to Strike Pursuant to Pa.
R.C.P. 1028(a)(2) For Failure to Conform to Pa. R.C.P. 1026 and 1033, filed March 21, 2007. At a
conference held in chambers with counsel prior to the March 27, 2007 hearing, counsel for both parties
stipulated that the issue of extrinsic fraud was sufficiently raised in the initial petition and that the
addendum was superfluous. N.T. 4. Therefore, the addendum was stricken by the court at the
commencement of the hearing. Order of Court, March 27, 2007; see also N.T. 4-5.
58
N.T. 20.
59
N.T. 18.
60
N.T. 13, 50.
61
N.T. 15.
62
See generally N.T. The employment or earnings of Ms. Bohn’s husband, Mr. Bohn, were not made of
record. Id.
63
N.T. 40-41.
64
N.T. 42.
7
pension through his Postal Service employment, which is of an unknown amount, and
65
which is not presently in payout status. Plaintiff reported approximately $62,000.00 in
66
earnings for tax year 2006.
DISCUSSION
Statement of law. Section 3332 of the Domestic Relations Code provides as
follows with respect to the opening or vacating of a decree in divorce:
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) [30 days] 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.
Act of December 19, 1990, P.L. 1240, 23 Pa. C.S. § 3332 (emphasis added).
Section 3332 of the Divorce Code represents a codification of the inherent historic
equitable powers of Pennsylvania Common Pleas Courts to open or vacate a decree in
divorce. See, e.g., Allen v. MacLellan, 12 Pa. 328 (1849). Section 3332 also represents a
limitation on the courts’ traditionally broad equitable powers, whereby, prior to the
67
section’s promulgation, a decree in divorce could be opened based upon any equitable
ground deemed sufficient. See, e.g., Contakos v. Contakos, 204 Pa. Super. 445, 205 A.2d
619, 621 (Pa. Super. Ct. 1964) (pre-Divorce Code case providing equitable nature of
petition to open decree in divorce and providing only that equitable considerations must
form the basis of the inquiry)).
However, following the enactment of Section 3332, courts may now open a decree
within 30 days of its entry, and, as a basis therefor, may cite only two grounds—either
65
N.T. 41-42.
66
N.T. 41.
67
Current Section 3332 was originally designated as Section 602 of the Divorce Code of 1980. Act of
April 2, 1980, P.L. 63, 23 Pa. C.S. § 602 (presently 23 Pa. C.S. § 3332).
8
intrinsic fraud, or newly discovered evidence. See 23 Pa. C.S. § 3332. On the other
hand, courts may vacate a decree in divorce within five years of its entry for one of three
reasons—extrinsic fraud, lack of subject matter jurisdiction or a fatal defect appearing on
68
the face of the record. See 23 Pa. C.S. § 3332.
A divorce decree is presumptively valid. Tanis v. Tanis, 206 Pa. Super. 213, 213
A.2d 102, 105 (Pa. Super. Ct. 1965) (citing Magistro v. Magistro, 182 Pa. Super. 487,
127 A.2d 758, 759 (Pa. Super. Ct. 1956)). The burden of persuasion is on the petitioner
to overcome the presumption. See Foley v. Foley, 392 Pa. Super. 9, 572 A.2d 6, 9 (Pa.
Super Ct. 1990). Extrinsic fraud must be “clearly established.” See Wisor v. Wisor, 175
Pa. Super. 233, 240, 103 A.2d 498, 502 (Pa. Super. Ct. 1954).
Intrinsic fraud, which can not be the basis for relief in the form of an order
opening a divorce decree more than thirty days after its entry, is described by Section
3332 as relating to “a matter adjudicated by the judgment, including perjury and false
testimony . . . .” 23 Pa. C.S. § 3332. Pennsylvania courts have held the following to be
circumstances constituting intrinsic fraud:
-the giving of allegedly false testimony regarding alleged desertion at hearing
for divorce, Contakos v. Contakos, 204 Pa. Super. 445, 205 A.2d 619, 621
(Pa. Super. Ct. 1964);
-perjured testimony at a hearing for divorce regarding alleged indignities,
McLaughlin v. McLaughlin, 199 Pa. Super. 53, 184 A.2d 130, 132
(Pa. Super. Ct. 1962);
-a wife’s alleged deception of her former husband regarding his paternity of a
child in the context of a divorce decree entered by consent, passim Lory v.
Lory, 33 Pa. D & C.3d 138 (Allegheny Cnty. 1983).
Extrinsic fraud—which can form the basis of a petition to vacate a decree in divorce
up to five years following its entry—is defined in Section 3332 as fraud which “relates to
68
The distinction between a petition to open a decree in divorce and a petition to vacate a decree was
described by the Pennsylvania Supreme Court in Nixon v. Nixon, 329 Pa. 256, 198 A. 154, 158 (1938).
See also Wisecup v. Wisecup, 190 Pa. Super. 384, 154 A.2d 332, 334 (Pa. Super Ct. 1959) (quoting Nixon
v. Nixon, supra). When words have distinct legal meanings and significance, the Legislature is presumed
to use those words for their precise legal meaning. 1 Pa. C.S. § 1903; see also McGinness v.
Unemployment Compensation Bd. of Review, 177 Pa. Super. 104, 110 A.2d 918 (Pa. Super. Ct. 1955).
9
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. The following
examples of extrinsic fraud help to elucidate the distinction between intrinsic and
extrinsic fraud:
-intentional misrepresentations regarding the potential for settlement
while filing for and receiving a divorce decree, and, thereafter,
dissuading appeal by additional promises of settlement, Fenstermaker
v. Fenstermaker, 348 Pa. Super. 237, 502 A.2d 185, 190 (Pa. Super.
Ct. 1985);
-coercion of one party by the other to relinquish economic claims,
Justice v. Justice, 417 Pa. Super. 581, 612 A.2d 1354, 1359 (Pa. Super.
Ct. 1992) (citing Foley v. Foley, 392 Pa. Super. 9, 572 A.2d 6 (Pa.
Super. Ct. 1990);
)
-fraudulently assuming a residence to establish jurisdiction,
McLaughlin v. McLaughlin, 199 Pa. Super. 53, 184 A.2d 130, 132 (Pa.
Super. Ct. 1962) (citing Wisor v. Wisor, 175 Pa. Super. 233, 103 A.2d
498 (Pa. Super. Ct. 1954);Cortese v. Cortese, 163 Pa. Super. 553, 63
A.2d 420 (Pa. Super. Ct. 1949));
-purposefully keeping the other party ignorant of a divorce proceeding,
Cortese v. Cortese, 163 Pa. Super. 553, 63 A.2d 420, 421 (Pa. Super.
Ct. 1949) (citing Walton v. Walton, 84 Pa. Super. 366 (Pa. Super. Ct.
1924); Willetts v. Willetts, 96 Pa. Super. 198 (Pa. Super Ct. 1929);
Estok v. Estok, 102 Pa. Super. 604, 157 A. 356 (Pa. Super. Ct. 1931);
Carey v. Carey, 121 Pa. Super. 251, 183 A. 371 (Pa. Super. Ct. 1936)).
“When assessing whether the movant has proven the existence of extrinsic fraud, [a
court must] focus[] on the actions taken by the prevailing party.” Justice v. Justice, 612
A.2d at 1359.
Application of law to facts. In the instant case, Defendant, through her
daughter/guardian, Ms. Bohn, filed the petition to vacate approximately 48 months
following the entry of the Decree. Therefore, Defendant was required to plead and prove
extrinsic fraud in order to be afforded relief. See, e.g., 23 Pa. C.S. § 3332. Based upon
Likewise, the Legislature is presumed to act with knowledge of the common law as it stands at the time of
the enactment of a statute. See 1 Pa. C.S. § 1922(4).
10
the totality of the credible evidence presented at the hearing, the court found that the
Defendant failed to meet her burden to prove fraud, either intrinsic or extrinsic.
At the time Plaintiff initially broached the subject of a divorce with Defendant,
Plaintiff, his wife (Defendant), Defendant’s daughter/future guardian, et al., all resided in
the marital home. The daughter agreed to remain in the marital home. Plaintiff assumed
all the marital debt, relinquished possession of the principal marital assets, i.e., the home
and its contents, and satisfied all outstanding utility bills.
The testimony tended to establish that, although Defendant was not represented by
counsel throughout the divorce, she was assisted in the process by her daughter, Ms.
Bohn. The evidence further tended to show that, at the time of Defendant’s execution of
the two documents at issue (acceptance of service and affidavit of consent), Ms. Bohn
was in attendance when the Plaintiff explained the documents to the Defendant, and was
likewise present when Defendant executed the documents. At that time, Defendant’s
daughter failed to raise any concern regarding her mother’s ability to appreciate the
nature and significance of the documents.
It was only upon Plaintiff’s inability to continue to satisfy the monthly mortgage
obligation on the former marital residence—some three years later—that Ms. Bohn
sought to have her mother adjudicated an incapacitated person and to be named her
guardian, and thereafter to petition to vacate the decree based upon extrinsic fraud. The
court cannot help but view the temporal proximity of the circumstances with a degree of
skepticism.
Moreover, when Plaintiff sought his wife’s consent to the divorce, Plaintiff acted on
advice of counsel, who instructed Plaintiff to make everyone aware of the process and to
provide for his wife. For three years Plaintiff paid the mortgage on the former marital
residence, and secured a second job when this financial burden proved too great. Ms.
Bohn’s own family’s financial contributions to the home they shared with Defendant
were sporadic and generally meager.
Upon the realization that Ms. Bohn had fallen into arrears for sewer service to the
extent that a sheriff’s sale was being threatened, Plaintiff suggested that the home be sold
11
and the proceeds utilized for Defendant’s benefit, as well as the benefit of Ms. Bohn and
her family. This proposal was rejected by Ms. Bohn. Plaintiff also asked Ms. Bohn to
assume the mortgage in exchange for title to the property. This too was rejected.
While the court is sympathetic to the unfortunate financial situation faced by
Defendant, the present situation is, in the court’s view, the product of improvidence
rather than of fraud. The refusal of Defendant’s guardian to agree to a sale of the home
and to secure an affordable alternative living arrangement is the root cause of the instant
crisis, not misrepresentation, deceit or concealment on the part of Plaintiff.
In sum, the following facts militate against a finding of fraud: (a) Plaintiff acted in
good faith and with the advice of counsel; (b) Defendant’s adjudication of incapacity did
not occur until three years later; (c) Defendant’s daughter, Ms. Bohn, was in attendance
when the documents were explained and executed; (d) Defendant’s daughter, who now
complains of the divorce, assisted Defendant throughout the divorce process; and (e) Ms.
Bohn did not choose to question the decree until the home that she and her family shared
was in jeopardy.
Even assuming arguendo that a fraud was committed, the court is of the view that
the alleged fraud would be more akin to intrinsic than to extrinsic fraud, thereby further
precluding relief. See 23 Pa. C.S. § 3332. The submission of an acceptance of service
and affidavit of consent in a divorce case, properly executed by the signatory, in the
69
absence of either fraud in the factum or in the inducement, but allegedly voidable due to
deficiencies of comprehension on the part of the signatory, is at best analogous to the
provision of inaccurate testimony in support of a claim. False testimony and perjury are
expressly given in Section 3332 as examples of intrinsic fraud. See 23 Pa. C.S. § 3332;
see also Contakos v. Contakos, 205 A.2d at 621; McLaughlin v. McLaughlin, 184 A.2d at
132.
The alleged actions, if true, would also be analogous to a wife’s fraudulent
concealment of the paternity of a child from her husband when securing a divorce by
69
See Gasper v. Ciao, 521 Pa. 491, 556 A.2d 819 (1989).
12
consent, which has also been determined to constitute intrinsic fraud. See Lory v. Lory,
33 Pa. D & C.3d 138. In short, the salient elements of extrinsic fraud do not, in the
court’s view, appear in this record.
Again, assuming Defendant’s allegations as true, no evidence was presented that
Plaintiff lied to Defendant regarding what the documents were, or even about his desire
to seek a divorce. See Fenstermaker v. Fenstermaker, 502 A.2d at 190 (providing that
continued misrepresentations regarding potential settlement to dissuade appeal of divorce
represents extrinsic fraud). Similarly, there was no evidence that Plaintiff coerced
Defendant into signing the documents. See Justice v. Justice, 612 A.2d at 1359 (coercion
to secure relinquishment of economic rights is extrinsic fraud).
Further, in this case, jurisdiction was not secured through a misrepresentation of
residence. See McLaughlin v. McLaughlin, 184 A.2d at 132 (citing Wisor v. Wisor, 175
Pa. Super. 233, 103 A.2d 498 (Pa. Super. Ct. 1954);Cortese v. Cortese, 163 Pa. Super.
553, 63 A.2d 420 (Pa. Super. Ct. 1949)). Finally, no evidence was presented which
established that Plaintiff attempted to keep Defendant ignorant of the divorce proceeding,
so as to prevent her exercising her rights in the court. See Cortese v. Cortese, 63 A.2d at
421 ((citing Walton v. Walton, 84 Pa. Super. 366 (Pa. Super. Ct. 1924); Willetts v.
Willetts, 96 Pa. Super. 198 (Pa. Super Ct. 1929); Estok v. Estok, 102 Pa. Super. 604, 157
A. 356 (Pa. Super. Ct. 1931); Carey v. Carey, 121 Pa. Super. 251, 183 A. 371 (Pa. Super.
Ct. 1936)).
Based upon the evidence presented at the hearing, the court was of the opinion that
Defendant failed to meet her burden of establishing that a fraud had occurred, and, more
particularly, that an extrinsic fraud had occurred.
BY THE COURT,
______________________
J. Wesley Oler, Jr., J.
13
Jaime D. Wassmer, Esquire
Robinson & Geraldo, P.C.
4407 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Mark F. Bayley, Esquire
Bayley & Mangan
57 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant
14