Appeal from the Order of the Court of Common Pleas of Lehigh County, Civil at No. 85-FC-261.
Gerald Roth, Allentown, for appellant.
Mark S. Sigmon, Bethlehem, for appellee.
Cavanaugh, McEwen and Popovich, JJ. McEwen, J., concurs in the result.
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This is an appeal from the order of the Lehigh County Court of Common Pleas entered pursuant to the court's
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broad equitable powers in divorce cases, 23 Pa.S.A. § 401(c), directing the appellant, Jack Ratarsky, to pay the appellee, Lillian Ratarsky, 50% of the cash surrender value of the life insurance policies which were held in trust by the parties. Upon review, we find that the trial court abused its discretion and exceeded its authority. Accordingly, we vacate the order and dismiss appellee's petition.
The record reveals the following facts: On February 7, 1986, the parties' divorce decree was entered. In addition, a property settlement agreement was incorporated into the divorce decree by stipulation of the parties. The property settlement was finalized on February 3, 1986, following counseled negotiations which began in March of 1985.
At the heart of this dispute is the inter vivos trust created by the parties in June of 1965, which contained nine life insurance policies as well as a certificate of deposit. On March 11, 1985, the appellee's counsel asked the appellant's counsel to inform the trustee to advise him of any withdrawal of trust assets or change in benefits, and on March 14, 1985, appellant's counsel complied with the request. The trustee then supplied the appellee and her counsel with a copy of the trust assets. The insurance policies in question for accounting purposes were carried by the trust at a book value of $1.00 and a market value of $1.00, although their actual cash surrender values were considerably higher. Appellee's counsel made numerous inquiries concerning the policies; however, counsel never directly inquired as to the surrender value of the policies. On December 20, 1985, the trustee, at the appellant's request, turned over the insurance policies to the appellant in order to afford the appellant an opportunity to review the policies. The appellee and her counsel were never notified by the trustee of the appellant's withdrawal of the policies, and the appellant never returned the policies.
Eventually, the parties reached a property settlement agreement on February 3, 1986. On February 4, 1986, the
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appellant notified the trustee that he was revoking the trust and was retaining possession of the insurance policies. On March 13, 1986, the trustee liquidated the trust and the husband acknowledged the receipt of the ...