Holteen v. Holteen
| Decision Date | 22 April 1992 |
| Citation | 413 Pa.Super. 591,605 A.2d 1275 |
| Parties | Edward G. HOLTEEN, Appellant, v. Martha M. HOLTEEN, Appellee. |
| Court | Pennsylvania Superior Court |
Colin M. Hannings, Spring House, for appellant.
Robert C. Gerhard, Jr., Glenside, for appellee.
Before ROWLEY, President Judge, and WIEAND and JOHNSON, JJ.
This appeal is from an order summarily denying a petition to open a final decree in divorce. Finding no error in the trial court's order, we affirm.
Edward G. Holteen and Martha M. Holteen were divorced on December 20, 1989. The divorce decree incorporated the terms of a property settlement agreement entered by the parties.
One of the items to be distributed between the parties was the marital residence. Wife offered an appraisal estimating the value of the residence to be $150,000. Husband offered appraisals of $162,500 and $117,500. Pursuant to the property settlement agreement, husband agreed to convey the home to the wife. On April 4, 1990, six months after entry of the court's decree, wife sold the marital residence for $300,000. Husband learned of the sale on June 6, 1990; and on June 25, 1990, he filed a petition to open the decree on grounds that his agreement to convey the home to the wife was based on a mutual mistake of fact. Wife filed a petition for summary judgment, which the court granted. Husband appealed.
Section 602 of the Divorce Code of 1980, which was in effect when appellant's petition was filed, 1 provided as follows:
A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such 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 because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as 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.
In the instant case, it is clear that the appellant-husband is not claiming extrinsic fraud. He contends only that a mistake was made regarding the value of the marital residence. A motion to open a decree of divorce for such a reason must be made "within thirty days after entry of the decree and not thereafter." See: Ratarsky v. Ratarsky, 383 Pa.Super. 445, 450, 557 A.2d 23, 25 (1989), aff'd, ...
To continue reading
Request your trial
-
Justice v. Justice
...performance cannot be imputed to the appellant and labeled as fraud." Id. at 452, 557 A.2d at 26. See also Holteen v. Holteen, 413 Pa.Super. 591, 605 A.2d 1275 (1992) (mistake regarding value of marital residence does not provide a basis for opening or vacating a decree after 30 days of its......
-
Nykiel v. Heyl
...is obliged to take an appeal from an order that aggrieves the party to be eligible for the granting of relief. See Holteen v. Holteen, 413 Pa.Super. 591, 605 A.2d 1275 (1992),Royal-Globe Ins. Cos. v. Hauck Manufacturing Co., 233 Pa.Super. 248, 335 A.2d 460 2. Although Appellee did not file ......
-
Stockton v. Stockton
...v. Flowers, 417 Pa.Super. 528, 612 A.2d 1064 (1992); Ratarsky v. Ratarsky, 383 Pa.Super. 445, 557 A.2d 23 (1989); Holteen v. Holteen, 413 Pa.Super. 591, 605 A.2d 1275 (1992). This Court has not reviewed previously the specific issue of whether 42 Pa.C.S.A. § 5505 applies to a petition to mo......
-
Bardine v. Bardine
...to new evidence that will sustain an attack on the validity of [a] decree" made within 30 days of entry.6 Holteen v. Holteen , 413 Pa.Super. 591, 605 A.2d 1275, 1276 (1992) (failure of marital settlement agreement to predict every eventuality is no basis for modification). Moreover, we have......