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HARLIN TACKETT v. MARIE TACKETT (05/19/86)

filed: May 19, 1986.

HARLIN TACKETT, APPELLEE,
v.
MARIE TACKETT, APPELLANT, TRUSTEE, STEWART BARMEN



Appeal from the Order Entered March 5, 1984 in the Court of Common Pleas of Allegheny County, Family Division, at No. M-724 of 1979.

COUNSEL

Michael I. Markowitz, Pittsburgh, for appellant.

Diana F. Wilkins, Pittsburgh, for appellee.

Cavanaugh, Brosky and Watkins, JJ. Cavanaugh, J., files a concurring opinion.

Author: Watkins

[ 353 Pa. Super. Page 224]

This is an appeal from an Order entered March 5, 1984 in the Court of Common Pleas of Allegheny County dismissing appellant's exceptions and adopting a Decree Nisi as a final decree.

[ 353 Pa. Super. Page 225]

On September 25, 1979, appellee Harlin Tackett commenced an action in equity for the partition of real estate of a former husband and wife. Appellant-wife and appellee-husband were divorced pursuant to a divorce decree entered March 20, 1978. On September 5, 1980, the court below entered an order appointing a Trustee for the purpose of partition of the parties' marital residence. The court below ordered the sale of the property upon the Trustee's recommendation on May 7, 1982. Upon failure of the Trustee to conduct a private sale confined to the parties, the court below entered an Order on August 18, 1982, authorizing the Trustee to conduct a private sale not confined to the parties. By an order dated August 4, 1983, the sale of the property by the Trustee for the total price of $55,000.00 was approved. On January 30, 1984, the lower court entered a Decree Nisi approving the Trustee's Return of Sale and distributing proceeds of the sale in accordance with the Trustee's recommendations. On February 9, 1984, appellant-wife filed a Motion for Post-Trial Relief. On March 5, 1984, the court below entered an Order dismissing the exceptions of appellant and adopting and entering the Decree Nisi as the Final Decree. Timely appeal to this Court followed.

Appellant presents the following questions for our consideration: (1) Did the court below err in allowing appellee's claim for reimbursement for his costs of improving the marital residence? (2) Did the court below err when it allowed the deduction of an amount paid to satisfy a judgment against the appellant from the appellant's share of the proceeds of the partition sale even though a Decree of Divorce was not recorded in accordance with Pa.Stat.Ann.tit. 68 ยง 503 (Purdon 1984-1985)? (3) Did the court below err in failing to include certain court costs and interest in the sum to be paid to the appellant in satisfaction of a judgment held against the appellee?

The court below has adequately disposed of the first and second questions presented on appeal. Accordingly, we turn to the remaining question.

[ 353 Pa. Super. Page 226]

Appellant contends in her third issue that the court below erred in approving the Trustee's determination regarding the amount to be paid in satisfaction of a judgment against appellee held by appellant. The sum which the trustee decided should be paid did not include court costs outstanding from the underlying action (including the cost of a satisfaction of judgment certificate which appellant was required to secure by the terms of the trustee's "return of sale and schedule of distribution"). Additionally, appellant opposes the trustee's determination that no interest be paid on the amount of the judgment outstanding to her after November 30, 1983.

The court below recognized and we agree that denial of those costs was improper in light of the clear instruction of the statute (68 P.S.A. Section 503) to include costs when determining the amount to be deducted from ...


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