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RONALD P. ZEIGLER v. SALLIE C. ZEIGLER (08/17/87)

filed: August 17, 1987.

RONALD P. ZEIGLER
v.
SALLIE C. ZEIGLER, APPELLANT



Appeal from the Judgment Entered on December 22, 1986, in the Court of Common Pleas of Dauphin County, Family Division, at No. 4279 S 1982.

COUNSEL

John C. Howett, Jr., Harrisburg, for appellant.

Samuel Andes, Lemoyne, for appellee.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Hester

[ 365 Pa. Super. Page 548]

This is an appeal from a final decree of divorce which disposed of ancillary claims of equitable distribution, alimony, and counsel fees. The wife, appellant, challenges the economic aspects of the trial court's disposition. We hold that there was no reversible error, and affirm the orders in question.

The parties were married in 1962, had one child, now an adult, and separated in October, 1982, when appellee left the marital residence to live with his paramour. Following the institution of divorce proceedings, a hearing was held before a master who filed a report and recommendation. Both parties filed exceptions to the report. The court held an additional hearing on the valuation of the two major marital assets: husband's pension and the marital residence.

Before disposition of the exceptions to the master's report, appellant petitioned for an injunction to prevent her husband from using marital funds to purchase a house with his paramour. Without ruling on the petition, the court entered a divorce decree and equitable distribution order on August 29, 1986. In response to appellant's motion for post-trial relief, the trial court rescinded the August 29 order on September 15, 1986. Thereafter, on December 9, 1986, the court entered an order making a slight modification in the August 29 order, but otherwise reinstating it. On the same date, the court entered orders denying appellant's petition for injunctive relief and appellee's motion for post-trial relief. This timely appeal is from the orders of December 9, 1986.

Appellant raises five issues. She argues that the trial court erred in: 1) establishing a value for the marital residence higher than the evidence justified, 2) refusing to impose a constructive trust pursuant to her application for special relief, 3) allowing additional testimony following the master's hearing concerning the value of husband's pension, 4) denying appellant's motion to strike appellee's late-filed

[ 365 Pa. Super. Page 549]

    motion for post-trial relief, and 5) denying her claim for alimony.

The first issue is whether the court erred in its valuation of the marital residence. Expert testimony at the master's hearing on October 11, 1984, established a value of $75,000 at the time of separation and $80,000 at the time of the hearing. The trial court, relying on Sergi v. Sergi, 351 Pa. Super. 588, 506 A.2d 928 (1986), ordered a hearing to update the valuation testimony which had been presented to the master in 1984, in order to value the property as near to the time of distribution as possible. Based on the expert testimony presented on January 15, 1986, the court used a value of $84,000 in making equitable distribution of the marital property.

Appellant objects to this value for two reasons. First she claims that the entire post-separation increase in value resulted from her efforts through physical maintenance and payment of mortgage, taxes, insurance and other expenses. She thus regards the court's use of the later value of $84,000 to be an abuse of discretion, for it gives appellee the benefit of an increase in value to which he did not contribute.

We do not agree with appellant's argument. Sergi v. Sergi, id., 351 Pa. Superior Ct. at 593-94, 506 A.2d at 931, suggests that a later valuation date will ordinarily be most equitable in order to prevent a distribution based on stale financial data. We regard the trial court's approach to be a proper exercise of its discretion. Although appellant made the mortgage payments during the period of separation, the court's equitable distribution order requires appellee to reimburse her in the amount of $8,000 for those mortgage payments. Moreover, appellant had the benefit of exclusive occupancy of the premises during the separation.

Appellant's second objection to the value of $84,000 for the marital residence is that she intends to sell the house immediately and move to more modest quarters. She argues that the value of the residence should be reduced by ...


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