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THOMAS C. BOLD v. JOAN M. BOLD. THOMAS C. BOLD (10/09/86)

filed: October 9, 1986.

THOMAS C. BOLD, JR., APPELLANT,
v.
JOAN M. BOLD. THOMAS C. BOLD, JR. V. JOAN M. BOLD, APPELLANT



Appeals from the Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 2562 of 1983.

COUNSEL

John R. Banke, Pittsburgh, for appellant in No. 809 and for appellee in No. 853.

John M. O'Connell, Jr., Greensburg, for appellant in No. 853 and for appellee in No. 809.

Rowley, Wieand and Del Sole, JJ.

Author: Rowley

[ 358 Pa. Super. Page 9]

OPINION OF THE COURT

This matter comes to us on appeal by Thomas C. Bold (husband), and on cross appeal by Joan M. Bold (wife). Both parties are appealing from the trial court's order of equitable distribution in this bifurcated action in which a divorce decree has already been granted.

Husband and wife were married on May 16, 1964. They are the parents of one child, Theresa, whom they adopted on August 14, 1970. The parents separated on or about April 21, 1980, and Theresa remained with her father. On May 9, 1980, wife filed a complaint in divorce which was subsequently dismissed upon the recommendation of a master. By an order dated February 18, 1981, the court awarded the custody of Theresa to husband.

The present action began on April 14, 1983 when husband filed for divorce and equitable distribution on the grounds of adultery. Wife filed an answer denying the adultery and counterclaimed for a no-fault divorce, counsel fees, expenses, and alimony pendente lite. The action was bifurcated

[ 358 Pa. Super. Page 10]

    and the court entered a divorce decree on August 16, 1984. The court appointed a master on October 25, 1983, who conducted hearings on claims for equitable distribution, counsel fees, expenses, and alimony pendente lite on November 21, 1983, January 5, 1984, and February 17, 1984. The master filed a report on September 5, 1984, to which husband filed timely exceptions. The trial court en banc sustained some of husband's exceptions and denied others. Husband appeals from the order of the trial court en banc insofar as it denies his exceptions, and wife cross appeals from the order of the trial court en banc insofar as it sustains Thomas's exceptions.

"An appellate court will reverse an order determining equitable distribution of marital property only for an abuse of discretion by the trial court." Baraff v. Baraff, 338 Pa. Super. 203, 210, 487 A.2d 925, 929 (1985). "Under this standard, we do not usurp the hearing court's duty as fact finder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion." Barnhart v. Barnhart, 343 Pa. Super. 234, 237, 494 A.2d 443, 444 (1985), quoting Semasek v. Semasek, 331 Pa. Super. 1, 6, 479 A.2d 1047, 1050 (1984). "An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence . . . . However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law." Braderman v. Braderman, 339 Pa. Super. 185, 190-91, 488 A.2d 613, 615 (1985).

I. Appeal at 809 Pittsburgh 1985

We will first consider the three issues raised by husband: whether the trial court abused its discretion in failing to award the marital residence to husband, the custodial parent; whether the trial court abused its discretion in failing to consider the needs and economic circumstances of husband as a custodial parent; and, ...


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