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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF ROBERT D. IN THE SUPERIOR COURT OF
MUTZABAUGH, PENNSYLVANIA
Appellee
v.
APPEAL OF: PAULETTE MUTZABAUGH
No. 2115 MDA 2014
Appeal from the Order Entered November 21, 2014
In the Court of Common Pleas of Perry County
Orphans' Court at No(s): 5014-0149
BEFORE: BOWES, JENKINS, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 09, 2015
Paulette Mutzabaugh appeals from the November 21, 2014 order
granting the petition filed by Maryann Mutzabaugh to remove Paulette as the
administratrix of the estate of Robert D. Mutzabaugh.1 We affirm.
On September 14, 2014, Paulette, Robert’s mother, was granted
letters of administration after filing a petition wherein she averred the
following. Robert died on August 26, 2014, intestate. Maryann and Robert
were in the process of divorcing, and grounds for the divorce were
established in the divorce case. Paulette asserted that she was Robert’s sole
____________________________________________
1
An order removing a personal representative of an estate is a final,
appealable order. Pa.R.A.P. 342(a)(5).
*
Retired Senior Judge assigned to the Superior Court.
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intestate heir and entitled to serve as his administratrix. Based upon these
representations, the Register of Wills of Perry County granted the petition
and appointed Paulette administratrix of the estate.
On September 23, 2014, Maryann filed a petition for Paulette’s
removal, setting forth the following. Maryann and Robert were still legally
married when he died. Since Robert did not have a will, Maryann, as his
spouse was entitled to be his administratrix and Paulette should be removed.
20 Pa.C.S. § 3155(b) (“Letters of administration shall be granted by the
register . . . to one or more of those mentioned and, except for good cause,
in the following order: (1) Those entitled to the residentiary estate under the
will. (2) The surviving spouse[.]”). Maryann reported that, contrary to
Paulette’s representation, grounds for divorce were not established, as
required by § 3323(g) of the Divorce Code, set forth infra, so that she was
entitled to her spousal rights under the Probate, Estates, and Fiduciaries
Code (“PEF Code”).
On October 13, 2014, the court issued a citation to Paulette to appear
on November 10, 2014, and show cause why she should not be removed as
administratrix. Paulette responded to the petition by admitting that Robert
and Maryann were married on July 5, 1981. She continued that Maryann
filed a divorce complaint against Robert on October 12, 2011, but the
divorce proceeding was stayed when Robert, individually, filed for
bankruptcy to avoid a foreclosure on his home.
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Paulette outlined that Maryann filed a petition for special relief in the
divorce court asking that the anticipated proceeds in the amount of $35,000
from an impending sale of the marital home be escrowed since Robert had
removed $90,000 from his retirement account without paying anything to
Maryann. Maryann’s petition for special relief indicated that the parties had
been separated since September 22, 2011. Robert informed the divorce
court of his bankruptcy filing, and the divorce court stayed the petition for
special relief.
Paulette also noted that, on April 15, 2014, Maryann and Robert jointly
applied for relief in the bankruptcy court from the automatic stay, asserting
that they “have been separated for a period of two (2) years or more and
are interested in finalizing their divorce.” Response to Citation on Petition
for Removal of Administratrix, 11/7/14, at Exhibit C. The bankruptcy stay
was lifted on May 13, 2014. On August 18, 2014, Maryann then moved for
the appointment of a master and indicated that the “statutory ground(s) for
divorce are § 3301(d).” Id. at Exhibit E. Robert died ten days later.
Based upon the record filings, the orphans’ court concluded that
Maryann was entitled to serve as administratrix of the estate under § 2106
of the PEF Code, and it removed Paulette. This appeal followed. Paulette
raises these grounds for relief.
[1.] Where a spouse has taken the legal position before
the Bankruptcy Court and the Divorce Court that grounds for
divorce under 3301(d) of the Divorce Code exist, is she
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judicially estopped from changing position after the other
spouse dies to assert in the Orphans Court that there are no
grounds for divorce[?]
[2.] In the alternative, if she is not judicially estopped
from the assertion, does the fact that the automatic stay of the
bankruptcy laws barred the steps needed to move forward on
the divorce so that the parties had to cooperate to remove the
bar, substitute for the strict requirements of filing 3301(d)
affidavits?
Appellant’s brief at 2.
We first set forth our standard of review:
Our standard of review of an orphans' court's decision is
deferential. In re Estate of Strahsmeier, 54 A.3d 359, 362
(Pa.Super. 2012). When reviewing an orphans' court decree,
this Court must determine whether the record is free from legal
error and whether the orphans' court's findings are supported by
the record. Id. at 362–363. Because the orphans' court sits as
the finder of fact, it determines the credibility of the witnesses
and, on review, this Court will not reverse its credibility
determinations absent an abuse of discretion. Id. at 363.
However, this Court is not bound to give the same deference to
the orphans' court conclusions of law. Id. Where the rules of
law on which the orphans' court relied are palpably wrong or
clearly inapplicable, we will reverse the court's decree. Id.
In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.Super. 2013).
We note that, prior to 2005, a divorce action automatically abated
once one spouse died if a divorce decree was not entered. Taper v. Taper,
939 A.2d 969 (Pa.Super. 2007). Thus, if a spouse died at any stage of the
divorce lawsuit before the divorce decree was entered, the surviving
spouse’s interest was determined under the PEF Code. Id. On January 28,
2005, the Divorce Code was amended so that a divorce action was not
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abated under 23 Pa.C.S. § 3323(d.1) if grounds for divorce have been
established in accordance with 23 Pa.C.S. § 3323(g). Id.
Specifically, § 3323(d.1) of the Divorce Code provides, “In the event
one party dies during the divorce proceedings, no decree of divorce has been
entered and grounds had been established as provided in subsection (g), the
parties’ economic rights and obligations arising under the marriage shall be
determined under this part rather than under 20 Pa.C.S. (relating to
decedents, estates, and fiduciaries).” Concomitantly, 20 Pa.C.S. §
2106(a)(2)(ii)-(iii) of the PEF Code outlines that,
A spouse shall have no right or interest under this chapter in
the real or personal estate of the other spouse if:
(i) the other spouse dies domiciled in this Commonwealth
during the course of divorce proceedings;
(ii) no decree of divorce has been entered pursuant to 23
Pa.C.S. § 3323 (relating to decree of court); and
(iii) grounds have been established as provided in 23 Pa.C.S. §
3323(g).
Thus, both the Divorce Code and the PEF Code provide that the
divorce action abates and a surviving spouses’ rights are determined under
the PEF Code only when the mandates of 23 Pa.C.S. § 3323(g) are satisfied.
That provision outlines:
(1) In the case of an action for divorce under 3301(a) or (b)
(relating to grounds for divorce), the court adopts a report of the
master or makes its own findings that grounds for divorce exist.
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(2) In the case of an action for divorce under section 3301(c),
both parties have filed affidavits of consent.
(3) In the case of an action for divorce under 3301(d), an
affidavit has been filed and no counter-affidavit has been filed
or, if a counter-affidavit has been filed denying the affiant's
averments, the court determines that the marriage is
irretrievably broken and the parties have lived separate and
apart for at least two years at the time of the filing of the
affidavit.
23 Pa.C.S. § 3323(g).
Section 3301 of the Divorce Code outlines the various grounds for
divorce. Section 3323(g)(1) pertains both to § 3301(a), which is a fault
divorce instituted by an innocent and injured spouse, and to § 3301(b),
wherein a party can divorce a mentally ill and institutionalized spouse.
Maryann did not seek a fault divorce or one due to Robert’s
institutionalization. Section 3323(g)(2) covers divorces under 3301(c),
which are divorces by consent. Again, that section is inapplicable since
Robert did not consent to the divorce.
Instead, Maryann sought divorce under § 3301(d), which permits a
divorce under certain circumstances when the marriage is irretrievably
broken and when the parties have been separated for more than two years.
Thus, in order for the divorce action at issue herein to not abate, the
provisions of § 3323(g)(3) must be met. Under that provision, an affidavit
must be filed. Maryann did not file an affidavit. She requested a master
and stated that she was seeking a divorce under § 3301(d). See Appellant’s
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brief at 9 (“Appellant concedes that neither party strictly complied with the
requirements of 23 Pa.C.S. § 3323(g)(3) by filing so-called 3301(d)
affidavits.”).
Paulette first avers that Maryann is judicially estopped from contesting
that grounds for divorce existed because Maryann’s prior filings in the
divorce and bankruptcy courts established grounds for divorce under §
3301(d). We disagree. Specifically, that section provides:
(d) Irretrievable breakdown.--
(1) The court may grant a divorce where a complaint has
been filed alleging that the marriage is irretrievably broken and
an affidavit has been filed alleging that the parties have lived
separate and apart for a period of at least two years and that
the marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in
the affidavit.
(ii) Denies one or more of the allegations set
forth in the affidavit but, after notice and hearing,
the court determines that the parties have lived
separate and apart for a period of at least two years
and that the marriage is irretrievably broken.
(2) If a hearing has been held pursuant to paragraph
(1)(ii) and the court determines that there is a reasonable
prospect of reconciliation, then the court shall continue the
matter for a period not less than 90 days nor more than 120
days unless the parties agree to a period in excess of 120 days.
During this period, the court shall require counseling as
provided in section 3302 (relating to counseling). If the parties
have not reconciled at the expiration of the time period and one
party states under oath that the marriage is irretrievably
broken, the court shall determine whether the marriage is
irretrievably broken. If the court determines that the marriage
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is irretrievably broken, the court shall grant the divorce.
Otherwise, the court shall deny the divorce.
While Maryann asked for a divorce under § 3301(d), she did not plead
in a divorce complaint that the marriage was irretrievably broken, and she
did not file an affidavit attesting to a more than two-year separation and
that the marriage was irretrievably broken. Robert did not deny the
allegations. The divorce court made no determination regarding the state of
the marriage, and the proceedings under § 3301(d)(2) did not occur.
Paulette’s estoppel position fails in that Maryann never pled either that there
was an irretrievable breakdown in the marriage or that Robert did not deny
her allegation. Maryann admitted the date of separation in her pleadings
and asked for a determination that grounds for divorce existed under §
3301(d), which did not occur.
Likewise, we cannot agree with Paulette’s second assertion, which is
that § 3323(g) should be applied since the only reason that a divorce was
not entered was due to the bankruptcy stay and that the parties’ joint
request for a stay from bankruptcy satisfied the requirements for affidavits.
Robert, not Maryann, filed for bankruptcy, and he had Maryann’s petition for
special relief stayed due to his bankruptcy. This case does not involve a
situation where one spouse, through the disingenuous use of a bankruptcy
filing, has stayed a divorce to prevent application of § 3323(g) due to a
spouse’s impending death. Any delay in the divorce case was attributable to
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Robert, and we will not impute ill intent on Maryann’s part. The fact that
Robert asked for the lifting of the bankruptcy stay is not the equivalent of
filing an affidavit under § 3301(d).
Our decision in Gerow v. Gerow, 962 A.2d 1206, 1207-10 (Pa.Super.
2008), is instructive. Therein, wife wanted to pursue her property rights
under the Divorce Code rather than the PEF Code. Husband had instituted
the divorce case on three grounds. He then failed to litigate it for years.
Nearly five years after it was filed, the matter was set to proceed to a
master when husband suffered a heart attack and died. Wife wanted to
proceed with the divorce case. We denied wife’s request to allow the divorce
to proceed. We held that, unless the requirements of § 3323(g) are met,
the divorce action abates and the surviving spouse’s rights are determined
under the PEF Code.
This case is dispositive. The divorce case was filed, the matter sat idle
for years, and, just before it was set to be heard by a master, one of the
spouses died. Thus, the mandates of § 3323(g) were not met. As the
orphans’ court correctly applied the law to the facts, we affirm.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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In Re: Estate of Robert D. Mutzabaugh
Combined Opinion