J-S53002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 EDWARD NELLING                           :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
              v.                          :
                                          :
 SHARON NELLING                           :
                                          :
                    Appellant             :
                                          :      No. 4028 EDA 2017


                 Appeal from the Decree November 24, 2017
            in the Court of Common Pleas of Montgomery County
                    Civil Division at No.: No. 2015-24890


BEFORE:    GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 20, 2018

      Appellant, Sharon Nelling, (Wife), appeals from the divorce decree

entered on November 24, 2017. Specifically, she claims that the trial court

abused its discretion when it denied her motion for a continuance of a hearing.

She also argues that the court erred when it determined that the marriage

between Appellant and Appellee, Edward Nelling, (Husband), is irretrievably

broken and entered the divorce decree. We affirm

      We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s February 15, 2018 opinion.

            On September 11, 2015, [Husband] filed a complaint in
      divorce . . . . On January 9, 2017, [Husband] filed an affidavit
      under section 3301(d) of the divorce code. [Husband] stated in
      his § 3301(d) affidavit that [he] and [Wife] separated on
      November 12, 2014[,] and have continued to live separate and
      apart for a period of at least two (2) years. Furthermore,



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     [Husband] stated that       [Husband     and   Wife’s]   marriage   is
     “irretrievably broken.”

           On January 19, 2017, [Wife] filed an answer and
     counterclaim to [Husband’s] complaint in divorce, and stated,
     inter alia, that the parties[’] marriage “is not irretrievably
     broken[,”] as alleged by [Husband]. Additionally, on January 20,
     2017, [Wife] filed a counter-affidavit under § 3301(d) of the
     divorce code. In her counter-affidavit, [Wife] stated that she
     opposed the entry of a divorce decree for the following reasons:
     “(i) The parties to this action have not lived separate and apart
     for a period of two years, (ii) The marriage is not irretrievably
     broken, and (iii) There are economic claims pending.”

            On February 17, 2017, counsel for both parties participated
     in a phone conference with the court pertaining to [Wife’s] January
     20, 2017 counter-affidavit in divorce. On February 20, 2017,
     counsel for both parties filed a stipulation for entry of agreed order
     and stated as follows:

                 AND NOW, this 20th day of February, 2017,
           counsel for the parties herby [sic] agree that grounds
           for divorce are established pursuant to section 3301
           of The Divorce Code for two (2) year separation, and
           the date of separation is November 12, 2014.

           On August 9, 2017, [Wife’s counsel] sent a letter to the
     court requesting a short hearing wherein [Wife] intended to set
     forth that the parties[’] marriage is “not irretrievably broken but
     that two years have passed since the date of separation.”

            On August 18, 2017, [Wife] filed a petition for special relief
     in the nature of a declaratory judgment. In her special relief
     petition, [Wife] requested a hearing so that the court could
     determine whether the parties’ marriage is irretrievably broken,
     and to declare whether grounds for divorce were established
     pursuant to the Pennsylvania Divorce Code. [Wife’s] special relief
     petition alleged that the parties[’] February 20, 2017 agreed
     stipulation stated only that the parties had been separated for at
     least two (2) years, but did not address whether or not the
     marriage was irretrievably broken.

           On October 11, 2017, the court held a hearing regarding
     [Wife’s] August 18, 2017 petition for special relief[.] . . .



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(Trial Court Opinion, 2/15/18, at 1-2) (unnecessary capitalization omitted).

       On October 11, 2017, at the beginning of the hearing, Wife notified the

court that she “just terminated [her] lawyer” and asked the court for a

continuance.      (N.T. Hearing, 10/11/17, at 3).                The court denied the

continuance, noting that the hearing—which was conducted at Wife’s

request—had       been    scheduled     in     advance,1   and    Wife   requested   the

continuance at the last minute. (See id. at 7-8). Thereafter, Wife proceeded

with her testimony, reading a word document from her phone challenging

Pennsylvania’s no-fault divorce, as applied to Roman Catholic marriages, as

“an unconstitutional infringement on a fundamental right to marriage and

religious freedom, and unconstitutional impairment of obligations of contract.”

(Id. at 14; see also id. at 13-20). Wife also stated that she felt the parties’

“marriage is not irretrievably broken. And . . . she ha[s] hope and [] feel[s]

that it is not broken.” (Id. at 27).

       Husband also testified at the hearing. He explained that he and Wife

have attended marriage counseling and marriage seminars since September

2015, and, in addition to those joint sessions, he has been in individual

therapy. (See id. at 30-31). Although Husband explained that he “would

rather not get into the details[,]” of the problems in their marriage, he testified

that he had no hope of reconciliation, that the problems were chronic, and
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1 On August 23, 2017, the court entered an order scheduling a hearing for
September 15, 2017. On August 25, 2017, the court issued another order,
granting Wife’s unopposed continuance request, and continuing the hearing
until October 11, 2017.

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that he had no intent to return to the marital relationship.             (Id. at 32).

Husband confirmed that he “believe[d] that there’s an estrangement due to

marital difficulties with no reasonable prospect [of] reconciliation[.]” (Id. at

40; see id. at 40-41). At the conclusion of the hearing, the court took the

matter under advisement.

       On October 17, 2017, the court entered an order denying Wife’s petition

for special relief, and decreeing that the marriage is irretrievably broken and

grounds for divorce have been established under section 3301(d) of the

divorce code. (See Order, 10/17/17). Wife, represented by counsel, filed a

motion for reconsideration on November 7, 2017, which the court denied on

November 14, 2017. On November 24, 2017, the court issued a decree in

divorce to the parties. Wife filed a notice of appeal on December 11, 2017,

purporting    to   appeal both from the          order   denying   her   motion for

reconsideration, and from the divorce decree.2

       Pursuant to the trial court’s order, Wife filed her concise statement of

matters complained of on appeal on December 29, 2017.               The trial court

entered its opinion on February 15, 2018. See Pa.R.A.P. 1925.

       Wife raises three questions on appeal.

       I.     Did the [t]rial [c]ourt err and commit an abuse of discretion
              when it failed to grant a continuance to [Wife] on October

____________________________________________


2 An order denying a motion for reconsideration is not a final order, and thus
is not appealable. However, because Appellant also timely appealed from the
divorce decree, we will treat the appeal as taken solely from the divorce
decree, which is a final order. See Pa.R.A.P. 341.

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            11, 2017, following numerous requests for such continuance
            by [Wife?]

     II.    Did the [t]rial [c]ourt err by denying, without explanation,
            [Wife’s] [m]otion for [r]econsideration of the denial of the
            [p]etition for [s]pecial [r]elief[, in which Wife] raised the
            issue that the [c]ourt had based its decision on whether the
            marriage was irretrievably broken solely upon the testimony
            by [Husband] at the October 11, 2017 hearing and further
            raised the issue of the contractual basis of the parties’
            marriage?

     III.   Did the [t]rial [c]ourt [err] by issuing the [divorce decree],
            . . . since the [c]ourt knew or should have known that [Wife]
            objected to the entry of said [decree] on the grounds that
            [Wife] and [Husband] had a contract for their marriage and
            that [Wife] does not believe her marriage is irretrievably
            broken?

(Wife’s Brief, at 5) (some argument omitted).

     In her first issue, Wife claims that the trial court erred when it denied

her request for a continuance of the October 11, 2017 hearing. (See id. at

13-18). We disagree.

            The trial court is vested with broad discretion in the
     determination of whether a request for a continuance should be
     granted, and an appellate court should not disturb such a decision
     unless an abuse of that discretion is apparent. An abuse of
     discretion is more than just an error in judgment and, on appeal,
     the trial court will not be found to have abused its discretion unless
     the record discloses that the judgment exercised was manifestly
     unreasonable, or the results of partiality, prejudice, bias or ill-will.

Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001) (citations

omitted).

     In the instant case, the trial court denied Wife’s request for a

continuance of a hearing, after she both fired her attorney and requested the

continuance on the morning of the hearing.           Notably, the hearing was


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scheduled at Wife’s request, and Wife had nearly two months’ notice prior to

commencement of the hearing. Thus, we conclude that the trial court’s denial

of Wife’s eleventh-hour continuance request—which was a result of Wife’s last-

minute decision to terminate her attorney—was not “manifestly unreasonable,

or the results of partiality, prejudice, bias or ill-will.” Id. Accordingly, Wife’s

first issue does not merit relief.

      Wife combines her second and third questions into one argument in her

brief, in which she argues that the trial court erred in finding that her marriage

was irretrievably broken. (See id. at 18-27). Wife states that she does not

consent to the divorce, and she does not believe that her marriage cannot be

repaired. (See id. at 20-22). Additionally, Appellant argues that the no-fault

divorce statute, 23 Pa.C.S.A. § 3301(d), is unconstitutional and her

fundamental right to marriage is infringed on because there is “no meeting of

the minds[,]” as to the dissolution of the marital contract. (Id. at 26; see id.

at 23-27). Wife’s issue does not merit relief.

             Our standard of review in divorce actions is well settled. [I]t
      is the responsibility of this [C]ourt to make a de novo evaluation
      of the record of the proceedings and to decide independently of
      the . . . lower court whether a legal cause of action in divorce
      exists. However, in determining issues of credibility, the [lower
      court’s] findings must be given the fullest consideration for it was
      the [lower court] who observed and heard the testimony and
      demeanor of various witnesses. . . .

Frey v. Frey, 821 A.2d 623, 627 (Pa. Super. 2003) (citations and quotation

marks omitted).




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       Section 3301(d) of the Divorce Code, as set forth during the instant

proceedings,3 provides for a no-fault divorce if the parties have lived separate

and apart for the statutory period and the marriage is irretrievably broken:

       (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.

23 Pa.C.S.A. § 3301(d).

       Here, the parties agreed that they had been separated for at least two

years and the date of separation was November 12, 2014. (See Stipulation,

2/20/17).     The court held a hearing on October 11, 2017, where it heard

testimony from Husband, who explained that despite years of therapy, the

problems in the marriage were chronic, he had no intent of returning to the

marital relationship, and their marriage was irretrievably broken. (See N.T.



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3 The current version of section 3301(d) employs a one-year time frame for
the parties having lived separate and apart. See Act 2016, Oct. 4, P.L. 865,
No. 102. However, because the instant action occurred before enactment of
the act, we rely on the prior version of section 3301(d), and refer to the two-
year time frame.

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Hearing, at 32-41). Wife testified that she had hope for the marriage and did

not feel that it was broken. (See id. at 27).

      After independent review of the record, we find that the requirements

for a no fault divorce under section 3301(d) have been satisfied. See Frey,

supra at 627. The parties have been separated for at least two years, and,

based on the testimony offered during the October 11, 2017 hearing, their

marriage is irretrievably broken.      See id.; 23 Pa.C.S.A. § 3301(d).

Accordingly, we conclude that the trial court did not err in entering a divorce

decree based on section 3301(d). Wife’s claim does not merit relief.

      Finally, we address Wife’s constitutional challenges to the divorce

statute.

            . . . [W]here a party purports to challenge the
      constitutionality of a rule or statute, Pa.R.C.P. 235 and/or
      Pa.R.A.P. 521 notice must be given to the Office of the Attorney
      General of the Commonwealth. The Attorney General is charged
      with defending the constitutionality of all enactments of the
      General Assembly. See 71 P.S. § 732–204(a)(3); see also City
      of Phila. v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 583
      (2003). There is no indication that such notice was given. . . .

Fotopoulos v. Fotopoulos, 185 A.3d 1047, 1055 (Pa. Super. 2018).

      Upon review, the record does not reflect that Wife gave either Pa.R.C.P.

235 or Pa.R.A.P. 521 notice to the Office of the Attorney General of

Pennsylvania, with respect to her constitutional challenges to the no fault

divorce statute. Accordingly, Wife has waived this argument. See id.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/18




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