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filed: January 9, 1987.


Appeal from the Order of September 4, 1985 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 2139-S-1981.


Howard B. Krug, Harrisburg, for appellants.

Delano M. Lantz, Harrisburg, for appellee.

Wieand, Beck and Watkins, JJ. Wieand, J., files concurring opinion.

Author: Beck

[ 360 Pa. Super. Page 104]

This appeal raises certain basic questions which must be addressed in formulating a plan of equitable distribution. The first question is what property is included in the marital estate; what is the value of each asset in the marital estate. Subsumed under this question is the date on which each marital asset will be valued. The second question relates to the division of the marital estate between the husband and wife. And the third question relates to alimony, costs, and attorneys' fees. The appellant is husband Spero G. Diamond*fn1 and appellee/cross-appellant is wife Helen K. Diamond. They both appeal the court's denial of their exceptions to the plan for equitable distribution of marital property. We affirm.

The parties married in September 1958, and separated in January 1975. Prior to the marriage husband was a partner in a family real estate development and construction firm. In September 1957, the business was incorporated in its present form, S.G. Diamond, Inc., and husband was

[ 360 Pa. Super. Page 105]

    issued one hundred percent of the stock. Throughout the marriage and the period of the parties' separation, husband was the sole owner of the company.

Before the parties' separation in 1975, the corporation acquired substantial real estate assets, all in the name of the corporate entity. Prior to separation both parties had contributed equally to the business. Husband owned and operated the company, while wife in addition to maintaining the marital home and being the primary caretaker of the children, was actively involved in the business which was located in the marital home. After separation husband continued to conduct the business, improve properties purchased prior to the parties' separation and acquire new ones.

Wife filed a complaint in divorce*fn2 and requested equitable distribution of the parties' marital property, alimony, alimony pendente lite, counsel fees, costs and expenses. Hearings were held before the master almost nine years after the date of separation. The trial court adopted the master's recommendations, and in its amended decree of divorce, it directed the equitable distribution of the parties' marital property as follows:*fn3 husband was ordered to transfer one-half of the outstanding shares of the stock of S.G. Diamond, Inc. to wife, with the provision that the corporation would redeem the stock from wife in exchange for title to the marital home and a corporate note in the amount of $225,000. The principal on the note was to be paid within five years with interest payable at ten percent (10%) per annum. The trial court also endorsed the master's report in denying wife's claims for alimony, counsel fees, costs and expenses.

Before addressing the parties' numerous contentions, we note that an appellate court may reverse an order determining equitable distribution of marital property only for an

[ 360 Pa. Super. Page 106]

    abuse of discretion by the trial court. Winters v. Winters, 355 Pa. Super. 64, 512 A.2d 1211 (1986); Sergi v. Sergi, 351 Pa. Super. 588, 506 A.2d 928 (1986); LaBuda v. LaBuda, 349 Pa. Super. 524, 503 A.2d 971 (1986); Baraff v. Baraff, 338 Pa. Super. 203, 487 A.2d 925 (1985). Under this standard, we do not usurp the hearing court's duty as fact finder. Rather, we apply the legislative guidelines of the Code, to the record to determine whether or not the hearing court has abused its discretion. Sergi, 351 Pa. Super. at 591, 506 A.2d at 930; Barnhart v. Barnhart, 343 Pa. Super. 234, 494 A.2d 443 (1985).

This court has recently stated that "[a]n 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, 488 A.2d 613, 615 (1985); see also Sergi, 351 Pa. Super. at 591, 506 A.2d at 930. With this standard of review in mind we turn to the claims raised by the parties.


The first series of issues centers on what is marital property, what is the value of each asset in the marital estate and the date on which each marital asset will be valued.

Section 401(e) of the Code defines marital property as:

(e) . . . all property acquired by either party during the marriage except:

(4) Property acquired after separation until the date of divorce . . . .

Pa.Stat.Ann. tit. 23, § 401(e)(4) (Purdon, Supp.1986) (emphasis added).


We will begin by examining three assets which were acquired after the parties separated: husband's residence

[ 360 Pa. Super. Page 107]

    on Butler Street; a sales agreement for Beaufort Ridge; and equity in property at Mercy Crest.

Wife argues that the Butler, Beaufort and Mercy Crest properties should be considered marital property and directs our attention to Section 401(f) of the Code:

All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether property is held individually or by the parties in some form of co-ownership . . . . The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

Pa.Stat.Ann. tit. 23, § 401(f) (Purdon, Supp.1986) (emphasis added).

Wife argues that Section 401(f) mandates a broad, comprehensive definition of marital property. Consequently, she maintains that in order to meet the requirements of Section 401(e)(4) and thereby rebut the Code's presumption of marital property, the husband must show not only that the three properties at issue were acquired after the parties separated, but also that the husband did not use marital assets to obtain them. We cannot accept wife's reading of the statute.

[ 360 Pa. Super. Page 108]

We are aware that in enacting the Divorce Code the Legislature's expressed purpose was to "effectuate economic justice between parties who are divorced," and that we must consider this legislative intent in construing the provisions of the act. Pa.Stat.Ann. tit. 23, §§ 102(a)(6), (b) (Purdon, Supp.1986). Nonetheless, we must also adhere to established principles of statutory construction which dictate that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." The Statutory Construction Act of 1972, 1 Pa.Con.Stat.Ann. § 1921(b) (Purdon, Supp.1986); construed in Zimmerman v. O'Bannon, 497 Pa. 551, 442 A.2d 674 (1982). Moreover, a court cannot insert words into a statutory provision where the Legislature has failed to supply them. See Worley v. Page 108} Augustine, 310 Pa. Super. 178, 456 A.2d 558 (1983); Peabody v. Tucker, 4 Pa. Commw. 609, aff'd, 447 Pa. 398, 289 A.2d 438 (1972); see also Patton v. Republic Steel Corp., 342 Pa. Super. 101, 492 A.2d 411 (1985).

Section 401(e)(4) of the Code explicitly provides that a showing that "property [has been] acquired after separation" is sufficient to counter the presumption of marital property contained in Section 401(f). This court has recently articulated the principle that "[t]ime of acquisition is the factor that the Legislature mandates the courts' use in determining whether property is a marital asset." Anthony v. Anthony, 355 Pa. Super. 589, 594, 514 A.2d 91, 93 (1986). Indeed, the date of separation has repeatedly been identified as the pivotal event, the end point of the period in which marital assets may be acquired. Sergi, 351 Pa. Super. at 591, 506 A.2d at 930; LaBuda, 349 Pa. Super. at 532, 503 ...

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