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MARY CLAIR BROJACK v. DAVID JAMES BROJACK (07/12/89)

filed: July 12, 1989.

MARY CLAIR BROJACK, APPELLEE,
v.
DAVID JAMES BROJACK, APPELLANT



Appeal from the Order dated November 16, 1988, in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 83 CIV 3591.

COUNSEL

John J. Cerra, Carbondale, for appellant.

Joseph P. Lenahan, Carbondale, for appellee.

Del Sole, Beck and Montgomery, JJ.

Author: Beck

[ 385 Pa. Super. Page 503]

This case raises, inter alia, the question of when a "buy out" remedy is appropriate in the context of equitable distribution of a marital residence.

Appellant David Brojack (husband) and appellee Mary Clair Brojack (wife) were married in 1976. Wife filed a complaint in divorce in August of 1983, which included claims for equitable distribution, alimony and counsel fees. Per stipulation of the parties, proceedings were bifurcated and the divorce was granted in October of 1985. On December 15, 1986, a hearing was held before the master and on December 4, 1987, the master filed a detailed report. Husband filed exceptions to the master's findings. These exceptions were denied and the trial court entered an order finding the net marital estate worth $58,850.00. He recommended an award of 55% to wife and 45% to husband. Wife was also awarded counsel fees in the amount of $3,000.00. This appeal followed.

Husband makes the following claims of error: (1) the master's findings of fact were not supported by the evidence; (2) the master abused his discretion by disregarding certain evidence; (3) the report of the master was not in conformity with the laws and rules of court; and (4) the master abused his discretion by his choice of a "buy-out" as a remedy.

In reviewing an order of equitable distribution, our consideration is limited to whether there has been an abuse of discretion or error of law. Chaney v. Chaney, 343 Pa. Super. 77, 493 A.2d 1382 (1985). In reviewing a master's report we must give fullest consideration to the findings of the master who had an opportunity to observe the witnesses

[ 385 Pa. Super. Page 504]

    and is the best judge of credibility. Herwig v. Herwig, 279 Pa. Super. 65, 420 A.2d 746 (1980).

Husband's first two claims of error center upon the trial court's acceptance of the master's recommendation made after an assessment of the evidence before him. Upon review of the record and the arguments raised by appellant in his brief, we find nothing to support the conclusion that the trial court erred in accepting the master's findings relative to equitable distribution. In this regard, we affirm the order of the trial court on the basis of its opinion.

Next, husband claims that the master erred in failing to comply with Pa.R.C.P. 1920.54(c), and the Divorce Code, Pa.Stat.Ann. tit. 23 § 404 (Purdon Supp.1988). He notes that under Rule 1920.54(c), a master's report treating a claim for equitable distribution must contain a separate section entitled "Division of Property" with the two subheadings "Marital Property" (listing all property and including a proposed distribution discussing factors for distribution), and "Non-marital Property." Husband notes that under Pa.Stat.Ann. tit. 23 § 404, the court, in entering a distribution order, must set forth the reasons for the distribution ordered. The information set forth should include, at a minimum: (1) what is available for distribution; (2) to whom the distribution is made; and (3) why the distribution is made. Appellant claims that the master's report failed to conform to the rule and the statute. We disagree. Upon review of the record, we find that the master's report is not deficient as the appellant would have us believe. The report clearly identifies the ...


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