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filed: June 18, 1986.


Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil, at No. 82-00623.


Neil H. Stein, Philadelphia, for appellant.

Albert Momjian, Philadelphia, for appellee.

Spaeth, President Judge,*fn* and Brosky, Rowley, Wieand, McEwen, Cirillo, Olszewski, Montemuro and Tamilia, JJ. Wieand, J., filed a concurring and dissenting opinion, joined by McEwen and Rowley, JJ. Brosky, J., files a dissenting opinion. Spaeth, President Judge, did not participate in the consideration or decision of this case.

Author: Montemuro

[ 354 Pa. Super. Page 492]

The essential question presented in this appeal is whether a pending equity action seeking the partition of entireties property is pre-empted or superseded by a subsequently filed complaint in divorce which requests, inter alia, equitable distribution pursuant to the Divorce Code of 1980.*fn1

Appellant, Jerome Goldstein, and appellee, Helene Goldstein, were married on August 27, 1972. On January 18, 1982, appellant filed an action in equity which alleged that appellee had misappropriated approximately $43,680 which had been held in the parties' joint bank account. Appellant requested the partition of the joint account and all other property owned jointly by appellant and appellee. At the time of appellee's misappropriation of the money, the parties were still residing together. Subsequent to the filing of appellant's partition action, appellee, on January 27, 1982, filed*fn2 an action in divorce under the Divorce Code of 1980, in which she sought the equitable distribution of marital property. In response to her husband's partition action, appellee filed preliminary objections claiming that partition actions were "superseded and preempted" by the Divorce Code.*fn3 The trial court, in an order entered July 13, 1982, sustained appellee's preliminary objections and dismissed appellant's partition action without prejudice to the

[ 354 Pa. Super. Page 493]

    parties' respective property rights as they may be determined in the divorce proceedings.*fn4 This appeal followed.

It is a general principle of the law of this Commonwealth that neither spouse may partition entireties property prior to divorce. Shapiro v. Shapiro, 424 Pa. 120, 136, 224 A.2d 164, 173 (1966); Livingston v. Livingston, 288 Pa. Super. 22, 430 A.2d 1193 (1981). An exception exists where one spouse has wrongfully appropriated entireties property for his or her own use and to the exclusion and detriment of the other spouse. Shapiro, supra; Stemniski v. Stemniski, 403 Pa. 38, 169 A.2d 51 (1961); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934); Gray v. Gray, 275 Pa. Super. 131, 418 A.2d 646 (1980); Vento v. Vento, 256 Pa. Super. 91, 389 A.2d 615 (1978). Such an appropriation "works a revocation of the estate by the fiction of appropriation's being an offer of an agreement to destroy the estate and an acceptance of that offer when the spouse starts suit; the property is then fit for accounting and division." Stemniski, supra 403 Pa. at 42, 169 A.2d at 53. The entireties property subject to partition is then divided equally, Lindenfelser v. Lindenfelser, 396 Pa. 530, 534-35, 153 A.2d 901, 905 (1959), with each spouse becoming the sole owner of his or her partitioned share of the property. Stemniski, supra; Fitzpatrick v. Fitzpatrick, 181 Pa. Super. 581, 124 A.2d 709 (1956).

Thus, at least since the Pennsylvania Supreme Court fashioned this exception some fifty years ago in Berhalter, a remedy has existed, prior to and separate from the filing of an action in divorce, which allows a spouse who has been excluded from the use and control of entireties property to preserve his or her interest in the misappropriated property. However, the trial court found, and the appellee argues, that pre-divorce partition has been pre-empted or superseded by the broad sweep of the 1980 Divorce Code, as that legislation was enacted to "effectuate economic justice between

[ 354 Pa. Super. Page 494]

    parties who are divorced or separated," 23 P.S. § 102(a)(6), through the means of equitable distribution of marital property, id § 401(d), and that the "Solomon-like approach" of partition is inconsistent with the clear legislative intendment behind the Code. While we certainly agree as to the legislature's general intention when enacting the current divorce provisions,*fn5 we do not agree with the conclusion*fn6 drawn by the trial court that the General Assembly abrogated Berhalter partitions when it restructured the divorce law of this Commonwealth.

No provision of the Divorce Code expressly prohibits a Berhalter partition,*fn7 and our review of the legislative history has failed to unearth any discussion in the General Assembly prior to the enactment of the Code regarding the effect of a partition action vis-a-vis a subsequent request for equitable distribution. See generally, J. Fishman, The Legislative History of the 1980 Pennsylvania Divorce Law (Pittsburgh, QSP, Inc., 1981).*fn8 In addition, the Pennsylvania Supreme Court has not promulgated any rule which would require the pre-emption or supersession of a pre-existing partition action once a request for equitable distribution has been made under 23 P.S. § 401. See Pa. R.C.P.

[ 354 Pa. Super. Page 4951920]

.1-.92. Thus, there is no explicit supersession under the Divorce Code of Berhalter partition actions whenever a subsequent divorce action with a request of equitable distribution is filed.

Lacking a clear directive, the trial court looked to the broadly-written prefatory section of the Code in which the General Assembly expressed its intention in enacting the Code. The trial court specifically cited section 102(a)(6), which provides:

The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:

Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

The courts are instructed to consider section 102(a)(6) when construing the Divorce Code. 23 P.S. § 102(b). As the trial court noted, "economic justice" is effectuated between parties seeking divorce by means of equitable distribution. Id. § 401(d).

The above-quoted legislative intention regarding "economic justice" between spouses is not necessarily inconsistent with the purpose behind the judicially-created Berhalter partition proceeding, i.e., enjoining the wrongful dissipation of entireties property. Indeed, an action in divorce requesting equitable distribution is one which contemplates the termination of the marital relationship and an equitable settling of the parties' accounts. On the other hand, a Berhalter partition addresses not the marital relationship, but rather the right of one spouse to preserve his or her property rights, rights which have become vulnerable by the actions of the other spouse. As such, the court, acting in equity, addresses each spouse's property rights within the continuing marital relationship, and not spousal property

[ 354 Pa. Super. Page 496]

    rights after the termination of that relationship.*fn9 Given the lack of an ineluctable conflict between the Code and a Berhalter partition, and in light of the absence of a specific statutory prohibition against the latter, we do not find that the legislature intended to pre-empt or supersede Berhalter partition when it drafted and enacted the current Divorce Code.

In her brief, appellee argues alternatively that whether or not the Divorce Code abrogated this Berhalter partition is "irrelevant" because of this court's holding in Platek v. Platek, 309 Pa. Super. 16, 454 A.2d 1059 (1982). A proper reading of Platek does not support appellee's position. In Platek, we held that the trial court erred when it directed partition of certain entireties property despite the fact that prior to the partition request, a complaint in divorce had been filed which requested equitable distribution pursuant to the Divorce Code.*fn10 In Platek, the procedural chronology was the reverse of that found in the instant appeal. This difference is important. Despite an extant divorce complaint and a request for equitable distribution, the lower court, following Vento, supra, partitioned certain entireties

[ 354 Pa. Super. Page 497]

    property. This court held that the partition was error, stating:

It is apparent . . . that the court's power to direct a partition of property is qualified by its duty to divide marital property in an equitable way. If the property is not marital property, the court may direct its partition. But if it is marital property, the court must instead, upon request of either party, direct its equitable division.

Platek, supra, 309 Pa. Superior Ct. at 24, 454 A.2d at 1062-63 (emphasis in original). However, that "duty" does not arise until a party requests equitable distribution. See 23 P.S. § 401(d).

Thus, in Platek this court held that when a trial court is presented with a request for equitable distribution under the Divorce Code, the court must first determine what property is subject to equitable distribution, i.e., determine what is marital property. Because a Berhalter partition transforms entireties property into separate property,*fn11 the trial court in Platek was effectively removing certain entireties property from the area in which the Code's writ may run. In other words, at the time the divorce action was filed, the entireties property which was eventually partitioned was marital property as that term is defined in the Code. See 23 P.S. §§ 401(e)-(f). Since a prior request had been made for the equitable distribution of all marital property, and because section 401(d) of the Code mandates equitable distribution of all extant marital property once such a request is made, "[i]t was . . . the lower court's responsibility to decide upon an equitable division." Platek, supra, 309 Pa. Superior Ct. at 24, 454 A.2d at 1063.

In the instant case, there being no extant request for equitable distribution pursuant to section 401(d) at the time the partition action was filed, the trial court could have and should have proceeded with the partition action, applying the analysis as initially set forth by our supreme court in Berhalter and more recently explained by this court in Vento. If the court determines that partition is indeed

[ 354 Pa. Super. Page 498]

    appropriate and proper, the property is equally divided between the spouses, who then own their portion of the property separately. The property, having lost its designation as entireties property, is at that point not within the ambit of the marital property section of the Divorce Code. Thus, if the trial court is subsequently presented with a request for equitable distribution under section 401(d), the previously partitioned property does not become subject to equitable division. It is set aside, with all other separately held property, from the marital property to which the Code does apply.

In the instant case, because pre-divorce partition remains viable despite the passage of the Divorce Code, the trial court was capable of entertaining appellant's partition action.*fn12 If partition is deemed proper, an order should be entered directing the equal distribution of the misappropriated property, here the $43,680. When the court then addresses the subsequent request for equitable distribution, the money is not marital property by virtue of section 401(e)(4), which excludes from the definition of marital property "[p]roperty acquired after separation until the date of the divorce." Cf. Hurley v. Hurley, 342 Pa. Super. 156, 492 A.2d 439 (1985) (In which Judge Wieand noted that a spouse's unliquidated claim for personal injury, which became liquidated after the parties' ...

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