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BUTLER COUNTY v. BROCKER (01/24/74)

decided: January 24, 1974.

BUTLER COUNTY, APPELLANT,
v.
BROCKER



Appeals from order and decree of Court of Common Pleas of Butler County, Dec. T., 1970, No. 13, in case of County of Butler v. Robert J. Brocker and Sandra Lee Brocker, his wife.

COUNSEL

Lee C. McCandless, County Solicitor, for appellant.

John J. Klein, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Dissenting Opinion by Mr. Justice Manderino.

Author: Jones

[ 455 Pa. Page 344]

In these appeals Butler County seeks to set aside a conveyance of real property, located in Franklin Township, Butler County, by Dr. Robert J. Brocker to himself and his second wife as tenants by the entireties. It

[ 455 Pa. Page 345]

    is alleged that this conveyance is a fraudulent conveyance under the Uniform Fraudulent Conveyance Act.*fn1

The facts set forth in Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 513 (1969), are preliminary to this proceeding. Dr. Brocker and his first wife were divorced on October 15, 1964. The order granting the divorce incorporated a written agreement of the parties providing custody of their six children with the mother. On June 18, 1965, this order was amended by agreement of the parties, to provide the father with custody of the children during the summer vacation periods, commencing on the fifth day after the end of the spring school term and ending five days prior to the beginning of the fall term. On August 30, 1966, the mother filed a petition with the Butler County Court praying that Dr. Brocker be held in contempt for his failure to return the children to her on August 25, 1966, pursuant to the amended custody order.*fn2 When Dr. Brocker failed to show cause why he should not be held in contempt, the court entered a contempt order which assessed a $25,000 penalty against him payable to the County.*fn3 On appeal, we affirmed the propriety of that penalty.*fn4 It is by virtue of the money

[ 455 Pa. Page 346]

    judgment which resulted from the contempt order that Butler County has become involved in the present case.

Dr. Brocker married his present wife, in Ohio, two weeks after divorcing his first wife. They have resided there since that time.*fn5 On April 14, 1965, five and one-half months after he was remarried, Dr. Brocker purchased in his name alone 14.165 acres of land in Franklin Township, Butler County. There were no further conveyances of this property until August 22, 1966, when he conveyed this property to himself and his wife, thereby creating an estate by the entireties. This conveyance was for nominal consideration. Arguing that this conveyance was part of a plan designed to leave Dr. Brocker's assets in Pennsylvania insufficient to pay the anticipated penalty for the contempt which followed shortly thereafter, Butler County brought this action in equity, based on the Uniform Fraudulent Conveyance Act, to set aside the conveyance.*fn6 The Court of Common Pleas of Butler County dismissed the complaint and exceptions were dismissed by the court en banc.

The lower court dismissed the complaint on the grounds that because the County was not a judgment creditor at the time of the conveyance Section 354 of the Fraudulent Conveyance Act was not applicable*fn7 and that because the County failed in its burden ...


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