Mickman, R. v. Mickman, E.
Mickman, R. v. Mickman, E. No. 1426 EDA 2016
| Pa. Super. Ct. | Jul 20, 2017Background
- Elaine Mickman (defendant/appellant) sought multiple times to open or vacate her 2011 divorce decree, alleging (what she framed as) extrinsic fraud by Richard Mickman—specifically concealment of business interests and assets.
- The trial court had previously heard and denied similar petitions in 2014 and 2015; some denials were not appealed or appeals were not perfected.
- On October 30, 2015 Elaine filed another pro se amended petition to open/vacate under 23 Pa.C.S. § 3332; Richard filed preliminary objections asserting res judicata/claim preclusion.
- The trial court sustained the preliminary objections and dismissed the October 30, 2015 petition as barred by res judicata and as alleging intrinsic (not extrinsic) fraud that had been or could have been litigated previously.
- The court awarded attorney’s fees to Richard for Elaine’s repetitive, vexatious filings; Elaine failed to pay and was later held in contempt for nonpayment.
- The Superior Court affirmed both the dismissal (claim preclusion/intrinsic vs. extrinsic fraud distinction) and the contempt/fee award (no abuse of discretion; appellant failed to prove inability to pay and waived some appellate arguments).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 30, 2015 petition to open/vacate was barred by res judicata/claim preclusion | Prior petitions raised same facts; earlier final determinations bar relitigation | New exhibits and claimed "newly discovered" evidence defeated res judicata and required a due-process hearing | Petition dismissed: claim preclusion applies; appellant repeatedly litigated same allegations and did not show truly new, collateral fraud |
| Whether the allegations constitute extrinsic fraud (allowing relief beyond 30 days) or intrinsic fraud (time-barred) | Plaintiff: issues previously litigated; allegations go to matters adjudicated (intrinsic) | Defendant: appellee concealed assets/business interests, which prevented a fair hearing (extrinsic) | Held intrinsic: allegations relate to matters adjudicated at the divorce and are not extrinsic fraud; decree cannot be vacated on that basis now |
| Whether the court abused its discretion in awarding attorney’s fees for vexatious litigation | Fees appropriate because appellant filed repetitive, duplicative, meritless petitions | Appellant claimed no vexatious conduct and asserted disability/absence at hearing | Fees affirmed: record supports finding of repetitive, vexatious conduct; no plain error or abuse of discretion |
| Whether contempt sanction for nonpayment was improper (inability to pay; right to cross-examine appellee) | Plaintiff: appellant failed to pay as ordered; appellant offered no proof of inability to pay; appellee’s live testimony not required | Appellant claimed inability to pay, denial of ADA accommodation, and that appellee’s absence denied her cross-examination | Contempt affirmed: appellant failed to prove inability to comply and waived arguments about hearing irregularities and ADA; appellee’s absence not prejudicial given undisputed nonpayment |
Key Cases Cited
- Allen v. McCurry, 449 U.S. 90 (res judicata precludes relitigation of matters that were or could have been raised)
- Taylor v. Sturgell, 553 U.S. 880 (preclusion doctrines bar relitigation of issues parties had a full and fair opportunity to litigate)
- In re Stevenson, 40 A.3d 1212 (Pa. 2012) (discussing res judicata principles in Pennsylvania family-law context)
- Grimm v. Grimm, 149 A.3d 77 (Pa.Super. 2016) (standard of review for preliminary objections: de novo, accept well-pleaded facts)
- Fenstermaker v. Fenstermaker, 502 A.2d 185 (Pa.Super. 1985) (distinguishing intrinsic from extrinsic fraud in divorce setting)
- Justice v. Justice, 612 A.2d 1354 (Pa.Super. 1992) (beyond 30 days, vacatur requires extrinsic fraud; concealment of assets often treated as intrinsic)
- Sinaiko v. Sinaiko, 664 A.2d 1005 (Pa.Super. 1995) (burden on contemnor to prove present inability to comply with purge terms)