Appeal from the Order dated July 18, 1986 in the Allegheny County Court of Common Pleas, Family No. FD 81-10134.
Frederick N. Frank, Pittsburgh, for appellant.
Chris F. Gillotti, Pittsburgh, for appellee.
Brosky, Tamilia and Kelly, JJ.
[ 371 Pa. Super. Page 233]
This case involves an appeal by appellant/husband from an order equitably distributing the parties' marital property. Because we find that the trial court improperly excluded from marital property the increase in value of certain premarital assets, we reverse and remand.
The parties were married in 1961 and separated in 1977. On July 23, 1981, appellee/wife filed the instant divorce proceedings, requesting equitable distribution under Section 401 of the Divorce Code, alimony, and counsel fees. Following a hearing, the trial court entered an order distributing the marital property and dismissing wife's claims for alimony and counsel fees. Both parties filed exceptions; except for a slight modification of its previous order, the trial court dismissed the exceptions and entered a final order. This timely appeal followed.*fn1
On appeal, husband raises six issues: (1) whether the court erred in excluding from marital property the increase in value of stock owned by wife; (2) whether the court erred in valuing husband's business interests as of the trial date, rather than the separation date; (3) whether the court erred in calculating the value of husband's business interests; (4) whether the court erred in awarding wife fifty percent (50%) of husband's business interests; (5) whether the court erred in formulating the structured equitable distribution award; and (6) whether the court erred in fixing the marital assets and liabilities. We find that the opinions of the trial court, dated March 27, 1986 and July 18, 1986, thoroughly address and properly dispose of the third issue. We shall address the remaining issues raised on appeal seriatim.
[ 371 Pa. Super. Page 234]
In 1959, two years before her marriage to husband, wife received a 7.1 percent share in a Coca-Cola bottling company owned by her father and located in the Federal Republic of Germany. At the time the stock was given to wife, it was valued at $15,000; wife sold the stock in 1979, two years after the parties separated, for $100,000. The trial court held that the increase in the value of the stock which occurred during the marriage did not constitute marital property. The court reasoned that the stock was acquired before the marriage and that the increase in value did not occur as a result of any contributions by husband.
This Court recently held in Anthony v. Anthony, 355 Pa. Super. 589, 591, 514 A.2d 91, 92 (1986), that "the entire increase, during the parties' marriage, in the value of premarital assets is marital property, and . . . the increase is not reduced to reflect inflation." In reaching this holding, we rejected the appellants' assertions that an increase in the value of a spouse's premarital property should not be regarded as marital property unless the appreciation of value is attributable to the joint efforts and/or financial contributions of both spouses. The court in Anthony reasoned:
Pursuant to section 401 of the Divorce Code, marital property includes all property, real or personal, acquired during the parties' marriage by either spouse, whether titled individually or jointly. 23 P.S. § 401(e)-(f). Thus, the time, rather than the method, of property acquisition determines if an item of property constitutes marital property under the Code.
355 Pa. Superior Ct. at 593, 514 A.2d at 92-3 (emphasis in original). Accord Johnson v. Johnson, 365 Pa. Super. 409,
[ 371 Pa. Super. Page 235529]
A.2d 1123 (1987); Sutliff v. Sutliff, 361 Pa. Super. 504, 522 A.2d 1144 (1987).
In the instant case, the trial court did not have the benefit of our decision in Anthony, supra.*fn2 However, it is well-settled that changes in decisional law which occur during litigation will generally be applied to cases pending on appeal. McCloskey v. WCAB, 501 Pa. 93, 460 A.2d 237 (1983); Fairbanks v. Travelers Insurance Company, 337 Pa. Super. 39, 486 A.2d 469 (1984). As stated in Fairbanks, supra:
In Pennsylvania, decisions changing the law are usually applied to cases pending on appeal. If such decisions rely upon statutory interpretations, they relate back to the date the particular statute became effective, because they merely interpret existing legislation.
337 Pa. Superior Ct. at 42, 486 A.2d at 470-71. The Anthony decision relied upon interpretation of Section 401 of the Divorce Code; we therefore find that our holding in Anthony relates back to the date Section 401 became effective. Applying Anthony, we conclude that the trial court erred in excluding from marital property the increase in value of the stock held by wife.
Wife argues that the reasoning set forth in the trial court opinion requires us to find that the error in excluding the increase is harmless error. ...