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CATHY J. BASTION (NOW CATHY J. WEST) v. ALLEN BASTION (02/24/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 24, 1984.

CATHY J. BASTION (NOW CATHY J. WEST), APPELLANT,
v.
ALLEN BASTION

No. 2524 PHILADELPHIA, 1983, Appeal from an Order in the Court of Common Pleas, Civil Division, of Bradford County, No. 127 July Term, 1977.

COUNSEL

John Kocsis, III, Athens, for appellant.

Emy Lore Franz, Sayre, for appellee.

Rowley, Hester and Roberts, JJ.

Author: Hester

[ 324 Pa. Super. Page 570]

On July 20, 1977, appellant Cathy J. Bastion, now Cathy West, filed a Complaint in Divorce under the old Divorce Law,*fn1 alleging indignities as grounds for the divorce. The new Divorce Code*fn2 took effect on July 1, 1980. A final decree in divorce was granted on September 29, 1980, and in December, 1982, appellant filed a Complaint in Partition. On August 1, 1983, nearly three years after the final divorce was granted, appellant filed an application to proceed under the Divorce Code with respect to equitable distribution. The application was denied by the lower court on September 7, 1983, and appeal was then taken to our Court. Appellant's sole argument is that since the divorce was granted after the effective date of the Divorce Code, the lower court erred in denying her application.

Section 103*fn3 of the Divorce Code provides that the Code does not apply to cases in which divorce or annulment decrees have been granted prior to the effective date of the Code. Since in the case before us the divorce decree was granted nearly three months after the Code took effect, § 103 itself would not seem to preclude appellant's petition. Furthermore, since § 103 provides that the provisions of the

[ 324 Pa. Super. Page 571]

Code do not affect any pending action, but provides that such action may be pursued either under prior law or under the Code "upon application granted," it would seem that appellant's application to proceed to equitable distribution under the Code was not necessarily improper. Nevertheless, relying upon dictum of our Court in Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683, 695 (1981), aff'd., 498 Pa. 570, 449 A.2d 1378 (1982),*fn4 the lower court found that it was precluded from granting the application. We agree with the lower court's ruling, although for different reasons.

Section 401(j) of the Code provides: "Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b)." (Emphasis added). When the divorce decree was granted with no specific reservation of property rights, under this section appellant lost any right to equitable distribution under the Code. If the lower court had granted appellant's application to proceed under the Code, appellant would still have been precluded by § 401(j) from proceeding to equitable distribution. We therefore find that the lower court properly denied appellant's application.

Order affirmed.


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