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GERALD D. DECH v. JANET K. DECH (04/26/85)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 26, 1985.

GERALD D. DECH, APPELLANT,
v.
JANET K. DECH, APPELLEE. GERALD D. DECH, APPELLEE, V. JANET K. DECH, APPELLANT

NO. 00331 PHILADELPHIA 1984, Appeal from the Order entered on January 16, 1984, in the Court of Common Pleas of Northampton County, Civil Division, at No. 1982-C-1397. NO. 00478 PHILADELPHIA 1984, Appeal from the Order entered on January 16, 1984, in the Court of Common Pleas of Northampton County, Civil Division, at No. 1982-C-1397.

COUNSEL

William H. Agnew, Nazareth, for appellant (at 331) and appellee (at 478).

John R. Vivian, Jr., Easton, for appellant (at 478) and appellee (at 331).

Beck, Hester and Roberts, JJ.

Author: Beck

[ 342 Pa. Super. Page 19]

This is an appeal*fn1 from a trial court order denying the exceptions of appellant Gerald D. Dech and appellee/cross-appellant Janet K. Dech to a master's report and recommendations for equitable division and deferred distribution of marital property and for alimony payable to Mrs. Dech. We vacate in part and affirm in part.

In this appeal Mr. and Mrs. Dech question whether the trial court abused its discretion*fn2 in (1) dividing and deferring distribution of the parties' marital property; (2) awarding Mrs. Dech alimony before the entry of a divorce decree; (3) assessing each party's share of the costs; (4) requiring the parties to pay their respective counsel fees, and (5) finding the master's fees reasonable.

[ 342 Pa. Super. Page 20]

A brief factual history will facilitate resolution of the first two issues which we shall address in tandem. The parties were married on December 26, 1970, and separated on February 4, 1982, at which time Mr. Dech moved from the marital residence. On February 22, 1982, Mr. Dech filed a complaint in divorce which alleged an irretrievable breakdown in the parties' marital relationship and requested that the court enter a divorce decree and equitably divide and distribute the parties' marital property. On May 7, 1982, Mrs. Dech submitted an answer and counterclaim which averred that the parties might be reconciled through court-ordered marriage counseling and further sought alimony pendente lite, alimony, and equitable division and distribution of the parties' marital property.

A master was appointed on June 16, 1982, to evaluate the parties' property for the purposes of equitable division and distribution. On December 3, 1982, in response to Mrs. Dech's petition, the trial court expanded the master's function "to include the duty and power to make recommendations to the Court, in accordance with the Pennsylvania Rules of Civil Procedure."*fn3 Based upon the evidence received at two hearings, the master filed a comprehensive report (Pa.R.C.P. No. 1920.54) which principally advised that Mr. Dech received his non-vested pension benefits plus deferred distribution of forty percent of the sale price of the marital residence*fn4 and that Mrs. Dech receive deferred distribution of sixty percent of the sale price of the marital residence plus alimony until the sale of the marital residence.

After reviewing the parties' positions on the underlying divorce issue and the master's recommendations on alimony

[ 342 Pa. Super. Page 21]

    and equitable division and distribution of the parties' marital property, the trial court determined that in accordance with section 401(b) of the Divorce Code, 23 P.S. § 401(b), and Rule 1920.52(c), it was empowered to decide the alimony and property matters without first issuing a decree of divorce.*fn5 We disagree.

Section 301(a) of the Code, 23 P.S. § 301(a), states that a court shall ascertain and dispose of property rights between spouses and shall order alimony "in conjunction with any decree granting (emphasis added) a divorce or annulment." Similarly, section 401(b) declares that orders determining alimony and property interest between the parties shall be included in any "decree granting (emphasis added) a divorce or annulment." Alimony is defined in section 104 of the Code, 23 P.S. § 104, as an "order of support . . . in conjunction with a decree granting (emphasis added) a divorce or annulment." Additionally, section 401(j) of the Code, 23 P.S. § 401(j), explains that "[w]henever a decree . . . is granted (emphasis added) which nullifies or absolutely terminates . . . matrimony, any . . . property rights . . . dependent upon such matrimonial relation . . . are terminated." Finally, section 402 of the Code, 23 P.S. § 402, affords the parties freedom to dispose of their separate property "whenever a decree of annulment or divorce is decreed (emphasis added) by a court of competent jurisdiction." Construing together these provisions of the Code and attributing to them their plain meaning,*fn6 we conclude

[ 342 Pa. Super. Page 22]

    that although the Code permits bifurcated proceedings, the entry of a divorce decree is a Code prerequisite to an order for alimony or equitable division and distribution of marital property.*fn7

The statute is based on sound policy in mandating the entry of a divorce decree as a predicate to equitable distribution. If the parties decided to reconcile before the entry of decree, or if either or both parties die before the entry of decree, the premature distribution would convert property held by one or the other party or by the parties as joint tenants into individual ownership, thereby making it difficult, if not impossible, to place the estates in status quo ante. It would be like Humpty Dumpty. Once he fell, "all the kings horses and all the king's men, couldn't put Humpty Dumpty together again." Consequently, we vacate the trial court's order awarding alimony to Mrs. Dech and dividing and distributing the parties' marital property.

With respect to the parties' three remaining issues, we find that the trial court did not abuse its discretion. Mr. Dech argues that most of the costs associated with the resolution of the parties' dispute resulted from the expansion of the master's duties.*fn8 Since the master's duties were

[ 342 Pa. Super. Page 23]

    enlarged in response to Mrs. Dech's petition, Mr. Dech maintains that Mrs. Dech should pay a larger portion of the costs. However, inasmuch as both parties requested equitable division and distribution of their marital property and the major portion of the master's work related to the parties' property apportionment, Mr. and Mrs. Dech benefitted equally from the master's augmented capacity. Hence, we cannot say that the trial court abused its discretion in adopting the master's recommendation of the parties' even division of the costs.*fn9

Contrary to the trial court's decision to have the parties assume their own counsel fees, Mrs. Dech asserts that she is entitled to have reasonable counsel fees paid by Mr. Dech. The determination to award counsel fees is made on a case-by-case basis after an analysis of all relevant factors including the "husband's ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties . . . . The statute contemplates . . . the administration of fair and impartial justice by placing the parties on a par in defending their rights." Jack v. Jack, 253 Pa. Super. 538, 545-46, 385 A.2d 469, 473 (1978); Fried v. Fried, 326 Pa. Super. 271, 473 A.2d 1087 (1984). "Counsel fees are not to be awarded to either spouse automatically . . . . Actual need must be shown in order to justify an award . . . so that both parties are placed 'on a par' in defending their rights." Hoover v. Hoover, 288 Pa. Super. 159, 161-62, 431 A.2d 337, 338 (1981). In the present case, Mrs. Dech has not established actual need for payment of her counsel fees by Mr. Dech. The evidence of

[ 342 Pa. Super. Page 24]

    record shows that the parties have similar economic resources. Therefore, the trial court did not err in requiring each spouse to pay his own attorney's fees.

Finally,*fn10 Mr. Dech contests the reasonableness of the master's fees. Having reviewed the master's itemized bills, the master's comprehensive written report, and the transcripts of the master's hearings, we affirm the trial court's determination that the master's fees are reasonable in light of the "complex and prolonged nature" of the parties' litigation.

Accordingly, we vacate those portions of the trial court's order concerning alimony for Mrs. Dech and division and distribution of the parties' marital property and affirm those portions of the order concerning the payment of counsel fees and costs including the master's fee.


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