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WERNER A. BUCKL v. SALLY A. BUCKL (04/06/88)

filed: April 6, 1988.

WERNER A. BUCKL, APPELLEE,
v.
SALLY A. BUCKL, APPELLANT



Appeal From Order Entered June 17, 1986 Court of Common Pleas, Civil Division, Northampton County, No. 1983-C-9680

COUNSEL

James R. Fiorentino, Bethlehem, for appellant.

Norman Seidel, Easton, for appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Del Sole, Montemuro, Tamilia, Kelly, Popovich and Johnson, JJ. Cirillo, President Judge, files concurring in part and dissenting in part Opinion. Montemuro, J., joins concurring in part and dissenting in part opinion, by Cirillo, President Judge. Brosky and Del Sole, JJ., file concurring opinions. Kelly, J., joins concurring opinion by Brosky, J.

Author: Cavanaugh

[ 373 Pa. Super. Page 523]

The primary issue in this case is whether the interest of a spouse in a partnership acquired after marriage is marital property subject to equitable distribution under the Divorce Code, 23 Pa.S. 101 et seq. In this case, Werner A. Buckl, the appellee herein, and Sally A. Buckl, the appellant herein, were married on January 2, 1964 and separated in September, 1983. Mr. Buckl is a licensed professional architect and has been a member of a partnership known as Buckl and Jankowski Architects since 1971.*fn1 Sally A. Buckl is the sole owner of a business known as Greenskeepers, Ltd.

In December, 1983, Mr. Buckl filed a complaint in divorce against his spouse and a decree in divorce was entered in April, 1984. Subsequently, the court appointed Christopher T. Spadoni, Esq. to hear testimony and make recommendations to the court concerning equitable distribution of marital property, counsel fees, alimony and support. The master conducted lengthy hearings and filed a comprehensive master's report in which he found inter alia that the husband's partnership interest in Buckl and Jankowski Architects was marital property subject to equitable distribution. He found the value of the appellee's interest in the firm to be $86,992.00.*fn2 The master also valued Mrs. Buckl's business, Greenskeepers, Ltd., at $1,000.00. He recommended that the appellee's partnership interest in Buckl and Jankowski Architects and the appellant's interest in Greenskeepers, Ltd. be divided equally between the spouses.

[ 373 Pa. Super. Page 524]

Both the appellant and the appellee filed exceptions to the master's report. The wife's two exceptions were dismissed and the husband's exceptions were sustained in part and dismissed in part. The court below sustained the husband's exceptions to the master's findings that his interest in the professional partnership was a marital asset and to the finding that the good will of the partnership had value. The court also sustained the exception to the master's admission of testimony of expert witnesses called on behalf of the wife. Sally Buckl filed an appeal to this court. Werner Buckl also filed a cross-appeal which was subsequently discontinued. Husband contends that the appellant's exceptions to the master's report did not contest the percentages recommended by the master in his proposed division of the marital property and challenged neither the master's finding that the appellee's interest in the partnership was marital property, nor the evaluation of the marital property. The objections raised by the appellant on appeal have not been waived.

The decree of equitable distribution entered in the court below modified the percentages recommended by the master and did not accept the master's finding that appellee's interest in the partnership was marital property. The appellant's arguments on appeal raise issues involving the modifications to the master's report which were made by the court below. As this court stated in Benson v. Benson, 357 Pa. Super. 166, 169, 170, 515 A.2d 917, 918, 919 (1986):

[N]o exceptions need be filed to preserve for appeal issues which claim the trial court erred when, in response to the opposing party's exceptions, it entered a final decree which altered the terms of the master's report and proposed order.

This rule requires a party who is dissatisfied with a master's report to file exceptions to the report, or waive any such objections. On the other hand, logic dictates that a party who is satisfied with the report need not except to it. When the trial court alters the terms of the

[ 373 Pa. Super. Page 525]

    report in response to the opposing party's exceptions, Rule 1920.55(c) provides no motions for post-trial relief may be made. Accordingly, the only occasion to raise objections to this final decree is through a direct appeal, and any issues which claim the court's ruling was erroneous are preserved because they are raised at the first available opportunity.

The appellant's failure to file exceptions to the percentages which were proposed by the master and the master's determination that appellee's interest in the partnership was marital property, does not result in waiver.

The court below determined that the husband's "partnership interest in his architectural firm was not marital property." We find this conclusion to be erroneous.*fn3 The Divorce Code defines marital property as "all property acquired by either party during the marriage" subject to exceptions not here relevant. 23 Pa.S. § 401(e). Further, the Code presumes that all property, of any nature, acquired during marriage is marital property. Braderman v. Braderman, 339 Pa. Super. 185, 488 A.2d 613 (1985). An interest in a partnership is a property interest as a partnership is an association of persons to carry on a business as co-owners. Uniform Partnership Act, 59 Pa.C.S. § 311. The indispensable requisites of a partnership are the co-ownership of a business and the sharing of profits. Provident Trust Company of Philadelphia v. Rankin, 333 Pa. 412, 5 A.2d 214 (1939); Northampton Brewery Corp. v. Lande, 138 Pa. Super. 235, 10 A.2d 583 (1940); Tax Review Board v. Lou Green, Inc., 409 Pa. 448, 187 A.2d 572 (1963).

Distribution of marital property is within the sound discretion of the hearing court and we will not interfere with

[ 373 Pa. Super. Page 526]

    its determination in the absence of a clear abuse of discretion. Ruth v. Ruth, 316 Pa. Super. 282, 462 A.2d 1351 (1983). Our scope of review is limited to determining whether there is an abuse of discretion in making equitable distribution. Winters v. Winters, 355 Pa. Super. 64, 512 A.2d 1211 (1986); Taylor v. Taylor, 345 Pa. Super. 184, 497 A.2d 1365 (1985). An abuse of discretion occurs if the trial court misapplies the law. Campbell v. Campbell, 357 Pa. Super. 483, 516 A.2d 363 (1986). In our opinion, the court below abused its discretion in determining that the husband's partnership interest was not marital property.

While no appellate court in Pennsylvania has expressly ruled that an interest in a partnership is marital property subject to equitable distribution, we noted in Semasek v. Semasek, 331 Pa. Super. 1, 479 A.2d 1047 (1984) that a wife's interference with her husband's legal practice was an intentional dissipation of marital property. This impliedly recognizes that a law practice is marital property and the interest in a professional architectural firm conducted by a partnership would similarly be such property. The Supreme Court remanded the case to the Court of Common Pleas for further proceedings which do not relate in any way to Mr. Samasek's law practice. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). Other jurisdictions recognize that the interest of a partner in a professional partnership is such property. 74 ALR 3rd 624, 625 states:

It has generally been held that upon dissolution of a marriage, the interest therein of the party who is a member of a law firm or medical partnership may be evaluated with respect to his share of a combination of the following partnership assets: capital investment, capital accounts, accrued equity, and accounts receivable, . . . any other fixed share of partnership worth carried on the partnership books, the value of work in progress, any appreciation of the true ...


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