Yelenic v. Clark
| Decision Date | 12 April 2007 |
| Docket Number | No. 1606 WDA 2006,1606 WDA 2006 |
| Parties | Michele M. YELENIC v. Mary Ann CLARK, Personal Representative of the Estate of John J. Yelenic, Jr., a/k/a John Yelenic, Jr. Appeal of Mary Ann Clark, Appellant. |
| Court | Pennsylvania Superior Court |
Efstathia G. Alexander, Pittsburgh, PA, for Clark, appellant.
Paul A. Bell, II, Indiana, PA, for Estate of Yelenic, appellant.
Daniel R. Lovette, Indiana, PA, for appellee.
¶ 1 Mary Ann Clark (Appellant), personal representative of the estate of John J. Yelenic, Jr. (Decedent), appeals from the order issued on July 26, 2006, that denied Appellant's motion for entry of a posthumous decree in divorce.1 We affirm.
¶ 2 In its opinion filed pursuant to Pa. R.A.P.1925, the Honorable Carol Hanna set forth the following factual and procedural history of the case, deriving the facts from the pleadings and testimony given at the hearing on May 18, 2006:
Michele M. Yelenic (hereinafter referred to as "Wife") and John J. Yelenic, Jr. (hereinafter referred to as "Husband") married on December 31, 1997 in Las Vegas, Nevada. During their marriage the parties adopted a child on March 17, 2000. The parties subsequently separated on March 6, 2002.
Wife filed a Complaint in Divorce on June 10, 2003, which included counts for equitable distribution, custody, child support, alimony, alimony pendente lite, and exclusive possession. The Wife's divorce complaint alleged indignities, and alternatively, that the marriage was irretrievably broken. Husband answered Wife's divorce complaint on July 12, 2004 and included a prayer for relief joining in Wife's request that the Court enter a decree in divorce.
In September and October 2004, special relief proceedings regarding the parties' child occurred. The parties also entered into an Interim Consent Order of Court/Agreement Regarding Custody and Visitation on September 16, 2004.
Husband filed an Affidavit under 23 Pa.C.S.A. § 3301(d) of the Divorce Code on October 17, 2005, stating that the parties had been separated for more than two years and the marriage was irretrievably broken. Wife filed a Counter-Affidavit on October 27, 2005 opposing the entry of a divorce decree because the marriage was not irretrievably broken.2 Notably, Wife's Counter-Affidavit did not deny the duration of the marital separation.
2 Counsel for the Wife acknowledged at the May 18, 2006 proceeding that the Counter-Affidavit opposing the entry of a divorce decree was prepared for "tactical reasons."
A Petition to Enforce Settlement Agreement was filed by Husband's counsel on March 20, 2006. The Petition claimed that the parties and their counsel had negotiated a total settlement of all issues during a meeting on January 4, 2006. According to the Petition, a draft Marital Settlement Agreement, prepared by Husband's counsel, was forwarded to Wife's counsel on February 16, 2006, but Wife refused to sign the agreement due to a dispute regarding the duration of alimony pendente lite. The Court set a hearing on Husband's Petition for May 18, 2006.
Following the filing of Husband's Petition to Enforce Settlement Agreement, the parties agreed to resolve the economic issues and their marital relationship. Husband's counsel forwarded a Marital Settlement Agreement, an Affidavit of Consent and Waiver of Notice to Wife's counsel on April 3, 2006. Wife signed the Marital Settlement Agreement, the Affidavit of Consent and the Waiver of Notice on April 7, 2006. These documents were returned to Husband's counsel on April 8, 2006, and immediately forwarded to Husband for his signature. Husband signed both the Affidavit of Consent and Waiver of Notice of Intention to Request Entry of Divorce Decree under § 3301(c) of the Divorce Code and dated these documents April 8, 2006. However, Husband did not sign the Marital Settlement Agreement. Husband informed a legal assistant at his counsel's office on April 10, 2006 that he would arrange to sign the Marital Settlement Agreement before a Notary Public later that week.
On April 13, 2006, before he had an opportunity to sign the Marital Settlement Agreement, Husband was murdered at his residence. An estate was opened on behalf of Husband on May 18, 2006. Husband's cousin, Mary Ann Clark, was appointed personal representative.
The Court held a hearing to determine the parties' economic rights and obligations pursuant to § 3323(d) of the Divorce Code on May 18, 2006. The estate's personal representative and her attorney, Paul A. Bell, Wife's counsel, and Husband's counsel were present at this proceeding. Husband's counsel was authorized by the estate's attorney to speak on behalf of the estate. After taking testimony and evidence, an Order was entered that found that:
1. Grounds for Divorce under § 3301(d) of the Divorce Code had been established.
2. The parties' economic rights under the marriage should be determined by the Divorce Code pursuant to § 3323(d.1).
3. The Marital Settlement Agreement signed by Wife and Consented to by the Personal Representative of Husband's Estate should be enforced.
Following the Court's entry of this Order, Husband's counsel made an oral motion requesting the entry of a posthumous divorce decree. Wife's counsel and counsel for the personal representative joined in this motion. The Court initially denied this request, but agreed to take the issue under advisement.
Trial Court's Opinion (T.C.O.), 07/26/06, at 1-4. Subsequently, the trial court issued an order denying the request for the entry of a posthumous divorce decree.
¶ 3 Appellant's timely appeal presents the following issue for our review:
Whether the trial court erred in failing to grant the request of [Decedent's] estate to grant a decree in divorce to [Decedent] posthumously, or in the alternative, to grant the decree in divorce to [Decedent] nunc pro tunc?
Appellant's brief at 4.
¶ 4 With regard to the issue raised, the trial court provided an extensive recitation of the law that is applicable to this matter. In addition to providing the principles outlined in long-standing case law, the court's discussion also noted that the Divorce Code was amended in January of 2005, allowing for the economic rights of the parties to be determined using equitable distribution standards and not the elective share provisions under the Probate Code, if certain prerequisites are met. Because we find the trial court's thorough discussion of the law pertinent to the holding here, we quote it verbatim:
Pennsylvania courts have long held that an action in divorce abates upon the death of either party. See Estate of Pinkerton v. Pinkerton, 646 A.2d 1184 (Pa.Super. 1994); Geraghty v. Geraghty, 600 A.2d 1261 (Pa.Super. 1991); Drumheller v. Marcello, 532 A.2d 807 (Pa. 1987); Hall v. Hall, 482 A.2d 974 (Pa.Super. 1984); Haviland v. Haviland, 481 A.2d 1355 (Pa.Super. 1984); Matuszek v. Matuszek, 52 A.2d 381 (Pa.Super. 1947). The rationale for this principle is that an action in divorce is personal to the parties and upon the death of either party, the action necessarily dies. The primary purpose of divorce is to change the relation of the parties and when the death of a party occurs, that purpose can no longer be achieved because the marital relationship has been ended by death. Drumheller v. Marcello, 532 A.2d 807, 808 (Pa. 1987).
It is also well settled that equitable distribution of marital property may occur when a final decree in divorce has been entered and the court retains jurisdiction over ancillary matters properly raised by the parties. Pastuszek v. Pastuszek, 499 A.2d 1069 (Pa.Super. 1985). In this instance, the personal representative of the deceased spouse is substituted as a party and the action proceeds. See 23 Pa.C.S.A. § 3323(d). However, until the most recent amendments to the Divorce Code, if bifurcation had not occurred, then the economic claims were abated by death. Pinkerton v. Pinkerton, 646 A.2d 1184 (Pa.Super. 1994); Geraghty v. Geraghty, 600 A.2d 1261 (Pa.Super. 1991); Myers v. Myers, 580 A.2d 384 (Pa.Super. 1990).
On January 28, 2005, the Divorce Code was amended to provide that a divorce action will not abate upon the death of a spouse, so long as the grounds for divorce have been established. See 23 Pa.C.S.A. § 3323(d.1). Under the new subsection, if grounds for divorce have been established as set forth in 23 Pa.C.S.A. § 3323(g), then the parties' economic rights are determined under equitable distribution principles rather than the elective share provision of the Probate Code.3 See 20 Pa.C.S.A. § 2203(c), which was also amended and is in pari materia with the Divorce Code.4 The amendment represents a significant development and according to the Official Comment, the change in the law solves the problem for practitioners of how "to advise clients on whether to bifurcate divorce proceedings, because of the difficulties often involved in predicting whether equitable distribution would provide more favorable result than the elective share procedure." 23 Pa.C.S.A. § 3323(d.1) Official Comment. Under the new procedure, the death of a party does not abate the equitable distribution action regardless of whether a divorce has been granted, so long as the grounds for divorce have been established.
3 Elective share provisions permit a spouse in Pennsylvania to claim one-third of certain properties of the other spouse's estate when the other spouse dies, thus overriding the deceased spouse's will. 20 Pa.C.S.A. §§ 2202-2211.
4 Divorce Code Amendments of 2004, Pub.L. No. 2004-175 (2004).
¶ 5 In her brief, Appellant first discusses the evolution of the law as it pertains to divorce and equitable distribution, noting that Upperman v. Upperman, 119 Pa.Super. 341, 181 A. 252 (1935), first articulated the rule that a divorce action abates upon the death of one of the parties, i.e., "[t]he suit abates absolutely on the...
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