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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRINGKOP ARIYAMITR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SANIYA ARIYAMITR,
Appellant No. 2639 EDA 2015
Appeal from the Order July 28, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-04861
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 10, 2016
Saniya Ariyamitr (“Appellant”) seeks review of the orders entered in
the Court of Common Pleas of Montgomery County, which denied both her
petition to vacate/rescind the divorce decree ending her marriage with
Bringkop Ariyamitr (“Appellee”) and her subsequent motion for
reconsideration. We affirm.
The trial court summarizes pertinent case history as follows:
On May 6, 2015, a divorce decree was entered in this matter
which divorced Plaintiff/Appellant Saniya Ariyamitr [“Appellant”]
and Defendant/Appellee Bringkop Ariyamitr. [“Appellee”] from
the bonds of matrimony. The May 6, 2015 divorce decree
granted no further relief, as requested by Appellee in the April
29, 2015 Praecipe to Transmit Record.1
1
Plaintiff/Wife began this matter by filing a
Complaint for Custody on February 27, 2012.
However, Defendant/Husband filed the Divorce
Complaint on June 25, 2014 listing himself as
*Former Justice specially assigned to the Superior Court.
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Plaintiff. Because he is listed as Defendant on
docket 2012-04861 the court shall refer to him in
this opinion as Defendant, although he is
Plaintiff/Complainant for purposes of the divorce
complaint.
On June 3, 2015, [28 days after the entry of the divorce decree]
Appellant filed a Petition to Vacate/Rescind Divorce Decree. On
June 10, 2015, the court scheduled argument on Appellant’s
petition to occur on July 16, 2015. On July 16, 2015, Appellant
was represented by Jerry Schuchman, Esquire and Appellee was
represented by Michael P. Gottlieb, Esquire. Appellant’s counsel
stated that Appellant did not “understand” “papers that were
served on her…when she was under prescribed medication for
pain as a result of a trauma incurred in a work[-]related injury.”
N.T. July 16, 2015, at 3. Appellant’s counsel stated a “doctor
had prescribed pain medication…his report is attached to…the
brief and reply that indicates that she did not have the relevant
mindset to understand what was happening due to the
medication.” N.T. at 3. Appellant’s counsel argued that
Appellant suffered from “temporary diminished capacity.” N.T.
at 3. Appellant did not present any medical or psychological
evidence, nor did Appellant testify.
On July 28, 2015, the court issued an order denying Appellant’s
June 3, 2015 petition. On August 7, 2015, Appellant filed a
Petition for Reconsideration of Order. On August 18, 2015, the
Court denied the Motion for Reconsideration. On August 26,
2015, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania of the July 28, 2015 Order. On August 31, 2015,
the trial court ordered Appellant to file her Concise Statement of
Errors Complained of on Appeal within twenty one days of the
date of the order. On September 16, 2015, Appellant filed a
“Concise Statement of Matters Complained of on Appeal
Pursuant to Pa.R.A.P. 1925” [which raised nine separate issues].
Trial Court Opinion, filed November 6, 2015, at 1-2.
Appellant presents the following two questions for our review:
A. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
IN DENYING WIFE’S PETITION FOR RECONSIDERATION
WHICH REQUESTED THAT TESTIMONY OF HER AND HER
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PHYSICIAN BE TAKEN ON THE ISSUES OF SEPARATION
AND TEMPORARY DIMINISHED CAPACITY[?]
B. WHETHER THE COURT ADMINISTRATION FAILED TO
ESTABLISH SAFEGUARDS, ACCESSIBILITY AND
ACCOMMODATION STANDARDS WITHIN THE RULES OF
CIVIL PROCEDURE, WHERE THE PRO SE SPOUSE WITH
POTENTIAL TEMPORARY MENTAL IMPAIRMENT AND
LANGUAGE BARRIER, WHILE RECEIVING APL AND
CONDITIONED TO RECEIVE EARLIER NOTICES TO
APPEAR IN COURT, ACTUALLY RECEIVED NO NOTICE
TO APPEAR AT A FINAL HEARING IN DIVORCE, IS A
VIOLATION OF DUE PROCESS AND THE AMERICANS
WITH DISABILITIES ACT AS AMENDED[?]
Appellant’s brief at 4.
Initially, we consider whether the order from which Appellant appeals
is a final order or immediately appealable. Generally, only final orders are
appealable. See Pa.R.A.P. 341(b)(1) (a final order is any order that
disposes of all claims and of all parties); Fried v. Fried, 501 A.2d 211 (Pa.
1985) (issues in divorce are reviewable after entry of divorce decree and
resolution of all economic issues). However, a bifurcated divorce decree is
immediately appealable. See Curran v. Curran, 667 A.2d 1155 (Pa. Super.
1995).
Here, Appellee filed his complaint seeking a No Fault Divorce under
Section 3301(D) of the Divorce Code on June 25, 2014. In his complaint,
Appellee sought no economic relief, a position reiterated in his subsequent
Praecipe to Transmit Record of April 29, 2015, in which he indicated that no
related claims were pending and that he sought a “decree in divorce with no
other relief granted.” Nor is there any indication in the record that either
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party sought equitable distribution of the marital estate or that any ongoing
economic negotiations existed between the parties at the time. Accordingly,
because the court entered a divorce decree with no accompanying order of
bifurcation, and we otherwise discern no outstanding economic issues or
negotiations that were before the court at the time of its decree, we deem
the Order of July 28, 2015, a final order subject to our review.
In addressing Appellant’s first issue, we note that this Court has
previously declared:
We begin by observing that “[a] major premise of the Divorce
Code is to effectuate economic justice between the parties.”
Wang v. Feng, 888 A.2d 882, 892 (Pa.Super. 2005) (quoting
Wagoner v. Wagoner, 538 Pa. 265, 269, 648 A.2d 299, 301
(1994)). Additionally, case law instructs that the equitable
purposes which underlie the Divorce Code allow for liberal
interpretation of its provisions. Id. (citing Wagoner, supra).
The Divorce Code has long authorized the severance of economic
issues from the divorce itself. See, e.g., Prall v. Prall, 698
A.2d 1338, 1340 (Pa.Super. 1997)(explaining that bifurcation is
permitted within the discretion of the trial court based on a
thorough review of the record). Significantly, the legislature
very recently amended the Divorce Code to allow for bifurcation
based merely on consent of both parties. 23 Pa.C.S.A. §
3323(c.1).2 See Bonawits v. Bonawits, 2006 PA Super 238, ¶
7, 907 A.2d 611 (observing that this subsection statutorily
providing for bifurcation with the consent of both parties
changed the standard for granting bifurcation).
Lowers v. Lowers, 911 A.2d 553, 555 (Pa.Super. 2006). However, we also
observed in Lowers that there is a 30-day time limitation on the trial court's
authority to open or vacate a divorce decree. 23 Pa.C.S.A. § 602 (repealed;
see now 23 Pa.C.S.A. § 3332). Id. at 556.
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Appellant first contends the court erred in denying her June 2, 2015,
petition to vacate/rescind, and her subsequent motion for reconsideration, in
which she requested the opportunity to provide the testimonies of both
herself and her physician as to her diminished capacity to comprehend
Appellee’s Praecipe to Transmit due to the effects of her prescribed
medications. As a consequence of the decree, she claims, her Alimony
Pendente Lite has been terminated and she will be effectively “relegated to
living a sub-standard existence.” For its part, the trial court notes that
Appellant failed to make this argument at the July 16, 2015 hearing on the
petition, and she elected, through counsel, not to testify at the hearing.
N.T. 7/16/15 at 2.
Consistent with our discussion of precedent in Lowers, we conclude
there was no basis for the court to vacate/rescind the order after the
expiration of the 30-day period. In Lowers, we held that since the trial
court acted within 30 days of entry of the parties' divorce decree, the court
had the authority to modify the decree, by appointing a master, in order to
effectuate economic justice between the parties. In so doing, we rejected
the wife/appellant’s reliance on inapposite jurisprudence discussing instances
where the court acted outside Section 3332’s 30-day time period.
Wife's first argument is that Husband's failure to assert any
economic claims in his complaint or file a petition to open or
vacate the divorce decree precludes any consideration of those
issues. She cites to various sections of the Divorce Code as well
as Justice v. Justice, 417 Pa.Super. 581, 612 A.2d 1354
(1992), appeal denied, 533 Pa. 635, 621 A.2d 581 (1993)….
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***
The Justice case is also inapposite. There, the husband filed a
complaint in divorce in March 1990 which did not assert
economic claims. The wife failed to respond to the complaint,
and a decree was entered in May 1990. The wife immediately
sought to vacate the decree, which the trial court eventually
granted but outside of the 30-day period permitted for
modification pursuant to 42 Pa.C.S.A. § 5505. After appeal by
the husband to this Court, wherein we found the trial court
lacked the authority to act beyond the 30-day period, the trial
court accordingly rescinded its order vacating the divorce decree.
After the decree was reinstated, the wife appealed, claiming that
economic justice required consideration of economic issues. The
wife conceded that the reason she did not make any such claims
was inadvertence of her counsel. As in Fenstermaker [v.
Fenstermaker, 348 Pa.Super. 237, 502 A.2d 185 (1985)] we
observed in Justice the general power of the trial court to
effectuate a fair and just determination of property rights but
explained that extrinsic fraud must be established in order for
the court to act beyond 30 days. Since the wife did not even
suggest any wrongful conduct on the part of the husband, there
was no basis for a finding of fraud which would permit the court
to vacate the divorce decree. 612 A.2d at 1360. We therefore
affirmed.
Lowers, 911 A.2d at 555, 557.
Even where the appellant in Justice immediately sought to vacate the
decree for consideration of newly raised economic issues, the analysis still
turned on whether the court acted within the 30-day period. Here, Appellant
waited until Day 28 to file her petition to vacate, which, under the
circumstances, pushed the hearing date on the petition to beyond the 30-
day period and left the court with no authority to vacate without a showing
of extrinsic fraud. As we agree with the lower court, moreover, that
Appellant failed to establish extrinsic fraud in advancing her petition, we
reject Appellant’s first issue as meritless.
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In her remaining issue, Appellant contends that the court violated the
Americans with Disabilities Act through its policies governing receipt of
notices and scheduling of hearings. This claim, however, was raised in
neither Appellant’s petition to vacate/rescind the divorce decree nor her
motion for reconsideration. As such, Appellant's attempt to raise this issue
for the first time on appeal results in waiver, as Appellant has not preserved
the issue for our review. See Commonwealth v. Oliver, 128 A.3d 1275,
1284 (Pa.Super. 2015) (issues not raised in the lower court are waived and
cannot be raised for the first time on appeal) (citing Pa.R.A.P. 302(a));
Pa.R.A.P.1925(b)(4)(vii).
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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