No. 166 Harrisburg 1983, No. 180 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Cumberland County at No. 1815 Civil 1981.
Jordan D. Cunningham, Harrisburg, for appellant (at No. 166) for appellee (at No. 180).
Theodore B. Smith, III, Carlisle, for appellant (at No. 180) for appellee (at No. 116).
Wickersham, Wieand and Hester, JJ. Wieand, J., files a concurring opinion.
[ 343 Pa. Super. Page 235]
This appeal and cross-appeal result from an order of the Court of Common Pleas of Cumberland County divorcing the parties, distributing their property, and granting alimony to wife.
Ronald Barnhart [hereinafter "husband"] and Alma Barnhart [hereinafter "wife"] were married on February 16, 1960 and were separated on June 26, 1979, when husband left the marital home. On April 28, 1981, husband filed a divorce complaint, in which he requested the equitable distribution of their property. On May 7, 1981, wife filed an answer and counterclaim seeking alimony pendente lite,
[ 343 Pa. Super. Page 236]
counsel fees, costs and expenses, and alimony. Following a hearing on April 23, 1982, the Honorable Harold E. Sheely entered an order in favor of wife for alimony pendente lite and counsel fees. A master's hearing was held on June 9, 1982. The master filed her report on August 9, 1982, to which wife filed exceptions. Following argument before the court en banc, the Honorable George E. Hoffer issued an order and opinion partially granting and partially denying wife's exceptions. Husband now appeals from that order and wife cross-appeals.*fn1 Husband questions the grant of alimony to wife; wife questions the court's failure to include husband's pension as marital property; and both parties question the division of the marital home. Neither party disputes the granting of the divorce itself.
First, both parties, for different reasons, are unhappy with the lower court's equitable distribution of the marital home. The master and the lower court both found that, by an oral agreement at the time of separation, husband agreed to relinquish his rights and interest in the marital residence in return for his wife's promise never to proceed against him for support.*fn2 In accordance with this agreement, husband conveyed his interest in the home by deed in July 1979, and wife withdrew her pending claim for support shortly thereafter. When making this agreement, the parties did not speak directly to each other, but used an intermediary, Claire Swauger, wife's son from a previous marriage, who testified to the circumstances of the agreement.
[ 343 Pa. Super. Page 237]
The lower court found that the property distribution agreement between the parties in July or August 1979 was well supported by the evidence. Wife had little choice but to accept the home and she lost nothing by her promise not to proceed with a support action against her unemployed husband. The master recommended that the transfer of marital assets pursuant to the separation agreement be approved by the court as an equitable distribution of marital property. The court disagreed, however. In September 1980, husband returned to work and because wife was experiencing serious financial difficulties, she began a new support action in October 1980, which eventually resulted in a bi-weekly support order being entered against husband. The lower court found that by successfully prosecuting a support action, wife abrogated the distribution agreement. As a result, the marital home returned to the status of marital property, which the court then distributed to the parties as tenants in common, with exclusive possession in wife for as long as she shall live there. If wife decides to sell the home, the proceeds are to be divided equally between the parties.
In determining the propriety of property distribution and of alimony, we use the abuse of discretion standard of review. Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983); Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983). Under this standard, we do not usurp the hearing court's duty as fact finder. Rather we apply the legislative guidelines of the ...