J-S48031-19

                                   2019 PA Super 327


    LAURA PANKOE,                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
                                               :
    RYAN PANKOE,                               :   No. 1041 EDA 2019

                       Appellant

                 Appeal from the Decree Entered March 25, 2019
                 In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2017-FC-1286

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                           FILED OCTOBER 29, 2019

        Ryan Pankoe (Husband) pro se appeals from the March 25, 2019 divorce

decree entered in the Lehigh County Court of Common Pleas. Upon review,

we affirm.

        Husband and Laura Pankoe (Wife) were married on October 18, 2009,

in Lehigh County, Pennsylvania, and are the parents to two minor children.

On September 27, 2017, Wife filed a complaint for divorce (the Complaint),

which included a count for equitable distribution. Complaint, 9/27/2017. In

the Complaint, Wife averred the parties separated on November 8, 2016, and

had been living apart since that date. Id. at 2 (unnumbered). Additionally,

Wife asserted that the marriage was irretrievably broken. Id. Thereafter,

Husband was served a copy of the Complaint, and he subsequently filed an
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*   Retired Senior Judge assigned to the Superior Court.
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answer. Therein, Husband requested the trial court dismiss the Complaint,

asserting the marriage was “not irretrievabl[y] broken nor ha[d] the parties

lived separate and apart for one year since the filling of the [] Complaint.”

Answer to Complaint, 3/1/2018, at 2 (unnumbered).

     On November 27, 2018, a master’s hearing was held before John

Roberts, III, Esquire (Master).   Both parties testified at the hearing.     As

summarized by the trial court:

     [Wife] testified that she believed her marriage to [Husband] is
     irretrievably broken because:

           [Husband] is emotionally and verbally abusive and
           that’s not going to change. He is narcissistic. We tried
           marriage counseling. And it’s clear to me that I’m not
           going to get through to him.

           And his personality is the way it is. And I’m not going
           to keep putting myself in the situation I’ve been in.
           I’m done.

     [Wife] testified that she had “no doubt whatsoever” that she
     wanted a divorce. [Wife] further testified that she felt [Husband]
     was emotionally, verbally, and sexually abusive during the
     marriage.      [Wife] also testified that [Husband] did not
     acknowledge her opinions and feelings during the marriage.
     [Wife] further testified that based on her religious beliefs, she
     believed a divorce was warranted. Additionally, [Wife] testified
     that she is not pursuing any economic claims against [Husband].
     [Wife] testified that she did not have an affair during the marriage.

            [Husband] testified extensively about his religious beliefs
     and his belief that divorce is not appropriate for the parties.
     [Husband] testified that he did not believe the parties had “biblical
     grounds for divorce or infidelity or an unbelieving spouse walk
     away.” [Husband] further argued that he and [Wife] entered into
     a Christian marriage contract, which Pennsylvania cannot
     invalidate. [Husband] argued that Pennsylvania recognizes that
     marriage is a religious contract and that Pennsylvania gives

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       deference to the religious aspects of marriage contracts.
       [Husband] contends that the legislature does not have the
       authority to regulate marriage and divorce, especially no-fault
       divorce, because there is no compelling state interest.

              [Husband] further testified that his “firmly held religious
       beliefs prevented [him] from starting a family under a marital
       contract that includes an exit plan option of unilateral no-fault
       divorce.” [Husband] also argued that Pennsylvania courts do not
       have jurisdiction over the Christian marriage contract between
       him and [Wife] and that [23 Pa.C.S. §] 3301(d)[(section
       3301(d))1] fosters excessive governmental entanglement with the
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1 Section 3301(d) of the divorce code sets forth the requirements necessary
to obtain a unilateral no-fault divorce. Specifically, section 3301(d) provides:

       (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 one year 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 one year[1] 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 is irretrievably broken, the court



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       free exercise of religion. [Husband] further testified that he
       believed his church council needs to determine if there is sufficient
       estrangement between the parties, and issue some type of edict
       stating that the marriage is beyond repair.

             At the conclusion of [Husband’s] testimony, [Wife] stated
       that the statements made by [Husband] were “a huge example of
       abuse.” [Wife] testified that [Husband’s] promises to change did
       not sway her and that she still wants a divorce.

Trial Court’s Memorandum Opinion, 3/25/2019, at 3-5 (citations omitted). On

December 6, 2018, the Master filed a report, recommending the trial court

“grant the divorce expeditiously.” Id. at 2.

             On December 24, 2018, [Husband] filed exceptions to the
       [Master’s report]. On December 28, 2018, [Husband] filed a
       statement “challenging subject matter jurisdiction amended.” On
       January 7, 2019, [Husband] filed a notice of challenging
       constitutionality to Attorney General. On January 18, 2019,
       [Husband] filed a motion for summary judgment and brief in
       support. On February 15, 2019, [Wife] filed a brief contra to
       [Husband’s] motion for summary judgment.

             On February 22, 2019, [Husband] filed a reply brief to
       [Wife’s] brief opposing motion for summary judgment. On
       February 27, 2019, th[e trial c]ourt held argument on the
       exceptions to the [Master’s report] and the motion for summary
       judgment[.]

Id. at 2-3 (unnecessary capitalization omitted).

       On March 25, 2019, the trial court issued a memorandum opinion in

which it, inter alia, found Wife established grounds for divorce under section

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       shall grant the divorce. Otherwise, the court shall deny the
       divorce.

Section 3301(d)(1-2).




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3301(d) and issued a divorce decree that same day.2          See Trial Court’s

Memorandum Opinion, 3/25/2019. This timely-filed appeal followed.3

       “Our standard of review in divorce actions is well settled. It is the

responsibility of this court 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.” Rich v. Acrivos, 815 A.2d 1106, 1107 (Pa.

Super. 2003) (citation, brackets and quotation marks omitted).

       On appeal, Husband is not disputing that, under section 3301(d), Wife

has met her burden in proving that a legal cause of action in divorce exists.

See Husband’s Brief at 27 (“[H]usband is not disputing the presence of the

jurisdictional facts as defined by the statute[.]”). See also Husband’s Reply

Brief at 10 (“[H]usband does not dispute the fulfillment of the statutory

elements[.]”).       Instead, Husband is arguing that section 3301(d) is



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2 Although not pertinent to the disposition of this appeal, in its memorandum
opinion, the trial court also denied Husband’s motion for summary judgment,
and granted in part, and denied in part, Husband’s exceptions to the Master’s
report. Specifically, the trial court granted two of Husband’s exceptions, which
corrected minor errors made in the Master’s report’s recitation of facts. See
Trial Court’s Memorandum Opinion, 3/25/2019.

3 Husband complied with the trial court’s request to file a concise statement
and in response, the court submitted an order stating it believes its March 25,
2019 memorandum opinion sufficiently addressed all the issues raised by
Husband and thus, the court would rely on that opinion for the purposes of
this appeal. See Order, 5/22/2019.



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unconstitutional because it violates the Establishment Clause4 and Husband’s

due process rights. Id. at 11-12.

       When an appellant challenges the constitutionality of a statute, he
       or she presents this Court with a question of law.             Our
       consideration of questions of law is plenary.

              Properly enacted legislation is presumed constitutional. The
       burden of persuasion to show constitutional infirmity rests heavily
       on the appellant. Our Supreme Court instructs this Court to
       pronounce a statute unconstitutional only when we find that it
       clearly, palpably and plainly violates the constitution.

Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa. Super. 2001) (citations

and quotation marks omitted).

       As an initial matter, we note that the argument section of Husband’s

brief is difficult to follow and incoherent at times.    Nevertheless, we will

attempt to discern Husband’s specific grievances. Upon review of his brief, it

appears to this Court that Husband is arguing that no-fault divorces are

unconstitutional because they are “hostile toward religious views[,]” as they

permit a party to seek a divorce based solely upon his/her viewpoint that the

marriage is irretrievably broken, without “consideration of actionable fault.”

Id. at 17. Although not entirely clear, it appears Husband’s belief system

allows for divorce only after a finding of wrongdoing. As such, because the

trial court did not find Husband committed “a legal infraction[,]” and because

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4“Congress shall make no law respecting an establishment of religion[.]” U.S.
Const. amend. I. The Establishment Clause was incorporated to the states in
Everson v. Bd. of Ed., 330 U.S. 1 (1947).



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Husband “fundamentally disagrees with the premise that a marriage can be

irretrievably broken[,]” Husband contends that granting a divorce based solely

on Wife’s “viewpoint” or “ideas” as opposed to conduct, is unconstitutional.

Id. at 18. See also id. at 24 (“Subjecting [H]usband to [W]ife’s beliefs by

forcing him to incur the social, economic, religious and legal consequences of

divorce, against his will and in absence of any legal violation, is equivalent to

subjecting him to live according to and in conformity with [W]ife’s religion,

however theistic or atheistic it may be. More to the point, the Commonwealth

of Pennsylvania has sponsored [W]ife’s beliefs which conversely discriminates

against   [H]usband’s      beliefs   and       subjugates   his   to   an   official   State

orthodoxy.”). Additionally, Husband argues that the statutory requirements

set forth in section 3301(d), and more specifically the requirement of filing an

affidavit alleging the parties have lived separately for a certain period of time,

has made the entry of a divorce decree a ministerial act,5 which Husband

argues is likewise unconstitutional.           Id. at 25-26.       We find no merit to

Husband’s claims.

       This Court has extensively reviewed the evolution of divorce law, as well

as our legislature’s addition of no-fault grounds for divorce in Pennsylvania.

              When the legislature added the no-fault grounds for divorce,
       it intended that the Divorce Code retain the traditional fault

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5A ministerial act is defined as “[a]n act performed without the independent
exercise of discretion or judgment.” Black's Law Dictionary (11th ed. 2019).



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     grounds for divorce. The legislature expressly stated its findings
     and intent, recognizing that the family is the basic unit of society,
     and that the protection and preservation of the family is of
     paramount public concern. 23 Pa.C.S. § 3102(a). Acknowledging
     this, the legislature pronounced the following as the policy of the
     Commonwealth: to make the legal dissolution of marriage
     effective for dealing with the realities of matrimonial experience;
     to encourage reconciliation and settlement, especially where
     children are involved; to give primary consideration to the welfare
     of the family rather than the vindication of private rights or the
     punishment of matrimonial wrongs; to mitigate harm to the
     parties and children; to seek the causes of family disintegration
     and utilize available resources; and to effectuate economic justice
     between parties.

           The purpose of enacting no-fault divorce provisions was to
     provide for the legal dissolution of a marriage in a manner which
     would keep pace with contemporary social realities. Our
     lawmakers were reluctant to legislate divorce reform and, after
     twenty years of debate, the 1980 Divorce Code was enacted.

           The sanctity of marriage and the dominant desire to
     preserve that union was embedded in the theory of the prior
     Divorce Law; that law remained virtually unchanged since first
     enacted in 1785 and recodified in 1815. The law acknowledged
     the strength of the family unit and the necessity of ensuring its
     preservation. Too frequently, however, the application of the law
     preserved the family unit in form only, its consequential pain
     arguably greater than the loss it sought to prevent. Judge
     Spaeth’s dissenting opinion in Dukmen v. Dukmen, [420 A.2d
     667, 671 (Pa. Super. 1980)], is telling:

           Perhaps the Divorce Law is flawed in not making the
           decisive factor in a divorce action the cessation of a
           loving relationship between the parties. It is our
           function, however, to apply the law. Thus, this court
           has consistently held that under the Divorce Law, the
           inability to live together does not constitute a ground
           for divorce. [] Further, we have equally consistently
           held “that where both parties are nearly equally at
           fault, so that neither can clearly be said to be the
           injured and innocent spouse, the law will grant a
           divorce to neither on the ground of indignities to the


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            person, but     will    leave   them   where   they    put
            themselves.

            The adoption of the 1980 Divorce Code, and in particular the
      no-fault provision of irretrievable breakdown, see [section]
      3301(d), allowed a dependent spouse to take advantage of the
      economic protections of the law without having to resort to
      seeking a divorce on fault grounds. The legislature provided this
      section with the economic benefits for good reason: to avoid,
      where possible, a contested divorce, the raw searing battle that
      some commentators have likened to guerrilla warfare.

Perlberger v. Perlberger, 626 A.2d 1186, 1193–94 (Pa. Super. 1993)

(quotation marks and some citations omitted).

      Contrary to Husband’s beliefs, trial courts are not entitled to grant

divorces based solely on an individual’s “viewpoint.” Nor is the act of granting

a no-fault divorce purely ministerial.      As set forth supra, section 3301(d)

provides for a no-fault divorce only after a party files an affidavit alleging the

parties have lived separate and apart for the requisite amount of time and

affirms the marriage is irretrievably broken. If the non-filing party objects,

the trial court is then required to determine whether: (1)        the parties have

been living separate and apart for the prescribed amount of time; and (2) the

marriage is irretrievably broken.

      Here, Husband had the opportunity to object to Wife’s request for a

divorce, and did so numerous times, including by filing an answer to the

Complaint, disputing Wife’s contention that the marriage was irretrievably

broken. Similarly, at the Master’s hearing, Husband was entitled to present

evidence in support of his contention that the divorce should not be granted.


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However, despite Husband’s efforts, the Master found, and the trial court

agreed, that the marriage of Husband and Wife was indeed irretrievably

broken. The trial court did not, as Husband suggests, simply accept Wife’s

“viewpoint.”    Instead, it reviewed Wife’s testimony and the Master’s

recommendations, and determined that Wife met her burden of proving the

marriage was irretrievably broken. Such a judicial determination, necessary

prior to the entry of a divorce decree, solidifies that section 3301(d), and the

requirements set forth therein, are not strictly ministerial.

      We are cognizant that the trial court did not attribute any “fault” or

wrong-doing to either party. Nonetheless, the trial court found that Wife’s

position that “there was no possibility that the marriage can be repaired” and

Husband’s steadfast disagreement with her position was “precisely th[e]

breakdown in communication that satisfies the definition of ‘irretrievable

breakdown.’ Reconciliation cannot happen without the effort of two willing

participants.” Trial Court’s Memorandum Opinion, 3/25/2019, at 9. Indeed,

no-fault divorce was created in contemplation of situations just like this, i.e.,

to provide a way to end a marriage for a party, or two consenting parties, that

does not meet the requirements necessary for the entry of a “fault divorce.”

Husband has failed to convince this Court that the addition of no-fault divorce

nearly 40 years ago is an infringement on his constitutional rights. No relief

is due.




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      Lastly, to the extent Husband is arguing that section 3301(d) is

unconstitutional because it is incongruent with his religious beliefs, this Court

has previously addressed a similar argument in Wikoski v. Wikoski, 513

A.3d 986 (Pa. Super. 1986).         In Wikoski, the appellant set forth a

constitutional challenge to the no-fault section of the divorce code, averring

“that the grant of a divorce infringe[d] on his religious beliefs as a Roman

Catholic, in that the faith opposes divorce.” Id. This Court disagreed, finding

      [t]he state’s interests in regulating marriage and divorce are
      clearly paramount. That regulation is inconsistent with the
      recognition of a unilateral right of a party to remove himself from
      its purview as a matter of conscience. The state has the power,
      properly exercised within constitutional limits guaranteeing
      freedom of religion, to grant divorces. Thus, whether granting
      appellee her divorce is viewed as not infringing upon appellant’s
      freedom of religion [] or as interfering with the practice of his
      religion, [] the result reached here would be the same. To
      whatever extent the issuance of a divorce decree interferes with
      the practice of appellant’s religion, it does not violate an
      individual’s right to freedom of conscience.

Id. at 989. In concluding as such, this Court relied on case law from our sister

state, which aptly addressed the separation between a civil contract of

marriage and an ecclesiastic commitment.

      Appellant’s complaint that her constitutional right for the free
      exercise of religion is being violated is unfounded. The action of
      the trial court only dissolved the civil contract of marriage between
      the parties. No attempt was made to dissolve it ecclesiastically.
      Therefore, there is no infringement upon her constitutional right
      of freedom of religion. She still has her constitutional prerogative
      to believe that in the eyes of God, she and her estranged husband
      are ecclesiastically wedded as one, and may continue to exercise
      that freedom of religion according to her belief and conscience.
      Any transgression by her husband of their ecclesiastical vows, is,
      in this instance, outside the jurisdiction of the court.

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Id. at 987, quoting Williams v. Williams, 543 P.2d 1401, 1403 (Oklahoma

1975).

      In light of the foregoing, not only do we disagree with Husband’s

interpretation of section 3301(d), we find Husband has failed to meet his hefty

burden of proving it to be constitutionally infirm. Thus, Husband is not entitled

to relief from this Court.

      Decree Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/19




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