J-A01039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BARBARA ROSMARIN, EXECUTRIX                   :   IN THE SUPERIOR COURT OF
 FOR THE ESTATE OF GENE BARCLAY                :        PENNSYLVANIA
 ROSMARIN                                      :
                                               :
                      Appellant                :
                                               :
                v.                             :
                                               :
 LAKPA YANJI SHERPA                            :
                                               :
                      Appellee                 :      No. 1132 EDA 2017


                       Appeal from the Decree March 3, 2017
                  in the Court of Common Pleas of Bucks County
                        Orphans' Court at No.: 2014-E0441


BEFORE:       LAZARUS, J., OTT, J., and PLATT*, J.

DISSENTING MEMORANDUM BY PLATT, J.:                    FILED AUGUST 20, 2018

      I respectfully dissent. I would not affirm on the basis of the trial court

opinion. I am constrained to conclude that the learned Orphans’ Court erred

in its interpretation of the applicable law, and abused its discretion by

dispositive    reliance   on   self-serving,   subjective,   and,   yes,   suspicious

testimony.      In several instances, Appellee’s testimony (or that of her

witnesses) is plainly self-contradictory.          At the same time, the court

depreciated the significance of undisputed, disinterested adverse evidence,

given at the risk of self-incrimination, favoring Appellant.           In my view,

Appellant met her burden to prove that Appellee’s marriage to the decedent,

Gene Rosmarin, was a sham, should have been annulled, and that Appellee

had “unclean hands.” I would reverse the order of the learned Orphans’ Court.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       We review the disposition of two competing claims to the estate of Gene

Barclay Rosmarin, who died at seventy-one after a household accident in May

of 2014.      On independent review, I conclude that under well-settled

Pennsylvania law, Appellant/Executrix should have prevailed.

       Our standard of review of a trial court’s grant of an annulment is well

settled: “It is this Court’s duty to make an independent review of the record

and study of the matter and to exercise its independent judgment upon the

whole record[.]”        DeMedio v. DeMedio, 257 A.2d 290, 294 (Pa. Super.

1969) (citation omitted) (emphasis added).

                 When we review a decision by a [trial] court, we must
          accept findings of fact supported by the evidence, for the
          [trial] court is in a much better position than we are to
          resolve conflicts in the evidence and issues of credibility.
          However, we are not bound to accept findings not
          supported by the evidence; nor are we bound to
          accept the [trial] court’s inferences from the
          evidence, or its conclusions of law.

In Interest of Miller, 448 A.2d 25, 27 (Pa. Super. 1982) (citations omitted)

(emphasis added).1



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1 It bears noting that Miller, and several other cases relied on by the Orphans’
Court, address the existence of a common-law marriage (based on words
invoking a “present intent to marry”), an issue not present in this appeal. In
response to Miller, the Legislature amended the Marriage Law in 1984. The
Legislature prospectively abolished common-law marriages altogether
effective January 1, 2005. See 23 Pa.C.S.A. § 1103. While these common
law marriage cases still contain some surviving basic principles, in general the
comparisons of proof required for common law versus ceremonial marriage,
especially regarding “the intention to marry,” cited by the Orphans’ Court in
its reasoning, are of severely limited applicability to the issues in this appeal.

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      Here, preliminarily, I am constrained to conclude that the learned

Orphans’ Court errs in its belief that ruling on the validity of Respondent’s

purported marriage infringes on the federal judiciary’s exclusive jurisdiction

over immigration matters. (See Orphans’ Court Opinion, 3/07/17, at 12).

      The fact that it is a federal crime to enter a marriage for the purpose of

evading the immigration laws does not deprive the Orphans’ Court of its

jurisdiction, and its duty, to determine whether the marriage at issue here is

also void or voidable under the law of Pennsylvania. The Orphans’ Court’s

reliance on Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600

(Pa. Commw. 2006) (holding that alien with expired work authorization from

United States Bureau of Citizenship and Immigration Services, was not legally

available for work, thus ineligible for UC benefits), is plainly misplaced. (See

Orphans’ Ct. Op., 3/07/17, supra at 11-12). Even though our sister Court

acknowledged that immigration is a matter of exclusive federal jurisdiction,

that acknowledgement did not prevent the Commonwealth Court from

deciding against Ruiz’s eligibility for unemployment compensation under

Pennsylvania law. See Ruiz, supra at 603.

      In this appeal, Appellant argues that her ex-husband intentionally kept

her as both Executrix and residuary beneficiary in his 1998 will, even though

they had previously divorced in 1996, in recompense for the end of their

twenty-six year marriage.




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       Respondent/Appellee Lakpa Sherpa claims against the will, as second

wife. She would have this Court accept, as the Orphans’ Court by and large

did, that she and Gene Rosmarin married out of love in 2008, six years after

the seeds of romance were planted during a relatively brief meeting in 2002

when she met Rosmarin, her cousin Chokpa’s longtime (since before

Rosmarin’s divorce in 1996) companion/boyfriend, on their visit to Nepal.

       The record of Respondent Lakpa’s romance is redolent of red flags. At

the time of their first meeting, Rosmarin, born in 1943, was fifty-nine; Lakpa,

born in 1974, was twenty-eight. Nevertheless, supposedly nurtured by six

years of around-the–world phone calls, (near miraculous in itself, since neither

could speak the other’s language),2 we are meant to conclude the

acquaintance blossomed into love and marriage despite the language barrier,

a thirty-one year disparity in age, and having virtually nothing in common

except Chokpa.

       Integral to this scenario of long-distance romance is Respondent Lakpa’s

testimony that Rosmarin fell in love, not only with her but also with her small

children. (See N.T. Hearing, 7/15/16, at 10-11). In 2008, Rosmarin returned




____________________________________________


2 Even in 2016, Lakpa used an interpreter for the entire proceedings in the
Orphans’ Court. (See N.T. Hearing, 7/15/16, at 3; N.T. Hearing, 9/29/16, at
4). The Orphans’ Court accepted the proposition that Chokpa facilitated the
telephone conversations.


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J-A01039-18


to Kathmandu and Lakpa, for the first time since their initial meeting in 2002.

By this time, Lakpa had already been turned down twice for a visa application.

       There was no formal engagement. The couple married on September

9, 2008, apparently in a Buddhist ceremony, and registered the marriage with

local governmental authorities.           At the Orphans’ Court hearing, Lakpa

presented a marriage certificate as proof.3 (See id. at 11). By then, Rosmarin

was sixty-four; Lakpa, thirty-four. After a few days, Rosmarin flew back to

the United States.4 He never returned to Nepal.

       Lakpa’s odyssey to America was not so quick or easy. Although she was

apparently barred from applying for a visa to the USA until she was ninety-

five, for previous fraud (including the transmittal of a forged Nepalese

passport), now, with the aid of a New York immigration lawyer, Rosmarin

applied for a waiver of ineligibility on behalf of Lakpa. Rosmarin claimed the

lack of companionship of his wife had made him depressed and despondent.

       In pursuit of the waiver of ineligibility, Rosmarin obtained a letter from

his family doctor, claiming that he was lonely, despondent, and in need of


____________________________________________


3 The Orphans’ Court accepts without apparent difficulty the authenticity of
the Nepalese marriage certificate, even though it is undisputed that Lakpa had
been banned from entering the United States for her involvement in a forged
Nepalese passport scheme. The English translation of the Nepalese Certificate
of Marriage gives the domicile of Rosmarin, who lived in Doylestown, as “New
Jersey.” (Appellee’s Supplemental Reproduced Record, 28(b)).

4 The parties dispute whether the couple took a short “honeymoon” to
Chitwan, a Nepalese resort. The resolution of the disagreement is not
necessary for the issues on appeal.

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J-A01039-18


companionship. It is undisputed that Rosmarin lied to his doctor about having

made four trips back to visit with Lakpa. As already noted, he never returned

to Nepal.

       Apparently not disclosed in Rosmarin’s complaints to his doctor, he

continued to maintain companionship through an ongoing relationship with

Chokpa, Lakpa’s cousin, including annual cruises and other vacations to

locations such as Vancouver, Hawaii, and Alaska. Travel documents confirm

that in 2013, the couple (Chokpa and Rosmarin) booked a trip to Alaska. They

requested one queen-size bed. (See N.T. Hearing, 9/29/16, at 60). Chokpa

claims she slept on the couch. (See id.).5

       Back home, Chokpa maintained an apartment in Flemington, New

Jersey, where she worked in retail. But there is no dispute that she spent

most if not all weekends at Rosmarin’s home on Corrigan Road in Doylestown.

She was a familiar figure to the neighbors. The travel itinerary for the Alaska

trip listed Chokpa’s address as Corrigan Road. Chokpa’s name appeared along

with Rosmarin’s on the Corrigan Road utility bills.

       In any event, after six years, Lakpa received her waiver, in early 2014.

Did she book the first flight to Pennsylvania and run into the awaiting arms of


____________________________________________


5 Chokpa testified that although her involvement with Rosmarin began as a
romantic/physical relationship, after a few years it became platonic. She
maintained that she paid her own way on these trips, but she could not
produce cancelled checks, receipts or any other documentary support for her
testimony.


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J-A01039-18


Rosmarin? Not quite. She flew to New York and immediately moved in with

her uncle and several other blood relatives, in Jamaica.

      In short order, she found a job in Manhattan, obtained a New York State

identification card, and opened her own New York bank account.          Lakpa

claimed that for two months, she commuted from Doylestown to Flemington

with Rosmarin on his way to work but it turned out that during the time in

question Rosmarin was out of work on short-term disability, and did not

commute at all. And what of Lakpa’s children, whom Rosmarin fell in love

with twelve years earlier? Lakpa left them in Nepal with her family.

      There is more − much more − but the discerning reader may have

already perceived a problem. Perhaps most disturbing is the Orphans’ Court’s

relative disregard for the sworn testimony of Rosmarin’s tax preparer, IRS

enrolled agent Thomas Carfagno. He testified under oath before the Register

of Wills and at the Orphans’ Court hearing, that Rosmarin asked him to amend

his last four federal tax returns from single to “married – filing separately”

because he was helping Lakpa to enter the U.S.

      Rosmarin explained to Mr. Carfagno that the marriage was only to help

Lakpa enter and become a citizen, and that he planned to divorce her (and

marry Chokpa!) when Lakpa obtained citizenship and the process was




                                    -7-
J-A01039-18


complete.6 (See N.T. Hearing (Register of Wills), 7/11/14, at 14-16; see also

N.T. Hearing (Orphans’ Court), 9/29/16, at 19-26).

       Mr. Carfagno could not benefit from this testimony, but his admission

against self-interest did put him at personal risk. Indeed, after the hearing at

the Register of Wills, Appellee’s counsel, D. Kevin Laughlin, Esq., wrote Mr.

Carfagno a letter notifying him of his attempt to get the Orphans’ Court to

refer Mr. Carfagno to the IRS and the Treasury Department for preparing

fraudulent tax returns. (See N.T. Hearing (Orphans’ Court), 9/29/16, at 31;

see id. at 28-44).

       In any event, the Orphans’ Court dismissed the testimony on the

grounds that “neither Decedent nor Respondent took any affirmative steps

toward obtaining a divorce.” (Orphans’ Ct. Op., 3/07/17, at 3).

       This is immaterial.         Respondent (who was not a party to the

conversation in the first place) would have no motive to divorce Rosmarin

before she had obtained the desired results: entry into the U.S. and

citizenship. For the same reason, Rosmarin would not be motivated to file for

divorce until the original objective had been achieved. The Orphans’ Court’s

observation is technically correct, but its intended inference is no more than

unsupported speculation.




____________________________________________


6 The Orphans’ Court overruled Appellee’s hearsay objection on the ground
that the statement indicated Rosmarin’s state of mind.

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J-A01039-18


      Moreover, following the reasoning of the court, if inaction can prove

intent, or the lack of it, Rosmarin’s lack of any follow up steps to remove his

ex-wife as Executrix and residuary beneficiary under his will, would tend to

establish that he intended to keep his former wife as primary residuary

beneficiary as well as Executrix.

      Taken in isolation, a trier of fact might be inclined to accept an anomaly

in the narrative here or there in recognition of the uncertain course of Cupid’s

arrows. However, viewing the evidence in its totality, as we must under our

standard of review, the endless array of half-truths, inconsistencies, and

outright deceptions, and the consequent inferences presented by the Orphans’

Court, strain credulity and defy common sense.

      Notably, this is not case which depends on the trial court’s assessment

of Respondent’s credibility.   There is none.   To the contrary, the Orphans’

Court candidly conceded that “Respondent was by no means a flawless

party[.]” (Id. at 15).

      On independent review, viewing the evidence in its totality, I would draw

the inference that by every objective indication, Lakpa had no intent to set up

a married life with Rosmarin. There was no “consistent cohabitation,” outside

of occasional visits with Chokpa, indeed no particular effort to begin a married

life in Doylestown.      Appellant met her burden to prove that Respondent

Lakpa’s marriage to Rosmarin was a sham to evade her immigration problems.

Respondent had unclean hands.


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J-A01039-18


           In the exercise of the limited jurisdiction conferred on it by
     statute, it is plain that the Orphans’ Court must apply the rules
     and principles of equity. Thus, the familiar equity maxim he who
     comes into a court of equity must come with clean hands applies
     to matters within the Orphans’ Court’s jurisdiction.

In re Estate of Pedrick, 482 A.2d 215, 222 (Pa. 1984) (citations and internal

quotation marks omitted). I would conclude that this marriage was a sham

which the Orphans’ Court should have annulled and that Respondent/Appellee

sought equitable relief with unclean hands.

     Accordingly, I respectfully dissent.




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