Justice v. Justice

• Decision Date: 28 September 1992
• Citation: 612 A.2d 1354,417 Pa.Super. 581
• Parties: Ronald Elwood JUSTICE v. Bonita Jean JUSTICE, Appellant.
• Court: Pennsylvania Superior Court

Page 1354

612 A.2d 1354

417 Pa.Super. 581

Ronald Elwood JUSTICE v. Bonita Jean JUSTICE, Appellant.

Superior Court of Pennsylvania.

Argued May 19, 1992.

Filed July 24, 1992.

Reargument Denied Sept. 28, 1992.

Gretchen S. Reed, Beaver, for appellant.

Barris Siegel, Rochester, for appellee.

Before MONTEMURO, HESTER and BROSKY JJ.

OPINION PER CURIAM:

This appeal concerns the trial court's authority to vacate a final divorce decree. The sole issue raised on appeal is whether the trial court had the authority to vacate a divorce decree so as to permit appellant to assert economic claims arising from her marriage although no petition to reconsider or modify the decree was timely filed or considered.

The facts of this case are as follows: On July 28, 1986, Ronald Justice, appellee, filed a complaint in divorce, and on the same date appellant, Bonita Justice, through her previous counsel accepted service. The complaint asserted no economic claims. On March 10, 1987, with leave of the court, appellant's counsel withdrew his appearance. On January 17, 1990, with leave of court, appellee amended his complaint, and filed an affidavit under § 201(d)(1) of the Divorce Code. Appellant was served with this amended complaint on January 26, 1990, and on the same day, appellant's present counsel entered her appearance on behalf of appellant.

On March 20, 1990, appellee's counsel notified appellant's counsel of his intention to request a divorce pursuant to 23 P.S. § 201(d)(1)(i) ¹. On May 7, 1990, after appellant failed to file any responsive pleadings in this action, appellee secured entry of the decree pursuant to § 201(d)(1)(i). Since appellee's complaint did not assert any economic claims and appellant failed to respond to the complaint, the entry of the decree effectively foreclosed appellant's ability to make a claim for economic relief arising from the marriage. See infra 23 P.S. § 401(j) ². On May 16, 1990, appellant filed a petition for rule to show cause why the divorce decree should not be vacated. The trial court heard this motion on July 20, 1990. On September 25, 1990, the trial court issued an order vacating the divorce decree, and on October 24, 1990, the trial court granted appellee permission to take an interlocutory appeal.

On March 5, 1991, this Court denied appellee's petition for relief. Stating in a per curiam order:

The trial court found that it had the power to vacate the decree beyond the thirty days provided by 42 Pa.C.S.A. § 5505 because within the thirty-day period the court granted a rule to show cause why the decree should not be vacated, thus tolling the thirty-day period under Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982). Unless a party appeals or the court expressly grants reconsideration within thirty days of the entry of judgment, the judgment becomes final and not subject to modification for less than extraordinary cause; the granting of rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Luckenbaugh v. Shearer, 362 Pa.Super. 9, 13, 523 A.2d 399, 401 (1987) (en banc), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988); accord Valentine v. Wroten , 580 A.2d 757 (Pa.Super.Ct.1990), petition for allowance of appeal filed, No. 973 E.D. Allocatur Docket 1990 (Pa. Oct. 31, 1990) [appeal denied, 527 Pa. 650, 593 A.2d 422 (1991) ]; Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989) (stating Luckenbaugh has overruled Kern, so that granting a rule to show cause is insufficient to toll the thirty-day jurisdictional period).

Justice v. Justice, No. 441 Misc. Docket (Pa.Super. March 5, 1991). ³ In light of our per curiam order, appellee moved for the trial court to rescind its prior orders vacating the decree, and reinstate the Decree of Divorce. On July 3, 1991, the trial court granted appellee's motion, and it is from this order of reinstatement that appellant now appeals.

Appellant concedes that a petition to open or vacate the divorce decree was not timely filed and considered within the 30 day period provided in 42 Pa.C.S.A. § 5505. ⁴ Furthermore, appellant's counsel concedes that the reason the economic claims were not presented in a timely manner was due to counsel's inadvertence. Appellant nonetheless asserts that economic justice requires us to remand the case so that she can present her economic claims. After a review of the case law interpreting the Divorce Code, we are constrained to disagree with appellant and affirm the order of the trial court.

Once the divorce decree became final, appellant lost her right to raise any economic claims arising from the marriage. As the Divorce Code makes clear:

Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those rights which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b) or (b.1). All duties, rights, and claims accruing to either of said parties at any time heretofore in pursuance of the said marriage, shall cease and the parties shall, severally, be at liberty to marry again in like manner as if they had never married, except where otherwise provided by law.

23 P.S. 401(j) ⁵; See Bastion v. Bastion, 324 Pa.Super. 569, 472 A.2d 226 (1984).

Thus, a divorce decree must be either vacated or opened in order for the trial court to consider appellant's economic claims. The trial court has the inherent power to modify, rescind, or reconsider an order within 30 days of its entry for any reason based on the suggestion that equity has not been served. 42 Pa.C.S.A. § 5505. "The court's exercise of its power under § 5505 of the Judicial Code is almost entirely discretionary; this power may be exercised sua sponte, or may be invoked by a request for reconsideration filed by the parties, and the court's decision to decline to exercise such power will not be reviewed on appeal." See Anderson v. Anderson, 375 Pa.Super. 341, 544 A.2d 501 (1988) (court rescinded divorce decree six days after its entry where spouse failed to file any responsive pleadings due to her indigence and her counsel's recent appointment).

The trial court's broad discretion is lost, however, if the court fails to act within 30 days. After this 30 day period, an order can only be opened or vacated if there is fraud or some other circumstance "so grave or compelling as to constitute 'extraordinary cause' justifying intervention by the court." Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 504 A.2d 335, 337 (1986) quoting Klugman v. Gimbel Brothers, Inc. 198 Pa.Super. 268, 272, 182 A.2d 223, 225 (1962). "An oversight by counsel in failing to appeal does not constitute "extraordinary cause" which permits a trial court to grant relief from a final judgment entered in a contested action." Simpson supra, 350 Pa.Super. at 245, 504 A.2d at 338.

In the present case, it is undisputed that the trial court did not reconsider the entry of the divorce decree within 30 days of its entry. Furthermore, appellant does not claim any extraordinary cause. Therefore, as we stated in our March 5, 1991 order, the trial court lacked authority to open or vacate its divorce decree under 42 Pa.C.S.A. § 5505. ⁶

In addition to the trial court's inherent authority to rescind, modify, or reconsider its orders, the legislature has also provided trial courts with additional equity powers in divorce proceedings:

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or connected with the disposition of the cause.

23 P.S. § 401(c). One of the purposes of the Divorce Code is to "effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights." 23 P.S. § 102(a)(6).

The equitable powers of the court are not without limits. The circumstances under which a court may exercise its discretionary power to open or vacate a decree are delineated in § 602. ⁷ Section 602 provides:

§ 602. Opening or vacating divorce decrees

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 5 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 consequences of precluding a fair hearing or presentation of one side of the case.

Thus, "section 602 sets out clear evidentiary requirements which must be met by the parties before the court may exercise its authority to open, vacate, or strike a divorce decree, and the court's exercise or refusal to exercise its authority under that section is reviewable on appeal." Anderson supra, 544 A.2d at 505 "The intent of § 602 was thus to codify the extraordinary circumstances which will outweigh the interests of the parties and the court in finality, and delimit...