Est. of V. Tinker-Moor v. Moor, P.

• Court: Superior Court of Pennsylvania
• Decided: April 14, 2025
• Docket: 2040 EDA 2024
• Status: Unpublished

Opinion

J-A06025-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ESTATE OF VIRGINIA TINKER-MOOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : PETER MOOR : No. 2040 EDA 2024

Appeal from the Order Entered July 11, 2024 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): D19048491

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 14, 2025

Appellant, Estate of Virginia Tinker-Moor,1 appeals from the July 11,

2024, order entered in the Court of Common Pleas of Philadelphia County,

Domestic Relations, which, inter alia, abated the divorce action between

Virginia Tinker-Moor (“Wife”) and Appellee, Peter Moor (“Husband”), and

dismissed it with prejudice due to Wife’s death. Appellant challenges the trial

court’s application of Section 3323(d.1) of the Divorce Code. Upon review,

we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 We note that Wife’s sister was appointed executrix of Wife’s estate, and accordingly, she is the representative for the Estate of Virginia Tinker-Moor in this matter. J-A06025-25

The relevant facts and procedural history are as follows: Wife and

Husband were married on August 16, 1996. Wife filed a divorce complaint on

April 15, 2019, pursuant to 23 Pa.C.S.A. § 3301(d), which permits a court to

grant a divorce based on irreconcilable differences. Section 3301(d) requires

that a party file an affidavit stating the parties (1) have irreconcilable

differences and (2) have been separated for at least one year. 23 Pa.C.S.A.

§ 3301(d). On October 10, 2023, Wife signed a Section 3301(d) affidavit

(“Affidavit”). On October 12, 2023, Wife’s counsel sent Husband an email with

a non-filed copy of the Affidavit and a Notice of Intention to Request Entry of

Section 3301(d) Divorce Decree (“Notice”) attached thereto.

On October 16, 2023, Wife died. On October 17, 2023, the prothonotary

received and docketed Wife’s Affidavit, as well as the Notice. On November

1, 2023, Husband filed an objection to the Notice and a motion to strike the

Affidavit, requesting that the trial court abate the divorce action due to Wife’s

death. On July 11, 2024, after a hearing, the trial court entered an order

abating the divorce action and dismissing it with prejudice. The court further

found Husband’s motion to strike to be moot. Appellant timely appealed, and

all Pa.R.A.P. 1925 requirements have been met.

On appeal, Appellant raises the following issue in the “Statement of the

Questions Involved” (verbatim): “Can a divorce be abated and dismissed with

prejudice when a § 3301(d) affidavit and certificate of service of that affidavit

and counter-affidavit have been recorded?” Appellant’s Brief at 4.

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Initially, we note that “Pennsylvania courts have long held that an action

in divorce abates upon the death of either party[.]” In re Estate of

Easterday, 171 A.3d 911, 917 n.6 (Pa.Super. 2017). “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.” Berry v. Berry, 197 A.3d

788, 803 (Pa.Super. 2018). “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.” Id.

[However,] this [legal precept] created the possibility that although spouses may be in the process of dividing their marital estate, a surviving spouse could receive an unintended windfall [] to the detriment of the deceased spouse’s estate…by not only laying claim to all marital property but also exercising the right to the elective share of one-third of decedent’s non-marital property.

In re Estate of Easterday, 209 A.3d at 339 n.8 (citations omitted).

Accordingly, in 2005, our Legislature amended the Divorce Code and

included Section 3323(d.1) to provide an exception to this common law rule.

See 23 Pa.C.S.A. § 3323(d.1) (“Death of a party.”). Section 3323(d.1)

provides that if “grounds have been established, then, although no divorce

decree will be granted posthumously, the parties’ economic rights and

obligations are determined under the Divorce Code rather than the elective

share provision of the Probate Code.” Berry, 197 A.3d at 803.

Specifically, Section 3323(d.1) provides, in relevant part:

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In the event one party dies during the course of divorce proceedings, no decree of divorce has been entered, and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S.[A.] (relating to decedents, estates and fiduciaries).

23 Pa.C.S.A. § 3323(d.1). Subsection (g) further provides, in relevant part,

that “grounds” are established when:

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 one year at the time of the filing of the affidavit.

23 Pa.C.S.A. § 3323(g).

Moreover, we note that Pennsylvania Rule of Civil Procedure 1920.42

authorizes entry of a divorce decree under Section 3301(d), without further

proceedings, when the parties have satisfied certain filing and notice

requirements, including one spouse filing and serving upon the other spouse

an affidavit stating that the parties meet the Section 3301(d) requirements,

along with a blank counter-affidavit. Pa.R.C.P. 1920.42(c).2 Also, and most

2 Specifically, Pa.R.C.P. 1920.42(c), obtaining a divorce decree under Section

3301(d) of the Divorce Code, provides: (1) If a party has filed a complaint requesting a divorce on the ground of irretrievable breakdown and the requisite separation period has elapsed, the court shall enter a decree in divorce after: (i) proof of service of the complaint has been filed; (ii) a party has signed and filed an Affidavit under Section 3301(d) of the Divorce Code averring that the marriage is irretrievably broken and that the parties (Footnote Continued Next Page)

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important to our analysis, the Rules do not authorize the trial court to enter

the divorce decree until the other spouse has had 20 days to respond. Id.

See Pa.R.C.P. 1920.72.

Here, in the case sub judice, Appellant avers that the trial court

misapplied Section 3323(d.1). Specifically, Appellant argues that the trial

court incorrectly interpreted the statute and added a requirement that a

spouse establish grounds for divorce “prior to death.” Appellant’s Brief at 8.

Appellant avers that if a Section 3301(d) affidavit is disputed, Section 3323(g)

states “the court determines” whether the affidavit is valid. Id. at 9.

Appellant argues that this language—in the future tense—indicates that

grounds for divorce under Section 3301(d) does not have to be satisfied prior

to the death of a party because, according to Appellant, the statute allows the

have been separate and apart for the required separation period; (iii) the filed Affidavit and a blank Counter-Affidavit under Section 3301(d) of the Divorce Code have been served on the other party consistent with Pa.R.C.P. No. 1930.4, and the other party has admitted or failed to deny the averments in the Affidavit under Section 3301(d) of the Divorce Code; (A) If a party files a Counter-Affidavit under Section 3301(d) of the Divorce Code denying an averment in the Affidavit under Section 3301(d) of the Divorce Code, including the date of separation, either party may present a motion requesting the court resolve the issue. Pa.R.C.P. 1920.42(c)(1)(i), (ii), (iii)(A).

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court to proceed with a hearing to determine whether the elements of the

affidavit are satisfied, even after the death of a party. Id. at 10.

Appellant’s issue pertains to the interpretation of Section 3323(d.1),

which is a question of law for which “our standard of review is de novo, and

our scope of review is plenary.” McWilliams v. McWilliams, 324 A.3d 602,

605 (Pa.Super. 2024). Since this case involves statutory interpretation, we

are mindful of the following:

The Statutory Construction Act directs that the object of all interpretation and construction of statutes is to ascertain and effectuate the legislature’s intent. 1 Pa.C.S.[A.] § 1921(a). Generally, the best indicator of legislative intent is the plain language of the statute. In construing statutory language, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]” 1 Pa.C.S.[A.] § 1903(a). When the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute “under the pretext of pursuing its spirit.” 1 Pa.C.S.[A.] § 1921(b). Only “[w]hen the words of the statute are not explicit” may a court resort to the rules of statutory construction, including those provided in 1 Pa.C.S.[A.] § 1921(c). A statute is ambiguous when there are at least two reasonable interpretations of the text under review. Moreover, “[s]tatutes in pari materia shall be construed together, if possible, as one statute.” 1 Pa.C.S.[A.] § 1932. Finally, it is presumed “[t]hat the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.[A.] § 1922(1).

McWilliams, 324 A.3d at 608 (citations and quotations omitted).

As stated supra, Appellant urges this Court to interpret Section

3323(d.1) to allow parties to establish Section 3301(d) grounds for divorce

after the death of a party. However, this Court is bound by our recent decision

in McWilliams, which affirmed a trial court’s abatement of divorce

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proceedings when the parties had not established grounds for divorce under

Section 3301(d) prior to the husband’s death. McWilliams, 324 A.3d at 609-

11.

In McWilliams, after the wife filed a divorce complaint pursuant to

Section 3301(d), the husband proceeded to file two Section 3301(d) affidavits

on December 29, 2023, and January 4, 2024. The husband died on January

4, 2023. On January 19, 2023, the wife filed a motion to discontinue the

divorce proceedings. The trial court granted the wife’s motion because the

husband died prior to establishing the grounds for divorce. McWilliams, 324

A.3d at 604-05.

In affirming the trial court’s decision, this Court reviewed the interplay

of the Rules of Civil Procedure and the Divorce Code. We noted that, at the

time of the husband’s death, the provisions of Rule 1920.42(c)(1)(iii) had not

been met because the 20-day period to respond to the husband’s affidavit had

not expired. Id. at 609. We held that “under Section 3323(g)(3), parties

can only establish ‘grounds’ after the affidavit is deemed admitted or a

counter-affidavit is filed denying the claims prior to the death of a party.” Id.

at 610. Accordingly, we held “grounds were not established in accordance

with 23 Pa.C.S.A. § 3323(g)(3), as [the] [h]usband died before his [a]ffidavit

could be deemed denied.” Id. at 611.

Likewise, in the case sub judice, Appellant failed to established grounds

in accordance with Section 3323(g) because Wife died before her Affidavit was

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even filed. It is of no moment that Wife signed the Affidavit and emailed it to

Husband prior to her death. Pursuant to McWilliams, in order for the grounds

under Section 3323(g) to have been established, the claims in the Affidavit

were required to be deemed admitted or a counter-affidavit needed to be filed

prior to Wife’s death. In this case, neither occurred.

Even if Wife had filed the Affidavit and properly served Husband before

her death, which she did not, Husband would still have had 20 days to

respond. See Pa.R.C.P. 1920.72. Until the 20 days to respond to the Affidavit

elapsed, the trial court lacked authority to enter the divorce decree. See

McWilliams, supra. That is, when one spouse dies during divorce

proceedings, Section 3323(g) and Rule 1920.42(c)(1), read together,

authorize a trial court to grant a divorce decree only when: (1) one spouse

has filed an affidavit prior to the death and (2) the other spouse has either

responded prior to the death or the 20 days to respond to the affidavit have

elapsed prior to the death. See 23 Pa.C.S.A. § 3323(g); Pa.R.C.P.

1920.42(c)(1). See also McWilliams, supra.

Accordingly, we reject Appellant’s argument that Section 3323 suggests

that the grounds for divorce under Section 3301(d) can be satisfied after the

death of a party. On the contrary, McWilliams clearly dictates that Section

3323(g) grounds must be established prior to the death of a party. We agree

that the plain language of Section 3323(d.1) supports this holding.

Specifically, Section 3323(d.1) requires that grounds for divorce must “have

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been established” when the party dies for the parties’ economic claims to be

determined under the Divorce Code.

For the reasons above, we discern no error in the trial court’s order to

abate and dismiss the divorce proceedings with prejudice when Wife died prior

to filing her Affidavit.

Order affirmed.

Date: 4/14/2025

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