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Case Notes: Divorce and death

In the case ofTosi v. Kizis , 16 Pa. Super 2014, the Pennsylvania Superior Court determined that Wife could discontinue the parties divorce action after Husband died while awaiting the divorce trial.

Husband and Wife were married for 37 years when they separated. Wife filed an action in divorce in 2003 and the interminable proceedings began. Nothing happened for three years until Wife filed her Affidavit of Consent in 2006. Nothing then happened for two more years until Husband filed his counter-affidavit and raised economic claims in 2008.

Equitable distribution proceedings began in 2008 and included certain commercial property. In May 2008, the court appointed a Master to determine the parties economic claims. A pre-trial conference took place in June 2008. On August 1, 2008, Husband filed his "Affidavit of Consent" to the divorce. But on August 19, 2008, Husband died. Four months later, Wife filed a Praecipe to discontinue the divorce action and the divorce case was discontinued. Obviously, Wife believed that she could obtain a more favorable economic result without the divorce.

The general rule is that a divorce action "abates" (goes away) if a party dies before grounds for the divorce are filed. But here, grounds for divorce were established when both parties filed their Affidavits of Consent. Once grounds for divorce have been established, the death of a party will not abate the divorce IF the surviving party wishes to continue the divorce. But, what if the surviving party does not want to continue with the divorce? That was the issue in this case.

In 2010, Husband's attorney filed a petition to "strike" the discontinuance (i.e. revive the divorce). That petition was "quashed" (denied) for technical reasons not pertinent here. Finally, a technically correct petition to strike the discontinuance was presented by Husband's attorney in 2012. The trial court denied the request and the divorce case remained closed. Husband's attorney then filed an appeal to the Superior Court.

Husband's attorney argued that 23 Pa.CSA 3323(d.1) mandated that the divorce continue. And that law does provide (in part) that "in the event one party dies during divorce proceedings, no decree of divorce has been entered and grounds have been established parties economic rights and obligations arising under the marriage shall be determined..." (my emphasis). But under Pa.RCP 229, the trial court had discretion in determining whether to strike off a discontinuance. The trial court determined that the power vested in Wife to discontinue the divorce action under 229 trumped the rule under 3323 (d.1) that prevented such an action. The Superior Court determined that the trial court did not abuse its discretion in denying the strike action.

In its decision, the Superior Court determined that under 3323(d.1), the divorce action only may continue, not that it shall continue. In legal parlance, we call this type of interpretation "wrong". The plain language of the statute says that the divorce action shall continue, not may continue.

Husband's attorney also argued that the trial court was wrong to keep the divorce closed without determining whether keeping it closed would result in "unreasonable inconvenience, vexation, harassment, expense, or prejudice to Appellant (Husband) pursuant to Rule 229(c)". However, the Superior Court found that Husband's attorney failed to argue this matter and relied solely on his interpretation of 3323(d1).

So, why would the Superior Court make such a counter-intuitive interpretation of a law's meaning? Because, as every attorney knows,bad cases make bad law. Here, Husband's attorney committed a series of technical errors that delayed the determination for about 4 years. The court (most likely) did not want to overturn a decision made all the way back in 2010. Husband's attorney had to file 4 separate motions to strike until he got one that properly worked.

Moral of the story: Hire a divorce attorney who knows their procedure and will get things done right the first time. It matters.