J-A14029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONNA J. BARNHART : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN L. BARNHART : : Appellant : No. 1472 WDA 2019
Appeal from the Order Entered August 28, 2019 In the Court of Common Pleas of Cambria County Civil Division at No(s): No. 2005-3380
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 24, 2020
Jonathan L. Barnhart (“Husband”) appeals pro se from the order denying
his motion to vacate a divorce decree. Husband argues the trial court abused
its discretion in denying his motion because his right to due process was
violated due to judicial misconduct. We affirm.
Donna Barnhart (“Wife”) originally filed for divorce from Husband in
2005; the couple had three minor children. A master was appointed to hear
matters of both divorce and custody in 2006. In 2011, Husband filed a
“Petition for Extraordinary Jurisdiction in the [Pennsylvania] Supreme Court,”
which was declined. Cambria County Judge Leahey entered a divorce decree
on January 11, 2012, which incorporated the Master’s Report and
Recommendation. Husband filed a timely appeal to this Court, which we
quashed because outstanding issues remained and the trial court had not
provided a detailed explanation of its consideration of the equitable J-A14029-20
distribution factors. Barnhart v. Barnhart, 68 A.3d 354 (Pa.Super. 2013)
(Table) (unpublished memorandum).
Meanwhile, during the pendency of the instant case, Husband had a child
with another woman and became involved in another custody case (“Second
Case”). In February 2012, Husband filed a motion to recuse Judge Leahey
from the Second Case. Following a hearing, Judge Leahey issued an order
stating that he found Husband’s allegations against him to be “outrageous and
preposterous.” Statement and Order of Senior Judge Leahey, dated 4/11/12.
Nevertheless, he found that due to Husband’s “offensive” allegations, he
would no longer be able to be impartial and he recused himself from the case.
Id. Judge Timothy P. Creany replaced him in both the Second Case and the
instant divorce.
Thereafter, Judge Creany entered the divorce decree instantly at issue
on July 23, 2014 (“Divorce Decree”). Husband appealed and this Court
affirmed. Barnhart v. Barnhart, No. 1378 WDA 2014 (Pa.Super. filed Nov.
13, 2015) (unpublished memorandum). One of Husband’s issues was Judge
Creany’s alleged bias/misconduct. This Court found the issue waived due to
lack of development, but nonetheless addressed it on the merits in a footnote
and rejected it. The Court stated, “[o]ur review of the excerpts [of the
transcripts] cited by Husband reflect no bias or ill-will by Judge Creany.
However, such excerpts reflect a grave disrespect for the tribunal by
Husband.” Id. at 2 n.6.
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Meanwhile, in the Second Case, Husband filed a motion in November
2012, seeking the recusal of not only Judge Creany but also the entire Cambria
County bench due to “misconduct.” Judge Creany denied the motion. On
appeal from a final custody order, we addressed the recusal motions, stating,
“[Husband] appears to have a distrust in the judges of . . . Cambria County. .
. . Thus, we direct the trial court to determine whether this case would be
better served to be heard by an out-of-county trial judge.” J.L.B. v. S.A.T.,
No. 395 WDA 2014, at 5 n.4 (Pa.Super. 2014) (unpublished memorandum).
On remand, Husband filed yet another motion to recuse Judge Creany and the
Cambria County bench, but the motion was denied as an out-of-county senior
judge, Judge Leete, had already been appointed.
Subsequently, in the instant divorce case, Husband filed yet another
emergency motion with our Supreme Court, this time asking the Court to
require Judge Leete to recuse. The Supreme Court denied the motion, and
Husband filed the subject petition to vacate the 2014 Divorce Decree. The trial
court denied Husband’s petition. This timely appeal followed and both the trial
court and Husband complied with Pa.R.A.P. 1925.
Husband raises the following issues:
1. Did the trial court err as a matter of law and deny [Husband] his right to due process?
2. Did the trial court error and deny [Husband] the right to a speedy and fair decision at a reasonable cost?
3. Did the trial court show bias against [Husband]?
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4. Did the trial court fail to self-police?
5. Is [Husband] entitled to costs and other damages?
Husband’s Br. at 5-6 (suggested answers omitted).
In his first and third issues, Husband presents the overarching argument
that his due process rights were violated because Judge Creany “was not an
impartial jurist as a matter of law” when he issued the divorce decree. Id. at
21. He claims that Judge Creany evidenced bias against him by defending
Judge Leahey’s alleged misconduct, ignoring the best interests of Husband’s
children by appointing hearing officers during his custody case, causing delay
by allegedly not signing the divorce decree promptly, and failing in matters
regarding the preparation of the certified record. Husband maintains that this
Court’s footnote in his Second Case established Judge Creany’s misconduct as
a matter of law by noting Husband’s distrust of the Cambria County bar and
directing the trial court “to determine whether this case would be better served
to be heard by an out-of-county trial judge.” Id. at 9-10. To this end, Husband
likens his case to Slusser v. Laputka, Bayless, Ecker and Cohn, 9 A.3d
1200, 1206-07 (Pa.Super. 2010).
We review an order denying a motion to open or vacate a divorce decree
for an abuse of discretion. Danz v. Danz, 947 A.2d 750, 752 (Pa.Super. 2008)
(citing Egan v. Egan, 759 A.2d 405, 407 (Pa.Super. 2000)). Section 3332 of
the Domestic Relations Code governs motions to open or vacate divorce
decrees and provides:
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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 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 (emphasis added).
In this context, “‘extrinsic or collateral fraud’” refers to “conduct of the
prevailing party which has prevented a fair submission of the controversy.”
Justice v. Justice, 612 A.2d 1354, 1358 (Pa.Super. 1992) (citation omitted).
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J-A14029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONNA J. BARNHART : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN L. BARNHART : : Appellant : No. 1472 WDA 2019
Appeal from the Order Entered August 28, 2019 In the Court of Common Pleas of Cambria County Civil Division at No(s): No. 2005-3380
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 24, 2020
Jonathan L. Barnhart (“Husband”) appeals pro se from the order denying
his motion to vacate a divorce decree. Husband argues the trial court abused
its discretion in denying his motion because his right to due process was
violated due to judicial misconduct. We affirm.
Donna Barnhart (“Wife”) originally filed for divorce from Husband in
2005; the couple had three minor children. A master was appointed to hear
matters of both divorce and custody in 2006. In 2011, Husband filed a
“Petition for Extraordinary Jurisdiction in the [Pennsylvania] Supreme Court,”
which was declined. Cambria County Judge Leahey entered a divorce decree
on January 11, 2012, which incorporated the Master’s Report and
Recommendation. Husband filed a timely appeal to this Court, which we
quashed because outstanding issues remained and the trial court had not
provided a detailed explanation of its consideration of the equitable J-A14029-20
distribution factors. Barnhart v. Barnhart, 68 A.3d 354 (Pa.Super. 2013)
(Table) (unpublished memorandum).
Meanwhile, during the pendency of the instant case, Husband had a child
with another woman and became involved in another custody case (“Second
Case”). In February 2012, Husband filed a motion to recuse Judge Leahey
from the Second Case. Following a hearing, Judge Leahey issued an order
stating that he found Husband’s allegations against him to be “outrageous and
preposterous.” Statement and Order of Senior Judge Leahey, dated 4/11/12.
Nevertheless, he found that due to Husband’s “offensive” allegations, he
would no longer be able to be impartial and he recused himself from the case.
Id. Judge Timothy P. Creany replaced him in both the Second Case and the
instant divorce.
Thereafter, Judge Creany entered the divorce decree instantly at issue
on July 23, 2014 (“Divorce Decree”). Husband appealed and this Court
affirmed. Barnhart v. Barnhart, No. 1378 WDA 2014 (Pa.Super. filed Nov.
13, 2015) (unpublished memorandum). One of Husband’s issues was Judge
Creany’s alleged bias/misconduct. This Court found the issue waived due to
lack of development, but nonetheless addressed it on the merits in a footnote
and rejected it. The Court stated, “[o]ur review of the excerpts [of the
transcripts] cited by Husband reflect no bias or ill-will by Judge Creany.
However, such excerpts reflect a grave disrespect for the tribunal by
Husband.” Id. at 2 n.6.
-2- J-A14029-20
Meanwhile, in the Second Case, Husband filed a motion in November
2012, seeking the recusal of not only Judge Creany but also the entire Cambria
County bench due to “misconduct.” Judge Creany denied the motion. On
appeal from a final custody order, we addressed the recusal motions, stating,
“[Husband] appears to have a distrust in the judges of . . . Cambria County. .
. . Thus, we direct the trial court to determine whether this case would be
better served to be heard by an out-of-county trial judge.” J.L.B. v. S.A.T.,
No. 395 WDA 2014, at 5 n.4 (Pa.Super. 2014) (unpublished memorandum).
On remand, Husband filed yet another motion to recuse Judge Creany and the
Cambria County bench, but the motion was denied as an out-of-county senior
judge, Judge Leete, had already been appointed.
Subsequently, in the instant divorce case, Husband filed yet another
emergency motion with our Supreme Court, this time asking the Court to
require Judge Leete to recuse. The Supreme Court denied the motion, and
Husband filed the subject petition to vacate the 2014 Divorce Decree. The trial
court denied Husband’s petition. This timely appeal followed and both the trial
court and Husband complied with Pa.R.A.P. 1925.
Husband raises the following issues:
1. Did the trial court err as a matter of law and deny [Husband] his right to due process?
2. Did the trial court error and deny [Husband] the right to a speedy and fair decision at a reasonable cost?
3. Did the trial court show bias against [Husband]?
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4. Did the trial court fail to self-police?
5. Is [Husband] entitled to costs and other damages?
Husband’s Br. at 5-6 (suggested answers omitted).
In his first and third issues, Husband presents the overarching argument
that his due process rights were violated because Judge Creany “was not an
impartial jurist as a matter of law” when he issued the divorce decree. Id. at
21. He claims that Judge Creany evidenced bias against him by defending
Judge Leahey’s alleged misconduct, ignoring the best interests of Husband’s
children by appointing hearing officers during his custody case, causing delay
by allegedly not signing the divorce decree promptly, and failing in matters
regarding the preparation of the certified record. Husband maintains that this
Court’s footnote in his Second Case established Judge Creany’s misconduct as
a matter of law by noting Husband’s distrust of the Cambria County bar and
directing the trial court “to determine whether this case would be better served
to be heard by an out-of-county trial judge.” Id. at 9-10. To this end, Husband
likens his case to Slusser v. Laputka, Bayless, Ecker and Cohn, 9 A.3d
1200, 1206-07 (Pa.Super. 2010).
We review an order denying a motion to open or vacate a divorce decree
for an abuse of discretion. Danz v. Danz, 947 A.2d 750, 752 (Pa.Super. 2008)
(citing Egan v. Egan, 759 A.2d 405, 407 (Pa.Super. 2000)). Section 3332 of
the Domestic Relations Code governs motions to open or vacate divorce
decrees and provides:
-4- J-A14029-20
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 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 (emphasis added).
In this context, “‘extrinsic or collateral fraud’” refers to “conduct of the
prevailing party which has prevented a fair submission of the controversy.”
Justice v. Justice, 612 A.2d 1354, 1358 (Pa.Super. 1992) (citation omitted).
“The fraud in such case is extrinsic or collateral to the question determined by
the court.” Id.
The trial court concluded that Husband’s allegations do not constitute
“extrinsic fraud” necessitating that the Divorce Decree be vacated. See
Pa.R.A.P. 1925(a) Opinion, 11/18/19, at 1-2. We agree. Husband presents no
evidence whatsoever that Judge Creany was not an impartial jurist at the time
he issued the Divorce Decree. Husband’s citation to the footnote in this Court’s
decision in the Second Case is inapposite, as it did not find Judge Creany to
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be biased or partial, or require Judge Creany to recuse from matters regarding
Husband.
Moreover, Slusser is easily distinguishable. There, an improper criminal
relationship between the presiding Judge and an attorney participating in the
case had been judicially determined in another case. There, despite being
asked about it a trial, the presiding Judge declined to reveal the relationship.
Thus, our Court concluded that vacating the judgment at issue was
appropriate. Here, Husband has not presented any evidence that Judge
Creany labored under any bias or partiality at the time he entered the Divorce
Decree. Nor was his judicial integrity undermined by any specific judicial
finding. Contrary to Husband’s arguments, this Court’s footnote in the Second
Case does not constitute such a finding as we merely noted Husband’s ongoing
distrust of the Cambria County Bar. Accordingly, Slusser is instantly
inapposite and we conclude that Husband’s first and third issues are devoid of
merit.1
In his second and forth issues, Husband presents claims that are not
cognizable under Section 3332. In his second issue, Husband asserts that the
____________________________________________
1 To the extent Husband also argues that the trial court abused its discretion by failing to conduct a hearing regarding his instant petition, we find the claim waived. Husband fails to develop the issue by citing to pertinent legal authority regarding any requirement for a hearing in the instant context nor does he specify what additional evidence he was precluded from presenting. See Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015) (“the failure to develop an adequate argument in an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119”) (citation omitted); Pa.R.A.P. 2119(a).
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trial court generally erred in failing to provide him with a speedy divorce. He
contends that Wife was the beneficiary of this delay due to the alimony
pendente lite she was able to collect over the course of the divorce
proceedings. In his fourth issue, Husband makes the vague claim that both
judges and attorneys failed to “self-report” misconduct “replete” in the record
of both the instant matter and in his custody cases. Husband fails to explain
how his contentions constitute intrinsic or extrinsic fraud, or a fatal defect on
the face of the record, such as would require the trial court to grant his
petition. Thus, Husband’s second and forth issues warrant no relief.
In his final claim, Husband seeks attorney fees and costs “due to [Wife’s]
dilatory, obdurate, and vexatious conduct.” Husband’s Br. at 54; See
Pa.R.A.P. 2744. Husband has not identified any actions whatsoever on the
part of Wife that would constitute such conduct, and we see none. We thus
deny the request.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/24/2020
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