J-S09002-16


                              2016 PA Super 66

IN RE: ESTATE OF KATHLEEN TALERICO            IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: DONALD P. TALERICO

                                                    No. 728 MDA 2015


                     Appeal from the Order March 24, 2015
              In the Court of Common Pleas of Lackawanna County
                       Orphans' Court at No(s): 35-14-93


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION BY PANELLA, J.                            FILED MARCH 18, 2016

     Appellant, Donald P. Talerico, appeals from the order entered March

24, 2015, in the Court of Common Pleas of Lackawanna County, which

denied Talerico’s petition to strike the claim of Karen Cavanaugh to the

Estate of Kathleen Talerico (Decedent). Talerico argues that the trial court

improperly applied 20 Pa.C.S.A. § 2106, Forfeiture, in determining that his

separation from the decedent and subsequent extra-marital affairs had

deprived him of his spousal rights under the probate code. After reviewing

the relevant case law, we conclude that the trial court committed no error

and affirm.

     We take the history of this case from the Orphans’ Court’s opinion.

          Decedent Kathleen Talerico (Decedent) and [Appellant]
     Donald P. Talerico (Talerico) were married on March 17, 2006.
     The couple resided at 946 Orchard Street in Scranton, the title to
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     which property was solely in the name of Decedent. There was a
     mortgage on the property which listed Decedent and her mother,
     Marion Cavanaugh, as mortgagors. On or about December 20,
     2010, Talerico moved out of the residence because of a number
     of issues the couple were experiencing. In May, 2011, Decedent
     initiated divorce proceedings in Lackawanna County…. At that
     point, Talerico was living with his mother. Sometime in June,
     2011, Talerico moved into an apartment on Cedar Avenue in
     Scranton with two other men. Talerico testified that between the
     commencement of the divorce proceedings and the death of the
     Decedent on January 3, 2014, both he and the Decedent
     engaged in multiple extramarital affairs, specifically, Talerico
     engaged in three separate and distinct relationships, each one of
     which included sexual intercourse. Additionally, Talerico also
     testified that while he was living on Cedar Avenue after the
     commencement of the divorce proceedings, he had sexual
     relations with the Decedent at least once and at least twice at a
     subsequent address of his on Orchard Street in Scranton.
     Talerico further testified that he was personally aware that the
     Decedent had sexual relations with other men after the filing of
     the divorce proceedings when he found her in bed with another
     man one day in what had been their marital residence.

            Talerico testified that his relationship with the Decedent,
     including their marriage, was a tumultuous one. He testified that
     the Decedent had been diagnosed with bipolar disorder and
     frequently failed to take her prescribed medications. He further
     testified that the Decedent abused alcohol regularly. Despite
     this, Talerico testified, he and the Decedent maintained a
     friendship and he “helped her” whenever she asked for items
     such as lawn maintenance, snow removal and things of that sort.
     When the Decedent was in an abusive relationship with another
     individual, Talerico indicated that he had taken her to the
     emergency room on several occasions because of injuries she
     sustained. Talerico also testified that, after the filing of the
     divorce proceedings, he continued to help the Decedent
     financially and helped to take care of the Decedent’s ailing
     mother. Evidence was produced that Talerico was named as an
     alternate trustee in the Will of the Decedent’s mother, which was
     executed on January 26, 2012. Talerico offered this evidence for
     the purpose of showing that, despite the filing of a divorce and
     despite the separation between himself and the Decedent, they
     maintained a friendship and he helped and supported her at all
     times subsequent to their separation on December 20, 2010.


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      Notwithstanding this, it is uncontroverted that Talerico engaged
      in multiple extramarital affairs after the commencement of the
      divorce proceedings on May 19, 2011. It is also undisputed that
      the divorce action initiated by Decedent was never finalized
      before her death. Initial pleadings were filed but no further
      action took place.
                                       …

             Talerico filed a Petition for Grant of Letters of
      Administration on January 29, 2014 and Letters of
      Administration were granted to him the same day. A Notice of
      Claim against the estate of Kathleen Talerico was filed by her
      sister, Karen Cavanaugh, on April 24, 2014. Talerico filed a
      Petition to Dismiss Cavanaugh’s claim on December 29, 2014
      and an Answer to the Petition was filed on January 13, 2015.
      Talerico seeks to dismiss Cavanaugh’s claim arguing that he and
      the Decedent were married at the time of the Decedent’s death
      since the requisite grounds for a divorce had not been
      established at the time of her death. Respondent Cavanaugh
      maintains that Talerico forfeited his claim as surviving spouse
      pursuant to 20 Pa.C.S.A. § 2106(a) because of his post-
      separation and post-divorce commencement conduct.

            Respondent Cavanaugh maintains that Talerico’s admitted
      extramarital affairs constitute a forfeiture of any right he has to
      an intestate share of the Decedent’s estate. In essence, the
      question is whether Talerico should share in the estate of his
      deceased wife in light of their separation, the commencement of
      divorce proceedings and his subsequent extramarital conduct.

Orphans’ Court Opinion, 3/24/15 at 1-4.

      The Orphans’ Court conducted a hearing on Talerico’s petition to strike

the claim filed by the Decedent’s sister. On March 24, 2015, the court issued

an opinion and order denying Talerico’s petition. This timely appeal followed.

      Talerico raises the following issue for our review.

      Did the trial court err and/or abuse its discretion in concluding
      that willful and malicious desertion was satisfied solely by extra-
      marital affairs engaged in, during a separation, by both the
      Decedent and Appellant, where Appellant physically separated
      from the Decedent for just cause and where all other undisputed

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      evidence established the absence of willful and malicious
      desertion on his part?

Appellant’s Brief at 3.

      Our      standard   when   reviewing   an   Orphans’   Court’s   findings   is

deferential.

      The findings of a judge of the orphans’ court division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate
      court in the absence of an abuse of discretion or a lack of
      evidentiary support. This rule is particularly applicable to findings
      of fact which are predicated upon the credibility of the witnesses,
      whom the judge has had the opportunity to hear and observe,
      and upon the weight given to their testimony. In reviewing the
      Orphans’ Court’s findings, our task is to ensure that the record is
      free from legal error and to determine if the Orphans’ Court’s
      findings are supported by competent and adequate evidence and
      are not predicated upon capricious disbelief of competent and
      credible evidence.

      When the [Orphans’] Court has come to a conclusion through the
      exercise of its discretion, the party complaining on appeal has a
      heavy burden. It is not sufficient to persuade the appellate court
      that it might have reached a different conclusion if, in the first
      place, charged with the duty imposed on the court below; it is
      necessary to go further and show an abuse of the discretionary
      power. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the law is overridden or
      misapplied,     or   the   judgment     exercised    is   manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence of record, discretion is abused. A
      conclusion or judgment constitutes an abuse of discretion if it is
      so lacking in support as to be clearly erroneous.... If the lack of
      evidentiary support is apparent, reviewing tribunals have the
      power to draw their own inferences and make their own
      deductions from facts and conclusions of law. Nevertheless, we
      will not lightly find reversible error and will reverse an orphans'
      court decree only if the orphans’ court applied an incorrect rule
      of law or reached its decision on the basis of factual conclusions
      unsupported by the record.



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In re Jerome Markowitz Trust, 71 A.3d 289, 297-298 (Pa. Super. 2013)

(citation omitted; brackets in original).

      “When the Orphans’ Court arrives at a legal conclusion based on

statutory interpretation, our standard of review is de novo and our scope of

review is plenary.” In re Estate of Fuller, 87 A.3d 330, 333 (Pa. Super.

2014) (citation omitted).

      “The death of a spouse during the pendency of a divorce proceeding

abates the divorce action and any and all claims for equitable distribution.”

In re Estate of Cochran, 738 A.2d 1029, 1031 (Pa. Super. 1999) (citation

omitted). “However, the Probate, Estates and Fiduciaries Code (the ‘Probate

Code’) contains substantial provisions designed to insure the fair distribution

of the marital estate upon the death of one spouse.” Id. (citation and some

internal quotation marks omitted). The relevant section of the Probate Code

provides as follows.

      § 2106. Forfeiture

      Spouses share.—A spouse who, for one year or upwards
      previous to the death of the other spouse, has willfully neglected
      or refused to perform the duty to support the other spouse, or
      who for one year or upwards has willfully and maliciously
      deserted the other spouse, shall have no right or interest under
      this chapter in the real or personal estate of the other spouse.

20 Pa.C.S.A. § 2106(a).

      The Pennsylvania Supreme Court has recognized that

      the mere fact of separation does not create a presumption of
      willful and malicious desertion. In re Estate of Kostick, 514 Pa.
      591, 594, 526 A.2d 746,748 (1987). See also Lodge's Estate,
      287 Pa. 184, 186, 134 A. 472, 473 (1926) (“Mere separation is

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      not desertion, there must be an actual abandonment of
      matrimonial cohabitation with intent to desert, willful and
      persisted in without cause.”). Thus, where an allegation of
      desertion is based on separation, the party advocating forfeiture
      must prove there was a desertion without cause or consent of
      the other spouse. In re Estate of Fisher, 442 Pa. 421, 424,
      276 A.2d 516, 519 (1971). However, once such a showing has
      been made, the parties’ separation is presumed a willful and
      malicious desertion and the burden shifts to the surviving spouse
      to prove the contrary. Id.

In re Estate of Cochran, 738 A.2d at 1031 (some internal quotation marks

omitted).

      Talerico contends on appeal that he separated from the Decedent

either with just cause or with the Decedent’s consent, such that desertion

was not proven. Talerico further maintains that if the presumption of

desertion on his part existed, it was neither willful or malicious in that his

extramarital sexual relationships allegedly did not occur until after Decedent

had engaged in the same. Talerico’s arguments are unavailing.

      We find the facts presented in In re Archer’s Estate, 70 A.2d 857

(Pa. 1950), to be similar to this case. There, the appellant, Winifred Walsh,

and the decedent, Alexander Archer, Jr., separated shortly after they

married. Although no divorce was obtained, both individuals engaged in

extramarital relationships following their separation. When the decedent

subsequently died intestate, appellant claimed a spousal interest in the

decedent’s   estate.   In   affirming   the   lower   court’s   decree   dismissing

appellant’s claim, the Supreme Court recognized that “where there had been

a separation by mutual consent and thereafter both spouses enter into



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adulterous relationships with paramours, neither spouse may share in the

other’s estate, irrespective of who was the first to transgress.” Id. at 860

(emphasis added).

       Similarly, in In re Crater’s Estate, 93 A.2d 475 (Pa. 1953), husband

left the marital home shortly after his marriage to wife. After husband’s

departure, wife cohabitated with another man, whom she held out to be her

husband. Following husband’s death, the lower court determined that wife

had forfeited her claim against husband’s estate. On appeal, the Supreme

Court agreed, noting that “upon proof of [a spouse’s] adultery during the

separation, the inference justifiably arose that [the] open disregard of [that

spouse’s] marital obligations was intentional and, as a consequence, a

wil[l]ful and malicious desertion….” Id. at 477.

       Finding that Talerico had conceded that the parties’ separation was

consensual,1 the Orphans’ Court concluded that Talerico forfeited his right to

____________________________________________


1
  Talerico insists on appeal that he initiated the separation or that the
Decedent willfully and maliciously deserted him. However, the record reveals
that Talerico conceded at trial that the separation between the parties was
consensual. See Defendant’s Brief for Trial, 3/18/15 at 7 (“Donald Talerico
and Kathleen Talerico separated by consent in December 2010.”). This Court
has long held that “[a] party cannot be permitted to question facts expressly
admitted or deliberately waived at trial.” Education Resource Institute,
Inc. v. Cole, 827 A.2d 493, 501 (Pa. Super. 2003) (citation omitted).

       At any rate, although now Talerico contends that the Decedent’s
erratic behavior instigated his decision to leave the residence, the record
reflects that the Decedent asked Talerico to leave the marital home and
thereafter initiated the divorce proceedings. And there is no evidence of
(Footnote Continued Next Page)


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share in the Decedent’s estate due to his extramarital affairs during the

separation. Based upon the rules announced in In re Archer’s Estate and

In re Crater’s Estate, and in light of our deferential standard of review, we

can find no abuse of discretion in the court’s decision. Talerico’s extramarital

affairs gave rise to an inference of willful and malicious desertion that

Talerico has failed to rebut. See In re Crater’s Estate 93 A.2d at 478

(“[W]here a separation has its inception in mutual consent of the parties, it

becomes a wil[l]ful and malicious desertion on the part of the spouse who

thereafter is guilty of conduct violative of the marriage vows.”). Although

Talerico maintains that the Decedent first engaged in an extramarital affair,

this fact is irrelevant to our analysis. See In re Archer’s Estate.2

      Although the instant case lies in a statutory forfeiture proceeding, our

decision stands as an acknowledgment that the separation of spouses,

although not finalized by divorce, should be given effect even following the

death of a spouse. This principle is further buttressed by analogy to Section
                       _______________________
(Footnote Continued)

serious or continued attempts at reconciliation by either party. At the very
least, the parties’ tacit consent to the separation was clearly established.
2
  Although our adherence to precedent compels that we apply the Supreme
Court’s interpretation of Section 2106 in the context of the instant case, we
echo the sentiment expressed by a prior panel of this Court: “[I]t remains
for the legislature to study and decide whether scrutiny and revision of the
Probate Act is necessary or desirable by reason of the mores of a society
which inspired legislative enactment of no-fault divorce, when an individual
may lawfully shed a marital partner, without the express consent of that
partner and by reason of little more than the passage of time….” Estate of
Fulton, 619 A.2d 280, 285 (Pa. Super. 1992).




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6111.1 of the Probate Code. That section, entitled Modification by divorce or

pending divorce, provides as follows.

      Any provision in a conveyance which was revocable by a
      conveyor at the time of the conveyor’s death and which was to
      take effect at or after the conveyor’s death in favor of or relating
      to the conveyor’s spouse shall become ineffective for all
      purposes unless it appears in the governing instrument that the
      provision was intended to survive a divorce, if the conveyor:

      (1)   Is divorced from such spouse after making the conveyance

      (2)   Dies domiciled in this Commonwealth during the pendency
            of divorce proceedings, no decree of divorce has been
            entered pursuant to 23 Pa.C.S. § 3323 (relating to decree
            of court) and grounds have been established as provided
            as 23 Pa.C.S. § 3323(g).

20 Pa.C.S.A. § 6111.1 (emphasis added). Originally enacted in 1978,

Section 6111.1 embodies a clear legislative intent that a spouse’s death in

no way invalidates a separation and pending divorce contemplated by the

spouses prior to that death. Our decision today further effectuates the intent

of the legislature in that regard.

      Based on the foregoing, we affirm the order of the Orphans’ Court

dismissing Talerico’s petition to strike the claim of Karen Cavanaugh to the

Estate of Kathleen Talerico.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2016




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