J-A22004-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF ROBERT D.                      IN THE SUPERIOR COURT OF
MUTZABAUGH,                                           PENNSYLVANIA

                            Appellee

                       v.

APPEAL OF: PAULETTE MUTZABAUGH

                                                    No. 2115 MDA 2014


               Appeal from the Order Entered November 21, 2014
                 In the Court of Common Pleas of Perry County
                      Orphans' Court at No(s): 5014-0149


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 09, 2015

       Paulette Mutzabaugh appeals from the November 21, 2014 order

granting the petition filed by Maryann Mutzabaugh to remove Paulette as the

administratrix of the estate of Robert D. Mutzabaugh.1 We affirm.

       On September 14, 2014, Paulette, Robert’s mother, was granted

letters of administration after filing a petition wherein she averred the

following. Robert died on August 26, 2014, intestate. Maryann and Robert

were in the process of divorcing, and grounds for the divorce were

established in the divorce case. Paulette asserted that she was Robert’s sole
____________________________________________


1
  An order removing a personal representative of an estate is a final,
appealable order. Pa.R.A.P. 342(a)(5).

*
    Retired Senior Judge assigned to the Superior Court.
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intestate heir and entitled to serve as his administratrix. Based upon these

representations, the Register of Wills of Perry County granted the petition

and appointed Paulette administratrix of the estate.

        On September 23, 2014, Maryann filed a petition for Paulette’s

removal, setting forth the following. Maryann and Robert were still legally

married when he died.      Since Robert did not have a will, Maryann, as his

spouse was entitled to be his administratrix and Paulette should be removed.

20 Pa.C.S. § 3155(b) (“Letters of administration shall be granted by the

register . . . to one or more of those mentioned and, except for good cause,

in the following order: (1) Those entitled to the residentiary estate under the

will.   (2) The surviving spouse[.]”).   Maryann reported that, contrary to

Paulette’s representation, grounds for divorce were not established, as

required by § 3323(g) of the Divorce Code, set forth infra, so that she was

entitled to her spousal rights under the Probate, Estates, and Fiduciaries

Code (“PEF Code”).

        On October 13, 2014, the court issued a citation to Paulette to appear

on November 10, 2014, and show cause why she should not be removed as

administratrix. Paulette responded to the petition by admitting that Robert

and Maryann were married on July 5, 1981.        She continued that Maryann

filed a divorce complaint against Robert on October 12, 2011, but the

divorce    proceeding   was   stayed   when   Robert,   individually,   filed   for

bankruptcy to avoid a foreclosure on his home.

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      Paulette outlined that Maryann filed a petition for special relief in the

divorce court asking that the anticipated proceeds in the amount of $35,000

from an impending sale of the marital home be escrowed since Robert had

removed $90,000 from his retirement account without paying anything to

Maryann. Maryann’s petition for special relief indicated that the parties had

been separated since September 22, 2011.        Robert informed the divorce

court of his bankruptcy filing, and the divorce court stayed the petition for

special relief.

      Paulette also noted that, on April 15, 2014, Maryann and Robert jointly

applied for relief in the bankruptcy court from the automatic stay, asserting

that they “have been separated for a period of two (2) years or more and

are interested in finalizing their divorce.” Response to Citation on Petition

for Removal of Administratrix, 11/7/14, at Exhibit C. The bankruptcy stay

was lifted on May 13, 2014. On August 18, 2014, Maryann then moved for

the appointment of a master and indicated that the “statutory ground(s) for

divorce are § 3301(d).” Id. at Exhibit E. Robert died ten days later.

      Based upon the record filings, the orphans’ court concluded that

Maryann was entitled to serve as administratrix of the estate under § 2106

of the PEF Code, and it removed Paulette. This appeal followed. Paulette

raises these grounds for relief.

            [1.] Where a spouse has taken the legal position before
      the Bankruptcy Court and the Divorce Court that grounds for
      divorce under 3301(d) of the Divorce Code exist, is she

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      judicially estopped from changing position after the other
      spouse dies to assert in the Orphans Court that there are no
      grounds for divorce[?]

            [2.] In the alternative, if she is not judicially estopped
      from the assertion, does the fact that the automatic stay of the
      bankruptcy laws barred the steps needed to move forward on
      the divorce so that the parties had to cooperate to remove the
      bar, substitute for the strict requirements of filing 3301(d)
      affidavits?

Appellant’s brief at 2.

      We first set forth our standard of review:

      Our standard of review of an orphans' court's decision is
      deferential. In re Estate of Strahsmeier, 54 A.3d 359, 362
      (Pa.Super. 2012). When reviewing an orphans' court decree,
      this Court must determine whether the record is free from legal
      error and whether the orphans' court's findings are supported by
      the record. Id. at 362–363. Because the orphans' court sits as
      the finder of fact, it determines the credibility of the witnesses
      and, on review, this Court will not reverse its credibility
      determinations absent an abuse of discretion. Id. at 363.
      However, this Court is not bound to give the same deference to
      the orphans' court conclusions of law. Id. Where the rules of
      law on which the orphans' court relied are palpably wrong or
      clearly inapplicable, we will reverse the court's decree. Id.

In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.Super. 2013).

      We note that, prior to 2005, a divorce action automatically abated

once one spouse died if a divorce decree was not entered. Taper v. Taper,

939 A.2d 969 (Pa.Super. 2007). Thus, if a spouse died at any stage of the

divorce lawsuit before the divorce decree was entered, the surviving

spouse’s interest was determined under the PEF Code. Id. On January 28,

2005, the Divorce Code was amended so that a divorce action was not



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abated under 23 Pa.C.S. § 3323(d.1) if grounds for divorce have been

established in accordance with 23 Pa.C.S. § 3323(g). Id.

      Specifically, § 3323(d.1) of the Divorce Code provides, “In the event

one party dies during the divorce proceedings, no decree of divorce has been

entered and grounds had been established as provided in subsection (g), the

parties’ economic rights and obligations arising under the marriage shall be

determined under this part rather than under 20 Pa.C.S. (relating to

decedents,   estates,   and   fiduciaries).”   Concomitantly,   20   Pa.C.S.   §

2106(a)(2)(ii)-(iii) of the PEF Code outlines that,

      A spouse shall have no right or interest under this chapter in
      the real or personal estate of the other spouse if:

      (i) the other spouse dies domiciled in this Commonwealth
      during the course of divorce proceedings;

      (ii) no decree of divorce has been entered pursuant to 23
      Pa.C.S. § 3323 (relating to decree of court); and

      (iii) grounds have been established as provided in 23 Pa.C.S. §
      3323(g).

      Thus, both the Divorce Code and the PEF Code provide that the

divorce action abates and a surviving spouses’ rights are determined under

the PEF Code only when the mandates of 23 Pa.C.S. § 3323(g) are satisfied.

That provision outlines:

      (1) In the case of an action for divorce under 3301(a) or (b)
      (relating to grounds for divorce), the court adopts a report of the
      master or makes its own findings that grounds for divorce exist.




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      (2) In the case of an action for divorce under section 3301(c),
      both parties have filed affidavits of consent.

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

23 Pa.C.S. § 3323(g).

      Section 3301 of the Divorce Code outlines the various grounds for

divorce.   Section 3323(g)(1) pertains both to § 3301(a), which is a fault

divorce instituted by an innocent and injured spouse, and to § 3301(b),

wherein a party can divorce a mentally ill and institutionalized spouse.

Maryann     did   not   seek   a   fault   divorce   or   one   due   to   Robert’s

institutionalization.   Section 3323(g)(2) covers divorces under 3301(c),

which are divorces by consent.        Again, that section is inapplicable since

Robert did not consent to the divorce.

      Instead, Maryann sought divorce under § 3301(d), which permits a

divorce under certain circumstances when the marriage is irretrievably

broken and when the parties have been separated for more than two years.

Thus, in order for the divorce action at issue herein to not abate, the

provisions of § 3323(g)(3) must be met. Under that provision, an affidavit

must be filed.    Maryann did not file an affidavit.      She requested a master

and stated that she was seeking a divorce under § 3301(d). See Appellant’s



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brief at 9 (“Appellant concedes that neither party strictly complied with the

requirements of 23 Pa.C.S. § 3323(g)(3) by filing so-called 3301(d)

affidavits.”).

      Paulette first avers that Maryann is judicially estopped from contesting

that grounds for divorce existed because Maryann’s prior filings in the

divorce and bankruptcy courts established grounds for divorce under §

3301(d). We disagree. Specifically, that section provides:

             (d) Irretrievable breakdown.--

            (1) The court may grant a divorce where a complaint has
      been filed alleging that the marriage is irretrievably broken and
      an affidavit has been filed alleging that the parties have lived
      separate and apart for a period of at least two years and that
      the marriage is irretrievably broken and the defendant either:

                   (i) Does not deny the allegations set forth in
             the affidavit.

                   (ii) Denies one or more of the allegations set
             forth in the affidavit but, after notice and hearing,
             the court determines that the parties have lived
             separate and apart for a period of at least two years
             and that the marriage is irretrievably broken.

             (2) If a hearing has been held pursuant to paragraph
      (1)(ii) and the court determines that there is a reasonable
      prospect of reconciliation, then the court shall continue the
      matter for a period not less than 90 days nor more than 120
      days unless the parties agree to a period in excess of 120 days.
      During this period, the court shall require counseling as
      provided in section 3302 (relating to counseling). If the parties
      have not reconciled at the expiration of the time period and one
      party states under oath that the marriage is irretrievably
      broken, the court shall determine whether the marriage is
      irretrievably broken. If the court determines that the marriage



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      is irretrievably broken, the court shall grant the divorce.
      Otherwise, the court shall deny the divorce.

      While Maryann asked for a divorce under § 3301(d), she did not plead

in a divorce complaint that the marriage was irretrievably broken, and she

did not file an affidavit attesting to a more than two-year separation and

that the marriage was irretrievably broken.        Robert did not deny the

allegations. The divorce court made no determination regarding the state of

the marriage, and the proceedings under § 3301(d)(2) did not occur.

Paulette’s estoppel position fails in that Maryann never pled either that there

was an irretrievable breakdown in the marriage or that Robert did not deny

her allegation.   Maryann admitted the date of separation in her pleadings

and asked for a determination that grounds for divorce existed under §

3301(d), which did not occur.

      Likewise, we cannot agree with Paulette’s second assertion, which is

that § 3323(g) should be applied since the only reason that a divorce was

not entered was due to the bankruptcy stay and that the parties’ joint

request for a stay from bankruptcy satisfied the requirements for affidavits.

Robert, not Maryann, filed for bankruptcy, and he had Maryann’s petition for

special relief stayed due to his bankruptcy.    This case does not involve a

situation where one spouse, through the disingenuous use of a bankruptcy

filing, has stayed a divorce to prevent application of § 3323(g) due to a

spouse’s impending death. Any delay in the divorce case was attributable to



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Robert, and we will not impute ill intent on Maryann’s part. The fact that

Robert asked for the lifting of the bankruptcy stay is not the equivalent of

filing an affidavit under § 3301(d).

      Our decision in Gerow v. Gerow, 962 A.2d 1206, 1207-10 (Pa.Super.

2008), is instructive.   Therein, wife wanted to pursue her property rights

under the Divorce Code rather than the PEF Code. Husband had instituted

the divorce case on three grounds.      He then failed to litigate it for years.

Nearly five years after it was filed, the matter was set to proceed to a

master when husband suffered a heart attack and died.          Wife wanted to

proceed with the divorce case. We denied wife’s request to allow the divorce

to proceed. We held that, unless the requirements of § 3323(g) are met,

the divorce action abates and the surviving spouse’s rights are determined

under the PEF Code.

      This case is dispositive. The divorce case was filed, the matter sat idle

for years, and, just before it was set to be heard by a master, one of the

spouses died.    Thus, the mandates of § 3323(g) were not met.          As the

orphans’ court correctly applied the law to the facts, we affirm.




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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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