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RAYMOND F. KING v. ELEANOR F. KING (08/24/84)

filed: August 24, 1984.

RAYMOND F. KING, SR., APPELLANT,
v.
ELEANOR F. KING



No. 1166 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Erie County, Civil Division, at No. 453-A-1974.

COUNSEL

Frank Kroto, Jr., Erie, for appellant.

Donald W. Grieshober, Erie, for appellee.

Brosky, Olszewski and Johnson, JJ.

Author: Brosky

[ 332 Pa. Super. Page 529]

Appellant is the former husband of appellee. He contests the distribution of property ordered by the trial court in conjunction with the parties' divorce. Specifically he challenges the valuation of his pension plan, which was subject to equitable distribution, and what he claims was the failure of the trial court to take into consideration in making its distribution of marital property the fact that appellee had resided since the date of separation in the marital residence rent free.

Initially, though, appellant contends that another hearing should be conducted on the equitable distribution issue because of the failure of Judge Jiuliante to recuse himself from reviewing the Master's findings. Appellant concedes that after writing an opinion dated February 2, 1983, Judge Jiuliante did in fact recuse himself and another en banc panel reviewed the case. He argues, however, that this panel did not actually review the Master's findings but instead merely affirmed the previous order of Judge Jiuliante. We disagree.

The opinion of the court en banc issued on August 29, 1983 indicates that it relied not only on the previous opinion but also heard argument in July and considered the record made at the Master's hearing. The court wrote: "After careful review of the testimony presented at the Master's hearings, and with the benefit of the second en banc argument, we concur with the initial opinion of the court, and deny plaintiff's Motion for Reconsideration." While the August opinion did refer to Judge Jiuliante's previous opinion, we believe that the court en banc itself reviewed the evidence and we see no need for remand on this ground.

Turning to appellant's remaining claims, we note that we utilize an abuse of discretion standard of review in determining the propriety of property distribution. Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983). We will not usurp the trial court's duty as factfinder nor will we adopt

[ 332 Pa. Super. Page 530]

    guidelines or presumptions in addition to those set forth by the legislature. Ruth v. Ruth, supra.*fn1

Appellant's primary contention is that the trial court erred in valuing the pension fund as of January, 1981. Instead, he argues that it should have been valued as of the date of separation in October, 1973 or the date of the filing of the divorce complaint in 1974.

Appellee, on the other hand, believes that the valuation of the pension plan gave the husband credit for the increased value between the date of separation in 1973 and valuation date in 1981 and urges us to affirm.

We conclude that only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code.

We have based our decision on the terms of the Divorce Code which defines marital property as all property acquired by either party during the marriage with certain exceptions. See ...


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