Pritchard v. Pritchard

44 Pa. D. & C.2d 625, 1968 Pa. Dist. & Cnty. Dec. LEXIS 138
CourtCrawford County Court of Quarter Sessions
DecidedFebruary 12, 1968
Docketno. 178; no. 54
StatusPublished

This text of 44 Pa. D. & C.2d 625 (Pritchard v. Pritchard) is published on Counsel Stack Legal Research, covering Crawford County Court of Quarter Sessions primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pritchard v. Pritchard, 44 Pa. D. & C.2d 625, 1968 Pa. Dist. & Cnty. Dec. LEXIS 138 (Pa. Super. Ct. 1968).

Opinion

Thomas, P. J.,

The matter is before the court by virtue of a nonsupport petition seeking a support order from a divorced husband.

Background

The parties were initially married August 10, 1947. They were divorced January 18, 1965, in an action brought by the husband, John E. Pritchard, against his wife, Corinne L. Pritchard, in which he alleged indignities. Approximately four months after the divorce, the parties were remarried on May 28, 1965. The remarriage apparently was unsuccessful as on August 30, 1965, John E. Pritchard again filed a divorce action against his wife again alleging indigni[626]*626ties to the person. An answer was filed, a bill of particulars demanded, and a petition for alimony and counsel fees filed. Apparently, after considerable argument and negotiation between counsel for the parties, the wife, Corinne L. Pritchard, filed a divorce action against her husband on March 18, 1966. On March 31, 1966, the parties entered into an agreement providing for custody of the children, continuance of certain insurance benefits for the children, support payments for their three minor children, and a separate agreement for support for the wife in a fixed amount, payable in monthly installments, for 10 years. Contemporaneously with said agreement, the husband executed an installment promissory note with a confession of judgment clause therein, guaranteeing compliance with the support agreement for the wife.

The agreement was subsequent mutually modified in minor respects which are not material to the decision in this case. A divorce was granted by the court on the complaint of the wife on July 1, 1966. On August 15, 1966, the judgment note executed by the husband was entered as a judgment and execution was issued thereon February 28, 1967. The execution apparently proved fruitless, and although there has been no formal return filed in the prothonotary’s office, we are advised by counsel that no attachable assets of John E. Pritchard could be found pursuant to the execution writ.

On September 28, 1967, when Corinne L. Pritchard and her counsel learned of the pending marriage of defendant scheduled on or about September 30, 1967, they petitioned the court to grant a rule to show cause why the divorce decree should not be opened. This court refused to grant a rule and dismissed the petition for the reasons hereinafter set forth.

[627]*627Issue

Is- a divorced wife, who procured the divorce and who alleges in a nonsupport hearing that a support agreement providing support for herself was based on a fraudulent promise to pay by the husband, entitled to a hearing and support order in quarter sessions court; or, as a corollary thereto, is the divorced wife who procured the divorce entitled to a rule to show cause in common pleas court why the final judgment of divorce Should not be opened and vacated because a collateral support agreement entered into between the parties was done so upon the fraudulent representations of the husband that he would pay the same?

Petitioner filed a nonsupport petition under the provisions of The Pennsylvania Civil Procedural Support Law of July 13, 1953, P. L. 431, sec. 1, PS §2043.-31, et seq., on October 20, 1967. On November 14, 1967, a hearing was held thereon with the court finding that the agreement of the parties dated March 31, 1966, made adequate provision for the children and that the same had been faithfully complied with by the father-defendant. The parties were having minor disagreements regarding visitational rights of the children and an appropriate visitational order was entered. However, the court at the particular time did not have adequate time to conduct a hearing or listen to extensive legal arguments regarding the wife’s right to support and, accordingly, postponed hearing on the divorced wife’s right to support to a later date.

On December 13, 1967, the parties again appeared before the court for the specific purpose of taking testimony with regard to the divorced wife’s contention that she was entitled to a support order in quarter sessions court.

Rather than go into a long and protracted hearing, [628]*628petitioner placed extensive offers of proof on the record with the permission of the court, to which offers defendant made extensive objection, and the court took the matter under advisement as to whether further hearing would be held or the matter ruled on on the basis of the offers made.

Reading the offers of proof in the light most favorable to petitioner, the basis of this action is an attempt by the divorced wife to continue her former husband’s obligation for support to her because of written promises of support set forth in a written agreement of the parties entered into when both were represented by competent counsel prior to the divorce, which promises she contends were fraudulently made on the part of her former husband. This alleged fraud ab initio would be established by statements and conduct of defendant subsequent to the divorce and the fact that he had disposed of his automobile and that other assets were allegedly isolated from execution.1

Petitioner is presenting a new and novel theory in the field of divorce and nonsupport law. Neither counsel for the parties nor our research has turned up an analogous case in Pennsylvania.

The Attack on the Divorce Decree in Common Pleas Court

When petitioner presented a motion in common pleas court on September 28, 1967, for a rule to show cause, asking that the divorce decree be opened, we refused the same, deeming it to be a collateral attack upon a valid divorce decree and, therefore, not amenable to rehearing or retrial on the basis of the reasons set forth in the petition.

“A decree of divorce is a conclusive adjudication of everything involved therein except the jurisdic[629]*629tional facts upon which it is founded, . . Commonwealth, ex rel. McVay v. McVay, 383 Pa. 70, 118 A. 2d 144 (1955).

While fraud may be the basis for setting aside a divorce decree, our courts have strictly limited the type of fraud that will invalidate a divorce decree. Unless a judgment is absolutely void, it cannot be attacked collaterally. If a court which entered a judgment for divorce was vested with jurisdiction to enter said judgment and had jurisdiction over the parties, the judgment can only be attacked by a direct proceeding for .that purpose. See cases cited in Law of Marriage and Divorce in Pennsylvania, Freedman, paragraph 723.

Insofar as invalidating divorce decrees in Pennsylvania on the basis of fraud, our courts have drawn a distinction as to whether the fraud is intrinsic or extrinsic. A complete and detailed discussion of these interesting distinctions may be found in Freedman, supra, paragraph 724.

The general rule is that insofar as intrinsic fraud is concerned, a judgment cannot be attacked after the expiration of the term in which it was entered. Extrinsic fraud, not touching a matter determined at the trial, and indeed constituting a means of collusion to prevent a fair trial, is not concluded by the judgment or the term and may be subject to attack at any subsequent time. A definition of “extrinsic fraud” is set forth in Willetts v. Willetts, 96 Pa. Superior Ct. 198 (1929).

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Bluebook (online)
44 Pa. D. & C.2d 625, 1968 Pa. Dist. & Cnty. Dec. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pritchard-v-pritchard-paqtrsesscrawfo-1968.