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PHILLIP MARINELLO v. KARIN MARINELLO (06/09/86)

filed: June 9, 1986.

PHILLIP MARINELLO, APPELLANT
v.
KARIN MARINELLO



Appeal from the Order in the Court of Common Pleas of Allegheny County, Family Division, No. 83 April, 1980.

COUNSEL

Sallie A. Radick, Pittsburgh, for appellant.

Spaeth,*fn* Brosky, Rowley, Wieand, McEwen, Cirillo, Olszewski, Montemuro and Tamilia, JJ. Wieand, J., filed a concurring opinion which was joined by Rowley and McEwen, JJ. Brosky, J., files a concurring opinion.

Author: Tamilia

[ 354 Pa. Super. Page 474]

This is an appeal from an order dismissing appellant's exceptions to a decree of equitable distribution subsequent to divorce.*fn1 A brief chronology of crucial events is in order.

On January 1, 1980, appellant/husband filed a complaint in divorce in Allegheny County alleging indignities. Appellee's answer of February 1st sought dismissal. In October appellant commenced an action for partition of entireties property by filing his complaint in Westmoreland County. Three weeks later appellee filed a petition with the Allegheny County court to proceed under the new Divorce Code, and was allowed to amend her answer to the complaint to include a request for equitable distribution. Two years later, appellant petitioned the Allegheny County Court to amend his complaint to conform to the Divorce Code. Appellee's answer again requested equitable distribution. In October of 1982, a hearing was held by a Westmoreland County Master on the partition action which is still unresolved as of this writing. In February 1983, after a hearing in the Allegheny County Court of Common Pleas, a divorce was granted and the distribution Order underlying this appeal issued.

The parties had been married on July 17, 1976. For the nine years prior to that time appellee had leased at nominal rental a house owned by her grandmother. The parties resided there together before the marriage, and for approximately one year afterward. Three months after the wedding appellee's grandmother deeded the property to her daughter, appellee's mother, who then, with her husband, transferred it to the parties. One year after the transfer

[ 354 Pa. Super. Page 475]

    the house was sold, and the proceeds used as a down payment on the marital residence which forms the major object of the partition action. The parties lived in that house until appellant removed himself by mutual agreement in October 1979. In June of the same year, appellant ceased all contributions to maintenance of or payment for the house.

Appellant has presented us with three issues. The first challenges the jurisdiction of the Allegheny County court over the subject matter of the distribution Order; the second and third claim error in the court's treatment of marital property for the purposes of equitable distribution, and the formula under which the property was apportioned between the parties.

The real question posed by the train of events in this case, however, is the procedural connection between partition of entireties property independent of the divorce proceeding, and equitable distribution under the Divorce Code of 1980: does the former segue into the latter, and if so how? To ask the question another way, is partition of entireties property superceded by a request for equitable distribution under the new Divorce Code?*fn2 The most definitive answer we can give, as will appear below, is "not quite."

The pivotal point from which various interpretations radiate is 23 Pa.S.A. § 301(a)(1), which provides that, "in conjunction with any decree granting a divorce," the court shall "determin[e] and dispos[e] of property rights and interests between spouses . . . including the partition of property held as tenants by the entireties or otherwise . . ." Equitable distribution becomes a factor when either party requests it,

[ 354 Pa. Super. Page 476]

    and the property to be divided is "marital property" as defined by section 401.

There are three major approaches which have been taken to define the problem, each of which presents its own peculiar defects. The first, espoused by the Allegheny County judge hearing appellant's divorce and appellee's claim for equitable distribution, proceeds from the presumption that the Allegheny County divorce court retained jurisdiction to equitably distribute the property involved after and however Westmoreland County disposed of the partition action. In other words it was concluded that entireties property, although halved between the parties, remained marital possessions subject to (re)distribution according to the precepts of the Divorce Code. The obvious problem with this schema, redundancy apart, is that no trial court has the authority to re-examine the issues of a case disposed of by another court at the same level. Also we are faced with the 401(e)(4) exception to marital property in that any property acquired as separate property during separation (an order of partition creates separate property) until the date of divorce, is not construed to be marital property subject to equitable distribution.

The second proposed solution protects the status quo ante, rejecting any attempt to reconcile the conflicts engendered by the "hither and yon" school of paper filing in domestic relations cases. This solution is in fact none at all as it ignores the policy behind passage of the Divorce Code, that is, "to effectuate economic justice between the parties." 23 Pa.S.A. § 102(a)(6). In so doing this combination filing race/hands off approach allows, under the guise of jurisdictional purity, the sort of retrograde treatment of marital disputes which prompted passage of the Divorce Code to begin with. See Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975), where the Pennsylvania Supreme Court refused to remedy unequal consideration in the creation of entireties estates. See also Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683 (1981).

[ 354 Pa. Super. Page 477]

The third tack is that of preemption, its theory being that the filing of a request for equitable distribution results in the indiscriminate extinction of a prior partition action, regardless of its motivation or basis in fact. If for example partition was sought prior to entry of a divorce decree in order to arrest or deter dissipation of entireties assets, equitable distribution, which must wait upon finalization of the divorce, would dislodge the suit for partition. During the pendency of the divorce litigation, the property could be disposed of altogether, absent injunctive relief under Pa.R.C.P. 1920.43(a), and the accounting need not necessarily factor in (its dissolution) as a debit to the wastrel.*fn3 Distribution under such circumstances could hardly be termed equitable. Further, preemption is in derogation of section 301 which clearly reserves partition as a prerogative of the court, given a claim.

Case law has in fact made provision for unilateral dissipation of assets, viz, the classic Vento partition. Vento v. Vento, 256 Pa. Super. 91, 389 A.2d 615 (1978). However, planned deliquescence is by no means the only obstacle in the way of achieving real economic parity between divorcing spouses. Although partition is theoretically implicit in equitable distribution, given the facts which would dictate its adoption as a means to accomplish equity, (and we offer this as an apologia for the retention of partition as an always available option, despite its apparent inconsistency with the avowed objectives of the Code), the reverse, that equality encompasses equity, is not always true. As this Court held in Platek v. Platek, 309 Pa. Super. 16, 24, 454 A.2d 1059, 1063 (1982),

It is apparent . . . that the court's power to direct partition of property is qualified by its duty to divide marital property in an equitable way . . . For partition is an even division . . . But an equitable division often will not be

[ 354 Pa. Super. Page 478]

    even; the essence of the concept of an equitable division is that "after considering all relevant factors," the court may "deem[] just" a division that awards one of the parties more than half, perhaps the lion's share, of the property.

Indeed equitable distribution is a misleading concept, as equity has yet to be achieved in practice. While courts have paid lip service to the notion that the nurturing partner's contribution to marriage is equivalent in value to that of the wage earner, "equitable distribution", as thus far applied, has resulted in an immediate 73 per cent drop in the standard of living enjoyed by divorced wives and their children, while the ex-husbands experience a corresponding 42 per cent increase. L. Weitzman, The Divorce Revolution (1985).

It is, therefore, our task to devise a means of accommodating partition as an "equitable" practice in order to achieve substantial justice, and in instances such as the one herein to avoid duplication of judicial procedures. That objective is best accomplished, we believe, by active retention of both methods of allocating property as options available to the court. Preservation, in turn, can be achieved procedurally by the following: complaints in partition will require, at the outset, factual averments consonant with a set of criteria to be established beforehand, e.g. Vento situation; such allegations must then be proven. In post-divorce partition, pursuant to 68 P.S. § 501, a statement that the parties were husband and wife, acquired certain property by the entireties and were subsequently divorced, will suffice to activate equal division.*fn4 Olivieri v. Olivieri, 242 Pa. Super. 457, 364 A.2d 361 (1976). The only set off or deduction in such case would be ...


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