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DOMINICK PANGALLO v. MARY M. PANGALLO (05/18/84)

filed: May 18, 1984.

DOMINICK PANGALLO
v.
MARY M. PANGALLO, APPELLANT



No. 705 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Westmoreland County, Civil Division, at No. 8650 of 1979.

COUNSEL

Richard E. Myers, Greensburg, and Lois J. McKee, McKessport, for appellant.

Richard E. Myers, Greensburg, for appellee.

Brosky, Olszewski and Johnson, JJ.

Author: Brosky

[ 329 Pa. Super. Page 27]

In this appeal from a divorce decree appellant argues that the court erred in granting the divorce pursuant to Section 201(d)(1) of the Divorce Code*fn1 because, she contends, the parties had not lived separate and apart for three years. Mrs. Pangallo also contests the distribution of marital property ordered by the lower court. We affirm.

The parties were married in June, 1942. Since 1943 they have resided on farm property owned by them in Westmoreland County.

In 1979 Mr. Pangallo filed a divorce complaint under the former Pennsylvania Divorce Law.*fn2 After the enactment of the Divorce Code, however, he amended the complaint to seek a divorce pursuant to Section 201(d) of the Code which provides:

(d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:

(i) the respondent does not deny the allegations set forth in the affidavit; or

[ 329 Pa. Super. Page 28]

(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

23 P.S. ยง 201(d).

Appellant did not contest that the parties' marriage is irretrievably broken, but she disputed the allegation that they have been separated since 1977 and sought alimony, alimony pendente lite, counsel fees and equitable division of the marital property.

A hearing was held before a master at which evidence was presented both as to grounds for divorce and as to the parties' financial situation. The master found the following facts relevant to the grounds for divorce.

Mr. and Mrs. Pangallo resided on property owned by them on which is situated a house, barn, garage, trailer and several outbuildings. At the time of the hearing the property comprised approximately 112 acres, one acre having been given to each of the couple's three children.

Since 1975 the parties have not engaged in sexual relations. The record indicates that at that time they began to use separate bedrooms.

In the fall of 1977 Mrs. Pangallo left the farm house and went to live for a period of time at the couple's daughter's house, which is located on the acre which had been part of the farm property. Mr. Pangallo continued to reside in the house to which Mrs. Pangallo would return from time to time.

It was Mr. Pangallo's testimony that when his wife would spend a night in the home, he would sleep at his son's residence, also on property which was part of the farm.

Apparently, this pattern continued from the fall of 1977 to January 1981 at which time Mrs. Pangallo returned to the residence. Mr. Pangallo testified that he spent the nights in that period at his son's home, that he and his wife were in their home at the same time for only brief periods

[ 329 Pa. Super. Page 29]

    during the day, and that after 1977 they did not socialize together, eat together or speak, except to argue.

Mrs. Pangallo's testimony did not dispute that of her husband as to their sleeping arrangements or lack of communication, although she did say that she did not consider that she was separated from him until October, 1981 when she again went to live with their daughter. Mrs. Pangallo stated that she took care of the couple's ...


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