J-A12041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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