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WALTER EDWARD MILLER v. MARY C. MILLER (03/17/86)

filed: March 17, 1986.

WALTER EDWARD MILLER, JR., APPELLANT,
v.
MARY C. MILLER, APPELLEE. WALTER EDWARD MILLER, JR., APPELLEE, V. MARY C. MILLER, APPELLANT



Appeal from Orders of the Court of Common Pleas, Civil Division, of Clinton County, No. 606-83.

COUNSEL

Michael K. Hanna, Lock Haven, for appellant (at 130) and appellee (at 826).

Frederick D. Lingle, Lock Haven, for appellant (at 826) and appellee (at 130).

Wieand, Olszewski and Watkins, JJ.

Author: Wieand

[ 352 Pa. Super. Page 435]

The only novel issue to be decided in these cross-appeals from an order distributing marital property and awarding alimony, alimony pendente lite, counsel fees and costs is the

[ 352 Pa. Super. Page 436]

    meaning to be ascribed to the term "cohabitation" as used in section 507 of the Divorce Code of 1980.*fn1

Walter Edward Miller, Jr. (Husband) and Mary C. Miller (Wife) were married on September 30, 1950. They separated on August 10, 1980, and on August 29, 1983, Husband filed a complaint seeking a section 201(d)(1) divorce. Wife filed an answer and counterclaim requesting alimony, alimony pendente lite, counsel fees and costs. A bifurcated divorce decree was entered on September 23, 1983. On January 29, 1985, after both parties had filed exceptions to the report and recommendations of a master, the court entered an order directing Husband to pay alimony pendente lite at the rate of $64.00 per week from September 13, 1983 until January 29, 1985 and alimony at the same rate commencing February 1, 1985. The order distributed to Husband two pension funds, a freezer and several guns and to Wife the marital residence, a gravesite and all remaining personal property. The decree of equitable distribution also directed Husband to pay to Wife in cash the sum of $12,312.50. Finally, Husband was ordered to pay to Wife the sum of $3,386.81, being seventy-five percent of Wife's counsel fees. Both parties appealed.

Husband contends that following separation and continuing after divorce Wife cohabited with one Harold Geysler. This cohabitation, Husband argues, is a bar to an order to pay alimony and/or alimony pendente lite.

Section 507 of the Divorce Code*fn2 provides as follows:

No petitioner shall be entitled to receive any award of alimony where such petitioner has entered into cohabitation with a person of the opposite sex who is not a member of the petitioner's immediate family within the degrees of consanguinity ...


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