Berry, J. v. Berry, C.
197 A.3d 788
Pa. Super. Ct.2018Background
- Janice (Wife, 84) and Charles Berry (Husband, 91) litigated divorce and equitable distribution after ~66 years of marriage; both parties suffered dementia-related illnesses and neither attended the final hearing.
- The case was prosecuted/defended by adult children under powers of attorney; the record lacked proof of Husband’s power of attorney and no court-appointed guardian ad litem was ever appointed.
- Wife initially filed for divorce in 2013, later withdrew and refiled at various points; Husband counterclaimed under 23 Pa.C.S. § 3301(d).
- Daughter filed letters and a physician’s note asserting Wife’s incapacity and later asserting Husband’s incompetency shortly before the July 5, 2017 hearing. Counsel and the trial court acknowledged dementia concerns but proceeded without competency adjudications.
- The trial court entered a divorce decree and equitable distribution order after an evidentiary hearing in which only the children testified; Husband died during the appeal.
- The Superior Court sua sponte considered competency, concluded the trial court erred by not addressing it, and vacated the divorce decree and equitable distribution as void; the case abated on Husband’s death and the substitution for successor was vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by failing to determine parties' competency before proceeding | Wife argued equitable distribution was unfair (on appeal she challenged distribution); (below) Daughter/POA urged that parties were incapacitated and proceedings should be halted | Trial court treated POA matters as orphans’ court issues and proceeded; counsel litigated through POAs | Court held trial court erred: when competency reasonably in question, court must investigate/appoint guardian ad litem under Pa.R.C.P. 2056; proceedings without such safeguards render decree void |
| Effect of Husband’s death on divorce/economic remedies and whether §3323(g) exception applies | Wife (on appeal) challenged distribution; not directly arguing post-death issue. Estate representative sought substitution to pursue economic rights under Divorce Code using Husband’s §3301(d) affidavit | Appellate court considered whether §3323(g) exception salvages economic adjudication post-mortem if grounds established | Court held Husband’s unascertained competency voided decree, so the §3323(g) exception is inapplicable; divorce action abated by death and economic rights fall to Probate Code (divorce decree and distribution vacated) |
Key Cases Cited
- Benz v. Heckman, 2 A.2d 857 (Pa. 1938) (court may sua sponte investigate alleged incompetency and must protect rights of incompetents)
- Syno v. Syno, 594 A.2d 307 (Pa. Super. 1991) (an adjudged or reasonably suspected incompetent may only prosecute or defend divorce through a court-appointed guardian or guardian ad litem; decree obtained without one is void)
- Yelenic v. Clark, 922 A.2d 935 (Pa. Super. 2007) (divorce actions generally abate on death unless §3323(g) grounds established)
- Savage v. Savage, 736 A.2d 633 (Pa. Super. 1999) (trial court should investigate competency concerns and may order psychiatric evaluation before proceeding)
- Schwarzkopf v. Schwarzkopf, 107 A.2d 610 (Pa. Super. 1954) (a guardian ad litem is required to adequately protect an incompetent party’s rights in divorce proceedings)