Appeal from the Decree entered in the Court of Common Pleas of Erie County, Civil Division, No. 1280-A-1977.
Frank L. Kroto, Jr., Erie, for appellant No. 1579 and appellee No. 1580.
Donald W. Grieshober, Erie, for appellant No. 1580 and appellee No. 1579.
Cirillo, President Judge, and Tamilia and Popovich, JJ.
[ 357 Pa. Super. Page 343]
This is an appeal and cross appeal from a Decree providing for equitable distribution and awarding alimony. The parties were married in 1948 and separated in 1977. The action was bifurcated and a divorce Decree entered in 1982. Hearings were held by a master on the issues of equitable distribution, alimony and counsel fees. Exceptions were filed and ruled upon by the court at which time a final Order was entered. This appeal followed.
Both parties were born in 1925. The husband owns one-half interest in Onex, Inc. and works for the corporation with an annual gross income of $155,000. In addition he has a pension and profit sharing plan along with various life insurance policies.
The wife is unemployed, not having worked on a regular basis since 1950. She suffers from phlebitis and related leg problems. She has remained in the marital residence which is owned by the parties, while receiving support payments. These payments have been $2,000 per month from January 1, 1979 to February 29, 1984 and $1,600 per month since March 1984.
The Decree of equitable distribution provided that husband be awarded the one-half interest in Onex, Inc; the entire pension and profit sharing plans and four insurance policies.
The wife was awarded the residence and contents thereof; a life insurance policy; $127,641.25 cash, as her share of the marital assets awarded to husband and alimony of $13,200.00 per year, indexed to change yearly.
Both parties were to pay their own counsel fees and one-half of the master's fee.
[ 357 Pa. Super. Page 344]
The parties raise various issues on appeal. We will address those of appellant/husband first.
Appellant initially claims the court erred in valuing the business and life insurance policies in 1980, more than three years after the date of separation. He contends they should have been valued as of the date of separation.
Appellant maintains that under 23 P.S. § 401(e)*fn1 marital property does not include property acquired after separation and thus any increase in value after March 1977 is not a marital asset. In support he cites King v. King, 332 Pa. Super. 526, 481 A.2d 913 (1984) and Braderman v. Braderman, 339 Pa. Super. 185, 488 A.2d 613 (1985) which held only the portion of a pension attributable to the marriage period ending with separation is marital property. This is so, in an ummatured unvested plan, where additional increments are to be paid until vesting or retirement, as pensions are treated as deferred compensation. Braderman, supra. It would not be the case where a plan has
[ 357 Pa. Super. Page 345]
vested and value increases aside from contribution of the parties, beyond the date of separation.
In reviewing a court's Decree in an equitable distribution of property we are limited to determining whether there was an abuse of discretion. Brown v. Brown, 352 Pa. Super. 267, 507 A.2d 1223 (1986); Sergi v. Sergi, 351 Pa. Super. 588, 506 A.2d 928 (1986); Semasek v. Semasek, 331 Pa. Super. 1, 479 A.2d 1047 (1984).
The issue raised by appellant, along with the King and Braderman cases, has recently been discussed in Sergi, supra. See also Winters v. Winters, 355 Pa. Super. 64, 512 A.2d 1211 (1986). Although 23 P.S. § 403(b) requires parties to submit to the court an inventory and appraisement of all property owned or possessed at the time the action was commenced; (See also Pa.R.C.P. 1920.33(a)) and 23 P.S. § 401(e), supra, footnote 1, excludes property acquired after separation from inclusion in marital property; neither dictates a specific date for valuation. In Sergi and Winters after discussing those sections it was held that the Divorce Code (23 P.S. §§ 101 to 801) only sets a date for which property is no longer included as marital property for purposes of equitable ...