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filed: July 1, 1983.




Richard P. Nuffort, Lancaster, for appellant.

John W. Beyer, Lancaster, for appellee.

Spaeth, Rowley and Cirillo, JJ. Spaeth, J., files a dissenting opinion.

Author: Cirillo

[ 316 Pa. Super. Page 284]

This is an appeal from an Order of the Court of Common Pleas of Lancaster County, dated September 30, 1981. The procedural history and facts relevant to the issues on appeal are as follows:

On July 9, 1980 the appellant, wife, instituted an action under the New Divorce Code, alleging that the marriage was irretrievably broken.*fn1 Subsequently, the appellee, husband, filed a consent to the entry of a divorce decree. On July 30, 1980 the wife filed additional claims for alimony, counsel fees, child support*fn2 and distribution of marital property under Section 401 of the Code.

A hearing was held before a Divorce Master on December 9, 1980 and the Master's Report was filed on March 13, 1981. The Master recommended, inter alia, that a consent divorce be granted, that alimony be awarded to the wife for a period of ten years, that the marital property be divided favorably to the wife, and that the wife's request for counsel fees be denied.

Exceptions to the Master's Report were filed by both parties and argued before the lower court. The divorce was granted since neither party objected and all of the necessary documents had been filed. However, the court modified the Master's recommendation by awarding to the wife the marital home, subject to a mortgage, as well as all

[ 316 Pa. Super. Page 285]

    furnishings and contents of the home determined to be marital property, one-half of the cash downpayment from investment properties, one-half of the income from investment properties, and one-half of the proceeds from the parties' 1979 income tax refund. The wife was also awarded alimony in the amount of $400.00 per month for a period of two years. The wife was denied counsel fees because, in the opinion of the lower court, she was provided with sufficient cash awards to pay her own counsel. The husband was awarded the property known as Deer Camp in Sullivan County, as well as one-half of the income from investment properties and one-half of the proceeds from the tax refund. The Master's other determinations concerning the parties' responsibility for respective bills and the disposition of personal property were affirmed by the lower court based upon the husband's superior present and anticipated future earning power. Thereafter, the wife filed this appeal.

Prior to the enactment of the New Pennsylvania Divorce Code,*fn3 the scope of appellate review concerning the award of alimony pendente lite, counsel fees and expenses was the "manifest abuse of discretion" test.*fn4 The New Divorce Code is silent on the matter of the scope of appellate court review. However, in the recent case of Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983), an en banc panel of this Court held that orders for alimony pendente lite, counsel fees and permanent alimony under the new Divorce Code should also be reviewed only for an abuse of discretion by the lower court. In deciding to adopt the abuse of discretion standard, the Court in Remick considered both the nature of the awards in question and

[ 316 Pa. Super. Page 286]

    their treatment under the prior divorce law.*fn5 In that case, this Court stated:

While this Court is very much concerned with orders affecting the property rights of the parties to a marriage or the support of the children from that union, our concern in those, essentially monetary judgments is not as paramount as it is with the decisions ruling on the status of the marriage or custody of the children. Under the new Divorce Code, orders for alimony pendente lite or counsel fees should continue to be reviewed on appeal under an abuse of discretion standard, inasmuch as the character of the remedy continues to remain unchanged. On the same reasoning, alimony orders under the Code should also be reviewed only for an abuse of discretion and not broadly, as is the actual decree in divorce. This approach is in keeping with both the case history developed under the prior law and within the aims of the Divorce Code. Id., 310 Pa. Superior at 30, 456 A.2d at 166.

In determining the propriety of property distribution awarded under the New Divorce Code, we likewise use the abuse of discretion standard of review. See: Gee v. Gee, 314 Pa. Super. 31, 460 A.2d 358 (1983). While an order distributing property is final and permanent and may very well have a decisive and lasting effect on the lives of the parties, it is essentially a monetary judgment of the type the Court in Remick decided should be reviewed for an abuse of discretion.

Under Section 102(a)(6), Legislative Findings and Intent, the Code states:

The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:

[ 316 Pa. Super. Page 287]

(6) Effectuate economic justice between parties who are divorced or separated and . . . insure a fair and just determination and settlement of their property rights.

Under the abuse of discretion standard, we are not to usurp the trial court's duty as finder of fact. Moreover, we do not choose to follow presumptions in the hope of achieving the legislature's goal of "economic justice". At oral argument in this case, a suggestion was made by counsel for the parties that this Court adopt "guidelines" or establish "presumptions" to be applied in deciding issues involving property rights under the Code. In view of the legislative guidelines which are set out forthwith, we see no need for this Court to enumerate additional criteria. Rather, we will carefully scrutinize each of the guidelines in determining whether or not the lower court has abused its discretion. This will assure that our review of proceedings under the New Divorce Code be appropriately assiduous.

The wife's first contention on appeal is that the division of marital property made by the lower court is inequitable. Guidelines for the distribution of marital property are set out in Section 401(d) of the New Divorce Code which provides:

In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:

(1) The length of the marriage.

(2) Any prior marriage of either party.

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

(4) The contribution by one party to the education, training, or increased earning power of the other party.

(5) The opportunity of each party for future acquisitions of capital assets and income.

[ 316 Pa. Super. Page 288]

(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.

(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

(8) The value of the property set apart to each party.

(9) The standard of living of the parties established during the marriage.

(10) The economic circumstances of each party at the time the division of property is to become effective.

The lower court found that the parties were married for almost 25 years and that neither was previously married. At the time of the hearing the wife was 43 years of age, in good health, had a high school education, and worked as a legal secretary for $140.00 per week. She also received $65.00 a week from the county for the care of a foster child and had no minor children living at home. The husband is a year older than the wife, is in good health, has a ninth grade education, and earns $33,000.00 per year as a salesman. During the marriage, the wife had always remained at home as a homemaker while the husband worked his way up from a laborer to a sales position.

In reviewing the record as found by the lower court, in light of the provisions of the New Divorce Code, we find that the distribution of marital property was indeed equitable, and therefore, the lower court did not abuse its discretion. The investment properties were the result of the joint efforts of the parties while they were married, and thus should be divided equally. Even though all of the children are emancipated, there would be less disruption in the family's life-style by awarding the house and all of the furniture to the wife. Likewise, it is appropriate that Deer Camp, with a net value of about $5600.00, be awarded to the husband since he would have a greater interest in this property than would the wife. Finally, due to the husband's greater earning capacity, he was properly given the

[ 316 Pa. Super. Page 289]

    responsibility for paying the greater amount of indebtedness left outstanding during the marriage. Therefore, we find this first ...

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