J-A14006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS M. GAUBY, JR., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANGELA M. GAUBY, NOW ANGELA M. 

BRODI,

Appellant No. 1718 MDA 2014

Appeal from the Order Entered September 8, 2014

In the Court of Common Pleas of Berks County

Civil Division at No(s): 13-20918

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 17, 2015

Angela M. Gauby, now Angela M. Brodi, (Wife) appeals from the 

September 8, 2014 order that denied her “Petition for Special Relief in the 

Nature of a Request to Vacate the Post Nuptial Agreement for Lack of 

Disclosure.” Wife’s arguments on appeal concern her allegations that 

Thomas M. Gauby (Husband) did not provide full and fair disclosure related 

to the value of his pension. We affirm.

We begin by setting forth the trial court’s recitation of the facts, which 

provides:

The instant action concerns a Post Nuptial Agreement 

entered into between the parties on September 11, 2013, and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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merged into the divorce decree entered on February 28, 2014. 

The parties in the instant action were married on October 21, 

2000, in Berks County, Pennsylvania. In August of 2013, the 

Defendant (hereinafter “Wife”) informed the Plaintiff (hereinafter 

“Husband”) that she desired to divorce him The parties met 

together, without counsel, and discussed dissolution of their real 

and personal property, including disposition of the parties’ 

respective pension and retirement accounts. As a result of that 

meeting, Wife prepared a document which she titled “Divorce 

Agreement[.]” Wife listed “His pension(s) w/ Amity Township” in 

the Divorce Agreement under “Tom’s Financial Obligations[.]” 

She also listed “Her 403(b) with Morgan Stanley” under “Angie's 

Financial Obligations[.]” The Divorce Agreement contained 

detailed information regarding bank accounts, debts of the 

parties, personal property and other assets and obligations of 

the parties. Subsequently, Husband produced this document to 

his counsel for the preparation of the Post Nuptial Agreement. 

Husband’s counsel prepared the Post Nuptial Agreement which 

the parties executed on September 11, 2013. Page One of the 

Post Nuptial Agreement contains language that Wife has been 

advised to seek representation and has been provided sufficient 

time to seek counsel and review the Agreement. The Post 

Nuptial Agreement also provided that “the parties shall retain 

any pension(s) and retirement accounts, savings and checking 

accounts in their respective names. Each party waives any claim 

against the other part[y’s] pension, retirement accounts, savings 

and/or checking accounts...[.]”[] The Praecipe to Transmit the 

Record was filed on January 7, 2014 and this Court signed the 

Divorce Decree on February 28, 2014. 

After the parties’ divorce was finalized, Wife consulted an 

attorney and on April 10, 2014, Wife filed a Petition for Special 

Relief in the Nature of a Request to Vacate the Post-Nuptial 

Agreement for Lack of Disclosure. Wife alleges that Husband 

failed to disclose the value of his pension and this value should 

have been included in the property division. Husband alleges 

that neither of the parties knew the value of Husband’s pension 

at the time of the Agreement and that the Agreement was 

entered into without any fraud, coercion, duress or undue 

influence by either of the parties. This Court held a brief hearing 

on Wife’s Petition on June 25, 2014 and on September 8, 2014, 

issued an Order denying Wife's Petition. 

Trial Court Opinion (T.C.O.), 1/2/14, at 1-2.
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Wife appealed from the denial of her petition and timely responded to 

the court’s order to file a concise statement of errors complained of on 

appeal. She now raises the following issues for our review:

1. Did the Trial Court err in finding that [Wife] had not 

overcome the presumption of disclosure raised by the Post 

Nuptial Agreement’s statement of full disclosure when [Husband] 

made no disclosure, when no value was ever suggested for 

[Husband’s] police pension, and [Wife] had no ability to know 

the value of the pension? 

2. Did the Trial Court err in denying [Wife’s] Petition for Special 

Relief in the Nature of a Request to Vacate the Post Nuptial 

Agreement despite clear evidence of lack of full and fair 

disclosure by [Husband] in not disclosing the value of his Amity 

Township Police Pension that only he could know?

3. Did the Trial Court err in denying [Wife’s] Petition for Special 

Relief in the Nature of a Request to Vacate the Post Nuptial 

Agreement in light of the fact that [Husband] made no financial 

disclosure whatsoever when the caselaw requires affirmative 

disclosure of relevant financial information?

4. Did the Trial Court err in denying [Wife’s] request that the 

value of the undisclosed police pension martial [sic] asset be 

disclosed by [Husband] for the consideration of the parties and 

the Court, and so [Wife] could determine the size and 

significance of [Husband’s] non-disclosure?

5. Did the Trial Court err by not allowing a full and fair hearing 

on the record on [the] issue of the undisclosed martial [sic] 

asset, and the validity of the post nuptial agreement? 

Wife’s brief at 3. 

Wife essentially claims that Husband failed to provide full and fair 

disclosure of the value of his pension, although she must initially challenge 

the trial court’s refusal to strike and/or open the divorce decree. In 
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Bingman v. Bingman, 980 A.2d 155 (Pa. Super. 2009), this Court set forth 

the following legal princples that guides our review of this case:

Our standard of review is whether the trial court abused its 

discretion when it denied Wife's [petition]. Egan v. Egan, 759 

A.2d 405 (Pa. Super. 2000). “Discretion is abused when the 

course pursued represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or where the law 

is not applied or where the record shows that the action is a 

result of partiality, prejudice, bias or ill will.” Commonwealth 

v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753 (2000) 

(citation omitted).

The Divorce Code provides: 

A motion to open a decree of divorce or annulment 

may be made only within the period limited by 42 

Pa.C.S. § 55054(relating to modification of orders) 

and not thereafter. The 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 

a fatal defect apparent upon the face of the record 

must be made within five years after entry of the 

final decree....

4 “Except as otherwise provided or prescribed 

by law, a court upon notice to the parties may 

modify or rescind any order within 30 days after 

its entry, notwithstanding the prior termination 

of any term of court, if no appeal from such 

order has been taken or allowed.” 42 Pa.C.S.A. 

§ 5505.

23 Pa.C.S.A. § 3332.

Id. at 157.
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Neither party disputes the fact that Wife failed to file her petition 

within 30 days of the entry of the divorce decree. Melton v. Melton, 831 

A.2d 646, 651 (Pa. Super. 2003). Therefore, it is evident that she was 

required to prove extrinsic fraud. In the Melton decision, this Court 

explained the distinction between the filing of a petition to open or vacate 

the decree before or after the 30 day period, stating: 

In order to consider untimely-filed economic claims, the divorce 

decree must be either opened or vacated. Justice [v. Justice], 

612 A.2d [1354,] 1357 [(Pa. Super. 1992)]. Petitions to open 

the decree must be filed within 30 days. Id., citing, 42 

Pa.C.S.A. § 5505; see also, 23 Pa.C.S.A. § 3332. During this 

30-day period, the court holds wide discretion to modify or 

rescind its decree. Justice, 612 A.2d at 1357. “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.” Id. (citations omitted). ... Moreover, 

a general plea to economic justice will not satisfy the stringent 

standard set forth above. Id. 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. 23 Pa.C.S.A. § 3332; Justice, supra. 

Id. at 651 (emphasis added). 

In its opinion here, the trial court recognized that “[t]here is no 

question that this [c]ourt has subject matter jurisdiction and no fatal defect 

[is] apparent on the face of the record....” T.C.O. at 4. Therefore, the 

remaining issue was “whether there was extrinsic fraud by Husband [in] not 

disclosing the value of his pension when neither party was aware of the 

value.” Id. The court further explained that:
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It is abundantly clear to this Court that Husband did disclose the 

fact that he had a pension. Wife was aware of the pension and 

Wife was also aware of the fact that neither she[] nor Husband 

knew the value of Husband's pension. This Court finds that 

because Wife knew of the existence of Husband’s pension and 

signed the Post Nuptial Agreement, of which she drafted the 

initial documents, Wife has waived any right she may have had 

to a full disclosure of the value of Husband's pension. It is 

apparent that Wife was aware that Husband did not disclose the 

value of his pension. This alleged lack of disclosure cannot 

constitute fraud or misrepresentation when Wife was aware 

there was no such disclosure and proceeded to finalize the Post 

Nuptial Agreement. 

. . . 

In this case, Wife has failed to meet her burden of proof to set 

aside the Post Nuptial Agreement. Wife has a college education. 

Wife was aware of the existence of Husband’s pension. 

Additionally, Wife played an integral part in the creation of the 

terms of the Post Nuptial Agreement. She negotiated with 

Husband for the terms of the Post Nuptial Agreement whereby 

Wife retained her retirement plan and Husband retained his. 

Wife freely chose to represent herself leading up to the execution 

of the Agreement and freely chose to enter into the Agreement. 

As such, this Court does not find the Post Nuptial Agreement to 

be invalid where at the time the Agreement was signed, Wife 

had specific knowledge that Husband had not disclosed the value 

of his pension because neither of the parties knew the value of 

the pension. Wife was aware Husband had not disclosed the 

value of his pension and this Court cannot find Wife was induced 

to enter the agreement through fraud or misrepresentation. The 

record is devoid of evidence of extrinsic fraud and this Court has 

properly denied [Wife’s] Petition. 

T.C.O. at 4-6.

Much of Wife’s argument in her first four issues centers on nondisclosure and on the fact that Husband did not provide Wife with at least an 

estimate of the worth of his pension. Wife relies on Hess v. Hess, 580 A.2d 

357 (Pa. Super. 1990), wherein the husband estimated the value of a 
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property at $45,000 in connection with the parties property settlement 

agreement (PSA), even though he was negotiating its sale to a third party 

for $800,000. The suit brought by the wife alleged both fraud and breach of 

contract, seeking compensatory and punitive damages. On appeal, this 

Court stated that “[f]air and full disclosure [relating to a PSA] ... requires 

that a reasonable estimate of the worth of the assets must be attempted so 

that the general financial resources of the parties are not obscured.” Id. at 

359. Therefore, because the husband did not even attempt to disclose the 

real value of the property, this Court determined that this evidence was 

sufficient to find that the husband had breached the PSA. This Court also 

determined that sufficient evidence was presented for the jury to find that 

the husband had committed fraud. However, the Hess case does not 

involve whether fraud was intrinsic or extrinsic in relation to the opening or 

vacating of a divorce decree. The case is therefore not applicable to the 

issue before us. 

Wife also relies on Nitkiewicz v. Nitkiewicz, 535 A.2d 664 (Pa. 

Super. 1988), a case in which this Court held that the husband had failed to 

disclose to the wife the amounts he earned from a second source and, 

therefore, had not provided full and fair disclosure relating to a postnuptial 

agreement. The Court noted that although “full and fair disclosure does not 

require disclosure of the exact amount of property, ... there must be a 

sufficient disclosure of assets to allow the other party to make an intelligent 

decision concerning the rights which will be given up under the terms of the 
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agreement.” Id. at 667. Again, the Nitkiewicz case does not involve a 

petition to vacate or open the decree and provides no discussion about 

extrinsic or intrinsic fraud, which Wife here must prove in order to allow the 

decree to be opened. 

In response, Husband specifically addresses the extrinsic fraud that 

Wife was required to prove so that the decree could be vacated or opened. 

We note that in the Justice case, this Court quoted our Supreme Court’s 

discussion in McEvoy v. Quaker City Cab Co., 110 A. 366 (Pa. 1920), 

which distinguished intrinsic fraud from extrinsic fraud, stating:

By the expression ‘extrinsic or collateral fraud’ is meant some 

act or conduct of the prevailing party which has prevented a fair 

submission of the controversy. Among these are the keeping of 

the defeated party away from court by false promise or 

compromise, or fraudulently keeping him in ignorance of the 

action. Another instance is where an attorney without authority 

pretends to represent a party and corruptly connives at his 

defeat, or where an attorney has been regularly employed and 

corruptly sells out his client's interest. The fraud in such case is 

extrinsic or collateral to the question determined by the court. 

The reason for the rule is that there must be an end to litigation; 

and, where a party has had his day in court and knows what the 

issues are, he must be prepared to meet and expose perjury 

then and there: Pico v. Cohn, 91 Cal. 129 [25 P. 970 (1891)]. 

Where the alleged perjury relates to a question upon which there 

was a conflict, and it was necessary for the court to determine 

the truth or falsity of the testimony, the fraud is intrinsic and is 

concluded by the judgment, unless there be a showing that the 

jurisdiction of the court has been imposed upon, or that by some 

fraudulent act of the prevailing party the other has been 

deprived of an opportunity for a fair trial. Bleakley v. Barclay, 

75 Kansas 462 [89 P. 906 (1907)].

Justice, 612 A.2d at 1358-59 (quoting Fenstermaker v. Fenstermaker, 

502 A.2d 185, 188 (Pa. Super. 1985)). 
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Husband also relies on Paroly v. Paroly, 876 A.2d 1061 (Pa. Super. 

2005), which directs that “[i]f an agreement provides that full disclosure has 

been made, a presumption of full disclosure arises. If a spouse attempts to 

rebut this presumption through an assertion of fraud or misrepresentation 

then this presumption can be rebutted if it is proven by clear and convincing 

evidence.” Id. at 1066 (quoting Simeone v. Simeone, 581 A.2d 162, 167 

(Pa. 1990)). Based on this caselaw, Husband contends that the burden of 

proof was on Wife and that she failed to prove that he committed extrinsic 

fraud by not revealing the value of his pension.

To further support this proposition, Husband relies on Ratarsky v. 

Ratarsky, 557 A.2d 23 (Pa. Super. 1989), a case dealing with the “alleged 

concealment of the cash surrender value of ... insurance policies.” Id. at 25. 

This Court stated that “[e]ven assuming arguendo that the [husband] did 

conceal the cash surrender value [of the policies], the [husband’s] acts did 

not constitute extrinsic fraud under the Divorce Code.” Id. Rather, the 

opinion states that extrinsic fraud was not proven because the wife “knew of 

the policies[‘] existence and should have specifically inquired concerning 

their cash surrender value.” Id. at 26 (emphasis in original). Thus, the 

Ratarsky Court concluded that without proof of extrinsic fraud the trial 

court had no authority to vacate the divorce decree. 

Here, as quoted above, the trial court followed this same line of 

reasoning. Both parties knew about the other’s pension/retirement account, 
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but did not know about the values contained in the accounts. Nor did they 

inquire about these amounts. Rather, the parties entered into the PSA 

without raising these questions. Moreover, nothing appears in the record to 

show that Husband intentionally misled Wife. Accordingly, we conclude that 

Wife’s first four issues that revolve around her allegations of non-disclosure 

are without merit. Wife failed to convince this Court that she had proven 

extrinsic fraud existed that would have allowed the trial court to open/vacate 

the divorce decree when the petition was filed beyond the thirty day time 

period. 

In her last issue, Wife argues that the trial court did not provide for a 

full and fair hearing on the non-disclosure of the value of Husband’s pension. 

As a result, Wife claims that the trial court made “groundless assumptions” 

about Husband’s lack of knowledge of the value of his pension and that Wife 

knew that Husband did not know the value of his pension. Wife relies on 

McClenen v. McClenen, 193 A. 83, 85 (Pa. Super. 1937), which states that 

“[t]he orderly course was to have a full hearing on the merits, make findings 

of fact from the evidence received in court, and on the basis of those 

findings, enter a decision and order.” Thus, Wife asserts that because the 

trial court abdicated its factfinding duty, we should remand for a hearing. 

This we will not do. It was the duty of Wife, as Appellant, to provide a 

complete record so that this Court is able to review what occurred below. 

Although the trial court mentions that it “held a brief hearing on Wife’s 
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[p]etition on June 25, 2014[,]” T.C.O. at 2, no transcript of that hearing is 

provided in the certified record. 

[I]t remains the appellant's responsibility to ensure that a 

complete record is produced for appeal. Inclusion in the 

reproduced record is not an acceptable substitute for the original 

certified record. The failure of the appellant to ensure that the 

original record certified for appeal contains sufficient information 

to conduct a proper review may constitute a waiver of the issues 

sought to be examined. Stewart v. Owens-Corning 

Fiberglas, 806 A.2d 34, n.3 (Pa. Super. 2002) (citations 

omitted).

Kessler v. Broder, 851 A.2d 944, 950 (Pa. Super. 2004). Since Wife failed 

to provide a transcript of the “brief hearing,” this Court is unable to 

determine whether a full and fair hearing was held and whether Wife, who 

had the burden of proof in this matter, provided support for her allegations 

of a lack of full disclosure that rose to the level of extrinsic fraud. 

Accordingly, due to Wife’s failure to provide a complete record, we are 

unable to assess the merits of her last issue. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015