HomeMy WebLinkAbout2005-1200 Civil
ROBERT E. BINGAMAN, JR., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CIVIL ACTION – LAW
: NO. 05-1200 CIVIL
KELLY M. BINGAMAN, :
Defendant :
IN RE: OPINION PURSUANT TO RULE 1925
BEFORE HESS, J.
Before the court is a motion by the defendant to strike a divorce decree in this case and
reopen the matter. The history of the litigation between the Bingamans, including the
background of this case, is set out in a brief filed by the plaintiff. We reiterate it here.
The present action was initiated by the plaintiff on March 8, 2005, with the filing of a
complaint in divorce. Defendant filed an answer on May 8, 2005, asserting that the marriage
was not irretrievably broken. On March 3, 2006, Master Elicker was appointed and a hearing
was scheduled for March 28, 2007, on plaintiff’s claim for equitable distribution. Prior to the
Master’s hearing, and more than two years after the parties were separated, on March 27, 2007,
defendant filed a motion for marriage counseling and a separate motion for the return of
property. Defendant failed to appear at the scheduled Master’s hearing. Plaintiff filed an answer
alleging that the motions for marriage counseling and for special relief were filed for the purpose
of harassment and unnecessary delay of the proceedings. A pretrial conference was scheduled
for April 4, 2007, before Master Elicker. Defendant, again, failed to appear or participate in the
proceeding. On May 2, 2007, plaintiff filed a motion for sanctions alleging that the defendant
had engaged in a course of conduct designed to harass the plaintiff and cause unnecessary delay
to the legal proceedings. This Court scheduled a hearing on defendant’s motion for marriage
NO. 05-1200 CIVIL
counseling and return of property, and plaintiff’s motion for sanctions. The result of the hearing
was a denial of defendant’s motions, a ruling that the parties’ marriage was irretrievably broken,
and plaintiff’s motion was referred to Master Elicker. Defendant then filed an appeal of this
Court’s order, denying defendant’s motion, with the Superior Court and requested the
proceedings be suspended pending a ruling by the Superior Court. Defendant’s request to stay
the proceedings was denied and her appeal was dismissed as not relating to a final order.
On September 4, 2007, the parties participated in a Master’s hearing and the Master
recommended the parties’ personal property be divided. The Master did not issue an order for
alimony as defendant failed to provide any documentation regarding her income or expenses.
The Master also ordered the payment of plaintiff’s attorney’s fees for her conduct in the divorce
proceedings. No exceptions were filed to the Master’s report and on October 25, 2007, by order,
this Court adopted the recommendations of the Divorce Master. On January 18, 2008, no appeal
to the order of October 25, 2007, having been filed, and no issues remaining, plaintiff filed a
praecipe to transmit the record for final decree in divorce.
On January 23, 2008, the Court entered an order divorcing the parties. The order
indicated that there were no related claims pending to which the court retained jurisdiction. On
March 31, 2008, sixty-eight days after the final decree in divorce, defendant filed a motion to
strike decree and reopen proceedings. Plaintiff filed an answer and oral argument was held on
June 20, 2008.
The time period for filing a motion to open a divorce decree is governed by statute.
Specifically, the motion may be made “only within the period limited by 42 Pa.C.S.A. 5505
(relating to modification of orders) and not thereafter.” 23 Pa.C.S.A. 3332. This period,
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NO. 05-1200 CIVIL
according to 42 Pa.C.S.A. 5505 is thirty days after entry of the order. Once the thirty-day period
expires, an order can only be opened or vacated if there is fraud or some other circumstance “so
grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court.”
Justice v. Justice, 612 A.2d 1354, 1357 (Pa.Super. 1992). While there is no express definition of
extraordinary cause, our courts have held that the failure of counsel to timely assert an alimony
claim does not constitute a basis to open or vacate a divorce decree after the expiration of the
statute. Nor does a general plea to economic justice satisfy the requirements after the expiration
of the thirty-day period. See Melton v. Melton, 831 A.2d 646 (Pa.Super. 2003). Accordingly, we
will not allow the opening of the decree in this case where the motion to vacate came sixty-eight
days after the entry of the divorce decree. We feel that this disposition is particularly apropos in
this case where the litigation has been nothing short of tortured.
October 22, 2008 _______________________
Kevin A. Hess, J.
Joseph D. Caraciolo, Esquire
For the Plaintiff
Vincent Monfredo, Esquire
For the Defendant
:rlm
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