Appeal from the Order of the Court of Common Pleas, Fayette County, Civil Division, at No. 332 of 1983 GD.
Michael A. Johnson, Mount Pleasant, for appellant.
Joseph M. George, Uniontown, for appellee.
Cirillo, President Judge, and Cavanaugh, Brosky, McEwen, Olszewski, Beck, Tamilia, Popovich and Johnson, JJ.
[ 385 Pa. Super. Page 555]
This is an appeal from the Order of the trial court granting the parties a decree in divorce and directing an award of equitable distribution between the parties.
Appellant raises the following issues for our consideration: (1) whether the trial court had the jurisdictional ability to make the Order it did; and (2) whether the trial court properly held that appellant's Veteran's Disability Compensation
[ 385 Pa. Super. Page 556]
Benefits constituted marital property subject to equitable distribution under the Pennsylvania Divorce Code.
For the reasons that follow, we now vacate that part of the order as it pertains to equitable distribution, and remand for further proceedings consistent with this opinion. The provision in the order which grants the parties' divorce is affirmed.
Appellant-husband and appellee-wife were married on June 17, 1950. Eleven children were born of the marriage; nine are surviving. During the majority of the time that the parties lived together appellant was a member of the Armed Services. In 1983 appellant filed a complaint in divorce alleging that the parties had been separated for a period in excess of three years and that the marriage was irretrievably broken.
Appellee made a claim for equitable distribution which was referred to the Master. A hearing was held on the matter on April 29, 1987. At the hearing appellant testified that he was forced to terminate his service with the U.S. Air Force because of a physically disabling injury received while in the Air Force. The monies he has received since his termination have been in the form of Veteran's Administration Disability Compensation Benefits, and not military retirement pay.
On September 11, 1987, the Master filed a report and recommendation, wherein he concluded that appellant's Veteran's Administration Disability Compensation Benefits are marital property subject to equitable distribution, and awarded 60 percent of the benefits to appellant and 40 percent to appellee.
Appellant filed exceptions to the Master's report. The trial court, however, dismissed the exceptions and adopted the recommendations of the Master. This appeal followed.
The determination of whether appellant's disability pay is distributable as marital property ...