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HomeMy WebLinkAbout92-2810 civil (2)$1NAN KOONT, RESPONDENT V. DEANNA $. SPURLOGK KOONT, PETITIONER IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2810 CIVIL 1992 PETITION TO OPEN OR VACATE AN ORDER OF EQUITABLE DISTRIBUTION ISSUED WITH A DIVORCE DECREE OPINION AND ORDER OF COURT BAYLEY, J., October 26, 1999:-- On July 5, 1994, separate orders were issued (1) divorcing the within parties, Sinan Koont and DeAnna S. Spurlock Koont, and (2) equitably distributing their marital property.1 The economic order was entered on the docket by the Prothonotary on July 6, 1994.2 On July 6, t999, DeAnna S. Spurlock Koont filed a "PETITION TO OPEN OR VACATE ORDER OF EQUITABLE DISTRIBUTION ISSUED JULY 6, 1994 WITH DIVORCE DECREE ISSUED JULY 5, 1994." A Rule to show cause was entered against Sinan Koont on July 6, 1999, which has been answered. Petitioner seeks relief under the Divorce Code at 23 Pa.C.S. Section 3332 titled "Opening or vacating decrees," that 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 where 1 The economic order included an order of alimony of $200 a month, which, on a petition to modify filed by DeAnna S. Spurlock Koont, was just increased to $300 a month by an order, supported by a written opinion, entered on September 24, 1999. 2 DeAnna S. Spurlock Koont filed a direct appeal to the Superior Court of Pennsylvania from the economic order entered on July 5, 1994. The order was affirmed on April 6, 1995. Koont v. Koont, 444 Pa. Super. 692 (1994). 2810 CIVIL 1992 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. (Emphasis added.) The Judicial Code 42 Pa.C.S. Section 5505, titled "Modification of orders," provides: Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed. (Emphasis added.) The within petition contains twelve averments: 1. Falsely represent that his separation of finances in a marital document was an indication of his decision to 'dissolve the family unit.' 2. Falsely claim that 'the parties had no joint bank accounts or credit cards.' After July 1986 and after June 1987 and after December 1987. 3. Falsely claim that wife did not provide 'child support' from October 1988 until July 1992. 4. Falsely claim that between June 1987 and October 1988, wife 'provided money to him' only as she was able and that the Plaintiff paid for all 'big items' to include rent for family's housing. 5. Falsely claim that wife and husband together did not attend Dickinson College faculty events after December 1987. 6. Falsely claim that at December 31, 1997, the Plaintiff had assumed marital debts. 7. Falsely claim that the parties did not separate physically at December 31, 1987, due to the financial situation of the defendant. 8. Falsely represent his intent in drafting and signing Plaintiff's Exhibit 3 and that $500.00 provided the defendant in October of 1988 did not have to be given back to the Plaintiff. 9. During two different hearings present two mutually exclusive -2- 2810 CIVIL 1992 accounts of a calculation of his 'cash/car,' division, one of which is false. 10. Falsely claim that no marital assets were used to purchase the 402 South Pitt Street property. 11. Falsely represent the amount of his financial contribution to elder son's college education. 12. Conceal his dual citizenship, maintained through actions in violation of his Oath of Allegiance to the United States. In Justice v. Justice, 417 Pa. Super. 581 (1992), the Superior Court of Pennsylvania stated: In McEvoy v. Quaker City Cab, 267 Pa. 527, 110 A. 366 (1920), our Supreme Court first distinguished intrinsic fraud from extrinsic fraud. 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 or 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, 91 Cal. 129 [25 P. 970 (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 up, 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, 75 Kansas 462 [89 P. 906 (1907)]. Fenstermaker v. Fenstermaker, 348 Pa. Super. 237, 243, 502 A.2d 185, 188 (1985) quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920). Thus, the Divorce Code makes clear that beyond 30 days, a decree cannot be vacated absent fraud which is collateral to the proceedings. -3- 2810 CIVIL 1992 In Ratarsky v. Ratarsky, 383 Pa. Super. 445 (1989), the Superior Court of Pennsylvania held that the concealing of the value of a martial asset does not amount to i~,,~,,~c fraud. All twelve averments in the within petition to open or vacate the order of equitable distribution constitute allegations of intrinsic fraud. As such, the Judicial Code at 42 Pa.C.S. Section 5505 required that petitioner raise these allegations within thirty days of the entry of the economic order. This petition was filed five years after the entry of the order. Therefore, we will enter the following order without holding a hearing on the merits. ORDER OF COURT AND NOW, this __ Koont to open or vacate an order of equitable distribution issued on July 5, 1994 and ~;~day of October, 1999, the petition of DeAnna S. Spurlock entered on July 6, 1994, IS DISMISSED. Edgar'. "'B agle~,~J'. w --~1/// :saa Carol J. Lindsay, Esquire For Respondent DeAnna S. Spurlock Koont, Pro se 301 West Ridge Street Carlisle, PA 17013 -4-