J-A19043-16


                               2016 PA Super 307

FREYDA NEYMAN,                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

FLORENCE BUCKLEY
                                                      No. 2203 EDA 2015


                 Appeal from the Order Entered June 19, 2015
       in the Court of Common Pleas of Philadelphia County Family Court
                       at No(s): 008400, Term June 2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                        FILED DECEMBER 28, 2016

        Appellant, Freyda Neyman, appeals from the order of the Philadelphia

County Court of Common Pleas Family Court Division that dismissed her

complaint in divorce seeking the dissolution of her Vermont civil union.

Appellant claims the trial court erred in dismissing her complaint for lack of

jurisdiction, and in support, she argues that under principles of comity, the

Family Court Division had jurisdiction to dissolve her civil union under the

Pennsylvania Divorce Code.1 We hold that a Vermont civil union creates the

functional equivalent of marriage for the purposes of dissolution and

conclude the trial court erred in dismissing the complaint.    Therefore, we

reverse and remand for further proceedings.


*
    Former Justice specially assigned to the Superior Court.
1
    See 23 Pa.C.S. §§ 3101-3904.
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      On     July   12,   2002,   Appellant   and   Appellee,   Florence    Buckley

(collectively, “the parties”), two adult Pennsylvania residents, entered into a

civil union in Vermont, the first state to offer civil unions. The parties began

living separate and apart in December 2002.               At that time, same-sex

marriage was not recognized in the United States.

       In 2014, the parties each signed respective affidavits of consent,

which specified that their civil union was irretrievably broken and stated the

intention to request a final decree of divorce/dissolution. On June 2, 2014,

Appellant filed a complaint in the trial court averring that the parties were

adults who had resided in the Commonwealth of Pennsylvania for at least six

months prior to the complaint and seeking the entry of a divorce/dissolution

decree under Section 3301(c) of the Pennsylvania Divorce Code.                  On

February 4, 2015, Appellant filed a praecipe to transmit the record of the

entry of a final decree/dissolution of the civil union.

      On June 22, 2015, the trial court dismissed Appellant’s complaint

stating:

           [T]he Family Court Division may only divorce parties from
           the ‘bonds of matrimony.’ Pa.R.C.P. 1920.1 (a). This court
           cannot issue a Decree or Order dissolving the Vermont
           Civil Union that is the subject of this action. Therefore, the
           Complaint in Divorce is hereby dismissed. The Civil Trial
           Division of Philadelphia County has jurisdiction over
           complaints seeking dissolution of civil unions as actions in
           equity and has entered order/judgments dissolving same.




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Order, 6/22/15.2

      Appellant filed a motion for reconsideration, which the trial court did

not address. Appellant took the instant timely appeal on July 22, 2015. On

August 20, 2015, Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

      The trial court issued a Pa.R.A.P. 1925(a) responsive opinion on

February 23, 2016.     The court observed the Pennsylvania Constitution of

1968 vests jurisdiction in the family court division for matters implicating

domestic relations, including “divorce and annulment and property matters

relating thereto.” Trial Ct. Op., 2/23/16, at 6-7 (discussing Pa. Const. art.

V, Sched. § 16).    The court concluded the Divorce Code and the Rules of

Civil Procedure refer to “divorce from the bonds of matrimony,” and did not

authorize the dissolution of civil unions.   Id. at 4-5.   Moreover, the court

determined it was under no obligation to recognize a Vermont civil union as

a marriage because Vermont maintains a distinction between a civil union

and a same-sex civil marriage. Id. at 5. Lastly, the court noted that the

appropriate forum for Appellant’s action was in the civil trial division. Id. at

8.

      On appeal, Appellant raises the following issues for review:




2
  Although the order dismissing Appellant’s complaint was signed on June
19, 2015, it was not entered until June 22, 2015.



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         1. Whether the Court of Common Pleas Family Division has
         jurisdiction over the dissolution of a Vermont civil union
         entered into by Pennsylvania residents?

         2. Whether a Vermont civil union may be treated as a
         marriage by a Pennsylvania court for purposes of
         dissolving that civil union under the Divorce Code.

Appellant’s Brief at 4.3

      As the instant case involves the question of whether a legal cause of

action in dissolution exists, our standard of review is de novo and this Court

must independently review the record to determine whether a legal divorce

action is presented. Jayne v. Jayne, 663 A.2d 169, 172 (Pa. Super. 1995).

      As to the jurisdiction of the family court divisions of the courts of

common pleas, Section 952 of the Judiciary Code provides:

         The divisions of a court of common pleas are
         administrative units composed of those judges of the court
         responsible for the transaction of specified classes of the
         business of the court. In a court of common pleas having
         two or more divisions each division of the court is vested
         with the full jurisdiction of the whole court, but the
         business of the court may be allocated among the divisions
         of the court by or pursuant to general rules.

42 Pa.C.S. § 952.

      The Schedule to Article 5 of the 1968 Pennsylvania Constitution

pertains to Philadelphia and states:

         (q) The court of common pleas through the family court
         division of the court of common pleas shall exercise
         jurisdiction in the following matters:

3
 We note that because Appellant’s issues on appeal are inextricably linked,
we discuss them in tandem.



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            (i) Domestic Relations: desertion or nonsupport of
            wives, children and indigent parents, including children
            born out of wedlock; proceedings for custody of
            children; divorce and annulment and property matters
            relating thereto.

Pa. Const. Sched. Art. 5, § 16(q)(i)

      The Divorce Code defines ”divorce” as “divorce from the bonds of

matrimony.”4 23 Pa.C.S. § 3103; see also Pa.R.C.P. 1920.1. The courts of

common pleas have “original jurisdiction in cases of divorce and for the

annulment of void or voidable marriages[.]” 23 Pa.C.S. § 3104(a).

      Courts with jurisdiction of domestic relations have broad jurisdiction to

resolve matters uniquely pertaining to matrimonial causes, including

disposition of property between the parties, issues related to children, and to

resolve “[a]ny other matters . . . which fairly and expeditiously may be

determined and disposed of in such action.” 23 Pa.C.S. § 3104(a)(5). The

Divorce Code aims to “[m]ake the law for legal dissolution of marriage




4
  The phrase “bonds of matrimony” is not expressly defined by statute or
rule.  However, in its common usages, matrimony is a synonym for
marriage. See Black Law Dictionary 8th ed. 999 (defining matrimony as
“The ceremony or state of being married; MARRIAGE (1)”) (2004);
Webster’s Third New International Dictionary 1393 (1986) (defining
matrimony as “1 a : the union of a man and woman as husband and wife :
married state : married life : MARRIAGE); Black Law Dictionary 5th ed. 882
(1978) (defining matrimony as “Marriage (q.v.), in the sense of the relation
or status, not the ceremony). Additionally, the policies set forth in 23
Pa.C.S. § 3102 make clear that matrimony refers to marriage. See 23
Pa.C.S. 3102(a)(1).



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effective for dealing with the realities of matrimonial experience.”      23

Pa.C.S. § 3102(a)(1).

      The family court division, therefore, may exercise broad equitable

power:

              In all matrimonial causes, the court shall have full
              equity power and jurisdiction and may issue
              injunctions or other orders which are necessary to
              protect the interests of the parties or to effectuate
              the purposes of this part and may grant such other
              relief or remedy as equity and justice require against
              either party or against any third person over whom
              the court has jurisdiction and who is involved in or
              concerned with the disposition of the cause.

23 Pa.C.S. § 3323(f).      In Magee v. Magee, 519 A.2d 994 (Pa. Super.

1987), this Court discussed the specialized role of the family court division

as follows:

              The Family Court Division has all the powers that can
              be exercised by a court of common pleas. The need
              to have all matters relating to family problems
              directed to this specialized division is obvious,
              particularly when there are different claims relating
              to the same issue, as is the case here. Obviously,
              the Family Division judge is equally competent to
              decide the action in assumpsit, if properly brought,
              relating to support, medical expenses and education,
              founded on contract law under a separation
              agreement, as he is to determine the same matters
              under statutory and common law, pursuant to a
              complaint in support.

Id. at 996.

      A brief review of the evolution of Pennsylvania, Vermont, and federal

law regarding same-sex marriage and civil unions provides necessary



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context to understanding the legal properties of a Vermont civil union vis-a-

vis Pennsylvania law.     In September 1996, the United States Congress

passed the Defense of Marriage Act (“DOMA”), which codified a definition of

“marriage” and “spouse” as follows: “the word ‘marriage’ means only a legal

union between one man and one woman as husband and wife, and the word

‘spouse’ refers only to a person of the opposite sex who is a husband or a

wife.” See 1 U.S.C. § 7. Additionally, DOMA provided:

          No State . . . shall be required to give effect to any public
          act . . . of any other State . . . respecting a relationship
          between persons of the same sex that is treated as a
          marriage under the laws of such other State . . . or a right
          or claim arising from such relationship.

See 28 U.S.C § 1738C.

      One month later, in October 1996, Pennsylvania amended its Marriage

Law to include a definition of marriage and mandate the non-recognition of

marriage between persons of the same sex.           Specifically, Section 1102

states:

          The following words and phrases when used in this part
          [the Marriage Law] shall have the meanings given to them
          in this section unless the context clearly indicates
          otherwise:

                                   *    *    *

          “Marriage.” A civil contract by which one man and one
          woman take each other for husband and wife.

23 Pa.C.S. § 1102. Section 1704 provides:

          It is hereby declared to be the strong and longstanding
          public policy of this Commonwealth that marriage shall be


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         between one man and one woman. A marriage between
         persons of the same sex which was entered into in another
         state or foreign jurisdiction, even if valid where entered
         into, shall be void in this Commonwealth.

23 Pa.C.S. § 1704.

      In 1999, the Vermont Supreme Court held that the Vermont

Constitution required same-sex couples be afforded the same statutory

rights and protections as opposite-sex couples. Baker v. State, 744 A.2d

864, 886 (Vt. 1999).     However, the Baker Court did not mandate that

same-sex couples be permitted to marry.        Id. at 867.   Rather, the Court

required the Vermont legislature to take action to comply with its holding.

Id. at 867.    In 2000, the Vermont legislature responded to Baker by

creating a civil union scheme.

      The Vermont civil union statute specifically provided “all the same

benefits, protections and responsibilities under law . . . as are granted to

spouses in a civil marriage.”    15 V.S.A. § 1204(a); see also Miller-Jenkins

v. Miller-Jenkins, 912 A.2d 951, 968 (Vt. 2006) (noting intent of Vermont

legislature “in enacting the civil union laws was to create legal equality

between relationships based on civil unions and those based on marriage”)

Additionally, the Vermont civil union statute provided that any term or

definition denoting a spousal relationship, such as spouse, family, immediate

family, dependent, next of kin, included “a party to a civil union.” 15 V.S.A.

§ 1204(b).    Significantly, all of the laws concerning divorce, including

property division, apply to civil unions under Vermont law.       15 V.S.A. §


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1204(d); see also id. § 1206(a) (as enacted effective in 2000, Section 1206

stated: “The family court shall have jurisdiction over all proceedings relating

to the dissolution of civil unions. The dissolution of civil unions shall follow

the same procedures and be subject to the same substantive rights and

obligations that are involved in the dissolution of marriage in accordance

with chapter 11 of this title, including any residency requirements.”)

      Although Vermont initially did “not bestow the status of civil marriage”

to same-sex unions, the Vermont legislature recognized same-sex marriage

in 2009. See Solomon v. Guidry, ___ A.3d ___, ___, 2016 WL 5338492 at

*1-2 (Vt. Sept. 23, 2016). The 2009 statute also repealed parts of the civil

union statutes, but specified that civil unions entered into prior to September

1, 2009, were to remain in effect. Id. Under the 2009 law, parties to a civil

union were free to marry each other, but were required to dissolve their civil

union before marrying a different individual. See 15 V.S.A. §§ 4, 1204(c).

Effective in 2012, Vermont amended its divorce and civil union law to

address the specific problem faced by “same-sex out-of-state couples joined

in a Vermont civil union or marriage because their state of residence does

not recognize their union or marriage.” Solomon, 2016 WL 5338492 at *2

(citation omitted).   Vermont law thereafter recognized separate tracks for

filing a complaint in divorce and a dissolution of a civil union, although both

matters are subject to the jurisdiction of Vermont’s family court.       See 15




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V.S.A. § 592(b) (relaxing residence requirements for complaint in divorce);

see also 15 V.S.A. § 1206(b) (as amended effective 2012).

      There are few cases in Pennsylvania addressing out-of-state civil

unions. In 2011, the Berks County Court of Common Pleas Orphans Court

Division in Himmelberger v. Dep’t of Revenue, No. 0610-286 (Berks Cty.

Sept. 28, 2011) (slip op.), considered whether a petitioner, who was a party

to a New Jersey civil union and whose partner had died, could apply a zero-

percent spousal tax rate for inheritance purposes. The trial court rejected

the petitioner’s claim that she was entitled to an exemption to the

inheritance tax because she conceded she was not married and therefore,

she and her partner were not “husband and wife” as required by the tax

statute. Id. at 11 (discussing 72 P.S. § 9116).

      In Himmelberger, the trial court addressed the petitioner’s argument

that her New Jersey civil union granting legal rights was entitled to full faith

and credit.   The court suggested that New Jersey civil unions were the

equivalent of marriage in Pennsylvania:

         “What’s in a name? That which we call a rose by any other
         name would smell as sweet.” Romeo and Juliet, Act II,
         Scene 2, W. Shakespeare. That which New Jersey calls a
         “civil union” has the odor of a “marriage.” By the very
         terms of its statutes, New Jersey gives civil union couples
         the    very    same    rights,  benefits,   burdens,    and
         responsibilities as spouses in a marriage, except the right
         to call themselves “spouses” or “married.” In general, in
         New Jersey, partners in a civil union are treated no
         differently than spouses in a marriage with respect to
         procedures for forming and dissolving the legal
         relationship, rights of support, the taking of title to real


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        estate, causes of action normally reserved for spouses
        (such as wrongful death and loss of consortium), surname
        changes, survivors benefits, and probate rights. The only
        differences distinguishing the two forms of legal
        relationships are sexual orientation and semantics. The
        [c]ourt firmly believes the civil union entered into in New
        Jersey is the equivalent of a marriage . . . .

Id. at 5-6.   The court concluded the petitioner’s argument to extend full

faith and credit to New Jersey’s civil union law failed because DOMA

“forg[ave] Pennsylvania from recognizing New Jersey’s law.” Id. at 12. On

appeal, the Pennsylvania Commonwealth Court affirmed on the basis of the

trial court’s opinion on all issues. See Himmelberger v. Dept. Revenue,

47 A.3d 160 (Pa. Cmwlth. 2012).

     On June 26, 2013, the United States Supreme Court decided United

States v. Windsor, 133 S. Ct. 2675 (2013).       At issue in Windsor was

DOMA’s definition of “marriage” as “only a legal union between one man and

one woman as husband and wife” and a “spouse” as “a person of the

opposite sex who is a husband or wife.”5     Windsor, 133 S. Ct. at 2683

(discussing 1 U.S.C. § 7). In that case, the Internal Revenue Service relied

on DOMA to determine an individual in a same-sex marriage, which was

recognized under New York law, was not a surviving spouse entitled to the

marital exemption from federal estate tax.     Id. at 2683 (discussing 26

U.S.C. § 2506(a)). The Windsor Court held that “DOMA is unconstitutional

5
  Windsor did not address 28 U.S.C. § 1783C permitting states to refuse to
recognize another states’ law regarding same-sex marriage. Windsor, 133
S. Ct. at 2682-83.



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as a deprivation of the liberty of the person protected by the Fifth

Amendment of the Constitution.” Id. at 2695. The Court, however, limited

its holding to “those lawful marriages,” that is, those persons to “whom the

State, by its marriage law, sought to protect in personhood and dignity.”

Id. at 2696.

      Nearly one year later, on May 20, 2014, the United States District

Court for the Middle District of Pennsylvania concluded that Pennsylvania’s

Marriage Law’s definition of marriage and refusal to recognize out-of-state

same-sex marriages were unconstitutional. See Whitewood v. Wolf, 992

F. Supp. 2d 410, 423-24 (M.D.Pa. 2014). The Whitewood court enjoined

the defendants, a county and Commonwealth official, from enforcing 23

Pa.C.S. §§ 1102 and 1704     Id. at 423-24.    The court cited Windsor and

reasoned, “Pennsylvania’s non-recognition law robs [same sex couples] who

are already married of their fundamental liberty interest in the legal

recognition of their marriages in Pennsylvania.” Id. at 424.

      The United States Supreme Court decided Obergefell v. Hodges, 135

S. Ct. 2584 (2015), on June 26, 2015—two years after Windsor, and four

days after the Family Court dismissed the instant complaint for dissolution of

the parties’ civil union.   The Obergefell Court held that states must

recognize same-sex marriages entered into in other states:

         Being married in one State but having that valid marriage
         denied in another is one of the most perplexing and
         distressing complications in the law of domestic relations.
         Leaving the current state of affairs in place would maintain


                                    - 12 -
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        and promote instability and uncertainty.          For some
        couples, even an ordinary drive into a neighboring State to
        visit family or friends risks causing severe hardship in the
        event of a spouse’s hospitalization while across state lines.
        In light of the fact that many States already allow same-
        sex marriage—and hundreds of thousands of these
        marriages already have occurred—the disruption caused by
        the recognition bans is significant and ever-growing.

        . . . if States are required by the Constitution to issue
        marriage licenses to same-sex couples, the justifications
        for refusing to recognize those marriages performed
        elsewhere are undermined. The Court, in this decision,
        holds same-sex couples may exercise the fundamental
        right to marry in all States. It follows that the Court also
        must hold-and it now does hold-that there is no lawful
        basis for a State to refuse to recognize a lawful same-sex
        marriage performed in another State on the ground of its
        same-sex character.

Id. at 2607-08. The United States Supreme Court in Obergefell held that

the right to marry is a fundamental constitutional right, which may not be

withheld from same sex couples and concluded “that there is no lawful basis

for a State to refuse to recognize a lawful same-sex marriage performed in

another State on the ground of its same-sex character.” Id. at 2607-08.

     Obergefell does not resolve all questions regarding the status of civil

unions and divorce. As discussed by the Vermont Supreme Court,

        [B]ecause civil marriage and civil unions remain legally
        distinct entities in Vermont and because Obergefell
        mandated that states recognize only same-sex marriage,
        uncertainty remains as to whether Obergefell requires
        other states to recognize and dissolve civil unions
        established in Vermont. For that reason, § 1206(b) is still
        necessary to remedy the issue originally addressed by the
        Legislature in 2012—that “there are many same-sex
        couples who established a civil union . . . in Vermont who
        are no longer together, yet they continue to be legally


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         bound with no recourse other than moving to Vermont and
         becoming residents.” 2011, No. 92 (Adj. Sess.), § 1.
         Thus, nonresident couples who wish to dissolve their
         Vermont civil unions may do so in Vermont courts, as long
         as they follow the requirements of § 1206(b).

Solomon, 2016 WL 5338492 at *3.

      With this background in mind, we consider whether the legal principle

of comity mandates recognition of a Vermont civil union as the legal

equivalent of marriage for purposes of dissolution pursuant to the Divorce

Code in Pennsylvania. Comity refers to the principle that one state “will give

effect to laws and judicial decisions of another state out of deference and

mutual respect, rather than out of duty.” Smith v. Firemens Ins. Co. of

Newark, N.J., 590 A.2d 24, 27 (Pa. Super. 1991). This principle of comity

permits litigants to seek relief in Pennsylvania courts based upon a different

state’s applicable law:

         We recognize the demands of comity, and our courts
         should be, as they are, always ready to accede to them;
         but comity requires of us that we administer the laws of
         another state between suitors in our own courts whenever
         this becomes necessary to the proper administration of
         justice in the particular case. It does not require us to
         dismiss the parties with directions to proceed to Maine or
         California or some other state in which the contract was
         made, or the parties were domiciled, so that the law of a
         given state may be administered by the courts of that
         state, but simply that we shall apply the same rule that the
         courts of the proper state would apply.

Commonwealth v. Daven, 148 A. 524, 526 (Pa. 1930)

      “However, application of comity is a matter of judicial discretion.”

Chestnut v. Pediatric Homecare of America, Inc., 617 A.2d 347, 350


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(Pa. Super. 1992).     “This Court has previously exercised comity when

application of another state’s law contradicts no public policy of Pennsylvania

and instead furthers a Pennsylvania policy.” Id.

      Pennsylvania has historically had a strong public policy preference

toward the recognition of various definitions of marriage involving opposite-

sex couples:

         Specifically regarding conflicts as to recognition of marital
         status, there is a strong policy favoring uniformity of
         result.   In an age of widespread travel and ease of
         mobility, it would create inordinate confusion and defy the
         reasonable expectations of citizens whose marriage is valid
         in one state to hold that marriage invalid elsewhere. On
         the other hand, each state may, within constitutional
         limits, create laws and procedures concerning the
         sanctification of marriages . . . and those laws and
         procedures should not be circumvented by the sham of
         traveling to a nearby less stringent jurisdiction.

In re Estate of Lenherr, 314 A.2d 255, 258 (Pa. 1974) (holding that

decedent’s Virginia marriage, which was prohibited in Pennsylvania due to an

adulterous spouse law, must be recognized in Pennsylvania for inheritance

tax purposes). Indeed, it is beyond cavil that unless a marriage runs afoul

of Pennsylvania public policy, “the general rule as to the validity of foreign

marriages prevails.”    Schofield v. Schofield, 51 Pa. Super. 564, 575

(1911) (holding that Delaware marriage of first cousins would be recognized

in Pennsylvania in spite of statutory prohibition of such marriages in

Pennsylvania).




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     In the instant case, we conclude that the legal properties of a Vermont

civil union weigh in favor of recognizing such unions as the legal equivalent

of marriage for purposes of dissolution under the Divorce Code.           The

Vermont legislature created civil unions in order to provide same-sex couples

with a statutory equivalent to marriage at a time when same-sex marriage

was not yet available anywhere in the United States. See Baker, 744 A.2d

at 867. The Vermont statute specifically grants parties to a civil union all

the same “benefits, protections and responsibilities under law” as are

conferred to “spouses in a marriage.”        15 V.S.A. § 1204(a).    Further,

Vermont law explicitly provides that the law of domestic relations, including

divorce and property division, are applicable to parties to a civil union. See

id. As noted by a Pennsylvania court in Himmelberger, a distinct “odor of

marriage” is present in circumstances where the only substantive difference

in the institutions of a civil union and marriage are “sexual orientation and

semantics.” See Himmelberger at 5-6.

     Nonetheless, we recognize that the legal principle of comity should

only be utilized when the application of another state’s law contradicts no

public policy of Pennsylvania.   See Chestnut, 617 A.2d at 350.        In the

past, Pennsylvania has favored marriage as a union between opposite sexes

only, as was codified in the Marriage Law in 1996. See 23 Pa.C.S. §§ 1102,

1704. The policies in Sections 1102 and 1704 of the Marriage Law followed

the federal DOMA.    See 1 U.S.C. § 7; 28 U.S.C. § 1738C.       However, the



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tectonic   shift   in   the   law   regarding    same-sex       marriage,   while   not

determinative in this appeal, is significant. The United States District Court

for the Middle District of Pennsylvania in Whitewood specifically held that

Pennsylvania statutes prohibiting same-sex marriage and declaring same-

sex marriages entered in other jurisdictions to be void in Pennsylvania were

unconstitutional and constituted an             impermissible    abridgment of      the

fundamental right of same-sex marriage. See Whitewood, 992 F. Supp. at

423-24.     That decision, which included a permanent injunction on the

enforcement of 23 Pa.C.S. §§ 1102 and 1704, was not appealed.

Subsequently, the United States Supreme Court in Obergefell cemented the

fundamental right of same-sex couples to marry and prohibited any lack of

recognition of such marriages based upon the relationships “same-sex

character.” See Obergefell, 135 S. Ct at 2607-08.

      In this case, when the parties entered into a Vermont civil union in

2002, civil marriage was not available to them because they are of the same

sex. Moreover, the parties separated before other states began to recognize

same-sex marriage.       Therefore, declining to acknowledge the parties’ civil

union as the equivalent of marriage would essentially penalize the parties

simply for their same-sex status because the Vermont civil union statute

explicitly granted same-sex couples equivalent rights to those only available

to opposite-sex couples through marriage at that time.




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      Further, recognition of a Vermont civil union as the legal equivalent of

a marriage for purposes of dissolution under the Divorce Code would

promote the strong Pennsylvania public policy interest in uniformity of

result, particularly in the context of the recognition of marriage. See In re

Estate of Lenherr, 314 A.2d at 258; Schofield, 51 Pa. Super. at 575. In

In re Estate of Lenherr, our Pennsylvania Supreme Court warned that

failing to recognize a marriage deemed valid in another jurisdiction would

“create inordinate confusion and defy the reasonable expectations of

citizens.” In re Estate of Lenherr, 314 A.2d at 258. In this case, when

the parties entered into a Vermont civil union, they were aware that they

were subject to all of the same rights and responsibilities provided to

opposite-sex couples through civil marriage. Therefore, in order to provide

the parties with the uniformity of result strongly favored in Pennsylvania,

this Court must recognize their Vermont civil union as the legal equivalent of

a marriage for purposes of dissolution.

      The application of the principle of comity to Vermont civil unions

further promotes interstate uniformity and would limit forum shopping aimed

at avoiding the responsibilities imposed by Vermont law in the event of

dissolution. For instance, if a party to a Vermont civil union wished to avoid

the equitable distribution of “marital” property or other domestic support

obligations, that party could search for a jurisdiction that would decline to

recognize such obligations even though they are expressly provided under



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the Vermont statute. 15 V.S.A. § 1204; See Elia-Warnken v. Elia, 972

N.E.2d 17, 20 (Mass. 2012) (recognizing Vermont civil union is the functional

equivalent of marriage and noting that refusal to recognize civil union as

such would permit parties to shirk their financial responsibilities under

Vermont law and potentially engage in polygamy).           But see O’Reilly-

Morshead v. O’Reilly-Morshead, 19 N.Y.S.3d 689, 697 (Sup. Ct. Monroe

Cty. 2015) (dissolving civil union under general equitable principles but

declining to apply equitable distribution to divide the couple’s property).

      We acknowledge that Vermont maintains two separate statutory

schemes for the dissolution of civil unions and divorce for civil marriages.

However, both institutions are subject to the same benefits and obligations

under Vermont law.      See 15 V.S.A. § 1204.      Under the legal precept of

comity, Pennsylvania residents should not have to travel to Vermont to avail

themselves of the rights and obligations they undertook when they entered

into a Vermont civil union. See Daven, 148 A. at 526 (holding that applying

the principle of comity in Pennsylvania relieves litigants of the necessity of

traveling to other jurisdictions).

      For the foregoing reasons, we conclude that a Vermont civil union

should be considered the legal equivalent of a marriage for the purposes of

dissolution under the Pennsylvania Divorce Code.       Precluding family court

jurisdiction simply due to the use of the word “marriage” and “divorce” in

Pennsylvania jurisdictional authority elevates mere semantics over the



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fundamental domestic character of the relationship at issue. See Magee 519

A.2d at 996 (“The need to have all matters relating to family problems

directed to this specialized division [family court] is obvious[.]”). The family

court division possesses the expertise and the unique toolbox available, via

the Pennsylvania Divorce Code, necessary to resolve the intimate and

complex domestic matters likely to be at issue incident to the dissolution of

a Vermont civil union, such as equitable distribution, child custody, and

support.   These benefits and obligations of marriage are the precise legal

protections explicitly provided under Vermont’s civil union statute and

exactly what the parties knowingly accepted when they entered into a

Vermont civil union. See 15 V.S.A. § 1204. In Vermont, the enforcement of

the domestic benefits and obligations attendant to a civil union, including

dissolution, is relegated to Vermont family courts. Likewise, jurisdiction over

Vermont civil unions should properly vest with Pennsylvania’s family courts.

      Accordingly, we reverse the family court’s order dismissing Appellant’s

complaint for dissolution of her Vermont civil union and remand for further

proceedings consistent with this opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2016




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