Krempasky, W. v. Krempasky, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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