J. A18027/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF BLAKE SCOTT WALKER,           :    IN THE SUPERIOR COURT OF
DECEASED                                :          PENNSYLVANIA
                                        :
APPEAL OF: DANIELLE MALONE              :          No. 17 MDA 2016


             Appeal from the Order Entered December 3, 2015,
              in the Court of Common Pleas of Adams County
              Orphans' Court Division at No. OC-00022-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 09, 2016

     Danielle Malone (“Mother”) appeals from the December 3, 2015 order

entered in the Court of Common Pleas of Adams County that dismissed her

objections to final accounting and adjudication/statement of proposed

distribution for the estate of Blake Scott Walker, deceased, and entitling

David Walker (“Father”) to all net estate proceeds and to the remaining

annuity payments from American Guaranty Service Corporation. We affirm.

     The orphans’ court made the following findings of fact:

           1.    Blake S. Walker (hereinafter “Blake”) was born
                 on November 30, 1993.

           2.    Blake’s mother is Danielle Malone (f/k/a
                 Danielle Mattern-Parris) who currently resides
                 [in the] United Kingdom.

           3.    Blake’s father is David Walker who currently
                 resides [in] Gettysburg, Adams County . . . .



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          4.    Blake’s parents were married on February 13,
                1993.

          5.    Due to significant medical malpractice/errors,
                Blake suffered injuries at birth and, as a result,
                he was rendered completely disabled.

          6.    At the time of Blake’s birth, the family was
                living in the York Springs, Adams County area
                and several months later moved to . . .
                Arendtsville, Adams County.

          7.    The parents separated in November 1995.
                Mother and Blake remained at the family
                residence and Father moved to the home of his
                parents . . . .

          8.    At some point in 1996, Father initiated a
                divorce action against Mother, docketed [in]
                Adams County.

          9.    Sometime in late 1996 or early 1997, Father
                and his paramour, Bella, moved to a residence
                in the Mount Alto, Quincy Township, Franklin
                County area and Mother and Blake moved to a
                residence in the Fairfield, Adams County area.

          10.   At some point in 1997, Mother requested that
                Father take Blake for a week, which Father
                agreed to do. This involved the transfer of all
                the special equipment needed for Blake’s care
                as well as shifting the nursing staff that
                assisted in his care to Father’s home.

          11.   Shortly thereafter, Mother asked Father to take
                Blake for a two-week period reportedly
                because she had been in an automobile
                accident and hurt her back. Father agreed to
                the request with the understanding that Mother
                would notify him when she was ready for his
                return to her care.




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          12.   At the end of the two-week period, Mother did
                not contact Father requesting Blake’s return
                nor was Father able to reach her by telephone.

          13.   Mother never saw the child again.

          14.   Up to this point, Mother reportedly provided
                good care [to] Blake both before and after his
                parent’s [sic] separation.

          15.   Since Blake was placed in Father’s home, he
                has been under the general medical care of
                Scott Jeager, M.D.[] Dr. Jeager described that
                Blake had severe neurologic and genetic
                illness [sic] rendering him without gross motor
                or communication skills except for the
                expression of pain.        He suffered seizure
                disorders that required medication. Blake took
                nourishment through feeding tubes. He was
                confined to bed and required uninterrupted
                care.

          16.   Mother was represented in the divorce and
                custody action by John F. Pyfer, Esquire, Jr.
                Eventually,   Father   was represented by
                Patrick W. Quinn, Esquire.

          17.   Attorney Quinn testified that Father was paying
                child support for Blake when he was in
                Mother’s custody. The parties were scheduled
                for a custody conference in 1997 or 1998 after
                which Father had custody of Blake.[Footnote 3]

                     [Footnote 3] . . . [A]n Order of
                     Court dated February 17, 1998 []
                     [indicates]     that    a     custody
                     conference was scheduled [] that
                     day. The Order noted that neither
                     Mother      nor    Attorney     Pyfer
                     appeared. Temporary custody of
                     Blake was granted to Father. [The
                     trial    court]      directed     the
                     Prothonotary to send a copy of the



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                      Order to Mother at [her residence]
                      and to Attorney Pyfer.

          18.   On March 11, 1998, Father filed a Petition to
                obtain exclusive possession of the former
                marital home [in] Arendtsville. On April 22,
                1998, an Order was entered . . . granting that
                request. Attorney Quinn was directed to serve
                Mother.[Footnote 4]

                      [Footnote 4] . . . [Father] averred
                      that in 1997, Mother transferred
                      custody of Blake to him and since
                      that time, Blake has been living
                      with he [sic] and Bella. He further
                      averred that it would be in the best
                      interest of Blake for him to reside
                      in the former residence.         The
                      record contains a Certificate of
                      Service that the April 22, 1998
                      Order      was      served     upon
                      Attorney Pyfer three days later.

          19.   Attorney Quinn advised Father to seek child
                support from Mother.       Father initiated that
                action [in] Adams County . . . .         Records
                indicate that the initial charge to the account
                was entered on June 16, 1998, in the amount
                of $1,382.50, and was charged thereafter on a
                weekly basis in the amount of $88.25.

          20.   Sometime in 1998, Father, Bella and Blake
                moved to [the former marital residence in]
                Arendtsville.

          21.   In 1999, Father and Bella became the parents
                of a daughter named Ashley. As an infant,
                they would have Ashley in the same room with
                Blake while they were tending to his needs and
                noticed that Blake would turn his head away
                from the side where Ashley was located.

          22.   In 2002, Father, Bella and Blake moved to
                595 Goldenville Road.     Father did not


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                specifically advise Mother of the move but did
                notify the Domestic Relations Office, received
                support checks at the address, and did not
                request Domestic Relations not to disclose his
                address to Mother.

          23.   Mother and Father entered into a Marriage
                Settlement and Separation Agreement dated
                October 9, 2002. Mother was represented by
                [counsel] in Houston, Texas. Mother executed
                the agreement in Texas on February 13, 2003.
                Therein, it is written that “the parties are the
                natural parents of one (1) minor child:
                Blake S. Walker, born November 30, 1993.”
                The Agreement also addresses tort claims filed
                in the Franklin County Court of Common Pleas
                . . . involving the parents’ individual claims and
                claims of “their minor child” arising out of the
                injuries suffered at the child’s birth. Mother
                agreed that any settlement or judgment
                received on behalf of Blake “shall be solely and
                exclusively controlled by Husband as long as
                Husband uses any proceeds from any
                settlement and/or judgment for the benefit of
                the parties’ minor child.” (emphasis added).

          24.   As of September 25, 2003, Mother had not
                made any payments on the child support order
                and the arrearage had accumulated to
                $24,213.39. On that date, credits were made
                on the account in the amounts of $1,271.43
                and $5,953.58 reducing the arrearage to
                $16,988.38.    Thereafter, the support was
                charged at $63.00 per week.[Footnote 7]

                      [Footnote 7] . . . The basis for the
                      credits, and the reason for the
                      adjustment in the weekly charge,
                      was not explained by the testimony
                      presented in the hearing.

          25.   The parents were divorced on January 13,
                2004.



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          26.   Sometime in 2005 while Mother was living in
                Seattle, she became aware that a bench
                warrant was issued for her in the child support
                matter.     She retained the services of
                Tracy Sheffer,  Esquire,    an   attorney     in
                Gettysburg, [Pennsylvania] to assist her in that
                matter.

          27.   On September 13, 2005, Mother sent a fax
                message to Attorney Sheffer wherein she
                wrote “I am not sure which direction to go
                after this as far as custody, law suit money,
                etc . . . Also I want to know Blake’s overall
                condition and medical prognosis.”

          28.   The first credit on the child support account
                after September 25, 2003, was recorded
                October 27, 2005, with the payment of
                $355.00. After that credit, the arrearage stood
                at $23,500.38.

          29.   Mother’s child support obligation was changed
                to $70.00 per week on or about November 25,
                2005. Thereafter, it appears that she made
                regular payments on the account.

          30.   Father and Bella were married on May 19,
                2007.

          31.   On December 10, 2007, the child support
                obligation was credited $5,368.34. Reportedly,
                this came about because Mother needed to go
                to Canada for work purposes and the arrearage
                created an issue with her passport.

          32.   Thereafter, Mother continued to make regular
                payments on the child support account.

          33.   After August 2, 2010, no more charges were
                made on the child support account. At that
                point, the arrearage totaled $17,278.39.

          34.   Blake died on February 25, 2011.



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          35.   [Mother and Father settled the child support
                arrearage.]

          36.   Mother testified that in 1997 she moved to
                Houston, Texas where she lived for 3.5 years,
                then moved to Seattle, Washington where she
                lived for 13 years, then moved to England
                where she has lived for 3.5 years.[Footnote
                16]

                     [Footnote 16] This recollection is
                     obviously      lacking     historical
                     accuracy in that it totals 20 years
                     over an 18-year period. This is
                     especially significant when trying
                     to pinpoint the time Mother left the
                     Adams County area.

          37.   From the time Blake began living with Father
                and Bella, they and the nursing staff were his
                sole caretakers. Bella even quit her job in
                1999 to devote more time to his care.

          38.   Dr. Jeager noted that he was unable to
                determine the level of Blake’s functioning.
                Blake had limited responses to whatever he
                heard and did not smile.

          39.   Dr. Jeager reported that Blake’s condition was
                such that institutionalization was the normal
                path taken for care. He found the care given
                to Blake by Father and Bella to be
                extraordinary. When Blake would grimace or
                be agitated, Father and Bella were able to calm
                him. In Dr. Jeager’s opinion, the care they
                provided Blake kept him out of the hospital
                and extended his life expectancy significantly.

          40.   After departing the Adams County area,
                Mother had no conversations with Father about
                Blake’s condition nor did she send him any
                cards or gifts.




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            41.   Throughout     Blake’s  life,   his  maternal
                  grandfather lived in the York Springs area.
                  After Blake began living with Father, the
                  grandfather made no effort to see him.

            42.   Throughout    Blake’s   life, his    paternal
                  grandparents resided at 605 Goldenville Road.
                  Mother had been to this home.           Their
                  telephone number was published.

Order of court, 12/3/15 at 1-7 (footnotes 1, 2, 5, 6, 8-15 omitted).

      The orphans’ court set forth the following procedural history:

            1.    On July 25, 2011, Father was granted letters to
                  serve as Administrator of Blake’s estate.

            2.    On March 15, 2012, Father, as Administrator,
                  filed the First and Final Account for Blake’s
                  estate.

            3.    Therein, it was reported that the sole asset of
                  the estate consists of the balance from a
                  certain 20-year guaranteed annuity purchased
                  as part of a structured settlement of the
                  medical malpractice action in Franklin County,
                  Pennsylvania. The estate would consist of the
                  monthly annuity distributions from the period
                  March 2011 through February 2012, with the
                  right of Blake’s heirs to receive the remaining
                  monthly distributions through January 2024.

            4.    Father, as Administrator, proposed that the
                  entire intestate share of the estate be
                  distributed to him and that Mother’s share be
                  forfeited    pursuant   to    20     Pa.C.S.A.
                  § 2106(b)(1).

            5.    On April 16, 2012, Mother filed her Objection
                  to the Account and proposed distribution.

            6.    On May 3, 2012, the Pennsylvania Department
                  of Public Welfare filed its Objection asserting



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                  ownership of, or a lien upon, the annuity
                  disbursements.

            7.    The Court conducted a pre-hearing conference
                  on June 14, 2012.

            8.    On   June   25,   2012,    the    Pennsylvania
                  Department of Public Welfare filed its Amended
                  Objection.

            9.    On August 12, 2014, this Court ruled that the
                  Pennsylvania Department of Public Welfare was
                  entitled to 85.9% of all post-death annuity
                  payments.

            10.   On September 2, 2014, the          Estate   filed
                  Exceptions to the Court’s Order.

            11.   By Order dated December 22, 2014, this Court
                  approved a settlement arrived at between the
                  Pennsylvania Department of Public Welfare and
                  the Estate wherein the Department was to be
                  paid $150,000.00 in satisfaction of its claim.
                  Mother, through counsel, consented to that
                  resolution.  Payment was acknowledged on
                  March 18, 2015.

            12.   Hearing on Mother’s Objection was held on
                  October 26, 2015.

Order of court, 12/13/15 at 7-8.

      Mother raises the following issue for our review:

            Whether the [orphans’] court abused its discretion or
            made an error of law when it concluded, against the
            weight of the evidence, that Mother deserted the
            child pursuant to 20 Pa.C.S.[A.] § 2106(b)(1) and
            therefore forfeited any right to inherit from her
            deceased child[?]

Mother’s brief at 17.

      We begin with our standard of review:


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           When reviewing a decree entered by the Orphans’
           Court, this Court must determine whether the record
           is free from legal error and the court’s factual
           findings are supported by the evidence. Because the
           Orphans’ Court sits as the fact-finder, it determines
           the credibility of the witnesses and, on review, we
           will not reverse its credibility determinations absent
           an abuse of that discretion. However, we are not
           constrained to give the same deference to any
           resulting legal conclusions. Where the rules of law
           on which the court relied are palpably wrong or
           clearly inapplicable, we will reverse the court’s
           decree.

Estate of Fuller, 87 A.3d 330, 333 (Pa.Super. 2014) (citation omitted).

     Section 2106(b) provides, in relevant part:

           (b)   Parent’s share.--Any parent who, for one
                 year or upwards previous to the death of the
                 parent’s minor or dependent child, has:

                 (1)    failed to perform the duty to
                        support the minor or dependent
                        child or who, for one year, has
                        deserted the minor or dependent
                        child

                 ....

                 shall have no right or interest under this
                 chapter in the real or personal estate of the
                 minor or dependent child. The determination
                 under paragraph (1) shall be made by the
                 court after considering the quality, nature and
                 extent of the parent’s contact with the child
                 and the physical, emotional and financial
                 support provided to the child.

20 Pa.C.S.A. § 2106(b).

     With respect to “desertion,” this court has held:




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            The definition of “desertion” is “the intentional and
            substantial abandonment permanently or for a
            period of time stated by law without legal excuse and
            without consent of one’s duties arising out of a
            status (as that of husband and wife or parent and
            child).”    Webster’s Third New International
            Dictionary 611 (1971). “Desertion” is also defined
            as “the willful and unjustified abandonment of a
            person’s duties or obligations, esp. to military service
            or to a spouse or family.” Black’s Law Dictionary
            478 (8th ed. 2004). By definition, we hold that
            desertion in the context of Section 2106 is a parent’s
            intentional and willful abandonment of a minor or
            dependent child.

Estate of Fuller, 87 A.3d at 334.

      Here, the orphans’ court found that although Mother paid some

court-ordered support, her arrearages on the date of Blake’s death exceeded

$17,000, and she, therefore, refused or neglected to perform her duty of

financial support.   The orphans’ court further found that Mother deserted

Blake because she had no physical or emotional contact with him from 1997

until his death in 2011, which far exceeds the one-year statutory desertion

period.   Although Mother concedes that she had no physical or emotional

contact with Blake during that period, she contends that there was “ample

evidence that [her] relationship with Blake was obstructed by two (2) glaring

and insurmountable obstacles.”      (Mother’s brief at 27.)   Mother contends

that the first “obstacle” was Blake’s extreme cognitive and physical

disabilities, and because of those, he “was unable to have any meaningful

relationship with Mother (and vice versa).” (Id.) Accordingly, Mother claims

that she never sent Blake gifts or cards and never telephoned or visited him


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because he would have never known if he had received gifts, cards,

telephone calls, or visits. (Id. at 28.) Mother identifies the second obstacle

as “Father’s consistent attempts to erase Mother from Blake’s life.” (Id. at

30.)

       The orphans’ court found Mother’s testimony “incredulous” and

“self-serving.”     We    defer   to   the      factual   findings   and   credibility

determinations made by the orphans’ court, so long as they are supported

by the record.    See Estate of Fuller, 87 A.3d at 33.               After carefully

reviewing the entire record, we find that it amply supports the trial court’s

findings of fact, and we decline Mother’s invitation to reassess her credibility.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




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