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DAVID E. JOHNSON v. PAMELA K. JOHNSON (08/10/87)

filed: August 10, 1987.

DAVID E. JOHNSON, APPELLANT,
v.
PAMELA K. JOHNSON, APPELLEE



Appeal from Order of the Court of Common Pleas, Civil Division, of Clinton County, No. 855-83.

COUNSEL

Richard J. Callahan, Williamsport, for appellant.

Gary T. Harris, Williamsport, for appellee.

Wieand, Beck and Cercone, JJ. Beck, J., filed a concurring opinion.

Author: Wieand

[ 365 Pa. Super. Page 411]

David E. Johnson and Pamela K. Johnson were married on August 18, 1966, separated in August, 1983 and divorced on May 24, 1985. The divorce was bifurcated, and after a decree had been entered, hearings were held on the related economic claims. On March 19, 1986, the trial court entered a decree distributing fifty-five (55%) percent of the marital property, amounting to $609,435.75, to wife.*fn1 The balance of $498,629.59 was awarded to husband. The court also awarded wife counsel fees in the amount of five thousand ($5,000.00) dollars. Husband filed post-trial motions, which were denied. He then appealed.

In evaluating an equitable distribution scheme, our scope of review is limited. An appellate court will not reverse an order determining equitable distribution absent an abuse of discretion by the trial court. Diamond v. Diamond, 360 Pa. Super. 101, 105, 519 A.2d 1012, 1014 (1986); Campbell v. Campbell, 357 Pa. Super. 483, 489, 516 A.2d 363, 366 (1986); Morschhauser v. Morschhauser, 357 Pa. Super. 339, 346,

[ 365 Pa. Super. Page 412516]

A.2d 10, 13 (1986); Bold v. Bold, 358 Pa. Super. 7, 10, 516 A.2d 741, 742 (1986); Ganong v. Ganong, 355 Pa. Super. 483, 490, 513 A.2d 1024, 1028 (1986); Winters v. Winters, 355 Pa. Super. 64, 69, 512 A.2d 1211, 1214 (1986); Brown v. Brown, 352 Pa. Super. 267, 270, 507 A.2d 1223, 1224 (1986); LaBuda v. LaBuda, 349 Pa. Super. 524, 528, 503 A.2d 971, 974 (1986).

'Under this standard, we do not usurp the hearing court's duty as factfinder. 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); 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, 488 A.2d 613, 615 (1985).

Sergi v. Sergi, 351 Pa. Super. 588, 591, 506 A.2d 928, 930 (1986).

Three years prior to the marriage, husband purchased a flour and animal feed business known as Clintondale Mills for $24,000.00. The trial court found that at the time of separation in August, 1983, the value of the business had increased to $600,000.00.*fn2 The difference, or $576,000.00, was determined by the court to be marital property subject to equitable distribution. This was proper and in accord with this Court's decision in Sergi v. Sergi, supra. See: Anthony v. Anthony, 355 Pa. Super. 589, 595, 514 A.2d 91, 94 (1986).

Appellant contends, however, that the trial court committed an abuse of discretion when it gave no weight to "[t]he contribution . . . of each party in the acquisition, preservation,

[ 365 Pa. Super. Page 413]

    depreciation or appreciation of the marital property" as required by Section 401(d)(7) of the Divorce Code.*fn3 We disagree.

Section 401(d) directs that in fashioning a decree of equitable distribution, a hearing court shall consider all relevant factors, including the following:

(1) The length of the marriage.

(2) Any prior marriage of either party.

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

(4) The contribution by one party to the education, training, or increased earning power of the other party.

(5) The opportunity of each party for future acquisitions of capital assets and income.

(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.

(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

(8) The value of the property set apart to each party.

(9) The standard of living of the parties established ...


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