Tosi v. Kizis, PICS Case No. 14-0197 (Pa. Super. Feb. 6, 2014) Fitzgerald, J. (10 pages).

SUPERIOR COURT

The Legal Intelligencer

FAMILY LAW

Divorce • Discontinuance by Surviving Spouse

Tosi v. Kizis, PICS Case No. 14-0197 (Pa. Super. Feb. 6, 2014) Fitzgerald, J. (10 pages).

Where no divorce decree has been entered in a proceeding where one spouse has died, even though grounds for divorce have been established, the surviving spouse may elect to discontinue the divorce proceedings.

Appellant Robert Kizis, personal representative of decedent John Tosi, appealed from denial of petition to strike discontinuance of a divorce action between decedent and appellee, Lillian Tosi. Pursuant to their separation, appellee filed for divorce from decedent, seeking equitable distribution of marital property. Appellee later filed an affidavit of consent, seeking the entry of a divorce decree. Decedent filed a counter-affidavit opposing the entry of decree pending the resolution of equitable distribution proceedings; however, decedent failed to file his economic claims. Decedent later filed his affidavit of consent to the entry of a divorce decree, and died several days afterwards.

Appellee sought and was granted discontinuance of the divorce action. After being substituted for decedent, appellant filed a petition to strike the discontinuance, which was denied by the trial court.

On appeal, appellant argued that the trial court erred in denying the petition to strike in light of 23 Pa.C.S.A. §3323(d.1), in finding that decedent had not preserved his right to equitable distribution because §3323(d.1) was not controlling, and in finding that appellant did not present any evidence that discontinuance would result in prejudice to appellant pursuant to Pa.R.Civ.P. 229(c).

The court rejected appellant's argument that §3323(d.1) mandates equitable distribution after the death of a party where grounds for divorce have been established, finding that the plain language of the statue provides no such mandate. Instead, the court held that §3323(d.1) merely provides a surviving spouse the option to continue with equitable distribution, rather than having a divorce action automatically abate at the death of one of the parties.

The court declined to address whether the trial court erred in finding that decedent had not preserved his right to equitable distribution. The instant court noted §3323(d.1) was inapplicable, as appellee was not precluded from exercising her rights under the Rules of Civil Procedure.

Finally, the court rejected appellant's contention that the trial court erred in finding that appellant did not present any evidence that discontinuance would result in prejudice, noting that the record established that, on direct query from the trial court, appellant's counsel declined to provide any evidence that discontinuance would result in prejudice.