J-A04027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM F. KREMPASKY,                          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                     v.

BARBARA J. KREMPASKY,

                           Appellant                No. 993 WDA 2014


                 Appeal from the Order Dated May 30, 2014
           In the Court of Common Pleas of Westmoreland County
                   Civil Division at No(s): 0430 of 2012-D

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 27, 2015

      Appellant, Barbara J. Krempasky (“Wife”), appeals from the order

entered on May 30, 2014. After careful review, we are constrained to vacate

the trial court’s order.

      The trial court accurately outlined the factual background of this case

as follows:

      The parties married on April 7, 1990. William F. Krempasky ([]
      “Husband”) was first hospitalized to treat colon, rectal, and
      prostate cancer from September 10, 2011 through October 21,
      2011.    Husband was again treated from October 31, 2011
      through November 18, 2011. From September 10, 2011 to
      November 22, 2011, Husband gave [Wife] access to his
      individual checking account in order to enable her to pay for
      household utilities and the monthly mortgage on the marital
      residence. While Husband was hospitalized and Wife had access
      to his individual checking account, Husband received a bank
      check in the amount of [$8,000.00] representing his share of the
      estate of his late uncle, George Krempasky. Husband had no
      knowledge of receiving this inheritance check.



* Retired Senior Judge assigned to the Superior Court.
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      Husband was released from the hospital on November 18, 2011.
      Unable to return to the marital residence, Husband lived with
      Michele Krempasky-Proctor, his daughter. Michele Krempasky-
      Proctor is not a natural child of Wife. Wife did not provide any
      aftercare for [] Husband and resided separately from him after
      his release from the hospital. Around November 21, 2011,
      Husband was contacted by the mortgage holder for the marital
      residence and was informed that the mortgage was two months
      delinquent. Husband investigated the bank activity for his
      individual banking account, the same account that Wife had
      access to during Husband’s hospitalizations, and discovered that
      Wife deposited the inheritance check on November 15, 2011.
      Husband further discovered that Wife immediately transferred
      [$4,000.00] to another account that only she had direct access
      to. On November 22, 2011, Husband attempted to freeze his
      banking account and discovered that Wife had withdrawn an
      additional [$4,000.00]. Husband went to the marital residence
      to discuss his recent bank history with Wife. When Husband
      arrived at the marital residence, he found a note which
      acknowledged the second withdrawal of $4,000[.00] and his
      check book. Wife vacated the marital residence on January 1,
      2012 and Husband and Wife officially separated on February 2,
      2012.

Trial Court Opinion, 7/24/14, at 1-2.

      The procedural history of this case is as follows. On March 6, 2012,

Husband filed a complaint in divorce. After the divorce complaint was filed,

Husband did not file any further pleadings in the divorce proceeding except a

certificate of service of the complaint.   In December 2013, the parties’

marital residence was sold. The net proceeds, $18,530.92, were placed into

an escrow account. On April 22, 2014, Husband passed away. On June 3,

2014, Husband’s counsel filed a petition for special relief.   That petition

sought (1) to require Wife to pay $9,275.00 for Husband’s funeral expenses;

(2) to require that Wife designate Husband’s children as beneficiaries of a


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life insurance policy; (3) the release of $8,000.00 from the escrow account

for alleged misappropriations made by Wife; and (4) that Husband’s counsel

be permitted to release the remaining escrow funds to Wife and Husband’s

heirs in proportion to their share of the marital residence. On May 30, 2014,

the trial court granted in part and denied in part Husband’s petition.       It

ordered $8,000.00 be released from escrow and paid directly to the funeral

home to cover in part, Husband’s funeral expenses. It further ordered that

all remaining proceeds in the escrow account be released to Wife. All other

relief was denied. This timely appeal followed.1

      Wife presents one issue for our review:

      Did the trial court err or abuse its discretion by considering and
      ultimately granting in part Husband’s [m]otion for [s]pecial
      [r]elief when the trial court no longer had jurisdiction to consider
      the economic issues of the divorce due to the death of one of the
      parties?

Wife’s Brief at 2.

      Whether the trial court possessed jurisdiction is a pure question of law

and therefore our standard of review is de novo and our scope of review is

plenary.   See Burke ex rel. Burke v. Independence Blue Cross, 103

A.3d 1267, 1270 (Pa. 2014) (citations omitted).            As this Court has

explained:


1
 On June 17, 2014 the trial court ordered Wife to file a concise statement of
errors complained of on appeal (“concise statement”).          See Pa.R.A.P.
1925(b). On July 7, 2014, Wife filed her concise statement. On July 24,
2014, the trial court issued its Rule 1925(a) opinion. Wife’s lone issue on
appeal was included in her concise statement.


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      Pennsylvania courts have long held that an action in divorce
      abates upon the death of either party. The rationale for this
      principle is that an action in divorce is personal to the parties
      and upon the death of either party, the action necessarily dies.
      The primary purpose of divorce is to change the relation of the
      parties and when the death of a party occurs, that purpose can
      no longer be achieved because the marital relationship has been
      ended by death.

      It is also well settled that equitable distribution of marital
      property may occur when a final decree in divorce has been
      entered and the court retains jurisdiction over ancillary matters
      properly raised by the parties. In this instance, the personal
      representative of the deceased spouse is substituted as a party
      and the action proceeds.          However, until the [2005]
      amendments to the Divorce Code, if bifurcation had not
      occurred, then the economic claims were abated by death.

      On January 28, 2005, the Divorce Code was amended to provide
      that a divorce action will not abate upon the death of a spouse,
      so long as the grounds for divorce have been established. Under
      the new subsection, if grounds for divorce have been established
      as set forth in 23 Pa.C.S.A. § 3323(g), then the parties’
      economic rights are determined under equitable distribution
      principles rather than the elective share provision of the Probate
      Code. . . . Under the new procedure, the death of a party does
      not abate the equitable distribution action regardless of whether
      a divorce has been granted, so long as the grounds for divorce
      have been established.

Yelenic v. Clark, 922 A.2d 935, 938–939 (Pa. Super. 2007) (footnotes and

internal citations omitted).

      Grounds for divorce can be established in three ways:

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

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




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      (3) In the case of an action for divorce under section 3301(d),
      an affidavit has been filed and no counter-affidavit has been filed
      or, if a counter-affidavit has been filed denying the affidavit’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.A. § 3323(g). In this case, Husband’s complaint in divorce was

filed under section 3301(a),(c), and (d).       See Complaint, 3/6/12, at 1.

Therefore,   grounds   for   divorce   could   be   established    under   section

3323(g)(1), (2), or (3).

      As noted above, Husband did not file any pleading in the divorce after

instituting the action other than a certificate of service.       In other words,

Husband did not file an affidavit of consent nor did he file an affidavit stating

that the marriage was irretrievably broken.         Furthermore, the trial court

never found that Husband had established that Wife “[o]ffered such

indignities to [Husband] as to render [his] condition intolerable and life

burdensome.”     23 Pa.C.S.A. § 3301(a)(6).         Therefore, the grounds for

divorce had not been established prior to Husband’s death. Under our well-

settled precedent, the divorce action therefore abated upon Husband’s

death.

      Although the divorce action abated, the trial court believed it had

jurisdiction to order $8,000.00 be released from escrow because it was

allegedly non-marital property. See 23 Pa.C.S.A. § 3501(a)(3) (non-marital

property includes “[p]roperty acquired by gift, except between spouses,



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bequest, devise or descent or property acquired in exchange for such

property.”). Whether an inheritance is or is not marital property, however,

is at the heart of equitable distribution – and therefore a divorce proceeding.

See Kensey v. Kensey, 877 A.2d 1284, 1289 (Pa. Super. 2005) (“[T]he

determination of what is marital property subject to equitable distribution, is

just the first step in the equitable distribution process.”). The trial court’s

determination that the inheritance was non-marital property, see Trial Court

Opinion, 7/24/14, at 5, was therefore an attempt to exercise jurisdiction

over the divorce proceeding. As the trial court did not have jurisdiction over

the divorce proceeding – it had abated – the trial court did not have

jurisdiction to determine if the inheritance was marital or non-marital

property.

      Husband argues that even if the divorce abated, the trial court had the

inherent equitable power to direct that $8,000.00 be used to pay for his

funeral expenses.   The equitable power of courts hearing divorce actions,

however, is not unlimited.    See Egan v. Egan, 759 A.2d 405, 408 (Pa.

Super. 2000). A trial court hearing a divorce action may only give equitable

relief relating to the divorce action.   For example, a trial court hearing a

divorce proceeding would not have the equitable power to resolve a slip-

and-fall case that had arisen between the two parties.      Likewise, the trial

court in this case did not have the equitable power to rule on a

misappropriation claim that was first raised in Husband’s petition for special



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relief – filed after his death (and thus after the divorce proceeding abated).

Accordingly, the trial court lacked jurisdiction over Husband’s petition for

special relief. We therefore vacate the trial court’s order.

      Order vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2015




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