Warner v. Warner

19 Pa. D. & C.4th 378, 1993 Pa. Dist. & Cnty. Dec. LEXIS 170
CourtPennsylvania Court of Common Pleas, Bradford County
DecidedMarch 2, 1993
Docketno. 86 F.C. 000058
StatusPublished

This text of 19 Pa. D. & C.4th 378 (Warner v. Warner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bradford County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warner v. Warner, 19 Pa. D. & C.4th 378, 1993 Pa. Dist. & Cnty. Dec. LEXIS 170 (Pa. Super. Ct. 1993).

Opinion

MOTT, J.,

HISTORY

On October 1,1985, Cynthia Warner, the plaintiff, filed a complaint in divorce against Gerald Warner, the defendant. The first count of the complaint alleged that the marriage of the plaintiff and the defendant was irretrievably broken and sought a decree of divorce pursuant to section 201(c) of the Pennsylvania Divorce Code of 1980. The second count of the complaint alleged that the defendant “offered such indignities to the person of the plaintiff ... as to render her condition intolerable and life burdensome.” Conspicuously absent from the plaintiff’s complaint is any reference to section 201(d) of the old Divorce Code.

On October 25, 1988, more than three years later, the defendant filed two documents with the Bradford County prothonotary. One document was entitled Affidavit of Defendant Gerald Warner Jr., In Re Section 201(d) Divorce. The second document was a praecipe to transmit record requesting that the prothonotary deliver the record to the court for an entry of a divorce decree based on irretrievable breakdown under section 201(d) of the old Divorce Code. There is no indication in the record that the defendant gave notice to the plaintiff of the filing of these two documents.

Without specifying whether it was relying on section 201(c) or section 201(d) of the old Divorce Code, the court, pursuant to the master’s recommendation, issued to the defendant a decree dissolving the marriage on the grounds of irretrievable breakdown. This decree was issued on October 26, 1988. The record does not sat[380]*380isfactorily demonstrate that the plaintiff was ever provided with notice of the entry of this divorce decree.

The plaintiff now seeks to have the divorce decree vacated, arguing that its entry violated Pennsylvania’s laws and Rules of Civil Procedure.

DISCUSSION

The Divorce Code of 1990 provides:

“A motion to open a decree of divorce ... may be made only within [30 days after entry] .... 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 on the face of the record must be made within five years after entry of the final decree....” 23 Pa.C.S. §3332. (emphasis added)

The plaintiff in this case properly seeks that the divorce decree be vacated, and therefore, she is not time-barred under section 3332. When a petition requests relief that would require the consideration of evidence beyond what is already contained in the record, it should be labeled a petition to open. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). Under section 3332, such a petition must be made within 30 days following a judgment. But where a “judgment is being attacked for a matter of record, the proper motion is to strike off or vacate....” Id. The plaintiff has adequately pleaded that the divorce decree was defective because improper procedures precipitated its entry, and she has done so within the five year period allotted by the statute.

[381]*381Although both section 201(c) and section 201(d) of the old Divorce Code

Related

Interiors v. Wall of Fame Management Co.
511 A.2d 761 (Supreme Court of Pennsylvania, 1986)
Consulting Engineers Council v. State Architects Licensure Board
560 A.2d 1375 (Supreme Court of Pennsylvania, 1989)
Fierst v. Commonwealth Land Title Insurance
535 A.2d 196 (Supreme Court of Pennsylvania, 1987)
Nixon v. Nixon
198 A. 154 (Supreme Court of Pennsylvania, 1938)

Cite This Page — Counsel Stack

Bluebook (online)
19 Pa. D. & C.4th 378, 1993 Pa. Dist. & Cnty. Dec. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-warner-pactcomplbradfo-1993.