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FREDERICK E. WILLIAMS v. ESTHER M. WILLIAMS (04/15/88)

filed: April 15, 1988.

FREDERICK E. WILLIAMS, JR., APPELLANT AT NO. 3139PHL86,
v.
ESTHER M. WILLIAMS, APPELLANT AT NO. 3245PHL86



Appeal from the Order entered on November 12, 1986, in the Court of Common Pleas of Northumberland County, Civil Division, at No. CV-80-115.

COUNSEL

Roger V. Wiest, Sunbury, for appellant (at 3139) and appellee (at 3245).

J. Robert Zane, Schuylkill Haven, for appellant (at 3245) and appellee (at 3139).

Brosky, Wieand and Beck, JJ. Brosky, J., files a concurring opinion. Wieand, J., files a concurring and dissenting opinion.

Author: Beck

[ 373 Pa. Super. Page 146]

Esther M. and Frederick E. Williams were married in 1970, separated in 1979, and divorced in 1983. They have no children. Both were previously married. The husband was born in 1933, and the wife in 1925. The husband is a disabled veteran with a monthly income of approximately $1150 from his disability pension and $100 from rental income from marital property. He also deals in antiques and earns an unspecified income. The wife left high school in the twelfth grade and worked as a presser in a garment factory throughout the marriage. She has been unemployed since June 1984 and has no source of income other than temporary unemployment compensation.

In this appeal and cross appeal the parties raise issues relating to equitable distribution, alimony and attorneys' fees.

I. Equitable Distribution

In reviewing a trial court's determination of equitable distribution, an appellate court's scope of review is abuse of discretion. Absent clear and convincing evidence, an appellate court will not reverse the trial court's determination. Estep v. Estep, 353 Pa. Super. 227, 509 A.2d 419 (1986) (on remand from 508 Pa. 623, 500 A.2d 418 (1985); Braderman v. Braderman, 339 Pa. Super. 185, 488 A.2d 613 (1985).

The court awarded the husband one-half the value of the marital property, consisting of three pieces of real estate. The total value of the real estate is $85,000. Husband asserts that he is entitled to greater than the fifty percent share because he either owned the property prior to marriage and contributed it to the marriage or the marital property was purchased with proceeds from the sale of other property he owned prior to marriage. We disagree.

After marriage, husband transferred an interest in three pieces of real property to his wife and himself as tenants by the entireties. The real estate consisted of the marital home, a small commercial trailer park, and other real estate

[ 373 Pa. Super. Page 147]

    which was sold during the marriage. The proceeds from the sale of this real estate were used to purchase a property in Florida. Husband concedes all of the real estate is marital property. Brown v. Brown, 352 Pa. Super. 267, 507 A.2d 1223 (1986).

In reviewing the distribution of marital property upon dissolution of a marriage we must examine the equitable distribution scheme enacted in the Divorce Code, Pa.Stat.Ann. tit. 23, § 401 (Purdon Supp.1987). Under the Code, the legislature instructed the trial court to consider all factors relevant to equitable distribution, including ten factors specifically enumerated in the Code,*fn1 so that the plan of distribution will be economically just. See Semasek v. Semasek, 331 Pa. Super. 1, 479 A.2d 1047 (1984), rev'd. on oth. grds., 509 Pa. 282, 502 A.2d 109 (1985).

Husband argues that in considering these factors, the court must give additional points to the party who owned the property prior to marriage and then transferred the property to tenancy-by-the-entireties during marriage. The husband supports his argument by reference to Section 401(d)(7) of the Code, set forth in footnote one, which provides in part that one of the factors to be considered in

[ 373 Pa. Super. Page 148]

    equitable distribution is the contribution of each party to the acquisition of marital property. In fact, the husband asks us to fashion a principle that would require a court to give overriding consideration to that factor, so that as donor of the real estate to the marriage, he will get extra credit which translates to a greater share of the value of the real estate upon equitable distribution.

We disagree with husband's contention. First we note that Section 401(d)(7) does not afford any special consideration to a pre-marital acquisition that later becomes marital property. As to marital property, Section 401(d)(7) instructs the court to give consideration to the "acquisition, preservation, depreciation or appreciation of marital property." The weight to be accorded the acquisition factor depends upon the facts of each case. The court must consider this factor along with the other relevant 401(d) factors. We know of no reason nor has appellant proposed any reason why the weight of this factor should be assigned greater value than the other enumerated factors.

We find that the court properly considered the acquisition factor along with the other relevant 401(d) factors. In distributing half the value of the three pieces of real estate to the wife, the court properly weighed the numerous factors presented by this case. Specifically, the court gave weight to the following facts in husband's favor: the husband acquired the properties prior to marriage, transferred the properties to the marital unit during the marriage and made a proportionately greater share of payment for real estate related expenses than the wife. The court balanced these factors against the following facts in wife's favor: the wife made monetary and physical contributions to renovating the marital residence, was both a wage-earner and homemaker, and contributed a $7,500 inheritance to the marital unit. Moreover, the court considered that at the time of the hearing the wife was 60 years old and had limited opportunity to procure gainful employment and that husband's future pension and other income would be greater than wife's potential income, which might be limited to

[ 373 Pa. Super. Page 149]

    social security. The court acted properly and did not abuse its discretion.

We note that although it is incumbent on the court in making equitable distribution awards to consider each asset and distribution individually, it is also necessary for the court to review the entire picture and adjust the distribution of each asset so that the total distribution to each party shall be economically just.

II. Real Estate Related Expenses and Rents

As noted above, one of the items of marital property in this case is a trailer camp which yields approximately $100 per month in rent. In her cross-appeal, wife asserts that she is entitled to one-half of this rental income. She contends that the court should not have given husband an exclusive credit for one-half of any payments for real estate related bills paid by him without giving wife a similar credit and that rents received by husband and the fair rental value of the properties should be accounted for to wife.

This issue is poorly framed and difficult to understand. Apparently, the wife is arguing that the trial court abused its discretion by both permitting the husband to keep the total monthly rentals from the trailer park and also giving the husband one-half credit for certain unspecified real estate related costs that he bears. The wife also suggests that the court abused its discretion by not awarding her a credit for any real estate costs she might bear. The credit to the husband to which the wife refers is presumably the credit the trial court allowed to the husband at the time the properties are sold and distributions of the proceeds are made to the parties. Finally, wife also argues that this credit to the husband is overbroad because it has no time limits.

The record reveals that the husband has been primarily responsible for real estate related expenses since the parties separated. It is apparent that the purpose of the court's order was to establish that each party was entitled to one-half the value of the real estate from the time of separation. In order to maintain that ratio, the court directed

[ 373 Pa. Super. Page 150]

    the husband to take credit for one-half the expenditures he makes on the real estate after separation. We do not find this credit overbroad since it is limited in time to payments from the date of separation to the date of sale. We find no abuse of discretion.

We further find no abuse of discretion in the trial court's award of rental income to the husband until the date of sale of the properties. This award was employed by the court to counter-balance the alimony award to the wife. Since under the peculiar facts of this case both the rental income and the alimony will terminate upon the sale of the properties, we find no abuse of discretion in the trial court's award of rental income exclusively to the husband for the short period of time prior to sale of the properties.

III. Alimony

The trial court awarded wife $300 a month from the time the trial court adopted the master's report until the earlier of when: 1. the wife received $10,000 in proceeds from the sale of marital real estate; or, 2. July 16, 1987, when the wife became eligible for Social Security benefits. Both parties contest the award of alimony.

As in the case of equitable distribution, our standard of review of questions relating to alimony is limited to a determination of whether the trial court abused its discretion. Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983).

The legislative directive regarding alimony begins with the following provision:

The court may allow alimony, as it deems reasonable . . ., only if it finds that the party seeking alimony: (1) lacks sufficient property, including but not limited to any property distributed . . ., to provide for his or her reasonable needs; and (2) is unable to support himself or herself through appropriate employment.

Pa.Stat.Ann. tit. 23 § 501(a).

Section 501(b) provides that in determining whether alimony is necessary and in ...


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