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GRETCHEN OSWALD HAVILAND v. ISAAC JOHN HAVILAND. APPEAL GENE FETTY (09/21/84)

filed: September 21, 1984.

GRETCHEN OSWALD HAVILAND
v.
ISAAC JOHN HAVILAND. APPEAL OF GENE FETTY, EXECUTOR OF THE ESTATE OF ISAAC JOHN HAVILAND, DECEASED



No. 01190 Pittsburgh, 1983, Appeal from Order, Court of Common Pleas, Civil Division, Washington County, No. 56 August Term, 1981

COUNSEL

Sidney Baker, Pittsburgh, for appellant.

Robert N. Clarke, Washington, for appellee.

Cavanaugh, Popovich and Hester, JJ.

Author: Cavanaugh

[ 333 Pa. Super. Page 162]

This appeal is from an order granting appellee-wife's motion to strike appellant, executor of her deceased husband's

[ 333 Pa. Super. Page 163]

    estate, as a substituted party to this divorce action and to terminate the action. We affirm.

The relevant facts are not in dispute. On August 6, 1981, appellee filed a complaint in divorce against her husband, appellant's decedent, based alternatively on theories of indignities and irretrievable breakdown. Appellant answered and counterclaimed for equitable distribution of the marital property. A master was appointed, but before any testimony was taken, appellant's decedent died. Appellant filed a suggestion of death and voluntary substitution pursuant to 20 Pa.C.S. § 3371. By its order of September 1, 1983, the lower court struck appellant as a substituted party and terminated the action as of the date of decedent's death. It is this order from which appeal is taken.

Initially, appellant recognizes the long-standing rule that unlike most actions, pending divorce actions are abated by the death of one of the parties. Matuszek v. Matuszek, 160 Pa. Super. 526, 52 A.2d 381 (1947); Upperman v. Upperman, 119 Pa. Super. 341, 181 A. 252 (1935); Sirbaugh v. Sirbaugh, 46 D. & C. 417 (1943); Hammond v. Hammond, 9 Pa.D. & C. 228 (1927); 3 A. Freedman, Law of Marriage and Divorce in Pennsylvania, § 670 (2d ed. 1957). However, appellant contends that the recent passage of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101, et seq., changed the law so that a pending divorce action involving the equitable distribution of marital property survives the death of one of the parties.*fn1 We must disagree.

[ 333 Pa. Super. Page 164]

It is true that enactment of the Divorce Code made fundamental changes in the law relating to the disposition of marital property upon divorce. Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982); Divorce Code, supra, § 102, 23 P.S. § 102. In particular, the Code greatly expanded the protection afforded to the dependent spouse upon divorce. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Gordon v. Gordon, supra. However, we find nothing in the Divorce Code which would indicate an intention to extend these protections to the estate of a deceased spouse. On the contrary, the economic provisions of the Divorce Code clearly look to the continued life and welfare of both spouses. For example, in dividing the marital property, the Divorce Code requires the court to consider such factors as the "sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties," id. § 401(d)(3), 23 P.S. § 401(d)(3); "the opportunity of each party for future acquisitions of capital assets and income," id. § 401(d)(5), 23 P.S. § 401(d)(5); and "the standard of living of the parties established during the marriage," id. § 401(d)(9), 23 P.S. § 401(d)(9). Moreover, the Divorce Code only authorizes distribution of marital property in conjunction with a decree granting a divorce. See §§ 301(d)(1), 401(b). And, as has been often stated, a divorce will not be decreed where one party has died since

     a man can no more be divorced after he is dead than he can be married or condemned to death. Marriage is a union for two lives, which can be dissolved either by death or by process of law; but after it has been dissolved in one of those ways you cannot ...


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