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filed: January 28, 1986.


Appeal from the Judgment entered March 15, 1985 in the Court of Common Pleas of Northampton County, Civil Division, at No. 1981-9984.


Mark Malkames, Allentown, for appellant.

Raymond J. DeRaymond, Easton, for appellee.

Spaeth, President Judge, and Hoffman and Hester, JJ.

Author: Hoffman

[ 349 Pa. Super. Page 527]

This is an appeal from the judgment of the lower court entered in accordance with the court's order and accompanying

[ 349 Pa. Super. Page 528]

    memorandum opinion of February 25, 1985. The order provided, inter alia, for the equitable distribution of the parties' marital property. For the following reasons, we vacate the judgment, affirm in part and reverse in part the court's order, and remand for further proceedings consistent with this opinion.

The parties married on February 1, 1947, (Master's Report at 3), and separated on July 4, 1980, (id. at 14). On November 5, 1981, appellee wife filed a complaint in divorce. Appellant husband answered, and, on December 22, 1981, the lower court appointed a special master to hear testimony and file a report with recommendations concerning the following claims: marital dissolution, equitable apportionment of marital property, permanent alimony, and counsel fees and costs. See Pa.R.Civ.P. 1920.51(a)(1). Hearings were scheduled and held from June 4, 1982, to January 19, 1984. On September 14, 1984, the master filed his report. See generally id. 1920.53, 1920.54. On September 24, 1984, both parties filed exceptions to the master's report. See id. 1920.55(a). After making several corrections to the master's report based on the parties' exceptions, the lower court decreased the total value of the marital estate from $233,758.10 to $204,758.10. The court did not, however, disturb the master's recommended division of the marital property; appellee was awarded a fifty-five percent share of the marital estate, and, to the extent each party's pension was marital property, each party was to share equally in the other's pension. This appeal followed.

Appellant raises four issues*fn1 challenging the lower court's award. We will not upset the trial court's equitable distribution award absent a clear abuse of discretion. Ruth v. Ruth, 316 Pa. Superior Ct. 282, 286, 462 A.2d 1351, 1353 (1983). Under this standard, we do not usurp the trial

[ 349 Pa. Super. Page 529]

    court's duty as fact finder.*fn2 Id., 316 Pa. Superior Ct. at 287, 462 A.2d at 1353. We do, however, "carefully scrutinize" each of the Divorce Code, 23 P.S. §§ 101-801, factors to be considered by a court when equitably distributing marital property, see id. § 401(d), in determining whether the court below abused its discretion.*fn3 Ruth v. Ruth, supra, 316 Pa. Superior Ct. at 287, 462 A.2d at 1353. Furthermore, "an abuse of discretion will be found by this court if the trial court failed to follow proper legal procedures or misapplied the law." Braderman v. Braderman, 339 Pa. Superior Ct. 185, 191, 488 A.2d 613, 615 (1985). With this standard of review in mind, we turn to appellant's contentions.

I. The 50/50 "Starting Point"

Appellant first contends that the master, relying on Paul W. v. Margaret W., 130 P.L.J. 6 (Ct.C.P. Allegheny County 1981), erred in stating that, in equitably distributing the marital property, "the starting point for considering all relevant factors should be an equal division of [the] marital property." (Master's Report at 6). Appellant cites Ruth v. Ruth, supra, for the proposition that, in view of the factors set forth in 23 P.S. § 401(d), there is no need to resort to a "presumptive starting point." We find that the master's use of a 50/50 starting point was proper.

In Paul W. v. Margaret W., the court held that an equal division of the marital property was the "only appropriate starting point" for equitably distributing the marital property. Paul W. v. Margaret W., supra at 8. We are persuaded by the court's rationale in adopting such a starting point. The court first noted that "there is no way to weigh the [§ 401(d)] factors against each other without a

[ 349 Pa. Super. Page 530]

    starting point at which to begin the weighing process." Id. In choosing an equal division of the marital property to be that starting point, the court noted the following: (1) if the § 401(d) factors favor neither party, any other distribution would not "insure a fair and just determination and settlement of [the parties'] property rights," 23 P.S. § 102(a)(6); (2) because historically property jointly owned by the parties was divided equally and the Divorce Code gives each party an interest in property acquired during the marriage, see id. § 401(f), the Legislature must have intended that the martial property be divided equally when consideration of the § 401(d) factors did not result in a distribution in favor of one of the parties; and (3) this starting point is consistent with the notion of marriage "as a shared enterprise or joint undertaking in which both parties contribute to the acquisition and preservation of marital assets" and where "full recognition is to be given to non-economic contributions." Paul W. v. Margaret W., supra at 8-9.

Appellant's reliance on Ruth v. Ruth, supra, is misplaced. There, in discussing our abuse of discretion standard of review in equitable distribution cases, we stated that

     we [would] not choose to follow presumptions in the hope of achieving the legislature's goal of "economic justice." At oral argument . . . a suggestion was made by counsel for the parties that this Court adopt "guidelines" or establish "presumptions" to be applied in deciding issues involving property rights under the [Divorce] Code. In view of the legislative guidelines ...

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