Opinion
J-A16007-18 No. 1469 EDA 2017
09-17-2018
RICHARD MICKMAN, Appellee v. ELAINE MICKMAN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 21, 2017
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 03-06252 BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Elaine Mickman (Appellant or Defendant) appeals pro se from the order dated March 20, 2017, and entered on March 21, 2017, that denied her Petition to Open/Vacate Divorce Decree Based On "Newly" Discovered Evidence and granted Richard Mickman's (Appellee or Plaintiff) motion to dismiss Appellant's petition. The order also denied Appellant's Petition to Reinstate Alimony and granted Appellee's motion to dismiss the alimony request. For the reasons that follow, we affirm.
Appellant raises the following two issues for our review:
1. The court erred and abused its discretion by procedurally and substantively denying a due process hearing to present evidence, testimony, and witnesses for a "timely" filed Petition to Open/Vacate a Divorce Order for Extrinsic Fraud with attached "Newly" discovered prima facie material evidence collateral to the divorce, thereby denying and dismissing the petition without a meaningful right to be heard, further,
denying a Reconsideration Motion which pointed out "clear error of fact or law", and relying on the original divorce ... determination which was based on extrinsic fraud placed upon the court.Appellant's brief at 5 (emphasis in original).
2. The [c]ourt erred and abused its discretion by denying Appellant a hearing and dismissing the Petition to Re-instate Alimony in connection with the "timely" filed Petition to Open/Vacate the Divorce order for later discovered Extrinsic Fraud.
With regard to the arguments raised in relation to the denial of Appellant's most recent petitions to open/vacate the divorce decree and to reinstate alimony, we have reviewed the certified record, the briefs of the parties, the applicable law, and the thorough, 15-page opinion of the Honorable Patricia E. Coonahan of the Court of Common Pleas of Montgomery County, dated June 14, 2017. We conclude that Judge Coonahan's well-reasoned opinion accurately disposes of the issues presented and we discern no abuse of discretion or error of law. Accordingly, we adopt Judge Coonahan's opinion as our own and employ the discussion contained therein as the basis for affirming the order from which this appeal arose.
Specifically, our review included the most recent decision filed by this Court, which in many ways mirrors the arguments raised instantly. See Mickman v. Mickman , No. 1426 EDA 2016 and No. 2097 EDA 2016, unpublished memorandum (Pa. Super. filed July 15, 2017).
However, we are compelled to comment on Appellant's numerous frivolous and vexatious lawsuits filed by her in attempting to re-open or vacate the divorce decree. We begin by referencing Pa.R.C.P. 233.1, which pertains to frivolous litigation "that limits the ability of pro se plaintiffs to prolong litigation through the filing of serial complaints after the claims they allege have been resolved." Gray v. Buonopane , 53 A.3d 829, 834 (Pa. Super. 2012). However, Rule 233.1 provides that "[t]he provisions of this rule do not apply to actions under the rules of civil procedure governing family law actions." Despite the language of the rule, the Winpenny III v. Winpenny , 775 A.2d 815 (Pa. Super. 2001) case, which involved a partition action for the sale of property held by the entireties pursuant to the parties' divorce settlement, determined that "[t]he issues raised by [the] appellant herein are nothing more than recycled claims which previously were addressed by the courts of this Commonwealth over the span of more than two decades." Id. at 817. The Winpenny opinion notes that stronger sanctions beyond those previously imposed were "necessary to further dissuade [the] appellant from conducting herself in a dilatory and vexatious manner" in that she continues to litigate issues addressed and disposed of on direct appeal. Id. at 818. The Winpenny Court further stated that,
This appeal appears to be Appellant's seventh collateral attack on the parties' divorce decree, which was issued in 2011. The divorce complaint was initially filed in April of 2003.
it is clear [the] appellant's insistence on repeatedly raising previously litigated issues goes beyond the conduct tolerated by our judicial system. This case is a clear example of a litigant who has abused the process of the courts of this Commonwealth. Accordingly, we find [the] appellant's habitual conduct warrants the imposition of additional costs, fees and damages.Id. It is apparent that the Winpenny decision supports the trial court's prior imposition of attorney's fees in the instant case.
Although the case of Bolick v. Commonwealth , 69 A.3d 1267 (Pa. Super. 2013), is not a family law case, the actions suggested by this Court based upon the Supreme Court's comment to Rule 233.1 are persuasive. Specifically, the Bolick opinion directs:
We believe that Rule 233.1 makes clear that the power to bar frivolous litigation at the trial court level rests with the trial court. Should [the] [a]ppellant again present any filing in this matter to the trial court, the [appellee] may choose to file a motion with the trial court to dismiss the action and bar future litigation on the matter pursuant to Rule 233.1. The trial court will then have the discretion to bar future litigation, if it so chooses.Id. at 1270. We likewise suggest that the same procedure can be applied in the future to this matter.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/17/18
Image materials not available for display.