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DOMINIC DEPAUL v. HELEN B. DEPAUL (05/15/81)

filed: May 15, 1981.

DOMINIC DEPAUL, APPELLANT,
v.
HELEN B. DEPAUL, A/K/A HELEN B. KINSEY



No. 1255 October Term, 1979, APPEAL FROM FINAL DECREE IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL DIVISION, EQUITY, No. 76-11909

COUNSEL

Joel S. Robbins, Brookhaven, for appellant.

August T. Groover, Media, for appellee.

Spaeth, Cavanaugh and O'Kicki,*fn* JJ.

Author: O'kicki

[ 287 Pa. Super. Page 246]

This appeal arises from the Final Decree in Equity in which Appellant's Exceptions to the Adjudication and Decree Nisi were dismissed by the court en banc, refusing to impose a constructive trust in favor of Dominic DePaul, Plaintiff and Appellant.

Two issues are present in this appeal. Disposition of the first issue is determinative of the second. The first issue is whether or not the record and evidence presented supports the imposition of a constructive trust in favor of DePaul. The ancillary issue is: if a constructive trust exists between the parties, should there be a court ordered partition of the real estate in question.

In Vento v. Vento, 256 Pa. Super. 91, 389 A.2d 615 (1978), the Superior Court set forth the reviewing criteria to be applied in the instant case.

"In reviewing an equity decree, the chancellor's findings of fact, supported by competent evidence, have the weight of a jury verdict. (citation omitted). '"The test in either case is whether the findings are adequately supported by the record. The chancellor's findings are entitled to particular weight in a case in which the credibility of the

[ 287 Pa. Super. Page 247]

    witnesses must be carefully evaluated, because he has had the opportunity to hear them and observe their demeanor on the stand."'" (citations omitted).

From a review of the record, neither the chancellor nor the court en banc have abused their discretion. Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966).

The lower court found that Appellee, (Kinsey) had owned real property at 612 Magnolia Avenue, Aldan, Delaware County, Pennsylvania. DePaul purchased, for $300.00, an option to buy land at 118 South Elm Avenue, Aldan, Delaware County, Pennsylvania. (Hereinafter referred to as 612 and 118). Kinsey, with DePaul's consent, exercised the option on 118 with a down payment of $1,000.00, from her personal funds. Kinsey completed the purchase and had 118 deeded in her name as an unmarried woman. The house at 612 was sold. Documents of this transaction were executed in the names of Dominic DePaul and Helen Kinsey DePaul, even though they were not lawfully married at the time of sale. Kinsey entered into a construction agreement and, using the proceeds of the 612 sale along with a mortgage she obtained in her own name as an unmarried woman, constructed a house at 118. Both parties and their families helped with the construction and furnishing of 118. DePaul's veteran's pension check and Kinsey's employment income were ...


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