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PAUL G. ESTEP v. THELMA R. (SHARP) ESTEP (03/23/84)

filed: March 23, 1984.

PAUL G. ESTEP, APPELLANT,
v.
THELMA R. (SHARP) ESTEP



No. 1122 Pittsburgh, 1981, Appeal from an Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 7827 of 1980.

COUNSEL

Joseph F. Cassarino, Greensburg, for appellant.

P. Louis DeRose, III, Greensburg, for appellee.

Cercone, President Judge, and Spaeth and Hester, JJ. Hester, J., files a concurring and dissenting opinion.

Author: Cercone

[ 326 Pa. Super. Page 408]

The parties to this appeal were married on July 2, 1978 and separated in August 1980. Appellant-husband filed a complaint in divorce. On February 19, 1981, a hearing was held before a Master for purposes of determining the equitable distribution of marital property. Appellant filed exceptions to the Master's report. After argument, the court affirmed the report and incorporated it into an order of court. By order dated October 13, 1981 the parties were granted a divorce under § 201(c) of the Divorce Code of 1980, 23 P.S. § 101 et seq. and the court ordered the equitable distribution of the parties "marital property." The assets were divided as follows.

(1) That the proceeds of the Merrill, Lynch, Pierce, Fenner and Smith account of the parties shall be withdrawn by the parties and the proceeds applied to the mortgage or loan at Union National Bank, and any balance of the Merrill-Lynch Account shall be divided equally by the parties.

(2) The plaintiff husband shall have sixty days from the date of this decree within which to purchase the interest of the defendant wife in the residence property of the parties located at R.D. # 1, Irwin, Pennsylvania, for the

[ 326 Pa. Super. Page 409]

    sum of $27,500.00; in the event that plaintiff husband is unwilling or unable to purchase the wife's interest in said residence property within sixty days of the date of this decree, the property shall be advertised for thirty days and exposed to a public sale and the proceeds be divided equally by the parties.

(3) Each party shall retain those items of personal property in the possession of such party. In all other respects, the parties shall have no claim against each other for any other personal property.

(5) In the event plaintiff husband exercises his right to purchase the interest of the wife in the residence property of the parties, in accordance with paragraph two above, the plaintiff husband shall pay to the defendant wife, the sum of $55.00 the first month after the date of this decree, and $50.00 per month thereafter, until the sum of $1,555.00, representing defendant wife's one-half interest in the excess of the personal property withdrawn by the plaintiff husband, has been repaid to the plaintiff wife. In the event plaintiff husband does not exercise his right to purchase the wife's interest in the residence property of the parties and the residence is sold, the plaintiff husband's share of the proceeds shall be reduced by the sum of $1,555.00 and the same shall be added to the defendant wife's share of the proceeds of said sale.*fn1

The "Opinion and Decree" of the court below incorporated the various findings of fact made by the Master and discussed their relevance in light of the pertinent statutory factors to be considered pursuant to § 401(d) of the Code. Appellant being unhappy with the Master's apportionment as accepted by the court, has filed the current appeal presenting six issues.

Equitable distribution is within the discretion of the trial court and its decision will not be disturbed absent

[ 326 Pa. Super. Page 410]

    an abuse of that discretion. Kleinfelter v. Kleinfelter, 317 Pa. Superior Ct. 282, 463 A.2d 1196 (1983); Gee v. Gee, 314 Pa. Superior Ct. 31, 460 A.2d 358 (1983). In reviewing such we must keep in mind that the Master and the trial court were free to accept or reject the parties' testimony. Gee, 314 Pa. Superior Ct. at 34-5, 460 A.2d at 360. While we must give the fullest consideration to the Master's findings regarding credibility, we have a responsibility to make a complete and independent review of the record. Rorabaugh v. Rorabaugh, 302 Pa. Superior Ct. 1, 448 A.2d 64 (1982); Rollman v. Rollman, 280 Pa. Superior Ct. 344, 421 A.2d 755 (1980). Finding that the trial court included non-marital property in its order of equitable distribution, we believe the court abused its discretion and therefore we vacate its order. Before addressing appellant's complaints, a review of the statutory provisions controlling equitable distribution is necessary.

Section 401(d) requires a court in proceedings for divorce to resolve, upon request, the marital property rights of the parties. In resolving such, a court must consider 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.

(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.

[ 326 Pa. Super. Page 411]

(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 Code, § 401(e) defines "marital property" as "all property acquired by either party during the marriage" with the exception of:

(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.

(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.

(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.

(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.

(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.

(6) Veterans' benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958. Public Law 85-857, 72 Statute 1229,*fn2 as amended, except for those benefits received by a veteran where such veteran has waived a portion of his ...


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