Berry v. Berry

197 A.3d 788

Janice BERRY, Appellant

v.Charles D. BERRY

No. 1766 MDA 2017

Superior Court of Pennsylvania.

Submitted April 16, 2018

Filed October 11, 2018

Frederick D. Lingle, Lock Haven, for appellant.

Meghan E. Young, Williamsport, for appellee.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.:

In this difficult matter, the octogenarian Appellant, Janice Berry ("Wife"), appeals the equitable distribution of the marital estate she shared with the nonagenarian Appellee, Charles Berry ("Husband"). At the time of the trial, the record indicates that Husband and Wife were married for 66 years and both suffered from dementia; the divorce was litigated through their respective lawyers by their adult children who operated under respective powers of attorney. Neither party appeared for the trial. Their adult children were the only witnesses. At the conclusion of the proceedings, the trial court issued a divorce decree and an equitable distribution award. Wife appealed. Thereafter, on May 16, 2018, Husband died.¹

On appeal, Wife, represented by new counsel, only challenges the equitable distribution award insofar as the trial court failed to consider that Wife would no longer receive alimony pendente lite following the divorce. We do not reach the merits of this claim, however. Instead, we address sua sponte the mental capacity of both parties, which was questioned throughout the divorce litigation, but ignored by the trial court. If both parties were still alive, Pennsylvania Rule of Civil Procedure 2056 and public policy would have obligated us to vacate the divorce decree as void and remand for the trial court to determine whether the parties were competent to proceed.² Now, we have no choice but to conclude that the combined effect of a void decree and Husband's death abates the divorce litigation, effectively leaving intact the parties' marriage and necessitating that his estate be processed under the Probate Code.

The factual overture is this: The parties, who wed on October 14, 1950, entered the final stages of their lives when divorce litigation commenced. After 63 years of marriage, Wife filed a divorce complaint in August 2013. She ultimately refused to sign an affidavit of consent and withdrew her claim. However, Husband had filed a counterclaim in divorce; so the action proceeded and the parties were divorced pursuant to 23 Pa.C.S.A. § 3301(d). When Wife withdrew her divorce complaint, she also effectively withdrew her claim for alimony. As such, the court did not consider alimony when fashioning its equitable distribution award. That triggered the instant appeal.

But upon our review of the record, we discovered a much more complicated history. The reason Wife filed her initial divorce complaint was revealed in a letter authored by Wife's power of attorney, daughter, Donna Berry ("Daughter"). Daughter submitted this letter to the court a week before the ultimate hearing in an apparent last-ditch effort to stop the proceedings. The letter explained that in 2013, Husband refused to take his dementia medication, which caused his "irrational and frightening behavior" to return. Testimony revealed that Husband began taking medication for dementia in 2012.

Daughter said Wife filed for divorce to protect her assets; the letter alleged that the parties' sons, including Husband's power of attorney, Jerry Berry ("Son"), were "moving money from one account to another and opening new joint accounts with their names included." The record indicates this sum was $25,000. Husband evidently became abusive, and the court awarded Wife exclusive possession of the marital home; Husband then went to live with one of his sons before ultimately moving into an assisted living facility. Daughter further alleged that Wife regretted filing for divorce, and instead wished she would have had the sons charged with elder abuse.

The litigation had lingered for years. Following Wife's original divorce complaint in 2013, the court ordered discovery and scheduled a hearing for July 2014. But Wife refused to execute an affidavit of consent pursuant to 23 Pa.C.S.A. § 3301(c). After a status conference, the parties again appeared to be largely in agreement, and the court scheduled another hearing for November 2015. When the time came for the hearing, Wife again refused to execute an affidavit of consent. That prompted Husband, through Son, to counterclaim and seek a divorce pursuant to § 3301(d). Husband's May 2016 counterclaim raised the following issues: equitable distribution; alimony pendente lite ; and counsel fees, costs and expenses.

Wife filed a praecipe to withdraw her divorce complaint and with it her request for alimony; the trial court granted her request and dismissed her action in October 2016. The parties reached a temporary agreement in January 2017, whereby Wife's divorce complaint was reinstated.

Husband motioned the court to appoint Wife a guardian ad litem . This motion was evidently denied without prejudice on April 11, 2017, after Daughter furnished documentation of her power of attorney. The record only contains the order, but not the underlying motion, which could have offered more illumination about the facts supporting the allegations of Wife's incompetency.

Wife, through Daughter, again withdrew her complaint in June 2017. The trial court stated that it "is not able to comprehend why Wife would withdraw [her] complaint as Husband's complaint and related claims survived while Wife's alimony claim was lost." See Trial Court Opinion ("T.C.O."), 8/24/17, at 3. The trial court conducted a status conference on June 27, 2017, a week before the ultimate equitable distribution hearing.³

The court learned that Husband was too frail to leave his assisted living facility in Virginia to attend the hearing. The court permitted him to be available by phone, but his counsel indicated that telephonic participation would be similarly impossible because Husband was too hard of hearing. Neither Husband nor Wife was present, in person or by phone, at the hearing, which was finally held on July 5, 2017, nearly three years after it was originally scheduled. Only the children appeared under their respective powers of attorney. Significantly, the record reveals no documentation of Son's power of attorney for Husband. Thus, it seems the court proceeded with the divorce litigation with Son acting as attorney-in-fact for Husband, without any written proof of his authority to do so.⁴

At the hearing, the court immediately acknowledged Daughter's 11^th-hour letter seeking to stop the litigation based on Husband's incompetency. Before taking testimony, the trial court stated:

I just handed each of [the respective lawyers] a filing filed by [Daughter], Power of Attorney, which landed on my desk this morning. It was filed June 29, 2017. In there, [Daughter] indicates that [Husband] is incompetent, should not be proceeding, and that all other things that - - [Daughter] indicates this. She is evidently the Power of Attorney for [Wife]. She indicates that [Husband] is incompetent, and [his] Power of Attorney - - Power of Attorney – of if there's more than one person, I can't tell from the letter - - that they're doing this - - forcing this divorce.

The court has been of the opinion throughout this proceeding that the Power of Attorney issue is an orphans' court issue, not a divorce issue. And if anything needs to be done, it needs to be filed in the orphans' court. I'm not going to take any action regarding the filing of the Power of Attorney for Wife in this matter. Are we ready to proceed?

Notes of Transcript ("N.T."), 7/5/17, at 3.

The attorneys then addressed stipulations and proceeded with the rest of the hearing. The court divided the parties' assets equally. At the time of the hearing, Husband was 91 years old and lived in an assisted living center near one of the parties' sons in Virginia. The cost of the facility was $2,750 per month; his income from Social Security and a pension was $1,697.53 per month. Wife was 84 years old and lived with the parties' daughters in the marital home.

In its opinion and order, the trial court stated that there was no testimony about Wife's health problems. However, our review of the record revealed that revealed another letter, dated September 30, 2016, also submitted by Daughter, detailing Wife's own battle with dementia. This letter was filed on October 3, 2016. It was apparently submitted in the hope of setting aside a "nuptial agreement of September 29, 2016." The agreement itself is nowhere in the record, but the letter is identified in the docket as a "petition to set aside post-nuptial agreement." Daughter stated that the court should set aside the agreement because Wife was so incapacitated that she could not understand the agreement's terms. Daughter noted that the Office of Aging stated in March 2013 – months prior to Wife's initial complaint in divorce - that Wife could not serve as Husband's power of attorney or guardian because she was unable to comprehend Husband's needs. Daughter further stated that she told Wife's then-counsel, C. Rocco Rosamilia, III, Esq., that she – as power of attorney – did not agree with the terms of the September 29, 2016 agreement.

Attached to Daughter's letter is a doctor's note, dated September 30, 2016 – the day after the agreement – written by Thane N. Turner, M.D. Dr. Turner indicated that Wife is his dementia patient. Dr. Turner's note further elaborated that Wife is unable to make decisions on her own, gets distracted easily and has a hard time with concentration as well as comprehension. The doctor concluded that the "patient is incapacitated to the extent that she should not be able to solely sign legal documentation without her power of attorney also agreeing to sign the document." In the physical record, on top of Daughter's letter and the attached doctor's note, is a post-it note that says: "Returned by Judge. 10/4. No action taken." In November 2016,...