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MARJORIE M. GEE v. CLARK M. GEE (03/03/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: March 3, 1983.

MARJORIE M. GEE
v.
CLARK M. GEE, APPELLANT

No. 838 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Tioga County, Civil Division, at No. 295 Family Section 1980.

COUNSEL

William A. Hebe, Wellsboro, for appellant.

John A. Felix, Williamsport, for appellee.

Cavanaugh, Wieand and Hoffman, JJ.

Author: Hoffman

[ 314 Pa. Super. Page 33]

Appellant contends that the lower court erred in declaring certain items "marital property" under the Divorce Code,*fn1 and in accepting the master's unsupported estimate of the fair market rental value of the parties' real property. We disagree and, accordingly, affirm the order of the lower court.

The parties married in July, 1961 and separated in November, 1978. Appellee was granted a divorce on grounds of indignities on July 29, 1980 and her petition for equitable distribution of property was referred to a master. After a hearing and the filing of the master's report and appellant's exceptions, the lower court accepted the master's findings and recommendations and ordered that all marital property be equally divided and that appellant pay appellee one-half the estimated fair market rental value of the marital home and farmland for each month he resided there after she left. This appeal followed.

Appellant contends first that the lower court erred in designating certain property as "marital property." Section 401(e) of the Divorce Code provides:

All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually

[ 314 Pa. Super. Page 34]

    or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by showing that the property was acquired by a method listed in subsection (e).

23 P.S. § 401(f); Platek v. Platek, 309 Pa. Superior Ct. 16, 21, 454 A.2d 1059, 1061 (1982). Appellant argues specifically that appellee had not met her burden of establishing that the cattle on the property was acquired during the marriage. The record belies this contention. Appellee testified that any cattle owned by appellant prior to the marriage had been sold shortly thereafter and that the parties "didn't get into the beef cattle business for a few years later." (N.T. October 9, 1981 at 18). Moreover, she testified that some of the cattle had been paid for with monies from the parties' joint checking account, while others had been given to appellant by his father in lieu of wages for work performed during the marriage. She estimated that there were approximately 90 head left on the property when she departed. We are satisfied that appellee has shown that the 35 head of cattle, two heifers and one bull on the property at the time of appraisal were acquired during the marriage, thus triggering the marital property presumption. Appellant has failed to offer sufficient evidence to overcome the presumption and, therefore, the lower court did not err in holding the animals subject to equitable distribution.

Appellant contends next that the parties' bedroom set was not marital property because it had been given to him by his grandmother. See 23 P.S. § 401(e)(3) ("Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage" excluded from marital property). Appellee, however, testified that they had received the furniture during their marriage as a joint gift and had refinished it at their own expense. (N.T. October 9, 1981 at 13). The master and lower court were free to accept appellee's testimony and reject appellant's contention.

[ 314 Pa. Super. Page 35]

Accordingly, the lower court did not err in finding the joint gift marital property subject to equitable distribution.

Appellant contends finally that the lower court erred in accepting the master's unsupported appraisal of the fair market rental value of the parties' residence and farmland.*fn2 The equitable distribution of marital property is within the sound discretion and judgment of the lower court and its decisions shall not be disturbed on appeal absent an abuse of that discretion. See 23 P.S. § 401(d); Bacchetta v. Bacchetta, 498 Pa. 227, 234, 445 A.2d 1194, 1198 (1982). Accord, Remick v. Remick, 310 Pa. Superior Ct. 23, 456 A.2d 163 (1983) (monetary decisions such as alimony, alimony pendente lite, and counsel fees reviewed under abuse of discretion standard). Here, the master's estimate, upon which the lower court based its order, relied upon the appraisal report stipulated to by the parties (N.T. October 9, 1981 at 6) and the master's own knowledge of the rental values in the county. The appraisal report estimated the monthly rent of the parties' house at $200. This figure, however, did not include the parties' 132 acres that appellant continued to farm, or the $15,000 barn located on the farm land. The record adequately supports the master's estimate of a fair market rental value of at least $300 per month and thus, the lower court did not abuse its discretion in fixing the award at that amount. Accordingly, we affirm the order of the lower court.

Affirmed.


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