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JOSEPH A. FLYNN v. MARY FLYNN (03/29/85)

filed: March 29, 1985.

JOSEPH A. FLYNN
v.
MARY FLYNN, APPELLANT



No. 03619 Philadelphia 82, APPEAL FROM THE ORDER ENTERED NOVEMBER 23, 1982 IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, CIVIL NO. 80-CIVIL-107.

COUNSEL

Armand E. Olivetti, Scranton, for appellant.

Amil M. Minora, Assistant District Attorney, Scranton, for appellee.

Cirillo, Beck and Johnson, JJ. Beck, J., files a concurring and dissenting opinion.

Author: Cirillo

[ 341 Pa. Super. Page 78]

This is an appeal from an order of the Court of Common Pleas of Lackawanna County entered November 23, 1982, granting a decree in divorce and an award of temporary alimony. The appellant, Mary Flynn, requests that the

[ 341 Pa. Super. Page 79]

    divorce decree be reversed and that her award of alimony be vacated and remanded for additional consideration.

On January 22, 1981, the appellee, Joseph Flynn, filed a complaint for divorce based upon indignities and irreconcilable differences, which was subsequently amended in May. A supplemental complaint was filed under section 201(d) of the Divorce Code,*fn1 alleging that the marriage was irretrievably broken and that the parties have lived separate and apart for a period in excess of three years. The appellant filed an answer and counterclaim, denying the aforementioned allegations and requesting that the court issue an order awarding alimony, child support, and the equitable distribution of all marital property.

The matter was assigned to a master who, after having conducted a hearing, concluded that a divorce should be granted and that temporary alimony in the amount of $150 per month for twelve months be awarded to the appellant. On November 23, 1982, the Honorable James M. Munley issued an order adopting the master's recommendation of the divorce decree, but modifying the award of temporary alimony. Alimony payments were extended for a period of twenty-four months at $75 per month, in lieu of assigning a value to the appellee's pension fund as part of the marital property. This appeal followed.

On appeal, the appellant contends that the circumstances attendant to her living arrangement in the same household with her husband do not meet the requirements of "separate and apart" of Section 201(d), thereby invalidating the ground upon which the divorce decree was granted. She also contests the method by which the value of her husband's pension interest was allocated and the amount of the award of alimony as materially insufficient and unsupported by evidence.

In the review of a divorce case, it is the responsibility of the Superior Court to make a de novo evaluation of the record and to determine independently of the master and of

[ 341 Pa. Super. Page 80]

    the hearing court whether a legal cause of action exists. Vajda v. Vajda, 337 Pa. Super. 573, 487 A.2d 409 (1985); Jones v. Jones, 311 Pa. Super. 407, 457 A.2d 951 (1983). Since the divorce in the matter before us was based upon Section 201(d) of the Divorce Code, we must apply that provision to the facts at hand.

Section 201(d) of the Divorce Code provides in pertinent part:

(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

(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.

The operative language "separate and apart" is defined as the "complete cessation of any and all cohabitation". 23 P.S. § 104. The term "cohabitation", however, is not defined in the Code.

In Thomas v. Thomas, 335 Pa. Super. 41, 483 A.2d 945 (1984), we recently addressed the issue of the definition of cohabitation:

"[C]ohabitation" means the mutual assumption of those rights and duties attendant to the relationship of husband and wife. The ties that bind two individuals in a marital relationship involve more than sexual intercourse. Thus, we find that instances of sexual relations during a separation period do not, without more, defeat a claim that the parties have lived separate and apart for purposes of Section 201(d).

Id., 335 Pa. Superior Ct. at 47, 483 A.2d at 948. This definition "reflects the public policy of this Commonwealth as declared in the legislative findings and intent outlines in Section 102 of the Divorce Code. Section 102 states that the legislature intended to '[e]ncourage and effect reconciliation

[ 341 Pa. Super. Page 81]

    and settlement of differences between spouses . . .'." Id.

Thus, the gravamen of the phrase "separate and apart" becomes the existence of separate lives not separate roofs. See, e.g., Meyerl v. Meyerl, 21 Pa.D. & C.3d 729 (Allegheny Co., 1981); Amelio v. Amelio, 18 Pa.D & C.3d 673 (Lehigh Co., 1981). This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart in order to establish entitlement to support. Wechsler v. Wechsler, 242 Pa. Super. 356, 363 A.2d 1307 (1976); Commonwealth ex rel. DiPadova v. DiPadova, 223 Pa. Super. 403, 302 A.2d 510 (1973). It additionally considers the economic hardship imposed in requiring parties to occupy separate households in order to dissolve their marriage under Section 201(d) and the realities of a marital relationship as extending beyond joint residency. 23 P.S. § 102(a)(1). Cf. Pangallo v. Pangallo, 329 Pa. Super. 25, 477 A.2d 885 (1984).

In the instant matter, it is evident that the parties, though living under the same roof but in separate parts of the house, have ceased all marital relations for a period in excess of three years. Therefore, we find that the parties have met the requirements of "separate and apart" under the Divorce Code. The decree of divorce is affirmed.

Appellant next contends that the interest of her husband's pension is improperly allocated and further that the award of alimony is materially insufficient and unsupported by evidence. In determining the propriety of property distribution and of alimony, this Court in Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983), applied the abuse of discretion standard:

Under the abuse of discretion standard, we are not to usurp the trial court's duty as finder of fact. Moreover, we do not choose to follow presumptions in the hope of achieving the legislature's goal of "economic justice". At oral argument in this case, a suggestion was made by counsel for the parties that this Court adopt "guidelines" or establish "presumptions" to be applied in deciding

[ 341 Pa. Super. Page 82]

    issues involving property rights under the Code. In view of the legislative guidelines which are set out forthwith, we see no need for this Court to enumerate additional criteria. Rather, we will carefully scrutinize each of the guidelines in determining whether or not the lower court has abused its discretion. This will ...


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