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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
J.M., :
:
Appellant : No. 1895 EDA 2019
Appeal from the Order Entered May 30, 2019
in the Court of Common Pleas of Chester County
Civil Division at No(s): 2009-05033-DI
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: June 11, 2020
J.M. (“Husband”) appeals from the Order denying his “Petition for
Special Relief in the Nature of a Request to Open the Divorce Matter for
Production of an Accounting and Joinder of an Indispensable Party as well as
a Finding of Contempt” (“Petition”). We affirm.
The trial court summarized the relevant history underlying the instant
appeal as follows:
[Husband and S.M. (“Wife”)] married in April 2000. One
child, who is still a minor, was born to them during the marriage.
[Wife] filed a Divorce Complaint on May 1, 2009.
After extensive discovery disputes, several interim
proceedings, and five settlement conferences before the
[e]quitable [d]istribution [m]aster, the parties resolved their
equitable distribution and support issues via [a] marital
agreement [(“Agreement”)] placed on the record before [a
hearing master] on June 22, 2017. Each party waived their right
to file exceptions[,] and agreed [that] they had disclosed all
marital and non-marital assets and liabilities. A portion of their
[Agreement] involved their companion support matter; they
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agreed that their monthly net incomes were “as determined by
tax returns.” The [] [A]greement was incorporated into the
Divorce Decree [(“Decree”)] entered [on] November 6, 2017.
At a subsequent … child support settlement conference a
year later (November 27, 2018), [Wife] acknowledged that (at
some point) during the divorce litigation, she gave her mother
$3,000.00 to hold for her. She stated that the funds came from
her post-separation earnings[,] which earnings were fully
disclosed on her relevant tax returns. She claimed that she
entrusted the funds to her mother because she had been saving
to pay first and last months’ rent and security deposit for her
eventual departure from the marital real estate and she didn’t
want to spend it.
Through counsel, [Husband] filed the instant Petition on
December 6, 2018, asserting that the $3,000.00 was an asset
(either marital or non-marital) that should have been disclosed,
and the failure to do so calls into question the veracity of all [of
Wife’s] disclosures and the fairness of the [A]greement.
[Wife] respond[ed] that not only did she disclose her
multiple sources of employment income, she filed tax returns
reporting it through the divorce litigation; they were part of the
record, and were taken into account when the parties determined
their child support and alimony pendente lite.
Trial Court Opinion, 10/25/19, at 2-3.
The trial court ordered the parties to brief the issues, after which it
entered an Order denying Husband’s Petition. Husband subsequently filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Husband presents the following claims for our review:
1. Did the trial court err when it failed to hold a hearing with
regard to Husband’s [Petition] and instead based its decision,
including a determination of the credibility of the parties, solely
on the written argument of the parties’ counsel?
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2. Did the trial court err when it failed to order that the divorce
action be opened[,] given the fraud Wife perpetrated on the
[c]ourt?
3. Did the trial court err when it failed to even consider the
imposition of a [c]onstructive [t]rust with respect to the money
given by Wife to her mother[,] even though the amount
admitted to be given by Wife to her mother was in excess of
the statutory amount required for said [c]onstructive [t]rust?
4. Did the trial court err when it failed to rule on or even consider
ordering that Wife’s mother be named an indispensable party
and joined to the divorce action[,] so [that] the [c]ourt had
jurisdiction over the discovery and disposition of the funds
provided by Wife in her custody and control?
5. Did the trial court err in refusing to find Wife in contempt and
sanction her willful violations of [the trial court’s] [O]rders and
for her perjury, including an award of counsel fees and costs,
making credibility determinations and findings of fact without
testimony and without the submission of any evidence?
6. Did the trial court err when it failed to even consider ordering
an accounting and permit discovery with regard to the money
given by Wife to her mother to “hold for her” during the
pendency of the divorce matter?
Brief for Appellant at 4-5 (issues renumbered).
Initially, we observe our standard of review: “A trial court’s exercise or
refusal to exercise its authority to open, vacate, or strike a divorce decree is
reviewable on appeal for an abuse of discretion.” Bardine v. Bardine, 194
A.3d 150, 152 (Pa. Super. 2018).
Husband first claims that the trial court improperly failed to hold a
hearing on his Petition. Brief for Appellant at 15. Husband claims that the
trial court rendered credibility determinations and found facts, without first
holding an evidentiary hearing. Id. at 16. According to Husband, there was
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no evidence upon which the trial court could render these findings. Id. at 16-
17. However, Husband provides no analysis and no citations to relevant legal
authorities to support his bald assertion.
As this Court has explained,
[t]he Rules of Appellate Procedure require the argument section
of an appellate brief to include “citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). It is not the role of this
Court to develop an appellant’s argument where the brief provides
mere cursory legal discussion. Commonwealth v. Johnson, …
985 A.2d 915, 925 (Pa. 2009) …; see also In re C.R., … 113 A.3d
328, 336 (Pa. Super. 2015) … (“This Court will not consider an
argument where an appellant fails to cite to any legal authority or
otherwise develop the issue.”).
Lechowicz v. Moser, 164 A.3d 1271, 1276 (Pa. Super. 2017). Consequently,
we cannot grant Husband relief on this claim. See id.
In his second claim, Husband argues that the trial court improperly
failed to open the Decree, “given the fraud [that] Wife perpetrated on the
court.” Brief for Appellant at 17. Husband contends that Wife committed
fraud by the following actions:
Wife’s pretrial statement did not provide the required full
disclosure of both marital and non-marital assets along with
their values.
Wife’s inventory pursuant to Pa.R.C.P. 1920.33(a) did not list
all property owned or possessed by either party, as required.
Wife’s inventory of property pursuant to 23 Pa.C.S.A.
[§] 3505(b) did not list all property owned or possessed by
either or both of them on the date of acquisition, the date of
separation or thirty days prior to the equitable distribution
hearing[.]?
Brief for Husband at 18-19.
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As this Court has explained,
[p]etitions to open the decree must be filed within 30 days.
During this 30-day period, the court holds wide discretion to
modify or rescind its decree. 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.
... [A] general plea to economic justice will not satisfy the
stringent standard set forth above. After 30 days, the divorce
decree may be vacated only as a result of extrinsic fraud,
lack of subject matter jurisdiction, or a fatal defect
apparent on the face of the record.
Melton v. Melton, 831 A.2d 646, 651 (Pa. Super. 2003) (internal citations
and quotation marks omitted) (emphasis added).
In its Opinion, the trial court addressed this claim and concluded that it
lacks merit. See Trial Court Opinion, 10/25/19, at 3-6. We agree with the
sound reasoning of the trial court, and affirm on this basis with regard to
Husband’s second claim. See id.; see also Major v. Major, 518 A.2d 1267,
1273 (Pa. Super. 1986) (concluding that the failure to disclose an asset, i.e.,
a military pension, did not amount to extrinsic fraud).
In his third claim, Husband argues that the trial court erred when it
failed to consider the imposition of a constructive trust, “with regard to the
money given by Wife to her mother[.]” Brief for Appellant at 20. According
to Husband, the trial court improperly ignored his request that a constructive
trust be imposed. Id. Husband contends that, pursuant to 23 Pa.C.S.A.
§ 3502, the remedy of a constructive trust is not bound by the time
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constrictions of fraud, “rather, it may be raised at any time where it appears
that there is nondisclosure of an asset valued more than $1000.” Id. at 21.
Husband argues that it is unclear whether the source of the funds given by
Wife to her mother was marital or non-marital. Id. Husband asserts that
Wife failed to disclose the amount and location of these “secreted funds.” Id.
at 22. Husband asserts that the trial court should have imposed a constructive
trust and directed Wife to disclose the true nature and amount of the
previously undisclosed funds during the divorce proceedings. Id.
Our review of the record discloses that, in his Petition, Husband
expressly sought to open the Decree “to consider Wife’s true financial
circumstances[,]” and to join Wife’s mother as an indispensable party to the
divorce matter. Petition, 12/6/18, at 5 (unnumbered). Husband averred that
the Agreement “was made without the knowledge of this money that could be
partly marital and should be considered when determining the financial
circumstances of the parties upon the entry of the [Decree].” Id. at 5
(unnumbered).
Husband filed his Petition seeking the opening of the Decree, based upon
section 3332 of the Divorce Code. See 23 Pa.C.S.A. § 3332. Section provides
as follows:
§ 3332. Opening or vacating decrees
A motion to open a decree of divorce or annulment may be made
only within the period limited by 42 Pa.C.S.[A.] § 5505 (relating
to modification of orders) and not thereafter. The motion may lie
where it is alleged that the decree was procured by intrinsic fraud
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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 a fatal defect
apparent upon the face of the record must be made within five
years after entry of the final decree. Intrinsic fraud 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.
23 Pa.C.S.A. § 3322.
Husband’s Petition did not seek the imposition of a constructive trust,
which remedy is provided under section 3505 of the Divorce Code, see 23
Pa.C.S.A. § 3505; rather, the relief sought by Husband required opening of
the Decree pursuant to section 3332. See Petition, 12/6/18. We discern no
abuse of discretion or error by the trial court in addressing only the request
for relief set forth in the Petition. See Kozel v. Kozel, 97 A.3d 767, 770 (Pa.
Super. 2017) (recognizing that “section 3505 [is] an alternative and distinct
cause of action to section 3332.”). Accordingly, Husband is not entitled to
relief on this claim.
In his fourth claim, Husband argues that the trial court improperly failed
to consider or address his request that Wife’s mother be named an
indispensable party and joined to the divorce action. Brief for Appellant at 22.
However, because Husband failed to establish extrinsic fraud warranting the
opening of the Decree, this claim is moot.
Similarly, in his fifth claim, Husband argues that the trial court
improperly failed to address Husband’s claim for an accounting. Id. at 26.
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Husband argues that the trial court improperly failed to permit discovery
regarding funds given by Wife to her mother. Id. However, we discern no
error or abuse of discretion by the trial court in not addressing or ordering an
accounting, where Husband had failed to establish the extrinsic fraud required
to open the Decree. As such, we cannot grant Husband relief on this claim.
Finally, Husband argues that the trial court improperly denied Husband’s
request to find Wife in contempt of the trial court’s prior Orders. Id. at 24.
However, in his brief, Husband does not identify the Orders at issue, beyond
a citation to a page in the Reproduced Record on which the scheduling Order
for the fourth settlement conference is depicted (“Scheduling Order”). Id. at
25. Our review of the certified record discloses that the Scheduling Order
directed the parties to produce certain items at a settlement conference.
Scheduling Order, 5/9/16. In his brief, Husband does not set forth the
provision of the Scheduling Order purportedly violated by Wife, or how it
established extrinsic fraud warranting the opening of the Decree.
Consequently, this claim is waived. See M.Z.T.M.W., 163 A.3d 465, 462 (Pa.
Super. 2017) (recognizing that this Court will not review a claim unless it is
developed in the argument section of the appellant’s brief).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/20
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