Hassick v. Hassick

695 A.2d 851, 1997 Pa. Super. LEXIS 1405
CourtSuperior Court of Pennsylvania
DecidedJune 12, 1997
StatusPublished
Cited by7 cases

This text of 695 A.2d 851 (Hassick v. Hassick) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hassick v. Hassick, 695 A.2d 851, 1997 Pa. Super. LEXIS 1405 (Pa. Ct. App. 1997).

Opinions

POPOVICH, Judge:

The defendanVappellant (John R. Hassiek) appeals the order of the Court of Common Pleas of Lehigh County awarding the plaintiff/appellee (Emily W. Hassiek) a share of his pension. We reverse.

The record discloses that the parties divorced in 1981. Economic issues were addressed by a Property Settlement Agreement drafted that same year. When the Agreement was written, however, neither party was aware that the appellant had a vested monthly pension in Local 8 of the Bricklayers Union: — a benefit ($83.48) he will be eligible to receive at age 65.1

On July 7, 1995, the appellee filed a Petition for Special Relief alleging that, when the 1981 Agreement was executed, the appellant “wrongfully, intentionally and maliciously” engaged in a course of conduct designed to “defeat [her] claims for equitable distribution of [his pension] property.” To rectify the alleged “fraud”, the appellee sought a preliminary injunction, an accounting and a hearing to assess her entitlement to share in the pension. Hearings were held on October 30 and November 27 of 1995, after which the court granted the appellee 50% of the pension. Until the asset reached pay status, the court imposed a constructive trust. This timely appeal followed and raises two issues for our consideration, the first of which reads:

DOES 23 PA.C.S.A SECTION 3332[,] WHICH PROVIDES FOR A FIVE YEAR STATUTE OF LIMITATIONS UPON WHICH ACTIONS BASED ON FRAUD MAY BE FILED TO OPEN OR VACATE A DIVORCE DECREE [,] BAR APPELLEE’S PETITION FOR SPECIAL RELIEF ... FILED FOURTEEN (14) YEARS AFTER ENTRY OF A DIVORCE DECREE?

There is no argument that 23 Pa.C.S.A. § 3332 provides a statute of limitations restricting the opening or vacating of a divorce decree: Where intrinsic fraud or new evidence attacking the validity of a decree is alleged, a motion to open must be filed within 30 days after the entry of the decree; and, where extrinsic fraud is asserted as a basis to vacate, action must be initiated within 5 years of the entry of the final decree.

In the appellee’s Petition for Special Relief, it was averred that the appellant intentionally concealed the existence of his pension to defraud the appellee of her right to marital assets.2 Regardless of which fraud is [853]*853chosen to define the appellant’s conduct, neither benefits the appellee since the time-lapse between the divorce decree and Petition for Special Relief spans 14 years. This is well beyond the statute of limitations set forth in Section 3332.

The appellee alleges the appellant “fraudulently” withheld pension information while the 1981 Agreement was being negotiated, allowing the divorce decree to be re-opened. The court found the appellant ignorant of the existence of the pension in 1981, which discounted the presence of fraud. Yet, the court read Creeks v. Creeks, 422 Pa.Super. 432, 619 A.2d 754 (1993), Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986) and 23 Pa.C.S.A. § 3505 to avail the appellee the right to a constructive trust of 50% of the appellant’s pension when it reached pay status. We disagree.

Section 3332 of the Divorce Code 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 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 hearing or presentation of one side of the case.

As amended, Act of December 19,1990, P.L. 1240, No. 206, § 2,23 Pa.C.S.A. § 3332.

At bar, fraud was alleged but proof was found wanting by the court. It appears that the parties were mutually mistaken regarding the existence of the pension, which allows a motion to open a decree of divorce to be filed “within thirty days after entry of the decree and not thereafter.” Holteen v. Holteen, 413 Pa.Super. 591, 605 A.2d 1275, 1276 (1992), citing Ratarsky v. Ratarsky, 383 Pa.Super. 445, 557 A.2d 23, 25 (1989), aff'd, 525 Pa. 497, 581 A.2d 1377 (1990). The fact that the Petition was filed 14 years after the entry of the final decree renders it too late. Cf. Wisecup v. Wisecup, 190 Pa.Super. 384, 154 A.2d 332 (1959)(Appellant’s efforts to vacate a divorce decree 16 years after its entry was denied where he possessed information to forestall entry of the decree but took no action; henceforth, relitigation was foreclosed).

While the appellant’s ignorance was extrinsic or collateral to the divorce proceedings, it was not fraud. Justice v. Justice, 417 Pa.Super. 581, 612 A.2d 1354 (1992); Wisecup, supra. And, while a court possesses equitable powers in divorce proceedings, those powers do not allow the court to ignore the limited circumstances set forth in Section 3332 for vacating a final decree — intrinsic or extrinsic fraud, neither of which was proven to exist rendering fatal the appellee’s request for relief. Justice, supra.

To the extent the court looked to Major and Creeks to open the divorce decree, reliance thereon was misplaced. In Creeks, the husband filed an Inventory and Appraisement prior to entering a Marital Settlement Agreement, the former of which did not list marital assets (bank account) and constituted a breach of the “disclosure clause” of the latter rendering the imposition of a constructive trust under the predecessor to 23 Pa. C.S.A. § 3505(d) inappropriate. Neither event existing here renders Creeks inappo-site.

Likewise, in Major the appellant-wife sought to open a divorce decree 7 months after its entry for the husband’s failure to disclose a marital asset (military pension) in [854]*854previous court records. The fact that the appellant failed to assign fraud to the appel-lee’s non-disclosure or file exceptions to the divorce decree did not preclude this Court from imposing a constructive trust on the military pension pursuant to the predecessor to Section 3505(d) of the Divorce Code.

In neither Creeks nor Major, however, was this Court confronted with an allegation of fraud or the passage of such an excessive period of time (14 years) between final decree and petition to open to allow the imposition of a constructive trust. Here, both litigants were represented by counsel during the negotiations preceding divorce.

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Bluebook (online)
695 A.2d 851, 1997 Pa. Super. LEXIS 1405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hassick-v-hassick-pasuperct-1997.