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WALTER L. DRUMHELLER v. DAVID MARCELLO (02/20/86)

filed: February 20, 1986.

WALTER L. DRUMHELLER, FRANKLIN W. DRUMHELLER AND BETTY JEAN ARMBRUSTER, EXECUTORS OF THE ESTATE OF ELIZABETH P. ROTHMAN, DECEASED, APPELLANTS,
v.
DAVID MARCELLO, ADMINISTRATOR OF THE ESTATE OF SIDNEY J. ROTHMAN, DECEASED, APPELLEE



Appeal from Order of the Court of Common Pleas, Civil Division, of Lycoming County, No. 83-20, 479.

COUNSEL

Michael Edridge, Palmerton, for appellants.

John R. Mondschein, Allentown, for appellee.

Wieand, Olszewski and Watkins, JJ.

Author: Wieand

[ 351 Pa. Super. Page 141]

Does a wife's death at the hands of her husband, who then takes his own life, cause the abatement of a claim for equitable distribution in a pending divorce action? The trial court held that the claim had been aborted by the death of the parties and granted a motion to dismiss the divorce action. We affirm the order dismissing the causes of action for divorce and equitable distribution. However, the abatement of these causes of action does not prevent recovery on a pending claim for counsel fees if the deceased wife's estate is otherwise entitled thereto.

Sidney J. Rothman and Elizabeth P. Rothman were married on February 13, 1969. No children were born of this union. However, both spouses were survived by children of prior marriages. On April 28, 1983, Elizabeth commenced an action in divorce against Sidney in which she sought, in addition to a decree in divorce, an equitable distribution of marital property. The complaint also contained a request for counsel fees. On December 10, 1983, Sidney filed an answer and counterclaim. Pursuant to court order thereafter entered, Elizabeth was permitted to occupy the parties' condominium in Pompano Beach, Florida, from February 15, 1984 to April 1, 1984. Shortly after she entered the condominium on February 15th, Elizabeth was shot and killed by Sidney who had been waiting for her inside the condominium. Sidney then turned the gun on himself and took his own life.

Walter L. Drumheller, Franklin W. Drumheller, and Betty Jean Armbruster, children of Elizabeth by a prior marriage, were appointed executors of Elizabeth's estate and were substituted as party plaintiffs in the divorce action. David Marcello was appointed administrator of Sidney's estate and was subsequently substituted as defendant in the divorce action. On July 11, 1984, a motion was filed to dismiss the divorce and all ancillary claims. The motion was granted on January 15, 1985. This appeal by the executors of Elizabeth's estate followed.

[ 351 Pa. Super. Page 142]

"[P]ending divorce actions are abated by the death of one of the parties." Haviland v. Haviland, 333 Pa. Super. 162, 163, 481 A.2d 1355, 1356 (1984). See also: Segars v. Brooks, 248 Ga. 427, 284 S.E.2d 13 (1981); Howsden v. Rolenc, 219 Neb. 16, 360 N.W.2d 680 (1985); Jacobson v. Jacobson, 146 N.J.Super. 491, 370 A.2d 65 (1976). This Court has made it clear that "[u]nless and until a valid decree in divorce has been entered, there can be no equitable distribution of marital property." Laxton v. Laxton, 345 Pa. Super. 450, 455, 498 A.2d 909, 912 (1985). See also: Dech v. Dech, 342 Pa. Super. 17, 492 A.2d 41 (1985); Mandia v. Mandia, 341 Pa. Super. 116, 491 A.2d 177 (1985). Accord: Bacchetta v. Bacchetta, 498 Pa. 227, 235, 445 A.2d 1194, 1198 (1982) ("equitable distribution of property acquired during the marriage occurs only upon divorce . . ."). Cf. Pastuszek v. Pastuszek, 346 Pa. Super. 416, 499 A.2d 1069 (1985) (death of one party prior to determination of ancillary matters did not abate ancillary matters where decree in divorce had been entered and was no longer subject to modification); Hall v. Hall, 333 Pa. Super. 483, 482 A.2d 974 (1984) (death of one party while direct appeal from entry of divorce decree was pending did not cause divorce action to be abated).

At the time Elizabeth was killed, a decree in divorce had not been entered. The divorce action, therefore, abated upon her death. Elizabeth's claim for equitable distribution was also abated by death. There can be no equitable distribution of marital property except upon the entry of a decree in divorce.

Appellants argue that to allow the claim for equitable distribution to abate will enable Sidney to benefit by his own wrong. They suggest that Section 401(c)*fn1 of the Divorce Code,*fn2 which vests broad equitable powers in a ...


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