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R. GEORGE MACKEY v. MARION M. MACKEY (07/25/88)

filed: July 25, 1988.

R. GEORGE MACKEY, APPELLEE,
v.
MARION M. MACKEY, APPELLANT



Appeal from the order entered June 19, 1987, in the Court of Common Pleas of Butler County, Pennsylvania, Family Division, at No. F.C. 83-839, Book 7, Page 393.

COUNSEL

Charles S. Cusick, Jr., New Castle, for appellant.

James P. Coulter, Butler, for appellee.

Tamilia, Popovich and Hoffman, JJ.

Author: Popovich

[ 376 Pa. Super. Page 148]

This is an appeal presenting, inter alia, the interesting issue of whether spouses can "live separate and apart" under the same roof. This appeal is from the order of court denying the appellant's post-trial motions/exceptions to the decree of divorce and the bifurcation order entered by the Butler County Court of Common Pleas on January 12, 1987.*fn1

[ 376 Pa. Super. Page 149]

In her appeal from the lower court's granting of R. George Mackey's request for a unilateral divorce, Marion M. Mackey questions:

I. Whether the lower court's determination that the parties had lived separate and apart for a period of at least three years was supported by the evidence.

II. Whether the lower court's determination that the parties' marriage was irretrievably broken was supported by the evidence.

III. Whether the lower court found sufficient factual and legal basis to permit bifurcation of the economic issues and to grant a unilateral divorce.

Having reviewed the record and the parties' briefs, we affirm the lower court's order denying the appellant's motion/exceptions to the decree of divorce and bifurcation order.

The record reveals that Mr. and Mrs. Mackey were married in 1972 and resided on the Mackey farm since the date of their marriage. In the spring of 1983, Mr. Mackey informed Mrs. Mackey that he wanted a divorce, and, on July 20, 1983, Mr. Mackey filed a divorce complaint against his wife. Approximately three years later, on June 11, 1986, Mr. Mackey filed an amended divorce complaint and a Divorce Code ยง 201 affidavit alleging that the parties had lived "separate and apart" for over three years and their marriage was "irretrievably broken." Mrs. Mackey responded that the parties had actually resided together in the marital residence for the past three years where they continued to carry out important aspects of their marital relationship. Mrs. Mackey also denied that the parties' marriage was "irretrievably broken." In August of 1986, Mr. Mackey filed a motion requesting that the court grant his divorce and bifurcate the case.

On September 23, 1986, a hearing was held and the following facts which are basically undisputed by the parties were elicited: At the time of filing the divorce complaint, Mr. Mackey was informed by his attorney that he ...


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