In Re: Estate of Racht, B. ( 2016 )

J-S23014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF BRUCE M. RACHT IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: FERN RACHT
No. 2609 EDA 2015
Appeal from the Order July 13, 2015
In the Court of Common Pleas of Monroe County
Orphans' Court at No(s): 194 O.C. 2014
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 17, 2016
Appellant, Fern Racht, appeals from the order entered on July 13,
2015, in the Court of Common Pleas of Monroe County, which sustained the
decision of the Register of Wills to revoke Letters of Administration to Racht
and to re-issue Letters of Administration to Janet Foster, based upon a
finding that Racht had forfeited her right to a spousal share of the decedent,
Bruce M. Racht’s estate pursuant to 20 Pa.C.S.A. § 2601(a)(1). We affirm.
The trial court summarized the pertinent history of this case as
follows.
The decedent and Fern Racht were married in or about
1987. The parties separated in or about April 2007. At the time
of separation, the parties owned a home together in Jackson
Township, Monroe County, Pennsylvania. For several years prior
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S23014-16
to the separation, the parties were residing with Fern Racht’s
elderly parents in New Jersey in order to assist in their care. In
April 2007, the decedent left the New Jersey residence and
returned to the Pennsylvania residence. He encountered the
home in poor condition and resided with a friend, Judith Perry,
for a few months while the home was repaired.
The decedent then stayed at the Pennsylvania house and
Fern Racht continued to reside with her parents in New Jersey.
In August 2007, Fern Racht, through counsel, filed for divorce in
Pike County, Pennsylvania. After four (4) years of no activity in
the case, Fern Racht filed a notice of intention to proceed with
divorce in 2011. No other action was taken and the parties
remained legally married.
The parties lived separate and apart until the time of the
decedent’s death in April 2014. During that time, each party
remained financially independent. The parties also remained
friends after an initial period of acrimony. Both parties dated
other people. After the death of Fern Racht’s parents, she moved
back to Monroe County, Pennsylvania, residing in a mobile home
titled solely in her name. Fern Rach cohabitated on two separate
occasions with a boyfriend named Tony and Chuck. Ms. Racht
was still residing with her boyfriend Chuck when the decedent
died. The decedent also lived with a girlfriend at times during the
separation from Ms. Racht.
In or about 2013, the decedent entered into a refinance
and/or loan modification with a lender on the residence in
Jackson Township. At that time, Fern Racht signed a quit-claim
deed conveying her interest in the home to the decedent. The
decedent also was the only named person on the new mortgage
and/or loan modification. Other than an occasional loan to each
other, neither party financially supported the other party.
Orphans’ Court Opinion, 7/13/16 at 2-3.
Following the decedent’s death, Letters of Administration were initially
granted to Racht as the surviving spouse. Janet Foster, the decedent’s
sister, filed an objection to the issuance of Letters of Administration to
Racht. A hearing was conducted before the Register of Wills on December
-2-
J-S23014-16
11, 2014, after which the Letters were revoked and re-issued to Janet
Foster. Racht subsequently filed an appeal to the Orphans’ Court. On July
13, 2015, the Orphans’ Court affirmed the decision of the Register of Wills to
revoke the Letters of Administration to Racht, based upon a finding that
Racht had forfeited her right to a spousal share of the decedent’s estate
pursuant to 20 Pa.C.S.A. § 2601(a)(1).1 This timely appeal followed.
Racht raises the following issue for our review.
Was the [Orphans’] [C]ourt’s decision, upholding a prior
determination of the Register of Wills revoking letters of
administration previously granted to Appellant Fern Racht and
declaring that Mrs. Racht had forfeited her spousal share of her
deceased husband’s estate, free from legal error and supported
by competent and adequate evidence in the record?
Appellant’s Brief at 4.
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
____________________________________________
1
The Orphans’ Court relied upon the record of the hearing conducted before
the Register of Wills as well as argument briefs prepared by the parties.
-3-
J-S23014-16
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.
In re Jerome Markowitz Trust, 71 A.3d 289, 297-298 (Pa. Super. 2013)
(citation omitted).
“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
-4-
J-S23014-16
distribution of the marital estate upon the death of one spouse.’” Id.(citation omitted). The relevant section of the Probate Code provides as
follows.
§ 2106. Forfeiture
(a) Spouses share.—
(1) 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)(1).
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
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.Estate of Cochran, 738 A.2d at 1031 (internal quotes omitted).
Racht contends on appeal that any failure on her part to “perform the
duty to support” the decedent “was the result not of refusal or willful neglect
-5-
J-S23014-16
on her part but rather the refusal to accept her spousal services[.]”
Appellant’s Brief at 9. Racht’s argument is unavailing.
A panel of this Court (and which was authored by this writer) recently
decided a factually similar case in In re Estate of Talerico, --- A.3d ---,
2016 WL 1077968 (Pa. Super., filed March 18, 2016). In Talerico, Husband
moved out of the marital residence due to marital difficulties. See id. at *1.
Wife thereafter initiated divorce proceedings, and the parties continued to
live separately and eventually both Husband and Wife engaged in
extramarital relationships. See id. Wife subsequently died prior to the
finalization of the divorce proceedings. See id. When Husband sought and
was granted Letters of Administration to Wife’s estate, Wife’s sister filed a
notice of claim against Wife’s estate, maintaining Husband had forfeited his
claim as surviving spouse pursuant to 20 Pa.C.S.A. § 2106(a)(1) because of
his post-separation conduct. See id. at *2. The trial court agreed.
On appeal, the panel affirmed the Orphans’ Court’s finding that
Husband had forfeited his right to a spousal share of decedent’s estate.
Specifically, we determined that Husband’s extramarital affairs following the
parties’ consensual separation “gave rise to an inference of willful and
malicious desertion that Husband has failed to rebut” such that the forfeiture
provision of Section 2106(a)(1) of the Probate Code applied. Id. at *4
(citing In re Crater’s Estate, 93 A.2d 475, 478 (Pa. 1953) (“[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
-6-
J-S23014-16
guilty of conduct violative of the marriage vows.” (citations omitted))). We
further found Husband’s argument that Wife had first engaged in
extramarital affairs to be irrelevant to our analysis. See id. (citing In re
Archer’s Estate, 70 A.2d 857, 860 (Pa. 1950) (“[W]here there had been a
separation by mutual consent and thereafter both spouses enter into
adulterous relationships with paramours, neither spouse may share in the
other’s estate, irrespective of who was the first to transgress.”) (emphasis
added)).
We find the reasoning espoused in Talerico applies equally to the
instant case. It is undisputed that Racht and the decedent separated in April
2007. Thereafter, the parties maintained separate residences and remained
financially independent. Racht commenced divorce proceedings later that
year in August 2007 and following a period of inactivity again sought
reinstatement of the proceedings in 2011. During that time, both Racht and
the decedent engaged in extramarital affairs. Thus, irrespective of which
party first engaged in an extramarital relationship, our case law is clear that
Racht’s extramarital relationships following her separation from the decedent
but prior to the finalization of divorce gives rise to a willful and malicious
desertion under Section 2106(a)(1) of the Probate Code. See In re
Archer’s Estate, supra; In re Crater’s Estate, supra.
We are unpersuaded by Racht’s claim that her separation from the
decedent was not consensual. Although Racht maintains that the decedent
barred her from the marital residence upon his return from New Jersey, she
-7-
J-S23014-16
admits that she never returned to live at the marital residence and there is
no evidence that Racht made any serious or continued attempts at
reconciliation. Moreover, even if Racht had initially wished to engage in
reconciliatory attempts, this Court has astutely recognized that “the essence
of a separation can be transformed, so that a separation, non-consensual at
the outset, can become a separation which is consensual on the part of both
spouses[.]” Estate of Fulton, 619 A.2d 280, 285 (Pa. Super. 1993). As
noted, Racht filed for divorce several months after separation, maintained
her own residence and financial independence upon her return to Jackson
Township, and engaged in several extramarital relationships. Racht’s
conduct later in the relationship at the very least evidences a tacit consent
to the separation.
Based on the foregoing, and in light of our deferential standard of
review, we can find no abuse of discretion in the Orphans’ Court’s
determination that Racht had forfeited her spousal share in the decedent’s
estate pursuant to 20 Pa.C.S.A. 2601(a)(1). Accordingly, we affirm the
court’s order sustaining the decision of the Register of Wills to revoke the
Letters of Administration to Racht, and to re-issue the Letters of
Administration to decedent’s sister.
Order affirmed.
-8-
J-S23014-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
-9-