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J. A23027/01
2001 PA Super 256
BETSY J. GREEN
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
v.
::
ARLIN S. GREEN
::
APPEAL OF: DELVERDE CORPORATION
:
No. 3259 EDA 2000
BETSY J. GREEN
::
v.
::
ARLIN S. GREEN
:
:
APPEAL OF: ARLIN S. GREEN
:
No. 3263 EDA 2000
BETSY J. GREEN
:
:
v.
:
:
ARLIN S. GREEN
:
:
APPEAL OF: 1987 ARLIN S. GREEN TRUST
:
No. 3269 EDA 2000
Appeal from the Order October 30, 2000,
In the Court of Common Pleas of Montgomery County,
Civil Division at No. 96-18556.
BEFORE:
HUDOCK, STEVENS and POPOVICH, JJ.
***Petition for Reargument Filed 09/14/2001***
OPINION BY POPOVICH, J.:
Filed: August 31, 2001
***Petition for Reargument Denied 11/08/2001***
1
These appeals stem from the October 30, 2000, order of the Court of
Common Pleas, Montgomery County, which ordered Arlin Green (Father) to
pay Betsy Green (Mother) spousal support in the amount of $3,082.00 per

J. A23027/01
week and child support in the amount of $5,072.00 per week, plus $842.00
per week in arrears. Father, Delverde Corporation (Delverde) and the
Trustees of the Arlin S. Green Family Trust of 1987 (Trustees) filed appeals
alleging that the trial court lacked the jurisdiction over the 1987 Trust, erred
by refusing to adopt a prior order from Delaware County and erred in
determining that Father created the 1987 Trust. Upon review, we vacate the
trial court's order and remand for proceedings consistent with this opinion.
2
Father and Mother were married on October 13, 1985. The marriage
bore three children, Alison (d.o.b. 9/26/89), Samuel (d.o.b. 12/8/90) and
Michael (d.o.b. 7/6/94). Father and Mother separated in September of
1996, and Mother filed for divorce on October 22, 1996 in Montgomery
County. On October 29, 1996, Mother then sought support from Father for
herself and their three children. In response to Mother's support petition, on
December 4, 1996, the Montgomery County Domestic Relations Section filed
recommendations to which the parties filed exceptions and other related
documents. By agreement between the parties, the usual hearing before a
conference officer was bypassed, and a de novo trial on support commenced
on January 20, 1998. Hearings were held periodically over the next year
with the final hearing held on January 11, 1999.
3
On February 17, 1999, Mother petitioned the trial court to join the
Trustees as an additional defendant. The Trustees were joined on August
10, 1999.
- 2 -

J. A23027/01
4
By order dated August 25, 1999, the trial court ruled upon the parties'
exceptions to the Domestic Relations' recommendations and determined
their respective earning capacities. The trial court also stated, "Until such
time that the Delaware County Court of Common Pleas determines whether
the 1987 trust is income for purposes of support calculations, this Court shall
not consider the Trust as income."
5
On November 12, 1999, Mother petitioned the trial court to join
Delverde as an additional defendant. The trial court granted the petition,
and Delverde was joined on December 17, 1999.
6
While the divorce action was proceeding in Montgomery County, the
Trustees began an action in the Delaware County Orphans' Court. On
January 25, 1999, the Trustees initiated a proceeding in Delaware County to
determine as to whether 60 shares of stock in Superverde Holding Company,
a closely held corporation, were the property of the 1987 Trust created by
Father for the benefit of his spouse and children, or whether the 60 shares
were actually property of a 1952 trust created by Florence Green (Father's
mother), for the benefit of her children. On February 4, 2000, the Delaware
County court found that the assets held by the 1987 Trust belong to and are
part of the principal of the 1952 Trust created by Florence Green. Mother
then filed a motion for reconsideration. The Delaware Court denied the
motion, and Mother appealed at 1768 EDA 2000.
- 3 -

J. A23027/01
7
Also relating to the Delaware County action, Mother filed a petition
seeking an accounting of the 1952 Trust on February 24, 2000. The
Delaware Court granted Daniel Green's (Father's father) preliminary
objections on the basis that Mother lacked standing and was barred from re-
litigating the issue of which trust "owned" the Superverde stock. Mother
appealed at 1926 EDA 2000.
8
On June 25, 2001, this Court issued its decision relating to both of
Mother's appeals from Delaware County. Relating to the appeal at 1768 EDA
2000, we held that this Court lacked jurisdiction to hear the appeal because
it was untimely filed. As to the appeal at 1926 EDA 2000, we held that
Mother lacked standing to demand an accounting of the 1952 Trust. See In
re: Trust Under Deed of Arlin S. Green, 1768 EDA 2000 and 1926 EDA
2000, 2001 Pa. Super. 186 (6/25/2001).
9
While the appeals to the Delaware County action were pending before
this Court, the divorce action continued in Montgomery County. On
November 17, 1999, Mother petitioned the trial court to reopen the record to
reconsider the order dated August 25th. On January 24, 2000, the trial court
granted the petition. After further hearings, the trial court issued its support
order on October 30, 2000. The trial court, contrary to the ruling of the
Delaware County Orphans' Court and its previous order deferring to
Delaware County, found that Father funded and created the 1987 Trust, and,
therefore its assets were available to meet his support obligations. The
- 4 -

J. A23027/01
court found Father's earning capacity from all sources to be $509,465.00 per
month and Wife's earning capacity to be $2,153.00 per month. It directed
that Father pay to Mother spousal support in the amount of $3,082.00 per
week and child support in the amount of $5,072.00 per week. See Trial
Court Order, 10/30/2000, at 20.
10 Father filed a timely appeal of the support order at 3262 EDA 2000,
Delverde filed its timely appeal at 3259 EDA 2000 and the Trustees filed
their timely appeal at 3269 EDA 2000. These appeals were consolidated for
disposition, and the issues were limited to child support issues.1
11 Appellants present the following issues on appeal:
1.
Whether the trial court erred when it refused to apply the
doctrine of collateral estoppel?
2.
Whether the trial court erred when it found that it had
exclusive jurisdiction over the 1987 Trust for the purpose
of determining the availability of the 1987 Trust assets to
meet Father's child support obligations?
3.
Whether the trial court erred in finding that the 1987 Trust
was a grantor trust?
4.
Whether the trial court erred in determining Father's child
support obligations?

1 Mother filed a motion to quash those portions of the appeals that relate to
the issue of spousal support. This Court granted this motion to quash on
February 16, 2001, and permitted the appeals to proceed as to the issues
relating to child support. Cf. Hrinkevich v. Hrinkevich, 676 A.2d 273 (Pa.
Super. 1996) (orders dealing with child support are immediately appealable)
and Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996) (spousal support
orders are predominantly interlocutory).
- 5 -

J. A23027/01
Compiled from Father's Appellant Brief, at 4, Delverde's Appellant Brief, at 5
and the Trustees' Appellant Brief, at 4.
12 In reviewing a child support order, our standard of review is narrow:
we will not interfere with the trial court's order absent a clear abuse of
discretion, shown by clear and convincing evidence. Frankenfeld v.
Feeser, 672 A.2d, 1347, 1349 (Pa. Super. 1996). "An abuse of discretion is
more than an error of judgment. It must be a misapplication of the law or
an unreasonable exercise of judgment." Darby v. Darby, 686 A.2d 1346,
1348 (Pa. Super. 1996) (citations omitted). The fact-finder is entitled to
weigh the evidence presented and assess its credibility. See Calabrese v.
Calabrese, 682 A.2d 393, 395 (Pa. Super. 1996).
13 We will first address the appellants' issue regarding collateral estoppel.
The appellants assert that the trial court was barred by the doctrine of
collateral estoppel from determining that the assets of the 1987 Trust was
available to Father to pay his support obligation because of the Delaware
County Orphans' Court ruling on the same issue.
14 Collateral estoppel applies if (1) the issue decided in the prior case is
identical to one presented in the later case; (2) there was a final judgment
on the merits; (3) the party against whom the plea is asserted was a party
or in privity with a party in the prior case; (4) the party or person privy to
the party against whom the doctrine is asserted had a full and fair
opportunity to litigate the issue in the prior proceeding and (5) the
- 6 -

J. A23027/01
determination in the prior proceeding was essential to the judgment. See
Yamulla Trucking & Excavating Co. v. Justofin, 771 A.2d 782, 786 (Pa.
Super. 2001) (citations omitted), see also Murphy v. Duquesne
University of the Holy Ghost, 40 WPA 2000, 2001 Pa. LEXIS 1507
(7/17/2001), at *44 (holding that collateral estoppel applies when the issue
decided in the prior adjudication was identical with the one presented in the
later action; there was a final judgment on the merits; the party against
whom the plea is asserted was a party or in privity with a party to the prior
adjudication; and the party against whom it is asserted has had a full and
fair opportunity to litigate the issue in question in the prior adjudication).
15 The trial court found that collateral estoppel did not apply in the
present case. After first stating that it would not consider the 1987 Trust as
income until the Delaware County courts determined such, the trial court
reversed its position and ruled on the creation and funding of the 1987
Trust. The trial court stated that its initial reason for deferring resolution of
the trust issues to the Delaware County courts was because it was under the
mistaken idea that both parties agreed to resolve the issues according to the
decision of that court. See Trial Court Memorandum, 10/30/2000, at 11
note 2. The trial court continued and explained that the collateral estoppel
argument fails because none of the requisite elements are met. It reasoned:
First, there has been no re-litigation of any issue in the instant
action as the Delaware County action did not commence until
after the original de novo support proceedings before this Court
concluded in January 1999. Second, because Wife had timely
- 7 -

J. A23027/01
filed an appeal to the Delaware County Orphans' Court Decree of
February 4, 2000, and such appeal is pending, the February 4,
2000 decree is not final. Third, although Wife was a party to the
Delaware County action, she was not able to litigate against the
non-party, Daniel Green [Father's father and Trustee of the 1952
Trust], whose Motion for Summary Judgment was granted in
Delaware County by reason of the February 4, 2000 Order.
Fourth, due to the Delaware County Court's refusal to allow
discovery to be completed, Wife did not have a full and fair
opportunity to litigate the issue of funding of the 1952 Trust or
any other issue, in Delaware County.
Trial Court Memorandum, 10/30/2000, at 11-13 note 2.
16 We disagree with the trial court's reasoning and find that all five
conditions are present in this case.
17 The first and third elements of collateral estoppel are whether the
issue decided in the prior case is identical to the one presented in the later
case and whether the party against whom the plea is asserted was a party
to the prior adjudication. See Murphy, supra.
18 In the case at bar, we have the same litigants disputing the same
issue. In the Delaware County action, the Trustees filed a request for a
declaratory judgment as to the issue of whether Father funded the 1987
Trust.2 Mother filed objections. Several hearings on motions were
conducted but there were no evidentiary hearings on the merits of the
question of which trust, i.e., the 1952 Trust or the 1987 Trust, held the

2 The Trustees filed an accounting and proposed distribution of the 1987
Trust, but we noted that the filing was not an accounting but more in the
nature of a request for a declaratory judgment. See In re: Trust Under
Deed of Arlin S. Green, 1768 EDA 2000, at 4.
- 8 -

J. A23027/01
shares of stock. The Delaware County Court granted David Green's cross-
motion of summary judgment and held that the creation of the 1987 Trust
was authorized and funded by the 1952 Trust. Mother filed a motion for
reconsideration stating that evidence discovered during the Montgomery
County litigation refuted the Delaware County Court's findings. It denied the
motion, and Mother appealed at In re: Trust Under Deed of Arlin S.
Green, 1768 EDA 2000. Mother also filed a petition seeking an accounting
of the 1952 Trust. The Delaware County Court concluded that Mother lacked
standing to petition for an accounting and that she was barred by the
doctrine of collateral estoppel from re-litigating the issue of which trust
owned the stock. She also appealed this ruling at In re: Trust Under Deed
of Arlin S. Green, 1926 EDA 2000. We upheld the lower court's rulings.
See In re: Trust Under Deed of Arlin S. Green, 1768 EDA 2000 and
1926 EDA 2000, 2001 Pa. Super. 186 (6/25/2001). We found that her first
appeal was untimely pursuant to Pa.R.A.P. 903(a) and quashed the appeal,
see id., at 15, and we affirmed the lower court's finding that she lacked
standing to petition an accounting of the 1952 Trust pursuant to Rock v.
Pyle, 720 A.2d 137 (Pa. Super. 1998), see id., at 18.
19 In the case at bar, an issue before the trial court was whether Father
funded the 1987 Trust. The Delaware County Orphans' Court had previously
determined this identical issue. Mother, and the trial court, contend that the
Delaware County action was not a "prior" case because it commenced after
- 9 -

J. A23027/01
the Montgomery County case. However, we are not persuaded by this
argument. While we recognize that the Delaware County action did begin
after the Montgomery County action, we find that it was a prior case for
collateral estoppel purposes.
20 The divorce action in Montgomery County began when Mother filed a
divorce proceeding on October 22, 1996. While the trial court did hear
testimony regarding the 1987 Trust and did grant discovery requests
regarding the Trust, it did not assume jurisdiction over the Trust. Under
Pennsylvania law, the exclusive jurisdiction over an inter vivos trust, as the
1987 Trust was, is in the orphans' court of the county in which the trust is
located. See 20 Pa.C.S.A. 711(3) and 724(b)(1)(i). The Montgomery
County action was not conducted in the orphans' court division. Moreover,
Montgomery County did not exercise its jurisdiction over the trust until
August of 1999 when the Trustees were added to the divorce action as
additional defendants.
21 Delaware County assumed jurisdiction over the trust in January of
1999 when the Trustees commenced an action in its Orphans' Court to
determine whether Father had funded the 1987 Trust. We note that no
party contested Delaware County Court's jurisdiction over the 1987 Trust.
22 Because the Delaware County action began before the Montgomery
County Court of Common Pleas joined the Trustees as a party, we find that
the Delaware County action was a prior action for collateral estoppel
- 10 -

J. A23027/01
purposes. Additionally, Mother was a party to both the Delaware County
and Montgomery County actions. Therefore, the first and the third
conditions of collateral estoppel have been met.
23 The second and fifth conditions of collateral estoppel are whether there
was a final judgment on the merits in the prior proceeding and whether the
issue was essential to that judgment.
24 Mother, and the trial court, next argue that collateral estoppel did not
apply because the Delaware County Court's decree was on appeal to this
Court and thus not a final judgment. However, such an argument is
contrary to Pennsylvania law. A judgment is deemed final for purposes of
res judicata or collateral estoppel unless or until it is reversed on appeal.
See Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996). The Delaware
County Court's decree on appeal denied Mother's objections and motion for
summary judgment and found that the 1987 Trust was created and funded
from the 1952 Trust. Therefore, the Delaware County Court's decree is a
final judgment on the merits unless it is reversed on appeal. At the time the
trial court rendered its October 30th order, the Delaware County Court's
decree had not been reversed. Therefore, it was a final judgment on the
merits. Additionally, we note that we quashed that appeal from the
Delaware County Court's decree. See In re: Trust Under Deed of Arlin S.
Green, 1768 EDA 2000, at 15. The determination that the 1987 Trust
was funded and created from the 1952 Trust was essential to the Delaware
- 11 -

J. A23027/01
County Court's decree. Therefore, the second and fifth conditions of
collateral estoppel have been met.
25 The fourth condition of collateral estoppel is whether the party against
whom it is asserted had a full and fair opportunity to litigate the issue in
question. Mother, and the trial court, argue that the fourth condition of
collateral estoppel has not been met because she did not have a full and fair
opportunity to litigate the issue in the Delaware County action.
26 In the Delaware County action, Mother was a party to the action and
had an opportunity to conduct discovery and participate in the hearings. In
a legal tactical decision, Mother filed a motion for summary judgment. Rule
1035.2 permits a party to file a motion for summary judgment if no genuine
issue of material fact exists. See Pa.R.Civ.P. 1035.2. The Delaware County
Court denied Mother's motion and granted Daniel Green's cross-motion for
summary judgment. Mother participated in the motions for summary
judgment that declared that Father created and funded the 1987 Trust.
From our limited review of the Delaware County action, we find that Mother
previously had a full and fair opportunity to litigate the issue of the funding
of the 1987 Trust. Therefore, the fourth and final condition of collateral
estoppel has been met.3

3 Mother contends that Father and the Trustees concealed documents, thus
preventing her from having a full and fair opportunity to litigate. She now
argues that she should be permitted to re-litigate the issue before the
Montgomery County courts. However, issues relating to the Delaware
County Court's decree have been previously argued. In fact, Mother
- 12 -

J. A23027/01
27 Accordingly, we find that the trial court erred in finding that the
doctrine of collateral estoppel did not bar Mother from re-litigating the issue
as to whether Father funded the 1987 Trust.
28 Since we have found that the trial court was barred from finding that
the 1987 Trust could be used to pay Father's child support obligation, we
need not address the remaining issues on appeal. Therefore, we vacate the
trial court's support order dated October 30, 2000, as to child support and
remand for a recalculation of Father's earning capacity and child support
obligation.
29 Order vacated. Case remanded to trial court for proceedings
consistent with this opinion. Jurisdiction relinquished.

petitioned the Delaware County Orphans' Court to reconsider its ruling in
light of the "newly discovered" documents. However, it denied the request.
Mother then appealed to this Court in In re: Trust Under Deed of Arlin S.
Green, supra. We quashed the appeal as untimely and did not have
jurisdiction to address the issue of whether Father and the Trustees
concealed documents during discovery. Therefore, we will not revisit those
issues that we previously disposed of in the Delaware County appeals. See
id.
- 13 -

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