J-S29034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF GUY S. FRAGOLA            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: PAULA FRAGOLA                   :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 3307 EDA 2016

               Appeal from the Order Entered September 21, 2016
                  In the Court of Common Pleas of Pike County
                       Civil Division at No(s): 71-2013 OC


BEFORE:      LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 02, 2017

        Appellant Paula Fragola (“Wife”) appeals from the order of the Court of

Common Pleas of Pike County dismissing her notice of election to take

against the will of Guy S. Fragola (“Decedent”) and directing the forfeiture of

her spousal interest to an elective share of Decedent’s estate. After careful

review, we affirm.

        The trial court aptly summarized the relevant factual background of

this case as follows:

              [Decedent] and [Wife] were married in September of 1988
        and were married for approximately 25 years. In 1999,
        [Decedent] executed a will which named [Wife] as executrix and
        beneficiary under the will.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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           Decedent suffered a stroke in February of 2009.           He
     suffered serious physical limitations and was confined to a
     wheelchair for the rest of his life but retained full mental
     capacity. Decedent subsequently received treatment at several
     long-term care facilities. In the fall of 2009, Decedent resided at
     the Summit Ridge Rehab Center in New Jersey. Upon his release
     from that facility, he returned to the marital home in Milford in
     the fall of 2009. A full-time, live-in caregiver, Rachel Brown,
     was eventually hired on or about May of 2011.

           [Decedent] filed a Petition for Emergency Relief from
     Abuse against [Wife] on May 28, 2011. This Court granted a
     Temporary Protection From Abuse [PFA] Order on May 31, 2011.
     On July 7, 2011, this Court entered an Order detailing the
     agreement between the parties which provided that [Decedent]
     would withdraw the underlying [PFA] Petition … if [Wife] were
     evicted from the home.

           [Wife] initiated a divorce action on November 16, 2010.
     The divorce action proceeded for three years and was about to
     be completed in November 2013. Attorney Thomas Mincer
     represented [Decedent] during the divorce proceedings.

           On November 16, 2013, [Decedent] executed a new will
     which named his sister, Marybeth Fragola, as executrix, and his
     mother, Carole Fragola, as the sole beneficiary of the will.
     [Decedent] subsequently passed away on December 1, 2013.
     Marybeth Fragola submitted the November [1]6, 2013 Will for
     probate in Pike County. The Will contained a provision expressly
     disinheriting [Wife]. The relevant provision states:

           “My wife, PAULA J. FRAGOLA, separated from me
           approximately 3 years ago and filed a complaint for
           divorce from me. I deliberately and purposefully
           exclude her from inheriting from my estate under
           this Will.”

            On December 11, 2013, the Pike County Register of Wills
     issued a Decree which adopted the Will. Additionally, Attorney
     Mincer, as counsel for Decedent, filed an Amended Complaint in
     Divorce and a Notice of Intention to Request Entry of Section
     3301(d) Divorce Decree on December 11, 2013. The Amended
     Complaint was verified by Attorney Mincer and requested a no-
     fault divorce pursuant to § 3301(d) of the Divorce Code.

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            On December 31, 2013, [Wife] appealed the Decree to this
      Court and alleged that Decedent lacked the testamentary
      capacity to execute the Will. This Court denied the appeal on
      February 6, 2015.

             [Wife] had previously filed a Notice of Conditional Election
      to Take Against the Will of [Decedent] on January 16, 2014. A
      hearing was held on the merits of the Conditional Election to
      Take Against Will on June 28, 2016. At the conclusion of the
      hearing, the parties were given the opportunity to submit briefs
      or memorandum of law in the support of their respective
      positions. Each party filed the same on August 1, 2016.

Trial Court Opinion, 9/21/16, at 1-3 (citations omitted).

      On September 21, 2016, this Court entered an Order which denied

[Wife’s] Conditional Election to Take Against Decedent’s Will. Appellant filed

a timely appeal and complied with the trial court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Wife raises the following issues for our review on appeal:

      1) Whether the trial court erred and abused its discretion in
         determining that [Wife] willfully and maliciously deserted
         [Decedent] for more than a year prior to his death, and
         therefore, dismissed [Wife’s] election to take against the will.

      2) Whether the trial court erred and abused its discretion in
         determining that [Wife] willfully neglected and refused to
         support [Decedent] for more than a year prior to his death,
         and therefore, dismissed [Wife’s] election to take against the
         will.

      3) Whether the trial court erred and abused its discretion in
         determining that the conditions of 20 Pa.C.S.A. Section
         2106(a)(2) were met, thereby dismissing [Wife’s] election to
         take against the will.

Appellant’s Brief, at 4 (issues reordered for review).

      Our standard of review is well-established:

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             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 362–63. 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.
      Moreover, we point out that an abuse of discretion is not merely
      an error of judgment. However, if in reaching a conclusion, the
      court overrides or misapplies the law, or the judgment exercised
      is shown by the record to be manifestly unreasonable or the
      product of partiality, prejudice, bias, or ill will, discretion has
      been abused. Id.

Estate of Sacchetti v. Sacchetti, 128 A.3d 273, 281–82 (Pa.Super. 2015)

(quoting In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.Super.

2013)).

      “The death of a spouse during the pendency of a divorce proceeding

abates the divorce action and any and all claims for equitable distribution.”

In re Estate of Cochran, 738 A.2d 1029, 1031 (Pa.Super. 1999) (citing

Myers v. Myers, 580 A.2d 384, 385 (Pa.Super. 1990)).            Although “the

Probate, Estates, and Fiduciaries Code (‘the Probate Code’) contains

substantial provisions designed to insure the fair distribution of the marital

estate upon the death of one spouse,” the Probate Code provides that a

surviving spouse may forfeit his or her right or interest to the estate of the

other spouse in certain circumstances.      Cochran, 738 A.2d 1029, 1031



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(Pa.Super. 1999) (quoting Haviland v. Haviland, 481 A.2d 1355, 1357

(Pa.Super. 1984)).     In cases where a decedent died with a will that

disinherits a surviving spouse, Section 2208 of the Probate Code states that

the surviving spouse will forfeit an elective share of the decedent’s estate if

he or she meets the criteria for forfeiture set forth in Section 2106 (relating

to a decedent who died intestate).

      § 2106. Forfeiture

      (a)   Spouses share.—

            (1) A spouse who, for one year or upwards previous to the
            death of the other spouse, has willfully neglected or
            refused to perform the duty to support the other spouse,
            or who for one year or upwards has willfully and
            maliciously deserted the other spouse, shall have no right
            or interest under this chapter in the real or personal estate
            of the other spouse.

            (2) 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).

20 Pa.C.S. § 2106(a). In other words, a surviving spouse forfeits her right

or interest in the estate of her deceased spouse by (1) willfully neglecting or

refusing to perform the duty to support the decedent for one year or more

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prior to the decedent’s death, (2) willfully and maliciously deserting the

decedent for one year or more prior to the decedent’s death, or (3) the

establishment of grounds for divorce under 23 Pa.C.S. 3323(g).

      With respect to forfeiture by willful and malicious desertion, our courts

have further provided that:

      the mere fact of separation does not create a presumption of
      willful and malicious desertion. In re Estate of Kostick, 514
      Pa. 591, 594, 526 A.2d 746, 748 (1987). See also Lodge's
      Estate, 287 Pa. 184, 186, 134 A. 472, 473 (1926) (“Mere
      separation is not desertion, there must be an actual
      abandonment of matrimonial cohabitation with intent to desert,
      willful and persisted in without cause”).       Thus, where an
      allegation of desertion is based on separation, the party
      advocating forfeiture must prove there was a desertion without
      cause or consent of the other spouse. In re Estate of Fisher,
      442 Pa. 421, 424, 276 A.2d 516, 519 (1971). However, once
      such a showing has been made, the parties' separation is
      presumed a willful and malicious desertion and the burden shifts
      to the surviving spouse to prove the contrary. Id.

In re Estate of Talerico, 137 A.3d 577, 581 (Pa.Super. 2016) (quoting In

re Estate of Cochran, 738 A.2d at 1031 (some internal quotation marks

omitted)). “The nature of the deserting spouse's conduct, either before or

after the separation, and the extent to which it is inconsistent with the

marital relationship, is dispositive of whether the separation is a willful and

malicious desertion within the meaning of the forfeiture statute.       In re

Estate of Cochran, 738 A.2d at 1032.

      Under similar circumstances, this Court in Cochran found that the

husband’s behavior constituted a de facto desertion of his wife as he was

absent from the marital home for more than one year after he was ordered


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to leave the marital home under the provisions of a PFA order.             The

Cochran court found that the husband’s threats to his wife and daughter

that led to his removal from the marital home were wholly inconsistent with

the marital relationship and emphasized that upon the expiration of the PFA

order, the husband did not attempt to return to the marital residence. In

addition, this Court noted that there was no evidence that the wife bore any

responsibility for the husband’s departure as the husband did not allege that

the wife threatened him in any way to incite his abusive acts.

      Moreover, this Court found in Cochran that the wife’s filing of the PFA

petition to remove the husband from the home was not evidence that she

consented to the husband’s separation but was evidence of her desire to be

free from domestic abuse.     See id. (recognizing that “Wife's action was

merely a response to a volatile and dangerous situation that rendered her

choice of remedy the only rational course of action”).

      Likewise, in this case, we agree with the trial court’s finding that Wife

willfully and maliciously deserted Decedent more than one year prior to

Decedent’s death. Wife filed for divorce from Decedent in November 2010,

vacated the marital residence in May 2011 after the temporary PFA order

was entered against her, and never attempted to reconcile with Decedent

before his death on December 1, 2013.

      Wife’s conduct, which led to the issuance of the PFA order and her

removal from this marital home, was wholly inconsistent with the marital

relationship. The trial court noted that Decedent’s PFA petition alleged that

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“Wife engaged in ongoing mental, verbal, and emotional abuse, threatened

to physically ‘kick his ass,’ locked up bottled water that he needed to take

his medication, and intentionally provoked him in order to raise his blood

pressure.”    T.C.O., at 6 (citing PFA petition, 5/31/11, at 6). Decedent

asserted that he filed the PFA petition because he had “grave fear for his

health and safety.” PFA petition, 5/31/11, at 7.

      Moreover, we agree that Decedent did not consent to Wife’s separation

by filing a PFA petition to seek her removal from the home as he was merely

protecting himself from domestic abuse.        Under the same rationale, we

reject Wife’s assertion that the parties’ stipulation that Wife would not return

to the marital home was evidence of Decedent’s consent to her separation.

As a result, we find no evidence of consent to the separation in Decedent’s

recourse to a PFA petition.

      Wife offered no contrary evidence to rebut the presumption that her

behavior constituted a willful and malicious desertion of Decedent.        When

Wife filed for a no-fault divorce, she did not allege that Decedent committed

any fault or behaved in any manner to instigate Wife’s abusive conduct that

necessitated the PFA order. Wife also concedes that she never attempted to

reconcile with Decedent after the PFA was entered against her.

      For the foregoing reasons, we conclude that the trial court did not err

in finding Wife willfully and maliciously deserted Decedent more than one

year prior to Decedent’s death, and, thus forfeited her right to seek an

elective share of Decedent’s estate.    As this evidence is sufficient to support

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the trial court’s finding of forfeiture, we need not review Wife’s remaining

arguments that forfeiture was improper under the other provisions of

Section 2106(a) of the Probate Code.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2017




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