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JOSEPH TALUTTO v. BERTHA TALUTTO (06/27/88)

filed: June 27, 1988.

JOSEPH TALUTTO
v.
BERTHA TALUTTO, APPELLANT



Appeal from the Order entered in the Court of Common Pleas of Lackawanna County, Civil Division, No. 84-CIV-758

COUNSEL

John P. Bogdanovicz, Scranton, for appellant.

Cirillo, President Judge, and Tamilia and Hester, JJ.

Author: Tamilia

[ 375 Pa. Super. Page 304]

This is a timely appeal by defendant Bertha Talutto of a final Order, dated August 3, 1987, granting the parties a divorce pursuant to section 201(c) of the Divorce Code, 23 P.S. § 201(c), providing for equitable distribution of the marital property, and awarding $100 per month alimony to appellant/wife for an indefinite period of time. On appeal, appellant contests the trial court's distribution of marital property and alimony award.

The parties were married on November 27, 1941. During the course of their marriage they had four children, all of whom are adult individuals. The parties separated sometime in December, 1982. Appellee Joseph Talutto filed a complaint in divorce on February 16, 1984 alleging grounds for divorce pursuant to 23 P.S. §§ 201(c) and 201(a)(6) of the Divorce Code, 23 P.S. § 101 et seq. An amended complaint was filed on November 28, 1984 alleging additional grounds for divorce pursuant to 23 P.S. § 201(d). On March 20, 1985, a hearing was held before a master, resulting in the master's report and recommendations filed that day. Timely exceptions to the master's report and recommendations were filed by appellee on May 28, 1987, resulting in the August 3, 1987 Order from which appellant has filed the instant appeal.

Appellee was born on September 9, 1920 and was sixty-six years old at the time of the hearing. He retired due to a disability in 1973 from the Erie & Lackawanna Railroad after working there for thirty-four years. The trial court and master found appellee's sole source of income to be his benefits received under the Railroad Retirement Act of 1974 (hereinafter "the Act"), 45 U.S.C. § 231 et seq.,*fn1 amounting to $8,640 annually.

[ 375 Pa. Super. Page 305]

Appellant was born December 29, 1924 and was sixty-two years old at the time of the hearing. She too is unable to work due to a disability. The trial court and master found appellee's annual income to consist of $2,724 from Social Security disability payments and $1,800 from appellant as spousal support, for a total of $4,524.*fn2

The marital estate is relatively small. Although the trial court adopted the master's recommendation that appellant receive all of the marital household furnishings, which are of inconsequential value, the trial court rejected the master's recommendation with respect to appellee's railroad benefits. The master recommended appellant receive a twenty percent interest in appellee's railroad retirement benefits until such time that she receives benefits in her own right through the railroad retirement pension, at that time her interest in appellee's benefits would be diminished by fifty percent of the amount she actually received. Thus, the master treated the appellant's railroad retirement benefits as marital property subject to equitable distribution. Upon review of appellee's exceptions, the trial court concluded that appellee's benefits should not be considered marital property and, therefore, did not subject them to equitable distribution. Additionaly, the master and trial court did not include as marital property certain cash and real estate derived therefrom which was received by appellant from her mother's estate as an inheritance.

On appeal appellant raises two issues, both concerning the application of the Railroad Retirement Act of 1974, supra.*fn3 First, appellant claims the trial court erred in finding that federal law prevents distribution of appellee's railroad retirement pension as marital property. Second,

[ 375 Pa. Super. Page 306]

    appellant claims that in awarding her alimony the trial court failed to consider the possible adverse effects 45 U.S.C. § 231c(i), dealing with reductions in survivors' ...


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