Opinion
J-A01039-18 No. 1132 EDA 2017
08-20-2018
BARBARA ROSMARIN, EXECUTRIX FOR THE ESTATE OF GENE BARCLAY ROSMARIN Appellant v. LAKPA YANJI SHERPA
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree March 3, 2017
In the Court of Common Pleas of Bucks County
Orphans' Court at No(s): 2014-E0441 BEFORE: LAZARUS, J., OTT, J., and PLATT, J. MEMORANDUM BY OTT, J.:
Retired Senior Judge assigned to the Superior Court.
Barbara Rosmarin, Executrix of the Estate of Gene Barclay Rosmarin (Executrix), appeals from the decree entered March 3, 2017, in the Court of Common Pleas of Bucks County, that denied her petition and "order to show cause" filed against Lakpa Yanji Sherpa, wife of Gene Barclay Rosmarin (Decedent). Specifically, the orphans' court's decree denied Executrix's "Petition to (1) Strike Lakpa Sherpa's Claim to be Recognized as Decedent's Surviving Spouse because the Alleged Marriage between Lakpa Sherpa and the Decedent is Fraudulent and therefore Void under 23 Pa.C.S.A. § 3304(a)(3)[,] and (2) Strike Lakpa Sherpa's Claim Against Decedent's Estate Pursuant to 20 Pa.C.S.A. § 2507(3) because Decedent's Last Will and Testament was Drafted in Contemplation of his Future Marriage to Lakpa Sherpa," as well as Executrix's "Order to Show Cause," requesting the orphans' court to strike Lakpa Sherpa's spousal share claim pursuant to the doctrine of unclean hands. In this appeal, Executrix presents multiple issues, discussed below, in support of her contention that the orphans' court erred in its determination that Sherpa is entitled to pursue her spousal share of Decedent's estate. We affirm on the basis of the orphans' court's sound opinions, filed March 7, 2017, and May 26, 2017.
In the orphans' court, Rosmarin's surname is Nolan.
In the orphans' court, Executrix withdrew her attempt to strike Sherpa's spousal share claim pursuant to 20 Pa.C.S. § 2507(3). See Orphans' Court Opinion, 3/7/2017, at 2.
The orphans' court has fully set forth the facts and procedural history of this case in both opinions, and we need not reiterate the background herein. We simply state that Executrix is the ex-wife of Decedent. Decedent died testate on June 10, 2014, having executed a Will, dated April 9, 1998. Following his 1996 divorce from Rosmarin, Decedent married Sherpa in Nepal in 2008, and he then returned to the United States. On January 22, 2014, Sherpa entered the United States as a lawful permanent resident. Decedent did not execute another will after his marriage to Sherpa.
On August 8, 2014, Executrix was granted Letters Testamentary. Sherpa filed a spousal election against Decedent's Will on January 18, 2014. Subsequently, Executrix filed the above-mentioned petition and order to show cause. Following entry of the orphans' court's March 3, 2017 decree, Executrix filed this appeal.
Executrix presents nine claims in her brief, as follows:
1. Is it an abuse of discretion to go against the weight of the evidence to disregard authenticated, admitted and highly probative documentary evidence and to accept as true self-serving testimony from an interested party with an established history of making material misrepresentations?
2. Is it an abuse of discretion/reversible error for a court to erroneously hold that there was no testimony establishing the prima facie case when admissible testimony from an uninterested, non-party witness establishing the prima facie case was relied upon by the court and cited to in its decision?
3. Is it an abuse of discretion to refuse to admit affidavits submitted to United States Citizenship and Immigration Services by a party witness and her cousin, who is also a witness, under the doctrine of completeness and Pa.R.E. 106 when the affidavits that were highly probative and exposed material misrepresentations made under oath during the pendency of this litigation?
4. Is it an abuse of discretion for a court of equity to disregard the doctrine of unclean hands to grant relief to a deceitful party that advanced its position by lying about material facts to influence the outcome of the matter in controversy that affects the relationship of the parties?
5. Is it an abuse of discretion for a court of equity to refuse to invoke the doctrine of unclean hands when it is shown by
documentary evidence, sworn statements and judicial admissions that a party to the litigation lied to United States Citizenship and Immigration Services, committed perjury and suborned perjury regarding elements central to the matter in controversy?Executrix's Brief at 5-7.
6. Does 23 Pa.C.S.A. § 3304(a)(3) authorize the orphans' court to annul a void marriage fraudulently undertaken solely to defraud United States Citizenship and Immigration Services based upon the parties' lack of capacity to consent to a marriage that is void for illegality.
7. Is a marriage void where both of the parties lacked capacity to consent to the marriage because it was entered into solely for an illegal purpose in express violation of federal statute?
8. Does a court's use of dicta from In Interest Of Miller , 301 Pa. Super. 511, 448 A.2d 25 (1982) to constrain the clear and unequivocal language of 23 Pa.C.S.A. § 3304(a)(3) violate principles of statutory interpretation?
9. Can a state court decide whether to annul a marriage that is void for illegality if it violates a federal statute?
Executrix timely complied with the order of the orphans' court to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Our standard of review is well settled:
When an appellant challenges a decree entered by the [o]rphans' [c]ourt, our standard of review "requires that we be deferential to the findings of the [o]rphans' [c]ourt."
[We] must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the [o]rphans' [c]ourt sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion. However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the rules of law on which the court relied are palpably wrong or clearly inapplicable, we will reverse the court's decree.In re Staico , 143 A.3d 983, 987 (Pa. Super. 2016) (citations omitted).
The orphans' court has thoroughly addressed the claims raised in this appeal in its March 7, 2017 opinion filed in conjunction with the March 3, 2017 decree, and its May 26, 2017 Pa.R.A.P. 1925(a) opinion. See Orphans' Court Opinion, 3/7/2017 (rejecting Executrix's theories (1) that the Decedent and Sherpa's marriage was void pursuant to 23 Pa.C.S. § 3304(a)(3); (2) that the marriage should be deemed void ab initio due to the fact it was an allegedly illegal contract that violates the federal immigration law codified at 8 U.S.C. § 1325(c); and (3) that Sherpa should be denied her spousal share due to unclean hands). See also Orphans' Court Opinion, 5/26/2017 (finding (1) certain issues raised in Executrix's concise statement were too vague to warrant review; (2) the orphans' court properly denied Executrix's request to submit affidavits of Sherpa's mother, daughter, cousin and the Decedent because the affidavits could not be properly authenticated and the affidavits themselves constituted inadmissible hearsay; and (3) the orphans' court properly sustained Sherpa's objection to the testimony of Lynne Jones, Decedent's cousin, where no hearsay exception applied.
Based on our review of the orphans' court's opinion, we find the orphans' court properly rejected Executrix's claims, and further discussion is unnecessary, in all but one respect. Specifically, we address the following contention:
[T]he Orphans' Court passed on ruling whether a marriage should be deemed void because it was an illegal agreement to circumvent federal immigration law. The Court reasoned that ruling on this basis would infringe on the federal judiciary's exclusive jurisdiction over immigration matters. This too was reversible error.Executrix's Brief, at 58-59.
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It was an error of law for the [o]rphans' [c]ourt, which had the exclusive power to annul marriages in Pennsylvania, to pass on whether the agreement to marry in order to circumvent immigration laws violated a statute and is therefore an illegal agreement that is void ab initio.
In the orphans' court, Executrix claimed Decedent and Sherpa had committed marriage fraud under 8 U.S.C. § 1325(c), which provides:
Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.8 U.S.C. § 1325(c).
The orphans' court rejected this argument, explaining:
In assessing [Executrix's] argument that Decedent and [Sherpa's] marriage should be deemed void because it was an illegal agreement to circumvent federal immigration law, initially we find
that [Executrix's] invocation of 8 U.S.C.A. § 1325(c) as a basis for invalidating the marriage between Decedent and [Sherpa] raises jurisdictional concerns. Federal immigration law vests the federal district courts with exclusive jurisdiction of all determinations under 8 U.S.C.A. § 1325(c),4 which is in line with the general principle that "[i]mmigration is a matter of exclusive federal jurisdiction." See 8 U.S.C.A. § 1329 (West); Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600, 603 (Pa. Commw. Ct. 2006).
4 It should be noted that if we were to accept [Executrix's] theory that the marriage between Decedent and [Sherpa] was nothing more than a contract between them to violate U.S.C.A. § 1325(c), then we would thereby in practicality be making the determination that Decedent and [Sherpa] did in fact violate U.S.C.A. § 1325(c). Further, we also note that as a criminal statute, such a finding of culpability under U.S.C.A. § 1325(c) would require a higher burden of proof of being proven beyond a reasonable doubt. See United States v. Islam, 418 F.3d 1125, 1127 (10th Cir. 2005) (On appeal the issue was "whether a reasonable jury could have found Defendant guilty of marriage fraud beyond a reasonable doubt.").
We believe, therefore, that ruling on this basis in the present case would infringe on the federal judiciary's exclusive jurisdiction over immigration matters.5
Orphans' Court Opinion, 3/7/2017, at 12. We agree with the orphans' court's analysis.5 In this context [Executrix] almost exclusively cites to federal cases, the majority of which involve prosecution by the United States government. See [Executrix's] Proposed Findings of Fact and Conclusions of Law as to Lakpa Sherpa's Unclean Hands and Void Marriage, pp. 42-44.
Contrary to the argument of Executrix, the orphans' court did not "pass" on the issue of whether Decedent and Sherpa committed marriage fraud under 8 U.S.C. § 1325(c). Rather, the orphans' court recognized it had no authority to question the federal immigration decision to allow Sherpa to enter this country as Decedent's wife. See Orphans' Court Opinion, 3/7/2017, at 3 (stating that that Sherpa was admitted as a lawful permanent resident "after going through the federal immigration process, which included a review of all of the relevant marriage documents").
The record discloses the following facts. In September, 2008, Decedent and Sherpa married in Katmandu, Nepal. On November 30, 2008, Decedent filed a United States Citizenship and Immigration Services (USCIS) form, "I-130, Petition for Alien Relative," for a visa for Sherpa, as his wife. On April 27, 2009, USCIS notified Decedent the petition was approved, and had been forwarded to the Department of State's National Visa Center (NVC) for completion of the visa processing steps. Thereafter, Sherpa was determined to be inadmissible under the Immigration and Nationality Act (INA), but not on the grounds that she was not a spouse. Sherpa filed for a waiver of grounds of inadmissibility, which was ultimately approved in May, 2013, and in January, 2014, she arrived and was admitted to the United States as Decedent's wife for lawful permanent residence.
See Exhibits E-32, "Immigration Papers," and E-33, "Approval Notice."
See 8 U.S.C. § 1101 et seq.
Executrix asked the orphans' court to conclude the marriage of Decedent and Sherpa was void as illegal in violation of 8 U.S.C. § 1325(c), regarding marriage fraud for the purpose of evading United States immigration laws. The orphans' court properly declined to do so.
Immigration is the subject of federal, not state, law. The INA allows citizens to file Form I-130 to petition for immediate relative status on behalf of their alien spouses so that the alien spouses may immigrate to the United States. See 8 U.S.C. § 1154(a)(1)(A)(i). The term "immediate relatives" includes the "children, spouses, and parents of a citizen of the United States." § 1151(b)(2)(A)(i). Here, USCIS approved the I-130 petition filed by Decedent for Sherpa, as his wife.
Section 1325(c), upon which Executrix relies, is a federal criminal provision, and Section 1329 expressly grants to United States district courts jurisdiction of "all causes brought by the United States that arise under the provisions of this title" and provides that "[i]t shall be the duty of the United States attorney of the proper district to prosecute every such suit when brought by the United States." 8 U.S.C. § 1329. To the extent that Executrix seeks to invalidate the Decedent and Sherpa's marriage on the basis of Section 1325(c), she is requesting the orphans' court to interfere with a "binding" decision of USCIS, and indirectly intrude into the jurisdiction of the federal court regarding a Section 1325(c) issue. See Ruiz v. Unemployment Comp. Bd. Of Review , supra , 911 A.2d at 603 (holding "where the USCIS denies or revokes an alien's work authorization, the determination is binding on the states and can be assailed only before a federal agency or in a federal court.").,
We note that "[t]his Court is not bound by decisions of the Commonwealth Court[,]" however, we may consider their decisions as persuasive authority when appropriate. Petow v. Warehime , 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (quotation omitted).
In Ruiz , the claimant sought unemployment benefits and contended the expiration of his green card did not render him legally unavailable for work during the period February 18 to March 18, 2006. The claimant argued that because he had applied twice to USCIS for renewal of his green card before it expired, he should not have been denied benefits available under Pennsylvania's Unemployment Compensation Law. Id., 911 A.2d at 603. The Ruiz Court found the USCIS determinations electing not to process two green card renewal requests filed by the claimant were " binding ." Id. at 605 (emphasis supplied). In addition, the claimant's green card automatically expired on February 2, 2006. Id . The Ruiz Court concluded the claimant was ineligible for unemployment compensation benefits because he "could not accept employment, and employers could not hire, recruit, or continue to employ him during the period he sought benefits." Id .
While we acknowledge the difficult facts of this case and that equity principles apply in orphans' court proceedings, we agree with the orphans' court that "ruling on this basis in the present case would infringe on the federal judiciary's exclusive jurisdiction over immigration matters." Orphans' Court Opinion, 3/7/2017, at 12. A determination that the marriage of Decedent and Sherpa was an illegal contract to circumvent immigration law would impermissibly make a finding that is strictly within federal jurisdiction.
In the event of further proceedings, the parties are directed to attach copies of the orphans' court's March 7, 2017, and May 26, 2017 opinions to this memorandum. --------
Judge Lazarus joins this memorandum.
Judge Platt files a dissenting memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/20/18
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