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A. HARLENE MAYHUE v. FRED E. MAYHUE (12/07/84)

filed: December 7, 1984.

A. HARLENE MAYHUE
v.
FRED E. MAYHUE, APPELLANT. A. HARLENE MAYHUE V. FRED E. MAYHUE. APPEAL OF AMAYCO ENVIRONMENTAL SERVICES INC., INTERVENOR IN THIS CASE. A. HARLENE MAYHUE V. FRED E. MAYHUE, APPELLANT. A. HARLENE MAYHUE V. FRED E. MAYHUE. APPEAL OF AMAYCO ENVIRONMENTAL SERVICES INC.



No. 1373 Pittsburgh, 1982, No. 1374 Pittsburgh, 1982, No. 207 Pittsburgh, 1983, No. 353 Pittsburgh, 1983, Appeal from the Orders in the Court of Common Pleas of Beaver County, Civil Division, No. 1600 of 1981

COUNSEL

Joseph M. Wymard, Pittsburgh, for appellant (at Nos. 1373 & 207) and appellee (at Nos. 1374 & 353).

Stanley P. DeGory, Pittsburgh, for appellant (at Nos. 1374 & 353) and for participating party (at No. 1373 & 207).

Tamilia, Johnson and Montgomery, JJ.

Author: Tamilia

[ 336 Pa. Super. Page 190]

The sole question presented by this appeal is whether the lower court abused its equitable powers in appointing a trustee to manage Amayco Environmental Services, Inc. in order to prevent the fraudulent misappropriation of the marital property of A. Harlene Mayhue by Fred E. Mayhue? This question arises as a result of the divorce action filed by Mrs. Mayhue on August 5, 1981, whereby she sought an injunction and appointment of a trustee in receivership in order to preserve such property. The lower court held that it was necessary to appoint a trustee in receivership to preserve the status quo for marital property since

[ 336 Pa. Super. Page 191]

    the record clearly disclosed that Mr. Mayhue had been appropriating money from a business in which both he and his wife had been involved. We affirm.

The evidence establishes that prior to the separation of the parties, they operated a residential sewer cleaning business under the name of E.L. Mayhue and Son. At or about the time the parties separated, the appellant, Fred E. Mayhue, withdrew in excess of $60,000 from the business accounts of E.L. Mayhue and Son and deposited said sum in an account in his own name. Additionally, appellant took checks and other business records from E.L. Mayhue and Son. This action prompted appellee to file the original petition for an injunction under the Divorce Code on August 5, 1981.

Before the parties separated, the appellant also operated a commercial and industrial sewer cleaning business under the name of Amayco Environmental Services, Inc. Appellant contends that this business was owned in partnership by himself and a third party, Howard Stuber. However, the lower court concluded that this partnership was merely a pretext for the following reasons: (1) the fictitious name of the business was registered solely in Mr. Mayhue's name; (2) Mr. Stuber was not empowered to sign checks for the alleged partnership; (3) no partnership tax return was filed as Mr. Mayhue elected to be taxed on wages from Amayco Environmental Services, Inc.; (4) Amayco operated out of the same building as E.L. Mayhue and Son, which was owned by Mr. and Mrs. Mayhue as tenants by the entirety; (5) Amayco leased vehicles and other equipment of E.L. Mayhue and Son; and (6) the employees of Amayco were covered by the same workman's compensation and unemployment policies as E.L. Mayhue and Son. Lease payments from Amayco to E.L. Mayhue and Son ceased following the filing of the divorce action and from then on were paid directly to Mr. Mayhue. Subsequently, Mr. Mayhue was held in contempt for failing to comply with several orders of the court directing him to turn over the titles to the vehicles leased by Amayco. Shortly following the petition

[ 336 Pa. Super. Page 192]

    for divorce, Amayco was incorporated by Mr. Mayhue and Mr. Stuber, holding 60 per cent and 40 per cent interests respectively.

In October of 1981, the lower court entered the original order which appointed a trustee over the business. Because Mr. Mayhue has repeatedly dishonored this order, he has ...


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