RICHARD A. DANZ v. CINDY L. DANZ
No. 1506 WDA 2007 2008 PA Super 70 Atlantic: n/a Filed: 4/16/2008
Appeal from the Order in the Court of Common Pleas of Potter County, Civil Division, No. 2007-97
Before: FORD ELLIOTT, P.J., MUSMANNO and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Cindy L. Danz appeals the July 18, 2007, Order denying her Motion to Vacate or Open a Decree of Divorce.
On October 8, 2007, the trial court issued an Opinion wherein it concluded wife had waived her challenge to improper venue by failing to file preliminary objections. In reaching this conclusion, the trial court relied on Pa.R.C.P. 1920.1(b), Definitions. Conformity to Civil Action, which states: “Except as otherwise provided in this chapter, the procedure in [a divorce] action shall be in accordance with the rules relating to a civil action.” The trial court also relied on Pa.R.C.P. 1006(e), Venue. Change of Venue, which provides in pertinent part: “Improper venue shall be raised by preliminary objection and if not so raised shall be waived.”
Our standard of review over an order denying a motion to open or vacate a divorce decree requires us to determine whether an abuse of discretion has been committed. Egan, supra at 407, quoting Foley v. Foley, 572 A.2d 6, 9 (Pa.Super. 1990) (additional citation omitted). A motion requesting that a divorce decree be opened or vacated lies when the motion alleges the decree suffers from a fatal defect apparent upon the face of the record, was procured by either intrinsic or extrinsic fraud, should be voided in light of newly discovered evidence, or was entered by a court without subject matter jurisdiction. 23 Pa.C.S.A. § 3332, Opening or vacating decrees.
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