J-S24020-18

                                   2018 Pa Super 276

    JANICE BERRY,                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CHARLES D. BERRY                           :   No. 1766 MDA 2017


               Appeal from the Order Entered, October 16, 2017,
                in the Court of Common Pleas of Clinton County,
                       Civil Division at No(s): 1073-2013.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.:                              FILED OCTOBER 11, 2018

       In this difficult matter, the octogenarian Appellant, Janice Berry

(“Wife”), appeals the equitable distribution of the marital estate she shared

with the nonagenarian Appellee, Charles Berry (“Husband”). At the time of

the trial, the record indicates that Husband and Wife were married for 66 years

and both suffered from dementia; the divorce was litigated through their

respective lawyers by their adult children who operated under respective

powers of attorney. Neither party appeared for the trial. Their adult children

were the only witnesses. At the conclusion of the proceedings, the trial court

issued a divorce decree and an equitable distribution award. Wife appealed.

Thereafter, on May 16, 2018, Husband died.1

       On appeal, Wife, represented by new counsel, only challenges the

equitable distribution award insofar as the trial court failed to consider that
____________________________________________


1This Court was not informed of the death until July 18, 2018 when it received
an application for substitution of a party.
J-S24020-18



Wife would no longer receive alimony pendente lite following the divorce. We

do not reach the merits of this claim, however.        Instead, we address sua

sponte the mental capacity of both parties, which was questioned throughout

the divorce litigation, but ignored by the trial court. If both parties were still

alive, Pennsylvania Rule of Civil Procedure 2056 and public policy would have

obligated us to vacate the divorce decree as void and remand for the trial

court to determine whether the parties were competent to proceed.2 Now, we

have no choice but to conclude that the combined effect of a void decree and

Husband’s death abates the divorce litigation, effectively leaving intact the

parties’ marriage and necessitating that his estate be processed under the

Probate Code.

       The factual overture is this: The parties, who wed on October 14, 1950,

entered the final stages of their lives when divorce litigation commenced.

After 63 years of marriage, Wife filed a divorce complaint in August 2013. She

ultimately refused to sign an affidavit of consent and withdrew her claim.

However, Husband had filed a counterclaim in divorce; so the action

proceeded and the parties were divorced pursuant to 23 Pa.C.S.A. § 3301(d).

When Wife withdrew her divorce complaint, she also effectively withdrew her

claim for alimony. As such, the court did not consider alimony when fashioning

its equitable distribution award. That triggered the instant appeal.

____________________________________________


2 Rule 2056 discusses the trial court’s obligations if it ascertains either party
is incapacitated. Despite the fact that the competency of both parties was
questioned, the court never inquired further and proceeded with the litigation.

                                           -2-
J-S24020-18



        But upon our review of the record, we discovered a much more

complicated history. The reason Wife filed her initial divorce complaint was

revealed in a letter authored by Wife’s power of attorney, daughter, Donna

Berry (“Daughter”). Daughter submitted this letter to the court a week before

the ultimate hearing in an apparent last-ditch effort to stop the proceedings.

The letter explained that in 2013, Husband refused to take his dementia

medication, which caused his “irrational and frightening behavior” to return.

Testimony revealed that Husband began taking medication for dementia in

2012.

        Daughter said Wife filed for divorce to protect her assets; the letter

alleged that the parties’ sons, including Husband’s power of attorney, Jerry

Berry (“Son”), were “moving money from one account to another and opening

new joint accounts with their names included.” The record indicates this sum

was $25,000.     Husband evidently became abusive, and the court awarded

Wife exclusive possession of the marital home; Husband then went to live with

one of his sons before ultimately moving into an assisted living facility.

Daughter further alleged that Wife regretted filing for divorce, and instead

wished she would have had the sons charged with elder abuse.

        The litigation had lingered for years. Following Wife’s original divorce

complaint in 2013, the court ordered discovery and scheduled a hearing for

July 2014. But Wife refused to execute an affidavit of consent pursuant to 23

Pa.C.S.A. § 3301(c). After a status conference, the parties again appeared to

be largely in agreement, and the court scheduled another hearing for

                                      -3-
J-S24020-18



November 2015. When the time came for the hearing, Wife again refused to

execute an affidavit of consent. That prompted Husband, through Son, to

counterclaim and seek a divorce pursuant to § 3301(d). Husband’s May 2016

counterclaim raised the following issues: equitable distribution; alimony

pendente lite; and counsel fees, costs and expenses.

     Wife filed a praecipe to withdraw her divorce complaint and with it her

request for alimony; the trial court granted her request and dismissed her

action in October 2016.    The parties reached a temporary agreement in

January 2017, whereby Wife’s divorce complaint was reinstated.

     Husband motioned the court to appoint Wife a guardian ad litem. This

motion was evidently denied without prejudice on April 11, 2017, after

Daughter furnished documentation of her power of attorney. The record only

contains the order, but not the underlying motion, which could have offered

more illumination about the facts supporting the allegations of Wife’s

incompetency.

     Wife, through Daughter, again withdrew her complaint in June 2017.

The trial court stated that it “is not able to comprehend why Wife would

withdraw [her] complaint as Husband’s complaint and related claims survived

while Wife’s alimony claim was lost.”    See Trial Court Opinion (“T.C.O”),




                                   -4-
J-S24020-18



8/24/17, at 3.      The trial court conducted a status conference on June 27,

2017, a week before the ultimate equitable distribution hearing.3

       The court learned that Husband was too frail to leave his assisted living

facility in Virginia to attend the hearing.      The court permitted him to be

available by phone, but his counsel indicated that telephonic participation

would be similarly impossible because Husband was too hard of hearing.

Neither Husband nor Wife was present, in person or by phone, at the hearing,

which was finally held on July 5, 2017, nearly three years after it was originally

scheduled.     Only the children appeared under their respective powers of

attorney. Significantly, the record reveals no documentation of Son’s power

of attorney for Husband. Thus, it seems the court proceeded with the divorce

litigation with Son acting as attorney-in-fact for Husband, without any written

proof of his authority to do so.4

       At the hearing, the court immediately acknowledged Daughter’s 11th-

hour letter seeking to stop the litigation based on Husband’s incompetency.

Before taking testimony, the trial court stated:

          I just handed each of [the respective lawyers] a filing filed
          by [Daughter], Power of Attorney, which landed on my desk
          this morning. It was filed June 29, 2017. In there,
____________________________________________


3In the reproduced record, this date is, at times, misidentified as July 27,
2017. The correct date of the status conference is June 27, 2017.

4 We note that Husband signed all of his own legal documents, but his
signature appears quite feeble. See, e.g., Affidavit of Consent, docketed
August 5, 2015; see also “Affidavit Under Section 3301(d) of the Divorce
Code,” docketed June 9, 2016; and see Inventory and Appraisement of
Charles Berry, docketed June 8, 2016.

                                           -5-
J-S24020-18


         [Daughter] indicates that [Husband] is incompetent, should
         not be proceeding, and that all other things that - -
         [Daughter] indicates this. She is evidently the Power of
         Attorney for [Wife].     She indicates that [Husband] is
         incompetent, and [his] Power of Attorney - - Power of
         Attorney – of if there’s more than one person, I can’t tell
         from the letter - - that they’re doing this - - forcing this
         divorce.

         The court has been of the opinion throughout this
         proceeding that the Power of Attorney issue is an orphans’
         court issue, not a divorce issue. And if anything needs to
         be done, it needs to be filed in the orphans’ court. I’m not
         going to take any action regarding the filing of the Power of
         Attorney for Wife in this matter. Are we ready to proceed?

Notes of Transcript (“N.T.”), 7/5/17, at 3.

      The attorneys then addressed stipulations and proceeded with the rest

of the hearing. The court divided the parties’ assets equally. At the time of

the hearing, Husband was 91 years old and lived in an assisted living center

near one of the parties’ sons in Virginia. The cost of the facility was $2,750

per month; his income from Social Security and a pension was $1,697.53 per

month. Wife was 84 years old and lived with the parties’ daughters in the

marital home.

      In its opinion and order, the trial court stated that there was no

testimony about Wife’s health problems. However, our review of the record

revealed that revealed another letter, dated September 30, 2016, also

submitted by Daughter, detailing Wife’s own battle with dementia. This letter

was filed on October 3, 2016. It was apparently submitted in the hope of

setting aside a “nuptial agreement of September 29, 2016.” The agreement

itself is nowhere in the record, but the letter is identified in the docket as a

                                     -6-
J-S24020-18



“petition to set aside post-nuptial agreement.” Daughter stated that the court

should set aside the agreement because Wife was so incapacitated that she

could not understand the agreement’s terms. Daughter noted that the Office

of Aging stated in March 2013 – months prior to Wife’s initial complaint in

divorce - that Wife could not serve as Husband’s power of attorney or guardian

because she was unable to comprehend Husband’s needs. Daughter further

stated that she told Wife’s then-counsel, C. Rocco Rosamilia, III, Esq., that

she – as power of attorney – did not agree with the terms of the September

29, 2016 agreement.

      Attached to Daughter’s letter is a doctor’s note, dated September 30,

2016 – the day after the agreement – written by Thane N. Turner, M.D. Dr.

Turner indicated that Wife is his dementia patient. Dr. Turner’s note further

elaborated that Wife is unable to make decisions on her own, gets distracted

easily and has a hard time with concentration as well as comprehension. The

doctor concluded that the “patient is incapacitated to the extent that she

should not be able to solely sign legal documentation without her power of

attorney also agreeing to sign the document.” In the physical record, on top

of Daughter’s letter and the attached doctor’s note, is a post-it note that says:

“Returned by Judge. 10/4. No action taken.” In November 2016, Attorney

Rosamilia withdrew his appearance for Wife, and Attorney Mary C. Kilgus, Esq.

entered hers.

      Although Wife signed the agreement, Husband apparently never sought

to have it enforced. The trial court addressed it briefly at the pre-trial status

                                      -7-
J-S24020-18



conference, which was held on the record. See N.T., 6/27/17, at 2-4. The

post-separation agreement was apparently designed to split the marital assets

but leave intact the marriage. Husband’s counsel, Meghan Engelman Young,

Esq., acknowledged Wife’s position that this agreement was invalid because

Wife was incompetent when she signed it. With the agreement’s validity in

question, it evidently transformed to a mere settlement proposal. There was

no further discussion on the topic at the status conference. Yet, the court held

the equitable distribution trial a week later on July 5, 2017.

         In its Pa.R.A.P. 1925(a) opinion, the court noted “there was an extreme

lack of evidence concerning Wife’s income” at the hearing. See T.C.O., at 6.

The trial court lamented further: “once again, limited testimony was received

concerning [the economic circumstances of each party.]” Id., at 8. The trial

court fashioned its equitable distribution scheme to “permit both parties to

live out the twilight years of their lives in a somewhat stable condition.” Id.,

at 11.     The court noted its dissatisfaction one final time: “This court is

extremely disappointed with Wife’s counsel’s failure to address the items of

marital property, along with the values in the memorandum submitted by

Wife, along with the extremely limited testimony at the final hearing in this

matter.” Id.

      After the hearing, Wife retained new counsel, her third. On appeal, Wife

presents a single question: “Was the equitable distribution scheme of the

lower court fair in accordance with [the] law?” Wife’s Brief, at 4. Neither brief

mentioned the competency of the parties or lack thereof.         Before we can

                                      -8-
J-S24020-18



address the merits of the question raised on appeal, we must address the

glaring issue of the parties’ competency.

      We begin by noting our limitations. Our Supreme Court has consistently

held that “an appellate court cannot reverse a trial court judgment on a basis

that was not properly raised and preserved by the parties.” See Steiner v.

Markel, 968 A.2d 1253, 1256-1257 (Pa. 2009) (citing Danville Area Sch.

Dist. v. Danville Area Educ. Ass'n, 754 A.2d 1255, 1259 (Pa. 2000);

Commonwealth v. Boros, 620 A.2d 1139, 1140 (Pa. 1993); Fisher v.

Brick, 56 A.2d 213, 215 (Pa. 1948)).

      “Where the parties fail to preserve an issue for appeal, the Superior

Court may not address that issue sua sponte.” Id. (citing Knarr v. Erie Ins.

Exch., 723 A.2d 664, 666 (Pa. 1999) (holding that the trial court exceeded

its proper scope of review by raising an issue that was not preserved by

appellate review); Wiegand v. Wiegand, 337 A.2d 256, 257–58 (Pa. 1975)

(holding that an appellate court may not litigate for the parties)). Generally,

when an appellate court decides issues sua sponte, it exceeds its proper

appellate function and unnecessarily disturbs the processes of orderly judicial

decision making. Id., 968 A.2d at 1260 (citing Wiegand, 337 A.2d at 257).

      Our Court has also observed the general rule dictating appellate

restraint. “We are not free to ignore [the] complete absence of objection. […]

Parties may waive rights, even due process rights and other rights of

constitutional magnitude.” Tecce v. Hally, 106 A.3d 728, 732 (Pa. Super.

2014); see Green v. Green, 69 A.3d 282, 288 (Pa. Super. 2016); see also

                                     -9-
J-S24020-18



Tyler v. King, 496 A.2d 16, 24 (Pa. Super. 1985). And we have employed

this restraint even when, for example, an error-ridden divorce proceeding was

“so fundamentally flawed” that it “offends fundamental fairness and demands

correction.” Tecce, 106 A.3d at 732.

      To illustrate: in Tecce, the trial court made factual findings and

credibility   determinations   without   taking   testimony,   without   receiving

evidence, and without allowing cross-examination. Shockingly, neither party

objected to this procedure. On appeal, we acknowledged the plainness of the

trial court’s errors, but we could not correct them.           Instead, we were

constrained to find waiver and affirmed the trial court accordingly.

      Precedent aside, we recognize the Rules of Appellate Procedure also

preclude us from considering issues not preserved for our review. See, e.g.,

Pa.R.A.P. 302; Pa.R.A.P. 2117; Pa.R.A.P. 2119.          However disastrous the

litigation below, in most situations we are loathed to interject our hand to alter

its dubious trajectory.

      Yet, the factual scenario of this case provides a rare exception that

demands us to invoke the courts’ inherent duty to protect the rights of

potentially incompetent parties. Under the circumstances described above,

we cannot ignore the grave questions of whether the Husband was competent

enough to bring a proper divorce action and whether Wife was competent

enough to defend it. We find the trial court erred by not conducting such

proceedings to ascertain these answers, wrongly professing that it was the job

of the orphans’ court.

                                     - 10 -
J-S24020-18



        Although our procedural disposition is unusual, our Supreme Court has

announced our inherent authority, in the interest of justice, to raise the issue

of the parties’ competency sua sponte. See Benz v. Heckman, 2 A.2d 857

(Pa. 1938).     In Benz, the plaintiff sustained a personal injury in a beauty

parlor. At the start of the trial, the defendants’ counsel had brought to the

attention of the court that one of the alleged tortfeasors had since been

declared mentally incompetent by a physician; this status was not formally

adjudged, however. Id., at 858. The trial proceeded anyway, and the jury

returned a verdict in the plaintiff’s favor. Id. Our Supreme Court set aside

the judgment and ordered a new trial. The Court held: “[e]ven in the absence

of an adjudication of [incompetency]5, a procedure cannot be approved which

would permit a verdict to be rendered against a person who is [mentally

incompetent] … and consequently unable to appear and defend.” Id.           The

Supreme Court further acknowledged that while complete legal proof of

incompetency was not demanded or produced, the statement by counsel that

the defendant had been declared mentally incompetent “was at least sufficient

to invite some form of judicial investigation….” Id.

        The Court determined that protection could have been accorded either

by continuing the case until a proceeding [to determine competency] might

be initiated, or by the appointment of a guardian ad litem. Id. Because that

did not occur, the judgment was set aside and a new trial was awarded. The

____________________________________________


5   The Court used the ancient nomenclature “lunacy.”

                                          - 11 -
J-S24020-18



Supreme Court analogized the facts of its case to those cases involving

minors:     “It is not sufficient that the minor appears in person or by an

attorney[; u]nless a guardian ad litem has been appointed, a verdict,

judgment or decree will be set aside and a new trial [] awarded.” Id., at 859,

n.1. (Citations omitted).

       For our purposes, however, most critical was the case’s disposition. The

allegedly incompetent tortfeasor was not an appellant.          The appeal was

brought by her co-defendant husband, who also was sued as a co-owner and

operator of the beauty parlor. The Supreme Court held: “It is true that she

[the tortfeasor-wife] is not here [as] an appellant, but, if insane, she was

unable either to appear or to authorize an appeal on her behalf, and it is the

duty of this court, as it was that of the trial court, to protect her rights

under the circumstances.” Id., at 859 (emphasis added). 6

       Here, we likewise have a duty to protect the parties’ rights under such

similar, irregular circumstances.          In the instant matter, not only were

allegations of the parties’ dementia made throughout the litigation, but the

issue was also placed front and center at the start of the hearing.

Incompetency allegations were made once more in each party’s post-trial

memorandum. Similar to Benz, no formal adjudication of incompetency was

____________________________________________


6  Notably, the Supreme Court did not leave the verdict intact pending an
adjudication of competency. Instead, the judgment was set aside for a new
trial so that the allegedly incompetent party’s interests may be properly
represented and safeguarded. Benz, 2 A.2d, at 859.


                                          - 12 -
J-S24020-18



made prior to the hearing. Also like Benz, if the parties were incompetent,

then their incompetency prevented them from appearing and participating in

the hearing. And like Benz, if incompetent, they would be unable to properly

navigate this appeal and consequently unable to preserve the issue of their

competency on their own.            Therefore, we distinguish this case, and those

involving competency questions, from those requiring us to find waiver when

a party fails to raise an issue.

       Benz    confirmed      our    authority     to   reach   this   disposition   under

Pennsylvania law.       However, we observe the clarity and succinctness of a

similar holding in the South Carolina Court of Appeals, our fellow intermediary

appellate court. See South Carolina Dept. of Social Services v. Roe, 371

S.C. 450, 639 S.E. 2d 165 (Ct. App. 2006). Roe concerned a termination of

parental rights proceeding. There, although the appellant did not challenge

trial court’s conclusion that termination served the minor’s best interests, the

appellate court reviewed the issue sua sponte nevertheless.                 The Court of

Appeals of South Carolina explained:

          An exception to the rule that an unpreserved issue will not
          be considered on appeal exists where the interests of minors
          or incompetents are involved. […]The duty to protect the
          rights of minors and incompetents has precedence
          over procedural rules otherwise limiting the scope of
          review and matters affecting the rights of minors can be
          considered by this court ex mero motu. [7]

____________________________________________


7“Ex mero motu” is Latin for “on his mere motion.” The phrase was formerly
used in reference to a court, as an equivalent of sua sponte or on its own
motion. Black’s Law Dictionary (10th ed. 2014).

                                          - 13 -
J-S24020-18



Roe, 639 S.E.2d, at 172 (citations omitted)(emphasis added). We determine

that Pennsylvania jurisprudence adheres to the same public policy.

      Having determined that our duty to protect the rights of incompetents

takes precedence over the usual rules of appellate procedure, we now address

the questions of the parties’ competency and their children’s authority to

proceed on their behalf, as powers of attorney, in the divorce and equitable

distribution action.

      Across the United States, the majority rule is that no incompetent

person may initiate a divorce. See Matthew Branson, Guardian-Initiated

Divorce: A Survey, 29 J. Am. Acad. Matrim. Law. 171, 172-173 (2016). But

as attitudes toward divorce changed in the 1960s and 1970s, and as the

concern about elder abuse grew with the aging population, states slowly began

adhering to a minority rule. Id. The minority rule generally allows guardian-

initiated divorces. Id. Pennsylvania employs a hybrid approach. Id.

      In our Commonwealth, there is no per se rule that an adjudicated

“incompetent” is prohibited from initiating a divorce action. Syno v. Syno,

594 A.2d 307, 311 (Pa. Super. 1991). Indeed, our Rules of Civil Procedure

governing actions for divorce anticipate that an incompetent can be a plaintiff

in a divorce action. Syno, 594 A.2d at 311. Rule 1920.12 provides: “…[T]he

plaintiff shall set forth in the complaint as to the cause of action of divorce or

for annulment (1) the names of the plaintiff and defendant and, if either

party is a minor or incompetent, a statement to that effect and the name

and address of such party’s guardian, if any.…” Pa.R.C.P. 1920.12. (Emphasis

                                      - 14 -
J-S24020-18



added).     However, it is also settled Pennsylvania law that an adjudged

incompetent may prosecute a civil action for divorce only by means of a

guardian or guardian ad litem, and, thus, a divorce decree which was obtained

without the assistance of a court appointed guardian or guardian ad litem is

void. Syno, 594 A.2d 307.

       In Syno, the plaintiff-husband initiated a divorce action, but he had

previously been declared an incompetent.           Id., at 310.    As such, we

determined that Mr. Syno could not maintain a divorce action in his own name,

but rather had to be represented by a guardian or guardian ad litem. Id.;

see also Pa.R.C.P. 2053 (“Guardian to Represent Incapacitated Person”)8,

Pa.R.C.P. 2056(a) (“Procedure When Incapacity of a Party is Ascertained”)9.


____________________________________________


8 (a) A plaintiff who is an incapacitated person shall be represented
by a guardian or by a guardian ad litem who shall supervise and
control the conduct of the action in the plaintiff's behalf.

(b) A defendant who is an incapacitated person shall be represented
by a guardian. If the defendant has no guardian, or if the guardian is
not served with process in this Commonwealth and does not
voluntarily appear in the action, the defendant shall be represented
by a guardian ad litem. The guardian or guardian ad litem shall
supervise and control the conduct of the action in the defendant's
behalf.

          Note: See Rules 2056(a) and 2057, as to the procedure and
          effect of an action brought by an incapacitated plaintiff who
          is not represented by a guardian or a guardian ad litem.

9 (a) If, at any time during the pendency of the action, the court shall
find that the plaintiff is an incapacitated person, who is not



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J-S24020-18



       Moreover, Pennsylvania defines an “incompetent” as a person who,

because of infirmities, is unable to manage property or lacks the capacity to

make reasonable decisions concerning his person. See Syno, 594 A.2d at 311

(emphasis original); see also 20 Pa.C.S.A. § 5501; and see Pa.R.C.P. 2051.

As we previously determined, “[i]t is certainly possible that an ‘incompetent’

may be unable to manage his estate and, yet, be capable of making

reasonable choices concerning his personal life.” Syno, 594 A.2d at 311.

       In accordance with this principle, in Syno, we vacated the divorce

decree as void and remanded back to the trial court to determine whether the

incompetent plaintiff was: 1) capable of exercising reasonable judgment as to

personal decisions; 2) understood the nature of the action; and 3) was able

to express unequivocally a desire to dissolve the marriage. Id. We further

ordered the trial court to appoint a guardian ad litem for the petitioning

husband and to conduct a more thorough hearing on the husband’s capacity

to make reasonable decisions concerning his person, his understanding of the

____________________________________________


represented in the action by a guardian or a guardian ad litem, the
court shall either

          (1) forthwith appoint a guardian ad litem; or

          (2) stay all proceedings and enter an order directing that
          the plaintiff be represented in the action by a guardian
          within such reasonable time as the court shall direct. Notice
          of such order shall be given to such persons and in such
          manner as the court may direct. If a guardian is not
          appointed within the specified time, the court shall appoint
          a guardian ad litem.



                                          - 16 -
J-S24020-18



nature of a divorce action, and his desire to maintain such an action. Id., 594

A.2d at 313-314.

       We note two pointed distinctions between the seminal Syno case and

the instant matter. First, each of our parties was purportedly “represented”

by respective powers of attorney (although we note no proof of record that

Son had power of attorney for Husband or that such power of attorney

authorized the filing of a divorce action). The second distinction is that neither

of these parties had been previously adjudged incompetent.                Neither

difference, however, changes our determination that the trial court erred when

it proceeded with a hearing and entered an order without first ascertaining the

competency of parties.

       We have never decided whether a power of attorney can prosecute,

maintain or defend a divorce action on behalf of the principal, even when the

terms of power of attorney authorize litigation generally. And so we have not

decided what happens when that power of attorney is an adult child of one of,

or here, both of the parties.10      Absent guidance from our Supreme Court, we

must adhere to our prior decisions and their application of the pertinent Rules

of Civil Procedure. Rule 2053 (“Guardian to Represent Incapacitated Person”)

provides that both the plaintiff and the defendant, if incapacitated, must be

represented by a guardian or a guardian ad litem. Pa.R.C.P. 2053(a); (b).

____________________________________________


10 We note that if the power of attorney is an adult child of one or both of the
parties, an appointment of that child as guardian or guardian ad litem in a
divorce proceeding may present a conflict of interest.

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J-S24020-18



Rule 2051 defines guardian as “the guardian or other fiduciary appointed by

a court of competent jurisdiction for the person or estate of an incapacitated

person.” (Emphasis added).

       We can reasonably infer that the trial court believed powers of attorney

were sufficient to act on behalf of the parties in this matter. The court denied,

without prejudice, Husband’s motion for the appointment of a guardian ad

litem for Wife, and instead ordered Daughter to furnish her power of attorney.

This was an error.

       Syno, supra, makes clear that only a party with a guardian or guardian

ad litem may bring a divorce action. Moreover, precedent and the Rules of

Civil Procedure also mandate that a guardian or guardian ad litem is necessary

to defend an action for divorce. See Schwarzkopf v. Schwarzkopf, 107

A.2d 610 (Pa. Super. 1954); see also Pa.R.C.P. 2056(c)–(e) (“Procedure

When Incapacity of a Party is Ascertained”).11
____________________________________________


11(c) If, at any time during the trial of an action, the court shall find that the
defendant is an incapacitated person who is not represented in the action by
a guardian or guardian ad litem, the court shall either

       (1) forthwith appoint a guardian ad litem, or
       (2) stay all proceedings until the defendant is represented in the action
       by a guardian. If the defendant has a guardian, the guardian shall be
       given notice of the pendency of the action in the manner provided by
       subdivision (b) of this rule. If the defendant is not represented by a
       guardian in the action within such reasonable time as the court shall
       direct, the court shall appoint a guardian ad litem for the defendant.

(d) If, at any time after the conclusion of the trial, or after the entry of a
finding, verdict or judgment against a party from whom relief is sought, the



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J-S24020-18



       In some respects, Schwarzkopf is a vestige of prior jurisprudence;

while still applicable, it predates the no-fault revolution in divorce law. In that

case, the husband sought to divorce his wife on the fault-based ground of

“indignities.” See 23 Pa.C.S.A. § 3301(a)(6). Specifically, his legal position

was that grounds for divorce were established because his wife refused to

have sexual intercourse.        Schwarzkopf, 107 A.2d, at 611.        The case is

relevant for our purposes because the wife, who was committed to a hospital

due to her incompetency, was not appointed a guardian ad litem. Although

the wife had counsel, her counsel only represented the financial interests of

her estate. This was not enough. The trial court explained its duty to protect

the interests of an alleged incompetent party in divorce:

          Our practice cannot be so lacking in its protection of the
          helpless that no duty is imposed upon those conducting the
          case to see that [the incompetent defendant-wife] is
          adequately represented and her rights protected not only in
          theory but in fact. In this connection[,] see Procedural Rule
          [Pa.R.C.P.] 2053(b)[(“Guardian to Represent Incapacitated
          Person”)].

          Even had the [plaintiff-husband] made out a good case of
          indignities and met the burden…nevertheless, we would
____________________________________________


court shall find that such party was incapacitated at the time of the entry of
such finding, verdict or judgment and was not represented in the action by a
guardian or a guardian ad litem, the court may vacate the finding, verdict or
judgment and may enter an order in the nature of a procedendo.

(e) A finding of incapacity shall be based either on evidence presented to the
court in which the action is pending, or on an adjudication of incapacity
entered by a court of competent jurisdiction.




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J-S24020-18


          have remanded the case so that the [defendant-wife] could
          have been properly and adequately represented before the
          [] court below.

Schwarzkopf, 107 A.2d, at 614-615.12

       Instantly, it was not enough that Husband and Wife each had powers of

attorney and respective divorce lawyers. Precedent and procedural rules have

deemed this representation to be an inadequate safeguard. Indeed, there

was some testimony that suggested the attorneys in this matter did not know

precisely who their clients were.13 As the record made clear, Wife’s counsel

only represented her financial interests as to the equitable distribution, but

did not advocate Wife’s positions regarding the divorce, which were explicitly

articulated on the eve of the trial by Daughter’s June 29, 2017 letter: Wife did

not consent to the divorce pursuant to 23 Pa.C.S.A. § 3301(c); Wife’s defense

to Husband’s counterclaim pursuant to § 3301(d) was that he was not

competent to bring the action.

       We conclude that Pennsylvania law does not allow an incompetent to

bring a divorce action without the court confirming whether the incompetent

retains the mental capacity to make reasonable decisions concerning his

____________________________________________


12Notably, even if Husband would have succeeded on the merits of the divorce
action, the result would had to have been set aside because the procedural
safeguards were not employed.

13 Wife’s trial counsel, Mary Kligus, Esq., referred to both Wife and Daughter
as her clients. See N.T., 6/27/17 at 4. Husband’s former counsel, Attorney
Robert O’Connor, evidently told Son he needed to obtain a power of attorney
in order to continue his representation of Husband in the litigation. See N.T.,
7/5/17 at 100.

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J-S24020-18



person, his understanding of the nature of a divorce action, and his desire to

maintain this action.    We further hold that a power of attorney cannot

prosecute, nor defend, a divorce action on behalf of an incompetent principal.

That role is reserved exclusively for a court-appointed guardian or guardian

ad litem.

      The penultimate question we must decide is whether the trial court erred

by not resolving the competency of both parties after the issue was raised,

when no prior incompetency adjudication was made as to either of them. Our

precedent similarly makes clear that the court erred when it proceeded with

the hearing before determining the competency of the parties.

      Although no court previously adjudicated either party incompetent, the

Benz decision mandates that, under certain circumstances, “some form of

judicial investigation” is necessary, especially when the trial court accepts the

assertions by counsel that a party is an incompetent. Benz, supra, 2 A.2d

858. Upon allegations of incompetency, it is the duty of both the appellate

court and trial court to protect the rights of the alleged incompetent. Although

such a situation is rare, it is not without precedent. See Savage v. Savage,

736 A.2d 633 (Pa. Super. 1999); see also Manley v. Manley, 164 A.2d 113,

121 (Pa. Super. 1960).

      Savage concerned a bifurcated divorce and other issues ancillary to our

analysis.   Noteworthy, however, is trial court’s procedure following the

concerns voiced by both attorneys that Mrs. Savage was not mentally

competent to agree to a proposed settlement, nor was she competent to

                                     - 21 -
J-S24020-18



proceed with the divorce litigation generally. The trial court addressed the

competency of Mrs. Savage before hearing the merits of the case.

         The court, in its continuing concern here and in attempt to
         resolve this matter, appointed Attorney Ralli Holden to
         review the proposed settlement, with her sole purpose being
         to satisfy herself, and thereafter the court, that it was a fair
         and appropriate settlement with regard to Mrs. Savage, or
         not so.

         Before evaluating its fairness, however, after speaking with
         [the] wife, Attorney Holden also expressed concerns about
         [the] wife’s competence. […] The court therefore stayed all
         proceedings, including the Master’s, and ordered Robert
         Sadoff, M.D., a forensic psychiatrist, to perform a
         psychiatric evaluation of [the] wife. […] However, Dr. Sadoff
         concluded that [the] wife was legally competent[.] […]
         Upon receipt of this report, the court found the competency
         matter resolved, allowed the Master’s hearings to
         recommence, and scheduled a hearing on bifurcation.

Savage, 736 A.2d at 638.

      In another vestige, Manley v. Manley, 164 A.2d 113 (Pa. Super. 1960),

we ruled that a wife’s alleged incompetency was not a proper affirmative

defense in a divorce action based on the fault-based ground of “adultery.” See

23 Pa.C.S.A. § 3301(a)(2). There, this Court found Wife’s allegation that she

was incompetent to be meritless, and that incompetency could not be asserted

as a defense in the divorce. Nonetheless, we affirmed the duty of both counsel

and the trial court to protect the rights of allegedly incompetent parties.

         If the counsel (and she had many)…thought [the wife] was
         of unsound mind, it was [counsel’s] duty to call this belief
         to the attention of the court, and ask for the appointment of
         a guardian, and if the master or the court thought she was
         of unsound mind, a guardian should have been appointed.
         See Pa.R.C.P. 2056(c)[-](d).

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J-S24020-18



Manley, 164 A.2d at 121.

      Although Manley is nearly 60 years old, the same Rule of Civil

Procedure are in effect today. See Pa.R.C.P. 2056(c)-(e). As these decisions

make clear, both the trial court and the parties’ counsel have an obligation to

ascertain the competency of the parties when the circumstances call it into

question, regardless of whether a party has been previously adjudicated an

incompetent.

      As noted above, in Benz, the tortfeasor-wife was not present at the trial

and her counsel indicated that she was not competent. The Supreme Court

ruled that the trial court erred when it proceeded without first appointing Wife

a guardian ad litem, even though she had not been formally adjudged

incompetent. Benz, 2 A.2d at 858.

      In Savage, counsel for both sides relayed their concerns to the court,

who then appointed the wife a guardian ad litem even though Wife had not

been previously adjudged incompetent and even though she was ultimately

determined to be competent. Savage, 736 A.2d, at 638. And while the trial

court in Manley did not appoint a guardian ad litem upon Wife’s assertion of

the insanity defense, it was clear in that case that the allegation of

incompetency was merely a ploy. Even under those circumstances, however,

we reaffirmed that the court must appoint a guardian ad litem if the court has

reasons to suspect a party has an unsound mind. Manley, 164 A.2d at 121.

      Here, Daughter’s October 2016 letter – complete with attached doctor’s

note – outlined Wife’s alleged mental deficiencies. This letter is identified in

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J-S24020-18



the record as Wife’s “Petition to Set Aside Post-Nuptial Agreement.” At that

juncture, Wife’s counsel and the court were both under an obligation to trigger

proceedings to ascertain Wife’s competency. Daughter’s June 29, 2017 letter,

filed a week before the trial, was similarly sufficient to put a halt to the

proceedings to determine Husband’s competency. Husband’s condition was

explicitly discussed at trial. See N.T., 7/5/17, at 3. Although we are not privy

to what happened behind the scenes, we can deduce that the competency

question loomed in the background for some time, as evidenced by the trial

court’s stated, albeit misguided, belief “throughout this proceeding that the

power of attorney issue is an orphans’ court issue, not a divorce issue.” See

id. (Emphasis added). The court’s decision to proceed with the trial without

first ascertaining the parties’ competency was erroneous.        See Pa.R.C.P.

2056(c).

      Moreover, the court, at the conclusion of the trial, ordered the parties

to submit post-trial memoranda of law. Husband’s counsel, Attorney Young,

admitted in her pre-trial memorandum that Husband was “frail and demented

and in otherwise poor health.” See Husband’s Memorandum, dated August

4, 2017. (Emphasis added.) Wife’s counsel, Attorney Klingus, similarly stated

that the parties “both suffer dementia-related illness.”           See Wife’s

Memorandum, dated August 4, 2017.         Rule of Procedure 2056(d) provides

that the court still could have taken remedial action at that time. The court’s

failure to do so was an error.




                                     - 24 -
J-S24020-18



        Upon each allegation that that one of these parties was not competent

to proceed, the trial court should have continued the proceedings to

immediately resolve that question.       While the attorneys also mistakenly

represented to the court that they had the ability to litigate the divorce

through the children’s respective powers of attorney, we are stunned that the

hearing was even conducted in the parties’ absence. See N.T., at 12; 60.

        Had Husband not died during the pendency of this appeal, we would

have remanded for the trial court to conduct a more thorough hearing on the

Husband’s capacity to determine, in accordance with Syno, supra, whether

Husband possessed the mental capacity to make reasonable decisions

concerning his person, his understanding of the nature of a divorce action,

and his unequivocal desire to maintain this action.       See also Pa.R.C.P.

2056(d). Had the trial court determined Husband was competent enough to

proceed with the divorce action, then Wife’s competency would have had to

be determined so her rights could have been adequately protected as well.

We intended to further order the trial court to appoint Wife a guardian ad

litem, given that there was nothing in the record to suggest she had already

been appointed one. Now, given Husband’s death, this remand instruction is

moot.

        Nevertheless, we are still constrained to vacate the divorce decree and

equitable distribution award in either event. See Syno, 594 A.2d, at 314.

Because the competency of Husband had been reasonably called into

question, and because he had not been appointed a guardian ad litem, we

                                     - 25 -
J-S24020-18



conclude that decree is void. Because neither parties’ competency had been

established, we conclude that the trial court’s equitable distribution was

premature.

      While we are cautious not to speculate into the ramifications this

decision will have on Husband’s estate, we must clarify our holding insofar as

it concerns the abatement of the divorce action.

      Pennsylvania courts have long held that an action in divorce abates upon

the death of either party. Yelenic v. Clark, 922 A.2d 935, 938 (Pa. Super.

2007) (citing, inter alia, Estate of Pinkerton v. Pinkerton, 646 A.2d 1184

(Pa. Super. 1994)). 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. Id. 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 martial relationship has been ended by death.

Id. (Citing Drumheller v. Marcello, 532 A.2d 807, 808 (Pa. 1987).)

      In 2005, however, the Divorce Code was amended to provide an

exception: a divorce action will not abate upon the death of a party, so long

as the grounds for divorce have been established as provided in 23 Pa.C.S.A.

§ 3323(g)(“Grounds established.”). Id.; see also 23 Pa.C.S.A. § 3323(d.1)

(“Death of a party.”). If the § 3323(g) grounds have been established, then,

although no divorce decree will be granted posthumously, the parties’

economic rights and obligations are determined under the Divorce Code rather




                                     - 26 -
J-S24020-18



than the elective share provision of the Probate Code. See Yelenic, 922 A.2d,

941-942; see also Gerow v. Gerow, 962 A.2d 1206 (2008).

      Thus, in the instant case, where Husband’s divorce action was brought

under § 3301(d), the parties’ economic rights and obligations would be

determined under the Domestic Relations Code if a representative of

Husband’s estate could prove that grounds for divorce were established

pursuant to § 3323(g)(3) prior to his death:

         In the case of an action for divorce under section 3301(d),
         an affidavit has been filed and no counter-affidavit has been
         filed or, if a counter-affidavit has been filed denying the
         affidavit’s averments, the court determines that the
         marriage is irretrievably broken and the parties have lived
         separate and apart for at least one year at the time of the
         filing of the affidavit.

23 Pa.C.S.A. § 3323(g).

      Since Husband filed an affidavit under § 3301(d), it would appear at first

blush that this matter fits within the § 3323(g) statutory exception, thereby

allowing the estate to be processed under the Divorce Code. But because we

have determined, pursuant to Syno, supra, that the outstanding question of

Husband’s incompetency and failure to appoint a guardian ad litem voids the

divorce decree, we must conclude that the statutory exception is inapplicable

and that Husband’s death abates the divorce action.

      Our learned colleague concurs in part, but dissents in favor of an

evidentiary hearing, pursuant to Pa.R.C.P. 2056(d), to retroactively determine

Husband’s competency. In other words, the dissent would apply the Syno



                                    - 27 -
J-S24020-18



holding and proceed as if Husband was still alive. The dissent argues that

such a hearing is analogous to a will contest. We disagree.

      Procedurally, the dissent would leave the divorce decree intact and give

the trial court the ability to vacate it if necessary. This does not conform to

either the Supreme Court’s decision in Benz (where the judgement was set

aside), or our decision in Syno (where we voided the divorce decree). See

Benz v. Heckman, 2 A.2d 857 (Pa. 1938); see also Syno v. Syno, 594 A.2d

307 (Pa. Super. 1991). In both cases, a new trial was necessary. In the

interim, neither the original judgment nor decree was left intact pending a

resolution on the parties’ competency.

      The reason for this procedure is the intent of Rule 2056.         The rule

ensures   that   incapacitated   parties   are   represented   and   safeguarded

throughout the proceeding. In divorce proceedings, we have applied this rule

to mean that an allegedly incompetent petitioner must be appointed a

guardian or guardian ad litem and must be “capable of exercising reasonable

judgement as to personal decisions, understands the nature of the action and

is able to express unequivocally a desire to dissolve the marriage.” See Syno,

supra, 594 A.2d at 311. Absent legislative involvement or guidance from our

Supreme Court, we decline to expand Rule 2056(d) – and, by proxy, the

abatement exception under § 3323(g) – to include a posthumous guardian

appointment and posthumous evidentiary hearing on whether a petitioner was

competent enough to bring a divorce action.




                                     - 28 -
J-S24020-18



      We do not assume Husband was too incompetent to bring a divorce.

Rather, we conclude that the death prevents the inquiry into the competency

question. As Syno makes clear, the proper disposition in these competency

cases is that the divorce decree is void when the petitioner has not proven he

is sufficiently competent.   And because Husband had died before he could

establish his competency, the court cannot rely on his § 3301(d) affidavit to

process the parties’ economic rights and obligations under the Divorce Code.

      As a final matter, we vacate the order granting Son’s application for

substitution of successor. The order was appropriate during the pendency of

this appeal, per § 3323(d) (“Substitution for deceased party.”). But now that

we vacate the divorce decree and settle the question of abatement, the

substitution is moot.

      We do not make this decision lightly. Although attitudes have evolved,

divorce is still a creature of statute. Gone are the days where the state placed

significant impediments upon those who sought to dissolve their marriage

without first showing that one party was at fault. See Pa.C.S.A. § 3301(c)-

(d). But the law still recognizes that in any divorce case, the Commonwealth

is an interested third party, and courts must take up the investigation of any

fact, the determination of which is fundamental and material to the issue

involved.   See Cortese v. Cortese, 63 A.2d 420, 422 (Pa. Super. 1949)

(citing Bonomo v. Bonomo, 187 A. 222 (Pa. Super. 1936)). Our inherent

authority compels us to guard our process against divorce actions perpetuated

for and against those whose competency is reasonably called into question.

                                     - 29 -
J-S24020-18



Regrettably, Husband’s death forecloses the inquiry into whether he was

competent to fulfill his purported wishes.

      Divorce decree vacated. Equitable distribution order vacated. Order

granting Application for Substitution of Successor vacated.      Jurisdiction

relinquished.

      Judge Musmanno joins in this Opinion.

      Judge Olson files a Concurring and Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2018




                                    - 30 -
