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argued: January 10, 1984.


No. 55 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Adams County at No. 80-S-329.


Grace D'Alo, Carlisle, for appellant.

Ronald J. Hagarman, Gettysburg, for appellee.

Wickersham, Del Sole and Montemuro, JJ.

Author: Wickersham

[ 330 Pa. Super. Page 155]

This is an appeal from the order of the Court of Common Pleas of Adams County dismissing, inter alia, appellant's exceptions and appellant's petition to open her divorce decree. We affirm in part and reverse in part.

Appellant is Lisa Keller, the ex-wife of appellee, Thomas Beamer.*fn1 The parties were married in August 1973, and separated six years later. Appellant filed for divorce under the now repealed Divorce Law on June 27, 1980. She was permitted by order dated September 9, 1980, to proceed under the new Divorce Code, 23 P.S. ยง 101 et seq. Both

[ 330 Pa. Super. Page 156]

    parties filed inventories pursuant to Pa.R.C.P. 1920.33 and the court appointed a Master to take testimony on the disputed marital property, both personal and realty.

Two hearings were held before the Master in February 1981. The majority of the testimony concerned the realty, a house situated on approximately one acre of land in Menallen Township, Adams County. Appellee contended that the realty was not marital property, but his property alone, acquired before the marriage; appellant took the opposite viewpoint. At the beginning of the first hearing, the parties entered into a stipulation concerning certain items of personal property*fn2 and after some discussion, the Master surmised that the sole subject matter before him concerned the real estate. (N.T. Master's Hearing, February 4, 1981, at 4-6). This realty was acquired by appellee, with some financial aid from his father, shortly before the marriage. Construction of the house was also begun before the marriage. After the marriage, construction of the house continued, and the parties lived in the house for about five years prior to separation. The real estate was at all times titled in the sole name of the appellee, while the three succeeding mortgage loans were taken in both parties' names. The fair market value of the real estate at the time of the Master's Hearing was found to be $59,500.00.*fn3

The Master filed his report on February 25, 1981. The report stated that the real estate distribution had been the sole matter before the Master, and therefore, he made no

[ 330 Pa. Super. Page 157]

    recommendations relating to the personal property. The Master recommended an equal distribution of the real estate, which resulted in a share of $10,182.42 for each party.*fn4 Appellee filed exceptions to the Master's report, but he eventually withdrew them. The parties were divorced on July 23, 1981, and on August 10, 1981, the lower court entered a decree adopting the Master's recommendations, including the above distribution of the real estate, and ordered appellee to pay costs. An amendment to this order was entered three (3) days later, which provided that appellant's interest in the real estate would cease upon payment to her of $10,182.42 by appellee. Judgment was entered on the order.

Thus matters stood for ten (10) months. Then two events occurred: the house was completely destroyed by a fire, and the Master grew impatient for appellee to pay his fee. On April 21, 1982, the Master petitioned the court to attach any insurance proceeds that appellee was to receive, and direct payment of such proceeds into the court. The court did so. Several days later, appellant, who by this point had acquired different counsel, filed a petition to open and an application for special relief. She argued that since the court had awarded her a one-half interest in the marital property, and since her ex-husband had not yet paid her any of her share, her interest in the real estate had not ceased, and therefore, she was entitled to one-half of the insurance proceeds, which exceeded the value set by the Master by a significant amount. She also raised an argument concerning the personal property which had been destroyed in the fire. The parties had orally agreed to divide the personal property equally between them. However, at appellee's

[ 330 Pa. Super. Page 158]

    request, appellant left her share of the personalty in the residence in order to encourage a sale of the home. Unfortunately, the furniture was destroyed along with the house; therefore, appellant avers that she is entitled to one-half of the insurance proceeds attributable to the personal property.

The lower court responded by issuing a rule upon appellee to show cause why he should not be required to pay one-half interest in the proceeds to appellant. The matter eventually resulted in hearings on June 8, 1982, September 17, 1982, and November 8, 1982. The result of these hearings was, inter alia, a dismissal of the petition to open. The Prothonotary was ordered to release $10,182.42 of the insurance proceeds to appellant, the balance going to the mortgage-holder banks, the Master, the Prothonotary, ...

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