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CEASAR FRANCIS BENSON v. GEORGIANE L. BENSON (08/20/86)

filed: August 20, 1986.

CEASAR FRANCIS BENSON
v.
GEORGIANE L. BENSON, APPELLANT



Appeal from the Order of August 2, 1985, in the Court of Common Pleas, Clearfield County, Civil No. 81-2118-CD.

COUNSEL

Toni M. Cherry, DuBois, for appellant.

Dwight L. Koerber, Jr., Clearfield, for appellee.

Rowley, Wieand and Del Sole, JJ.

Author: Del Sole

[ 357 Pa. Super. Page 168]

Appellant (wife) appeals from the final decree issued by the trial court on matters of equitable distribution and counsel fees, which followed the entry of a bifurcated divorce.

Prior to a discussion of the issues raised by Appellant we must first address a procedural matter which Appellee (husband) argues results in a waiver of all claims wife seeks to pursue on appeal. A brief look at the procedural background of this case is necessary to examine this waiver claim.

A divorce decree was entered on the consent of both parties in June of 1983, while the court reserved jurisdiction over the remaining economic issues. A master, who was appointed to hear these remaining issues, held a hearing and in November of 1984 issued a report and proposed order. Wife apparently satisfied with the report and proposed order, filed no exceptions. Exceptions were, however, filed by husband. Thereafter, the court was presented with memoranda, briefs and argument on husband's

[ 357 Pa. Super. Page 169]

    exceptions. On August 2, 1985, the court issued a memorandum and the following decree:

Now, this 2nd day of August, 1985, the exceptions of the (husband) are dismissed and the recommendations of the master are adopted by the Court, with the exception that (husband) is not ordered to pay any portion of the (wife's) counsel fees. Record costs, including masters fees, are to be paid equally by both parties. Distribution of the marital property is ordered in accordance with the masters recommendations except that the portion of the (husband's) Tier II pension benefit to be paid to the (wife) is set at 37.5%. Said amount to be paid to (wife) monthly, directly from the Railroad Retirement Board beginning in the month of September, 1985, and continuing for as long as Plaintiff remains eligible to receive his Tier II benefits. It is ordered that the one hundred dollar ($100.00) per month credit to be given to the (husband) based on the (wife's) occupancy of the marital home, which is to be deducted from the (wife's) share of the net proceeds from the sale of the home is to be calculated as commencing with the month of November, 1982. The sale of the home is to be carried out as soon as possible.

Appellant then filed this appeal asserting the court erred in its selection of dates for the commencement of her share of pension benefits, and for the commencement of her rental payment obligations. She also alleges the court erred in denying her attorney fees.

Husband contends wife's failure to file exceptions to either the master's report or the court's final decree constitutes a waiver and precludes wife from seeking ...


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