memorandum of law and brief in support of the demand to ... · pdf filethe 7th circuit further...

ROBERT E. BINGAMAN, JR., IN THE COURT OF COMMON PLEAS OF

Plaintiff,

Holder of the Key(s), CUMBERLAND COUNTY, PENNSYLVANIA

vs. CIVIL ACTION - LAW

KELLY H. BINGAMAN, NO. 05-1200 CIVIL TERM

Defendant,

Affiant Victim and Witness to Criminal Activities, IN DIVORCE

MEMORANDUM OF LAW & BRIEF IN SUPPORT OF THE DEMAND TO

RECUSE JUDGE KEVIN A. HESS, P.J., AND MAGISTRATE DIVORCE MASTER

ROBERT ELIKER EFFECTIVE IMMEDATELY PURSUANT TO TITLE 28 U.S.C.

RULE 455 & 455(A):

To the Area Supervising Judge, of the Court of Common Pleas of CUMBERLAND COUNTY,

PENNSYLVANIA AT CARLISLE:

Stare decisis for "fraud upon the court".

Whenever any officer of the court commits fraud during a proceeding in the court, he/she

is engaged in "Fraud upon the Court". See Bulloch vs. United States, 763 F. 2d 115, 1121

(10th Or. 2985), the court stated "Fraud upon the court" is fraud which is directed to the

judicial machinery itself and is not fraud between the parties or fraudulent documents,

false statements or perjury....lt is where he Court or a member is corrupted or influenced

or influences attempted or where the judge has not performed his judicial function —thus

where the impartial functions of the court have directly corrupted."

"Fraud upon the court" has been defined by the 7 th Circuit Court of Appeals to "embrace

the species of fraud which does, or attempts to, defile the court itself, or is a fraud

perpetrated by officers of the court so that the judicial machinery cannot perform in the

usual manner its impartial task of adjudging cases that are presented for adjudication." See

Kenner vs. C.I.R., 387 F. 3d 689 (1968). Moore's Federal, Practice, 2d. ed. P. 512 par. 60.23.

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The 7th Circuit further states "a decision produced by fraud upon the court is not in essence

it decision at all, and never becomes final."

None of the Order(s) that has been render by Judge Kevin A. Hess, P.J. has been valid

and are VOID for it ignored the Superior Court ruling in Bingaman vs. Bingaman, No. 1644

MDA 2008 (App. Ct. Aug. 31, 2009); where the Appellate Court had already overruled,

reversed and remanded his order and told said Judge that his decision was erroneous and

that he Must Open and Vacate the decree, and this Judge being so "DRUNCKIN WITH

POWER" he ignored binding Superior Court ruling to unlawfully subject this

Litigant/Defendant to unreasonable and unlawful harm and injury that lead to said Relator

"Financial" demise. See a true and correct copy of the Order of the Court and case

discussion as submitted on the Web by Find Law as Defendant/Respondent Exhibit "A".

It is also clear and well-settled in law that any attempt to commit. "Fraud upon the court"

vitiates the entire proceeding. See the People of the State of Illinois vs. Fred. E. Sterling., 357

II. 354, 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it

enters applies to judgments as well as to contracts and other transactions.") Allen F. Moore

vs. Stanley F. Sievers 333 III. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every

transaction into which it enters...."); In re Village of Willowbrook, 37 III. App. 2d 393 (1962)

("It is axiomatic that fraud vitiates everything."); Dunham vs. Dunham, 57 III. App. 475

(1894), Affirmed 162 III. 589 (1896); Skelly Oil Co. vs. Universal Oil Productions Co, 388 III.

App. 79 86 N.E. 2d 875. 883-4 (1949); Thomas Stase vs. The American Home Security

Corporation 362 III. 350. 199 N.E. 798 (1935). Under Illinois and Federal Law, when any

officer of the court has committed "fraud upon the court" are VOID, OF NO LEGAL FORCE

OR EFFECT.

Stare decisis for "Judicial bias":

2

Federal law requires the automatic disqualification of a Federal Judge or State Judge

under certain circumstances.

In 1994, the U.S. Supreme Court held that "Disqualification" is required if an objective

observer would entertain reasonable questions about the judge's impartiality. If a judge's

attitude or state of mind leads a detached observer to conclude that a fair and impartial

hearing is unlikely, the judge must be disqualified." [Emphasis added], Liteky vs. U.S., 114 S.

Ct. 1147, 162 (1994).

Courts have repeatedly held that positive proof of the partiality of a judge is not a

requirement, only the appearance of partiality. Lilieberq vs. Health Services Acquisition

Corp., 486 U.S. 847; 108 S. Ct. 2194 (1988) (what matters is not that reality of bias or

prejudice but this appearance); United States vs. Balistieri 779 F. 2d 1191 (7 th Cir. 1985)

(Section 455(a) is directed against the appearance of partiality, whether or not the judge is

actual biased.") (Section 455(a) of the Judicial code, 28 U.S.C. sect. 455(a), is not intended

to protect litigants from actual bias in their judge but rather to protect to public confidence

in the impartiality of the judicial process.").

That Court also states that Section 455(a) "requires a judge to recuse himself in any

proceeding in which his/her impartiality might reasonably be questioned" Taylor vs.

O'Grady, 888 F.2d 1189 (7 th Cir. 1989). In Pfizer Inc. vs. Lord, 456 F.2d 532 (8 th Cir. 1972),

the Court states that "It is important that the litigants not only actually receive justice,

but that he believe that he has received justice."

The Supreme Court has ruled and has reaffirmed the principle that "Justice must satisfy

the appearance of justice". Levine vs. United States, 362 U.S. 610 80 S. Ct. 1038 (1960),

3

citing Offutt vs. United States, 348 U.S. 11, 14 75 S. Ct. 11 13 (1954). A judge receiving a

bribe from an interested party over which he is presiding, does not give the appearance

of justice.

"Recusal under Section 455 is self-executing; a party need not file affidavits in support

of recusal and the judge is obligated to recuse him or herself sua sponte under the state

circumstances." Taylor vs. O'Grady, 888 F.2d 1189 (7 th Cir. 1989).

Further, the judge has a legal duty to disqualify himself even if there is no motion asking

for his disqualification. For said Judge even admitted within his latest order that he know of

and is aware of INTRINSIC FRAUD, that Petitioner had sufficiently proved that FRAUD had

taken place, but on a mere technicality of not showing Extrinsic fraud he denied Petitioner's

motion, which is completely outside the rule of law. The Seventh Circuit Court of Appeals

further states that "We think that this language [455(a)] imposes a duty or the judge to act,

sua sponte, even if no motion or affidavit is filed" Balistrieri, at 1202.

Judges do not have discretion not to disqualify themselves. By law, they are Bound to

follow the law, nowhere in any of these SHAM PROCEEDINGS, has Judge Hess followed any

thing resembling the law, and he disobeyed a direct Superior Court Order. Should a judge

not disqualify himself as required by law, then the Judge has given another example of his

"appearance of partiality" which, possibly, further disqualifies the judge. Should another

judge not accept the Disqualification of the judge, then the second judge has evidenced

an "appearance of partiality" and has possibly disqualified himself/herself. None of the

orders issued by any judge who has been disqualified by law would appear to be valid. It

would appear that they are VOID as a matter of law and are of NO LEGAL FORCE OR EFECT.

Should a judge not disqualify himself, then the judge is in violation of the Due Process

Clause of the U.S. Constitution, See United States vs. Sciuto, 521 F. 2d 842, 845 (7 th Cir.

4

1996) ("The right of a tribunal free from bias or prejudice is Based, not on section 144,

but on the Due Process Clause").

Should a judge issue any order after he has been disqualified by law, and if the party has

been denied of any of his/her property, then the judge may have engaged in the Federal

Crime of "interference with interstate commerce". The Judge has acted in the judge's

personal capacity and not in the judges judicial capacity. It has been said this judge, acting

in this manner, has NO more lawful authority than someone's next door neighbor (provided

that he is NOT A JUDGE).

However, some judges many not follow the law, and that is the so-called Judges KEVIN A.

HESS, P.J., and Magistrate Divorce Master Robert Eliker; for they are both fully aware of their

actions, to continuously and erroneously deny this Petitioner her basic fundamental rights

as prescribed by law, and therefore, reasons being said Petitioner is now calling for the

RECUSAL OF JUDGE KEVIN A. HESS, P. J AND MAGISTRATE DIVORCE MASTER ROBERT

ELIKER.

The Supreme Court has also held that if a judge wars against the Constitution, or if he

acts without jurisdiction he has engaged in TREASON to the Constitution.

If a judge acts after he has been automatically disqualified by law, then he is acting without

jurisdiction and that suggest that he is then engaging in criminal acts of TREASON and may

be engaging in extortion and the interference with interstate Commerce.

If this Court does not vacate and recall the illegal, erroneous "ORDERS" the unlawful and

arbitrarily denial of my motion to Reopen and Vacate the ill-gotten divorce, as demanded in

this Petitioner's prior demands & pleadings, & Strike ALL PLEADINGS by the fraudulent

attorney(s) of the Plaintiff entered by and on his behalf and all ATTORNEY(S) affidavits and

5

attestation that have failed to check any of the alleged allegations of his clients before

submitting such infamous information and complaint under perjury, then this Court has in

such essence ruled in favor of NAKED TRESPASSING by the attorney(s) and his client over

a valid and truthful Proper Personal Sui Juris litigant. Such would be epitome of bias

and prejudice as defined in F.R.Civ.P. rule 83.5 and in violation of Federal law.

For the foregoing reasons: and in the interest of justice being served. This Petitioner,

respectfully request this Court to abide and apply all Rules of the Court and REMOVE/

RECUSE himself from these proceedings and any further proceedings as demanded within

the original demand. In response of this Court's working arrangement with the opposing

parties/attorney and the prejudicial decision violating this Petitioner's Due Process of Law

rights and the unlawful preventions of substantial Justice being rendered within Mr. Kevin A.

Hess' P.J. sham court. This Petitioner moves for the immediate recall of the fraudulent "THE

DENIAL OF THE MOTION TO OPEN AND VACATE, AND THE UNLAWFUL AND UNFAIR ORDER

FOR PROPERTY DIVISION THAT SAID PETITIONER AND EXSPOUSE HAD NO MARITAL

ASSETS, WHICH WAS NOT TRUE AT ALL "rendered by proclaiming and assuming that the

Master had taken care of the issue, and failing to properly scour the records to make sure

before pronouncing such harsh and profound judgment that was inconsistent with law;

in spite of the weight of evidence or should I say the preponderance of the evidence that

said Plaintiff and his attorney were willfully lying an misrepresenting to the court about

the income he received from Plaintiff's involvement with the "BAND" brought him "NO

INCOME".

And the "Unclean Hands Doctrine" prohibited them from receiving benefits and relief from

this Court. Petitioner move this Court to RECUSE itself, recall these fraudulent "ORDERS"

render in abuse of his discretion and overturn all the claims of the Plaintiff, for falsification

6

to authorities; any and ALL award of judgment to the Plaintiff for his and his representing

attorney willful and malicious fraud upon the court; and for another Judiciary to review the

records and return and award this Petitioner just "Equitable Relief' as required by law &

compensation for emotional and financial duress and stress that this has caused illegally

upon this Petitioner. Petitioner also moves that this case be referred up and elevated to the

proper Criminal Authorities for prosecution of perjurous information of the Plaintiff and

sanctions be brought against all attorney(s) involved in this SHAM actions be sanctioned

and also be charged for their participation of bring "fraud upon the court" and obstructing

the machinery of Justice and preventing justice from being served impartially to all litigants

within these proceedings; that was the proximating cause of the illegal lock out of this

Appellant from her private abode and the unfair and unjust loss of her equal right to shares

in the marital assets that she majorly helped acquire in the family interest.

Petitioner puts this Court on Notice that it is not the intent of this Petitioner/Defendant,

does not want to any longer stay married to this INFIDEL/Adulterer. Petitioner wants it to be

known that this Court had sanctions and "UNHOLY UNION" but still gave comfort and relief

to the Plaintiff when the law said it could not, and that because of his infidelity was one of

the proximating issues that made the marriage in question so un-repairable and he was

the one that "ABANDONED" the sanctuary of our marriage and the family, to continue his

"ADULTUOUS AFFAIR" which was well known to the courts; that this Court erroneously

applied applications to a division of property proceedings that was not of law, and said

Judge knew of its error and refused to correct it, making said Petitioner, destitute, and

created and unjust financial burden upon this Petitioner that cause her to lose her home

and leave far below the quality of life that she had "grown accustom to", in clear violation

7

of her rights and due process of law, showing clear and present biasness of the Court of

Judge Kevin A. Hess, P.J. and Robert Eliker; Judge Hess and Magistrate Eliker, have no rights

or legal authority to "RUIN" a Petitioner/Litigants "LIFE"!

Affiant Victim and Witness to Criminal Activities further sayeth Naught.

Dated this 07th day of August , In the Year of Our Lord, 2013;

Respectfully Submitted,

"We the People, All Rights Restored and Reserved, Never Waived,"

"ra,m,(i4--- Kelly H, Bingaman( X REL, any and all derivatives thereof; WITHOUT

PREJU D CE, WITHOUT RECOURSE, UNLAWFULLY & FRAUDULENTLY

MADE UNWITTING SURETY OF THE STATE, UNDER DURESS:

CERTIFICATE & AFFIDAVIT OF SERVICE:

"We the People, All Rights Restored and Reserved, Never Waived, KELLY H.

BINGAMAN, relator of information and facts, hereby states that the said Plaintiff, the Court

and the attorney of record as listed below have received service by certified return receipt

and U.S. Postal Mail as required in rule 4(e), a true and correct copy of this:

MEMORANDUM OF LAW & BRIEF IN SUPPORT OF THE DEMAND TO RECUSE JUDGE KEITH A. HESS, P.J., AND MAGISTRATE DIVORCE MASTER ROBERT ELIKER EFFECTIVE IMMEDATELY PURSUANT TO TITLE 28 U.S.C. RULE 455 &455(A): on or

before August 15 th, 2013, by way and through a third party uninterested party the U.S.

Postal Service by regular mail and certified return receipt;

CC:

COURT OF COMMON PLEAS OF CUMBERLAND [HAND DELIVERED] 1 COURT HOUSE SQUARE CARLISLE, PA. 17013

ATTN: OFFICE OF THE CLERK & JUDGE'S CHAMBERS

PENNSYLVANIA REPRESENTATIVE

SHERYL M. DELOZIER

8

2929 GERRYSBURG ROAD, SUITE 6

CAMP HILL, PA. 17011

PENNSYLVANIA SENATOR

PATRICIA H. VANCE

3806 MARKET STREET

CHAMP HILL, PA. 17011

TOWNSHIP MANAGER KEITH M. MARTIN, PRESIDENT

100 GETTYSBURG ROAD

MECHANICSBURG, PA. 17055

MAYOR JACK RITTER

36 WEST ALLEN STREET

MECHANICSBURG, PA. 17055

JOSEPH D. CARACIOLO,

FORMAN, FOREMAN & CARACIOLO

112 MARKET STREET 6TH FL.

HARRISBURG, PA. 17101

ROBERT E. BINGAMAN JR.,

386 LEWIS BERRY ROAD

NEW CUMBERLAND, PA. 170870

Dated this 07th day of August , In the Year of Our Lord, 2013;

Respectfully Submitted,

"We the People, All Rights Restored and Reserved, Never Waived,"

pokrt:)&—

Kelly F Bingarnan X REL, any and all derivatives thereof; WITHOUT PREJUDICE, WITHOUT RECOURSE, UNLAWFULLY & FRAUDULENTLY

9

BINGAMAN v. BINGAMAN, No. 1644 MDA 2008., August 31, 2009 - PA Superior Co... Page 1 of 5

FOR LEGAL PROFESSIONALS

Superior Court of Pennsylvania.

BINGAMAN v. BINGAMAN Robert E. BINGAMAN, Jr., Appellee v. Kelly BINGAMAN, Appellant.

No. 1644 MDA 2008.

-- August 31, 2009

BEFORE: ORIE MELVIN, GANTMAN and CLELAND, JJ.

¶ 1 Kelly Bingaman (Wife) appeals the trial court's order entered August 14, 2008 denying her Motion to Strike and/or Re-Open Decree in Divorce. After careful review, we hold the trial court should have vacated that portion of the divorce decree that held it did not retain jurisdiction over the alimony claim. The trial court should have done so because a fatal defect appears on the face of the record. We reverse and remand.

2 The parties were married June 1, 1984. Robert Bingaman, Jr. (Husband) filed a divorce complaint on March 8, 2005 raising counts in divorce and equitable distribution. Wife filed an answer on May 6, 2005 denying that the marriage was irretrievably broken, an amended answer on June 8, 2005 requesting counsel fees, and an additional petition on December 20, 2006 requesting equitable distribution, spousal support, alimony pendente lite, alimony and costs and expenses. After a hearing on September 4, 2007, a Master issued a report and recommendation (Master's Report) entered September 10, 2007 recommending, inter alia, Husband's request for divorce be granted, and specifically providing, "The Master, as indicated, is going to leave the alimony issue open and preserved. In the event of a divorce decree, that issue will be preserved on the decree for further adjudication." Master's Report at 10. On October 25, 2007, the trial court adopted the recommendations of the Master and specifically noted, "The claim for alimony is hereby preserved." Order, 10/25/07, at 1. On January 18, 2008, Husband filed a Praecipe to Transmit Record. Husband's praecipe did not substantially comply with the form provided at Pa.R.C.P.1920.73 because it did not list any "related claims pending" as required by paragraph four.' If it had, perhaps this appeal could have been avoided.

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¶ 3 On January 23, 2008, the trial court entered the divorce decree. The decree included the sentence, "The Court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; [sic] None." Decree In Divorce, 1/23/08, at 1. The word "none" was handwritten. The trial court's decree followed an old version of the form provided in Pa.R.C.P.1920.76 which required courts to write-in all claims for which a final order had not been entered. In 1988, the Supreme Court revised the form to read: "The court retains jurisdiction of any claims raised by the parties to this action for which a final order has yet been entered." Pa.R.C.P.1920.76. 2

4 Seventy days after the decree was entered, on April 2, 2008, Wife filed the Motion to Strike and/or Re-Open Decree in Divorce (the motion). Following argument, on August 14, 2008 the trial court denied the motion. On September 12, 2008, Wife appealed. On appeal Wife asks us to consider "whether the court erred when it failed to strike and/or open a decree in divorce, which was defective upon its face for failing to keep the issue of alimony open and preserved." Concise Statement of Matters Complained of on Appeal at 1 (capitalization omitted). See also Appellant's Brief at 7. 1

5 Our standard of review is whether the trial court abused its discretion when it denied Wife's motion. 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).

¶ 6 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. § 5505[ 4] (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.

23 Pa.C.S.A. § 3332.

¶ 7 Our review of the record reveals the following.? Wife timely raised the issue of alimony. The Master recommended the issue of alimony be preserved even after entry of a divorce decree. The trial court adopted the Master's recommendation and specifically held the issue of alimony was preserved. Husband filed a praecipe to transmit record and failed to point out to the court that the issue of alimony was still pending. The trial court then entered the decree and erroneously ordered that all issues had been resolved. The issue is whether, based on these facts, § 3332 provides Wife a remedy. As explained below, we hold that it does.c2



¶ 8 Husband argues Wife is not entitled to have the decree "opened" under § 3332 because she did not make the motion within 30 days, and she is not entitled to have the order "vacated" because, although the motion was made within five years, she has failed to prove there is a fatal defect on the face of the record. Further, Husband argues the decree cannot be vacated because he has remarried.:

¶ 9 In this case, a review of the record readily reveals a fatal defect: Wife properly raised the issue of alimony, and the trial court in an order on October 25, 2007 preserved the issue. Even though it had preserved the alimony issue, the trial court entered a divorce decree stating the issue of alimony had been resolved when it had not. This defect is apparent on the face of the record.-L' The trial court had authority under § 3332 to vacate the decree to the extent required to amend it and correct its error to preserve the issue of alimony. The trial court's failure to do so was an abuse of discretion because the trial court did not properly apply the law. See Widmer, supra.``-'

10 Accordingly, the Order entered August 14, 2008 is reversed. The case is remanded for the trial court to vacate that portion of the divorce decree that did not retain jurisdiction over the issue of alimony with instructions to specifically rule that the trial court retains jurisdiction over the alimony claim raised by Wife and on which a final order has not yet been entered. Jurisdiction relinquished.

FOOTNOTES

1. The form appears as follows:PRAECIPE TO TRANSMIT RECORDTo the Prothonotary:Transmit the record, together with the following information, to the court for entry of a divorce decree:l. Ground for divorce: irretrievable breakdown under § (3301(c)) (3301(d)(1)) of the Divorce Code. (Strike out inapplicable section).2. Date and manner of service of the complaint: _.3. Complete either paragraph (a) or (b).(a) Date of execution of the affidavit of consent required by § 3301(c) of the Divorce Code: by plaintiff _; by defendant _.(b)(1) Date of execution of the affidavit required by § 3301(d) of the Divorce Code: _; (2) Date of filing and service of the plaintiffs affidavit upon the respondent: _.4. Related claims pending: _.5. Complete either (a) or (b).(a) Date and manner of service of the notice of intention to file praecipe a copy of which is attached: _.(b) Date plaintiffs Waiver of Notice was filed with the prothonotary: _Date defendant's Waiver of Notice was filed with the prothonotary: (Attorney for) (Plaintiff)(Defendant)Pa.R.C.P.1920.73 (emphasis added).

2. The comments following the rule provide:The amendment to Rule 1920.76 revises the form of divorce decree so that the court will no longer be required to list the claims as to which a final order has not been entered at the time of entry of the final divorce decree. Rather, the decree will simply state that the court retains jurisdiction over unresolved issues.Cmt. (1988).

3. Husband asserts Wife has not argued a defect in the record exists and that Wife failed to timely assert an alimony claim. Appellee's Brief at 5. Notably, however, only one

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paragraph later, Husband argues Wife is relying on the language of the statute which affords relief where there is a fatal defect on the face of the record. Id. at 6. Husband cites Melton v. Melton, 831 A.2d 646 (Pa.Super.2003). In Melton, the wife did not even raise the claim of alimony until four months after entry of the divorce decree. Here, however, Wife timely asserted her alimony claim during the divorce litigation and Melton is starkly distinguishable. Husband also argues Wife's reliance on Strouse v. Strouse, 36 Pa. D. & C. 4th 349 (1997), is misplaced. He points out that Strouse is a trial court decision and not binding on this Court. He argues that even if it was binding that it is distinguishable. Although Strouse is not binding on this Court, we disagree with husband that Strouse is distinguishable. The defendant in Strouse, just as Wife here, preserved the issues of economic relief. Despite the fact the issues had been preserved, both in Strouse and in this case the trial court erroneously wrote the word "none" on the decree indicating no issues were preserved. The difference between Strouse and the present case is that in Strouse the plaintiff notified the court in his praecipe that an issue was still pending. Here Husband did not do so.

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.

5. Husband's counsel asserts "[alt no time in the proceedings did the Court of Common Pleas indicate that this was a mistake. [Wife] fails to address the issue that this Order was a properly entered Court of Common Pleas order, but instead dilutes the issue by pointing to a non-binding recommendation of the Divorce Master." Appellee's Brief at 8. Husband's counsel's assertions conflict with the record. The trial court's order states, "The claim for alimony is hereby preserved." Order, 10/25/07, at 1. Further, the trial court stated that the failure to retain jurisdiction over alimony may have been the court's mistake. N.T., 6/20/08, at 2-3, 5, 6.

6. In its Pa.R.A.P.1925(a) Opinion, the trial court relies on Justice v. Justice, 417 Pa.Super. 581, 612 A.2d 1354 (Pa.Super.1992), to support its decision that it did not have the authority to vacate the decree beyond 30 days after entry of the decree. However, like the wife in Melton, the appellant in Justice did not raise any economic claims until more than 30 days after entry of the divorce decree. Justice, as Melton, is inapposite.

7. Pennsylvania courts have vacated divorce decrees even after parties have remarried, but in those cases the person who remarried had committed a fraud on the prior spouse. We do not rely on those cases in reaching our disposition and mention them here only to note that a divorce decree can be vacated even after a party to the decree has remarried. See Allen v. Maclellan, 12 Pa. 328, 1849 WL 5803 (1849); McLaughlin v. McLaughlin, 199 Pa.Super. 53, 184 A.2d 130 (Pa.Super.1962).

8. Husband argues Wife "offers no support that the Divorce Decree presents a fatal defect." Appellee's Brief at 5 (emphasis added). However, the relevant inquiry is not



whether the defect appears in the decree, but whether it appears on the face of the record. When the defect is apparent on the face of the record, as here, the decree may be vacated. Examples in which it is clear the "record" encompasses more than merely the decree include Lazaric v. Lazaric, 818 A.2d 523, 525 n. 4 (Pa.Super.2003) where in dictum this Court explained the absence of the notice of intention to request entry of the decree from record and the presence of a consent indicating receipt of the notice of intention to request entry of the decree was a fatal defect apparent on the face of the record, and Danz v. Danz, 947 A.2d 750 (Pa.Super.2008) where this Court held the trial court's failure to ensure proper venue was a fatal defect apparent on the face of the record.

9. Husband argues that even if we determine the law indicates the decree should be opened or vacated, we should affirm the trial court in the interest of justice because of Wife's dilatory and malicious behavior in the course of this litigation. Appellee's Brief at 8-9. He asks us to affirm in the interest of justice pursuant to Pa.R.C.P. 126 which calls for the liberal construction of the Rules of Civil Procedure. However, we do not resolve this case by application of the Rules of Civil Procedure. Rather, our disposition is based on application of precedent and statutory law. Husband asks us to apply the relevant statute liberally pursuant to 1 Pa.C.S.A. §§ 1501-1991 "to give effect to their purpose and to promote justice." Appellee's Brief at 9. However, in a situation where a party properly raises an economic claim and the trial court enters an order preserving the claim then the partial vacation of the decree to resolve that economic claim clearly supports the purpose of § 3323. Our disposition of this appeal gives Wife nothing more than the opportunity to advance her already preserved economic claim of alimony. The parties remain divorced.

OPINION BY CLELAND, J.:

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