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BONNIE L. GIOIA v. BERNARD J. GIOIA (03/15/89)

filed: March 15, 1989.

BONNIE L. GIOIA, APPELLANT
v.
BERNARD J. GIOIA



Appeal from the Order of July 8, 1988 in the Court of Common Pleas of Fayette County, Civil Division, No. 377 of 1980, G.D.

COUNSEL

Jan Ira Medoff, Pittsburgh, for appellant.

Ernest P. DeHaas, III, Uniontown, for appellee.

Melinson, Hoffman and Cercone, JJ.

Author: Cercone

[ 382 Pa. Super. Page 541]

This is an appeal from a final order entered July 8, 1988 in the Court of Common Pleas of Fayette County, Civil Division. The order provided for the equitable distribution of the parties' marital property pursuant to a special master's recommendations. For the following reasons we affirm in part and reverse in part the court's order, and remand for further proceedings consistent with this opinion.

The parties to the instant appeal were married in 1971. There are two children of the marriage who reside with wife/appellant. On February 26, 1980, appellant filed an action in divorce alleging both fault and no-fault grounds. The Fayette County Court of Common Pleas bifurcated the divorce from the economic issues, and entered a decree of divorce on August 29, 1985. Eventually a special master was appointed, who conducted hearings regarding the economic issues on August 17, August 31, and November 9 of 1987. The master filed his report on January 6, 1988 and appellant timely filed exceptions. The lower court issued its opinion and order granting certain exceptions and denying others on July 8, 1988. This timely appeal followed.

Appellant asks us to consider the following issues: (1) whether the lower court erred in its selection of a valuation date for husband/appellee's business interest; (2) whether the lower court erred in reducing the net value of appellee's assets by the amount of a judgment levied against a predecessor entity to the closely held corporation in which appellee currently owns 50% of the stock; (3) whether the lower court erred in failing to assign a monetary value to a mineral lease held as an asset by the business entity in which appellee owned a 50% interest on the relevant date; (4) whether the lower court inappropriately apportioned the marital assets pursuant to the relevant factors in the Pennsylvania

[ 382 Pa. Super. Page 542]

Divorce Code;*fn1 (5) whether the lower court improperly refused to grant counsel fees in the amount requested by wife/appellant; (6) whether appellant was improperly denied discovery; and finally, (7) whether the special master erred in refusing to admit into evidence the valuation report prepared by appellant's expert regarding appellee's business interest. We will consider these issues seriatim.

Initially, we note that the trial court has "full equity power" to resolve issues concerned with equitable distribution of marital property pursuant to section 401(c) of the Divorce Code, supra.*fn2 Our appellate role is not to nullify the fact-finding function of either the special master or the lower court. King v. King, 332 Pa. Super. 526, 481 A.2d 913 (1984). We review judgments and orders pertaining to equitable distribution of marital property under an abuse of discretion standard. Cunningham v. Cunningham, 378 Pa. Super. 280, 548 A.2d 611 (1988). We will not disturb the decision of the trial court absent abuse of discretion. Vajda v. Vajda, 337 Pa. Super. 573, 579-560, 487 A.2d 409, 412 (1985). We will, however, find an abuse of discretion where the trial court has misapplied the law. Buckl v. Buckl, 373 Pa. Super. 521, 526, 542 A.2d 65, 67 (1988) (en banc).

We begin our analysis with a consideration of appellant's allegation that the selection of December 31, 1986 as the valuation date for appellee's business interest was an abuse of discretion under the circumstances of the instant case. Appellant argues that the date of separation, November 29, 1981, is the most appropriate valuation date. We cannot agree. Our Supreme Court has recently stated that

[ 382 Pa. Super. Page 543]

    marital property must be distributed with reference to its value as close as is practicable to the date of distribution. Sutliff v. Sutliff, 518 Pa. 378, 383, 543 A.2d 534, 537 (1988). As the court explained,

[T]here may be situations where marital assets have been consumed or disposed of by one of the parties, thus rendering a current valuation impossible and making it necessary to rely on data that would otherwise be considered stale . . . . In the usual case, however, given that the parties' present needs and circumstances are to be a major factor in distributing marital assets, it would be impossible to construct a distribution scheme that would be fully responsive to those needs ...


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