Appeal from the Order of the Superior Court of Pennsylvania Dated January 14, 1987 docketed to Nos. 354 and 361 Harrisburg 1985.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., joins in the majority opinion and files a separate concurring opinion. Zappala, J., files a concurring and dissenting opinion in which Larsen, J., joins. Stout, J., did not participate in the consideration or decision of this matter.
This is an appeal from an order of the Superior Court which affirmed in part, and remanded for further proceedings, with respect to an order of the Court of Common Pleas of Cumberland County determining equitable distribution of certain property following a divorce. 361 Pa. Super. 504, 522 A.2d 1144. The action for equitable distribution arose from the divorce of appellant, Gregory L. Sutliff, and appellee, Carlene Sutliff, after their marriage of nearly 25 years. Appellant filed a complaint in divorce in 1982, and, after numerous hearings were held before a master, a report was filed in 1984. Subsequently, in December, 1984, the parties filed a stipulation providing for, inter alia, a bifurcated divorce. A final divorce decree was then immediately entered. On May 7, 1985, the Court of Common Pleas filed an order providing for equitable distribution. An appeal and cross appeal were taken to the Superior Court, whereupon certain elements of the equitable distribution scheme were affirmed and others were remanded for further determinations and/or modifications to be made. The instant appeal ensued.
The first issue to be addressed is whether the Superior Court erred in its selection of a valuation date for the marital assets. The Court of Common Pleas utilized October 21, 1981, the date when the parties separated, as the valuation date. The Superior Court concluded, however, that valuation of marital assets should reflect values as of the distribution date, rather than the separation date, and, accordingly, the case was remanded for revaluation of
certain business interests, including automobile dealerships, that were subject to distribution. The basis for the Superior Court's action was that, because there had been a considerable passage of time between separation of the parties and distribution of their marital assets, substantial fluctuations in the values of those assets may have occurred, which, from an equitable standpoint, should be reflected in the distribution order. We agree.
The Divorce Code contains no express provision governing the selection of a date to be used for valuation of marital property, where equitable distribution is concerned. While the Code clearly states that property acquired after separation is not to be considered marital property, 23 P.S. § 401(e), the question presented here is not whether particular assets are to be deemed marital, as opposed to individually owned, but rather whether assets given to be marital in nature are to be valued at one level or another. It is implicit, however, in the statutory provisions governing equitable distribution that a valuation date reasonably proximate to the date of distribution must, in the usual case, be utilized. Specifically, 23 P.S. § 401(d) provides:
In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, ...