Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROSEMARY HUTNIK v. JOHN S. HUTNIK (12/28/87)

filed: December 28, 1987.

ROSEMARY HUTNIK, APPELLEE,
v.
JOHN S. HUTNIK, APPELLANT



Appeal from the Order of the Court of Common Pleas of Northampton County, Civil at No. 1984-C-5410.

COUNSEL

Karen A. Feryo, Bethlehem, for appellant.

Richard J. Shiroff, Easton, for appellee.

McEwen, Montemuro and Kelly, JJ.

Author: Montemuro

[ 369 Pa. Super. Page 265]

This is an appeal from an order of equitable distribution.

The parties were married in 1961, and separated twenty years later. A divorce under 23 P.S. § 201(d), requiring a three year separation, was granted in May of 1987, one month after a decree had been entered distributing the marital property 55% to appellee, and 45% to appellant. After rulings on the exceptions of both parties, this appeal followed.

Our first inquiry concerns the appealability of the equitable distribution order. In Campbell v. Campbell, 357 Pa. Super. 483, 516 A.2d 363 (1986), an en banc panel of this

[ 369 Pa. Super. Page 266]

    court held that an order of equitable distribution entered prior to issuance of divorce decree is not final, because such an order, being premature, does not dispose of a divorce action. "This is because the settlement of economic and property claims is merely a part of the trial court's broader power to terminate the marriage. Equitable distribution is an incident of divorce, not marriage." Id., 357 Pa. Superior Ct. at 489, 516 A.2d at 366. However, the Campbell court, also held that a pre-divorce decree distributing marital property is rendered final by entry of a divorce decree, and examined the decree in question because its prematurity was inadvertent. Id. We find the procedural events in Campbell to approximate those herein, and applying the Campbell precedent, find this appeal properly before us. But see Colagioia v. Colagioia, 362 Pa. Super. 213, 523 A.2d 1158 (1987) (appeal quashed where no divorce decree entered).

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa. Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa. Super. 540, 519 A.2d 483 (1986); Ganong v. Ganong, 355 Pa. Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa. Super. 588, 506 A.2d 928 (1986); King v. King, 332 Pa. Super. 526, 481 A.2d 913 (1984). Moreover, "an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence." Sergi, supra, 351 Pa. Super. at 591, 506 A.2d 930, citing Braderman v. Braderman, 339 Pa. Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d),*fn1 and the avowed objectives of the Divorce Code,

[ 369 Pa. Super. Page 267]

    that is, to "effectuate economic justice between [the] parties . . . and insure a fair and just determination of their property rights." 23 P.S. § 102(a)(6).

Appellant and appellee are respectively 51 and 44 years old. Appellant, a college graduate, has, since 1969, been employed in middle management of a manufacturing corporation and receives a weekly gross salary of $623. The company also pays him an annual bonus based on its own profits, as well as insurance and pension benefits. In 1985, appellant received $900 under the bonus arrangement.

Appellee, who possesses a high school education, is employed as a secretary at a net income of $256.42 per week. She also earns $500 annually teaching aerobics.

At the time of the hearing, two of the parties' three children were students and receiving parental support, principally from appellant. One of these children resides with appellant in the marital residence, and one with appellee in a rented apartment. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.