Pennsylvania Superior Court Vacates Divorce Due To Failure Of The Trial Court To Explore Elderly Couple’s Competency

December 21, 2018

The Pennsylvania Superior Court recently decided a case that contains a lesson for lawyers in Pennsylvania and especially so for those that practice family law. The case, Berry v. Berry, involved a couple that was in their 80's and 90's that was litigating a divorce action through their children acting through respective powers of attorney. The unusual nature of the case led to the Superior Court taking the extremely unusual step of addressing an issue that the parties did not actually raise on appeal. Typically, an appellate court will not address an issue that is not raised by the Parties because it is considered waived.

The case was initially filed by Wife in 2013 and there was evidence that both Husband and Wife were struggling with dementia in their later years. Husband filed a counterclaim seeking divorce and other related claims. The case was delayed for a number of years and ultimately Wife withdrew her divorce complaint, but Husband did not. The matter was eventually scheduled for an equitable distribution hearing which neither party attended and was conducted by the parties' children acting as powers of attorney. While there were several concerns raised about the competency of the parties, the Trial Court found that those were questions for the orphan's court and not at issue in the divorce proceeding. The Court issued a divorce decree and an order on equitable distribution from which Wife appealed.

While neither party actually raised the competency of the parties on the appeal, the Pennsylvania Superior Court took the highly unusual step of sua sponte (i.e., on its own motion) addressing the competency of the parties and whether the proceeding should have even taken place without addressing the competency of the parties. The Court stated that "we cannot ignore the grave questions of whether the Husband was competent enough to bring a proper divorce action and whether Wife was competent enough to defend it. We find the trial court erred by not conducting such proceedings to ascertain these answers, wrongly professing that it was the job of the orphans' court."

The Court ultimately concluded that "Pennsylvania law does not allow an incompetent to bring a divorce action without the court confirming whether the incompetent retains the mental capacity to make reasonable decisions concerning his person, his understanding of the nature of a divorce action, and his desire to maintain this action" and that "a power of attorney cannot prosecute, nor defend, a divorce action on behalf of an incompetent principal…[t]hat role is reserved exclusively for a court-appointed guardian or guardian ad litem." The Court therefore vacated the divorce decree and the equitable distribution order. The Court would normally send a matter like this back to the trial court to review the issue of competency, but in this case, the Husband died while the matter was on appeal. Therefore, the divorce action was abated, i.e. its as if it never happened, because grounds for divorce were not properly established prior to the Husband's death. Six years of litigation was therefore rendered moot because no one previously took the time to address the competency of the litigants.

This case stands as an important lesson that competency of the parties to litigation is always at issue and must be examined by the lawyers and all involved lest they waste a lot of time and money. It is especially so here where the Parties' spent large of amounts of time, and presumably attorney's fees, litigating a case that is now rendered moot. The lawyers at Conway Schadler have experience that can make the difference in these types of situations. Please contact our offices for a free consultation so we can discuss how this substantial experience can be used to your benefit.