In Re: Estate of Guy S. Fragola

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF GUY S. FRAGOLA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: PAULA FRAGOLA :
:
:
:
:
: No. 3307 EDA 2016
Appeal from the Order Entered September 21, 2016
In the Court of Common Pleas of Pike County
Civil Division at No(s): 71-2013 OC
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 02, 2017
Appellant Paula Fragola (“Wife”) appeals from the order of the Court of
Common Pleas of Pike County dismissing her notice of election to take
against the will of Guy S. Fragola (“Decedent”) and directing the forfeiture of
her spousal interest to an elective share of Decedent’s estate. After careful
review, we affirm.
The trial court aptly summarized the relevant factual background of
this case as follows:
[Decedent] and [Wife] were married in September of 1988
and were married for approximately 25 years. In 1999,
[Decedent] executed a will which named [Wife] as executrix and
beneficiary under the will.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Decedent suffered a stroke in February of 2009. He
suffered serious physical limitations and was confined to a
wheelchair for the rest of his life but retained full mental
capacity. Decedent subsequently received treatment at several
long-term care facilities. In the fall of 2009, Decedent resided at
the Summit Ridge Rehab Center in New Jersey. Upon his release
from that facility, he returned to the marital home in Milford in
the fall of 2009. A full-time, live-in caregiver, Rachel Brown,
was eventually hired on or about May of 2011.
[Decedent] filed a Petition for Emergency Relief from
Abuse against [Wife] on May 28, 2011. This Court granted a
Temporary Protection From Abuse [PFA] Order on May 31, 2011.
On July 7, 2011, this Court entered an Order detailing the
agreement between the parties which provided that [Decedent]
would withdraw the underlying [PFA] Petition … if [Wife] were
evicted from the home.
[Wife] initiated a divorce action on November 16, 2010.
The divorce action proceeded for three years and was about to
be completed in November 2013. Attorney Thomas Mincer
represented [Decedent] during the divorce proceedings.
On November 16, 2013, [Decedent] executed a new will
which named his sister, Marybeth Fragola, as executrix, and his
mother, Carole Fragola, as the sole beneficiary of the will.
[Decedent] subsequently passed away on December 1, 2013.
Marybeth Fragola submitted the November [1]6, 2013 Will for
probate in Pike County. The Will contained a provision expressly
disinheriting [Wife]. The relevant provision states:
“My wife, PAULA J. FRAGOLA, separated from me
approximately 3 years ago and filed a complaint for
divorce from me. I deliberately and purposefully
exclude her from inheriting from my estate under
this Will.”
On December 11, 2013, the Pike County Register of Wills
issued a Decree which adopted the Will. Additionally, Attorney
Mincer, as counsel for Decedent, filed an Amended Complaint in
Divorce and a Notice of Intention to Request Entry of Section
3301(d) Divorce Decree on December 11, 2013. The Amended
Complaint was verified by Attorney Mincer and requested a no-
fault divorce pursuant to § 3301(d) of the Divorce Code.
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On December 31, 2013, [Wife] appealed the Decree to this
Court and alleged that Decedent lacked the testamentary
capacity to execute the Will. This Court denied the appeal on
February 6, 2015.
[Wife] had previously filed a Notice of Conditional Election
to Take Against the Will of [Decedent] on January 16, 2014. A
hearing was held on the merits of the Conditional Election to
Take Against Will on June 28, 2016. At the conclusion of the
hearing, the parties were given the opportunity to submit briefs
or memorandum of law in the support of their respective
positions. Each party filed the same on August 1, 2016.
Trial Court Opinion, 9/21/16, at 1-3 (citations omitted).
On September 21, 2016, this Court entered an Order which denied
[Wife’s] Conditional Election to Take Against Decedent’s Will. Appellant filed
a timely appeal and complied with the trial court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Wife raises the following issues for our review on appeal:
1) Whether the trial court erred and abused its discretion in
determining that [Wife] willfully and maliciously deserted
[Decedent] for more than a year prior to his death, and
therefore, dismissed [Wife’s] election to take against the will.
2) Whether the trial court erred and abused its discretion in
determining that [Wife] willfully neglected and refused to
support [Decedent] for more than a year prior to his death,
and therefore, dismissed [Wife’s] election to take against the
will.
3) Whether the trial court erred and abused its discretion in
determining that the conditions of 20 Pa.C.S.A. Section
2106(a)(2) were met, thereby dismissing [Wife’s] election to
take against the will.
Appellant’s Brief, at 4 (issues reordered for review).
Our standard of review is well-established:
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Our standard of review of an orphans' court's decision is
deferential. In re Estate of Strahsmeier, 54 A.3d 359, 362
(Pa.Super. 2012). When reviewing an orphans' court decree,
this Court must determine whether the record is free from legal
error and whether the orphans' court's findings are supported by
the record. Id. at 362–63. Because the orphans' court sits as
the finder of fact, it determines the credibility of the witnesses
and, on review, this Court will not reverse its credibility
determinations absent an abuse of discretion. Id. at 363.
However, this Court is not bound to give the same deference to
the orphans' court conclusions of law. Id. Where the rules of
law on which the orphans' court relied are palpably wrong or
clearly inapplicable, we will reverse the court's decree. Id.
Moreover, we point out that an abuse of discretion is not merely
an error of judgment. However, if in reaching a conclusion, the
court overrides or misapplies the law, or the judgment exercised
is shown by the record to be manifestly unreasonable or the
product of partiality, prejudice, bias, or ill will, discretion has
been abused. Id.
Estate of Sacchetti v. Sacchetti, 128 A.3d 273, 281–82 (Pa.Super. 2015)
(quoting In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa.Super.
2013)).
“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) (citing
Myers v. Myers, 580 A.2d 384, 385 (Pa.Super. 1990)). Although “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,” the Probate Code provides that a
surviving spouse may forfeit his or her right or interest to the estate of the
other spouse in certain circumstances. Cochran, 738 A.2d 1029, 1031
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(Pa.Super. 1999) (quoting Haviland v. Haviland, 481 A.2d 1355, 1357
(Pa.Super. 1984)). In cases where a decedent died with a will that
disinherits a surviving spouse, Section 2208 of the Probate Code states that
the surviving spouse will forfeit an elective share of the decedent’s estate if
he or she meets the criteria for forfeiture set forth in Section 2106 (relating
to a decedent who died intestate).
§ 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.
(2) A spouse shall have no right or interest under this
chapter in the real or personal estate of the other spouse
if:
(i) the other spouse dies domiciled in this
Commonwealth during the course of divorce
proceedings;
(ii) no decree of divorce has been entered pursuant
to 23 Pa.C.S. § 3323 (relating to decree of court);
and
(iii) grounds have been established as provided in 23
Pa.C.S. § 3323(g).
20 Pa.C.S. § 2106(a). In other words, a surviving spouse forfeits her right
or interest in the estate of her deceased spouse by (1) willfully neglecting or
refusing to perform the duty to support the decedent for one year or more
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prior to the decedent’s death, (2) willfully and maliciously deserting the
decedent for one year or more prior to the decedent’s death, or (3) the
establishment of grounds for divorce under 23 Pa.C.S. 3323(g).
With respect to forfeiture by willful and malicious desertion, our courts
have further provided 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.
In re Estate of Talerico, 137 A.3d 577, 581 (Pa.Super. 2016) (quoting In
re Estate of Cochran, 738 A.2d at 1031 (some internal quotation marks
omitted)). “The nature of the deserting spouse's conduct, either before or
after the separation, and the extent to which it is inconsistent with the
marital relationship, is dispositive of whether the separation is a willful and
malicious desertion within the meaning of the forfeiture statute. In re
Estate of Cochran, 738 A.2d at 1032.
Under similar circumstances, this Court in Cochran found that the
husband’s behavior constituted a de facto desertion of his wife as he was
absent from the marital home for more than one year after he was ordered
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to leave the marital home under the provisions of a PFA order. The
Cochran court found that the husband’s threats to his wife and daughter
that led to his removal from the marital home were wholly inconsistent with
the marital relationship and emphasized that upon the expiration of the PFA
order, the husband did not attempt to return to the marital residence. In
addition, this Court noted that there was no evidence that the wife bore any
responsibility for the husband’s departure as the husband did not allege that
the wife threatened him in any way to incite his abusive acts.
Moreover, this Court found in Cochran that the wife’s filing of the PFA
petition to remove the husband from the home was not evidence that she
consented to the husband’s separation but was evidence of her desire to be
free from domestic abuse. See id. (recognizing that “Wife's action was
merely a response to a volatile and dangerous situation that rendered her
choice of remedy the only rational course of action”).
Likewise, in this case, we agree with the trial court’s finding that Wife
willfully and maliciously deserted Decedent more than one year prior to
Decedent’s death. Wife filed for divorce from Decedent in November 2010,
vacated the marital residence in May 2011 after the temporary PFA order
was entered against her, and never attempted to reconcile with Decedent
before his death on December 1, 2013.
Wife’s conduct, which led to the issuance of the PFA order and her
removal from this marital home, was wholly inconsistent with the marital
relationship. The trial court noted that Decedent’s PFA petition alleged that
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“Wife engaged in ongoing mental, verbal, and emotional abuse, threatened
to physically ‘kick his ass,’ locked up bottled water that he needed to take
his medication, and intentionally provoked him in order to raise his blood
pressure.” T.C.O., at 6 (citing PFA petition, 5/31/11, at 6). Decedent
asserted that he filed the PFA petition because he had “grave fear for his
health and safety.” PFA petition, 5/31/11, at 7.
Moreover, we agree that Decedent did not consent to Wife’s separation
by filing a PFA petition to seek her removal from the home as he was merely
protecting himself from domestic abuse. Under the same rationale, we
reject Wife’s assertion that the parties’ stipulation that Wife would not return
to the marital home was evidence of Decedent’s consent to her separation.
As a result, we find no evidence of consent to the separation in Decedent’s
recourse to a PFA petition.
Wife offered no contrary evidence to rebut the presumption that her
behavior constituted a willful and malicious desertion of Decedent. When
Wife filed for a no-fault divorce, she did not allege that Decedent committed
any fault or behaved in any manner to instigate Wife’s abusive conduct that
necessitated the PFA order. Wife also concedes that she never attempted to
reconcile with Decedent after the PFA was entered against her.
For the foregoing reasons, we conclude that the trial court did not err
in finding Wife willfully and maliciously deserted Decedent more than one
year prior to Decedent’s death, and, thus forfeited her right to seek an
elective share of Decedent’s estate. As this evidence is sufficient to support
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the trial court’s finding of forfeiture, we need not review Wife’s remaining
arguments that forfeiture was improper under the other provisions of
Section 2106(a) of the Probate Code.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2017
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