J-S55023-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CLINTON W. SPENCER

v.

LYNNETTE D. SPENCER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1831 MDA 2016

Appeal from the Order Dated October 7, 2016

In the Court of Common Pleas of Centre County 

Civil Division at No(s): 2011-1931

BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.: FILED OCTOBER 27, 2017

Appellant, Lynnette D. Spencer, appeals from the order entered October 

7, 2016,1 denying her petition to open divorce proceedings and vacate an 

equitable distribution order entered February 29, 2016. We affirm.

The parties were married on October 31, 1998. The parties separated 

in August 2010, and in April 2011, Appellee filed a Complaint in Divorce, which 

included a claim for equitable distribution of property. In August 2012, the 

court entered a decree in divorce and reserved jurisdiction over the issue of 

equitable distribution of marital property. 

An equitable distribution hearing was held in January 2016. Neither 

Appellant nor her counsel attended the hearing. On February 29, 2016, the 

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1 While the trial court dated the order October 6, 2016, it was docketed the 

next day, October 7, 2016. Therefore, we refer to the order as having been 

entered on October 7, 2016.
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court entered an equitable distribution order. Appellant subsequently filed a 

petition to open the divorce proceedings and vacate the February 29, 2016 

order. A hearing on Appellant’s petitions was held in August 2016. On October 

6, 2016, the court denied Appellant’s motions. 

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. The trial court issued a Pa.R.A.P. 1925(a) opinion relying on its

Opinion and Order entered October 6, 2016.

Appellant raises the following issues for our review:

1. Whether the Trial Court abused its discretion in denying the 

petition as to vacating the order, providing for equitable 

distribution of the marital estate, on the ground of extrinsic 

fraud in the service of the notice of the hearing on equitable 

distribution, inasmuch as the service of notice was defective 

and/or misleading, and was sent to an address that was known, 

or should have been known, to be no longer valid, rather than 

the effective address of the appellant, the defendant below, 

and so prejudiced appellant, all of which the appellant provided 

by the requisite standard?

2. Whether the Trial Court abused its discretion in denying the 

petition as to opening the order, providing for equitable 

distribution of the marital estate, on the ground of intrinsic 

fraud perpetrated by misrepresentation of marital assets by the 

appellee, the plaintiff below, including but not limited to, a 

personal injury settlement and tangible property items, all of 

which the appellant, the defendant below, provided by the 

requisite standard?

3. Whether the Trial Court abused its discretion in denying the 

petition for an extension of time in which to comply with the 

order, providing for equitable distribution of the marital estate, 

inasmuch the stay therein requested was merited based on 

demonstrated extrinsic fraud in procuring the equitable 

distribution order?

Appellant’s Brief at 4.
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Our standard of review is well settled. “[A] proceeding to open a divorce 

decree is equitable in nature, and the appellate court will not reverse an order 

entered in such a proceeding unless there has been a clear abuse of 

discretion.” Egan v. Egan, 759 A.2d 405, 407 (Pa. Super. 2000) (quoting 

Foley v. Foley, 572 A.2d 6, 9 (Pa. Super. 1990)). 

Section 3332 of the Divorce Code “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[.]” Justice v. 

Justice, 612 A.2d 1354, 1358 (Pa. Super. 1992) (citation omitted). 

A motion to open a decree of divorce or annulment may be made 

only within the period limited by 42 Pa.C.S. § 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 

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 the entry of the final decree. Intrinsic fraud relates to 

a matter adjudicated by the judgement, 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. § 3332.

Appellant first seeks to vacate the equitable distribution order on the 

ground of extrinsic fraud. Specifically, Appellant asserts that she did not 

receive notice of the equitable distribution hearing. See Appellant’s Brief at 

12 (citing in support Roach v. Roach, 418 A.2d 742 (Pa. Super. 1980)).

Extrinsic fraud is defined as follows:
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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.

Id. (quoting Fenstermaker v. Fenstermaker, 502 A.2d 185, 188 (Pa. 

Super. 1985)).

In Roach, neither the defendant nor her attorney was notified of a 

divorce proceeding before the appointed master. Roach 418 A.2d at 733. 

Notice of a hearing mailed to the defendant was returned to the master, 

undelivered and marked “unknown”. Id. Nevertheless, the master knowingly 

proceeded with the hearing ex parte. Id. at 744. Considering these 

circumstances, this Court affirmed the trial court’s decision to open the divorce 

proceedings, discerning no abuse of discretion. Id.

In the instant case the trial court noted:

[Appellant] claims she did not receive notice of the equitable 

distribution hearing. On July 10, 2015, [Appellee] sent by both 

regular mail and certified mail, notification of a hearing scheduled 

for a Petition for Return of Firearms to [Appellant] at 58 Clark 

Street, Clearfield, Pennsylvania 16830 and 3761 Allport Cutoff 

Highway, Morrisdale, Pennsylvania, 16858. [Appellant] refused 

service at the 3761 Allport Cutoff Highway, Morrisdale address on 

four separate occasions. In current pleadings, [Appellant]

concedes that this address is correct and even as such, failed to 

accept service. The [c]ourt then entered an Order rescheduling 

the hearing and notice was sent to [Appellant’s] last known 

address of 1221 Woodland Road, Clearfield, Pennsylvania 16830. 

[Appellant] appeared for the hearing following receipt of the notice 

sent to 1221 Woodland Road, Clearfield. Following the hearing 

the [c]ourt sent an Order scheduling an equitable distribution 

hearing to that same 1221 Woodland Road, Clearfield address and 

to then attorney George Stenhach, Esquire. [Appellant] failed to 
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appear for the equitable distribution hearing. [Appellant] 

contends that she previously provided the 3761 Allport Cuttoff, 

Morrisdale address, the address where service was not accepted 

on four occasions, as her current address to Court Administration. 

There is no indication from the record of this ever happening. 

Given [Appellant’s] demonstrated contempt for orders of this 

[c]ourt, the [c]ourt believes notice was likely received and 

ignored.

Trial Court Opinion, 10/7/16 at 2-3.

Appellant’s reliance on Roach is misplaced because in this case the trial 

court determined that Appellant had received notice but chose to ignore it. 

The record supports the court’s finding that Appellant refused service on four 

occasions at her address of record. Thereafter, Appellant accepted service at 

1221 Woodland Road and appeared for a hearing. Reasonably, the court sent 

notice of the equitable distribution hearing to 1221 Woodland Road; yet on 

this occasion, Appellant failed to appear. Accordingly, there was no evidence 

of extrinsic fraud, and we discern no abuse of the court’s discretion.

Appellant next contends that Appellee committed intrinsic fraud in 

misrepresenting his marital assets. The trial court declined to address 

Appellant’s claims regarding intrinsic fraud, as her petition was filed more than 

thirty days after the entry of the order. See Trial Court Opinion, 10/7/16 at 

3. Appellant concedes that her petition is untimely; however, she argues that 

the trial court abused its discretion in not extending the thirty-day limitation

period. See Appellant’s Brief at 14. 

The trial court lacks discretion in this regard. Absent extrinsic fraud, 

lack of subject matter jurisdiction, or a fatal defect on the face of the record, 
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a divorce decree may not be opened after thirty days. Justice, 612 A.2d at 

1357; 23 Pa.C.S. §3332. Appellant’s petition was filed on June 2, 2016, more 

than three months after the decree was entered. Accordingly, it was untimely, 

and the lower court properly denied it as such.

Appellant’s final claim is that the trial court abused its discretion in 

denying her petition for extension of time within which she must comply with 

the equitable distribution order. In light of the foregoing analysis, we discern 

no abuse of discretion.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/27/2017