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JAMES RICHARD MCGINLEY v. MARY LOU MCGINLEY (11/08/89)

filed: November 8, 1989.

JAMES RICHARD MCGINLEY, JR., APPELLANT AT NO. 826PHL89,
v.
MARY LOU MCGINLEY, APPELLANT AT NO. 686PHL89



Appeal from the Order entered February 6, 1989, Court of Common Pleas, Northampton County, Civil Division at No. 1982-C-6837.

COUNSEL

Jerome B. Nulty, Souderton, for appellant (at 686) and appellee (at 826).

Sandor Engel, Allentown, for appellant (at 826) and appellee (at 686).

Olszewski, Del Sole and Johnson, JJ.

Author: Johnson

[ 388 Pa. Super. Page 502]

Mary Lou McGinley (Wife) and James Richard McGinley (Husband) appeal from the order entered February 6, 1989, decreeing the parties to be divorced from the bonds of matrimony and establishing the terms of an equitable distribution. We affirm.

Husband and Wife were both born in 1951. They were married on September 23, 1972 and subsequently separated on April 24, 1982. Husband then filed a complaint in divorce in August, 1982. Hearings were held in this matter in November of 1986. On May 12, 1988 the Special Master filed his report and recommended the following: a) a plan of equitable distribution providing that Wife receive 60% and Husband 40% of the marital estate; b) an award of alimony to Wife of $400 per week for four years; c) an award of counsel fees and costs to Wife of $7,500; and d) an assessment against Husband of fees and costs related to the work of the Master. Exceptions to the Master's Report were filed by both parties and were argued before the lower court.

On February 6, 1989 the lower court entered an order which, inter alia, modified the Master's recommended equitable distribution plan by correcting a mathematical error, affirmed the Master's award of alimony, master's fees and costs, and overruled the Master's award of counsel fees and costs. Hence, the instant appeal and cross-appeal.

On appeal, Wife asserts the following issues.

I. DID THE MASTER ERR IN DETERMINING THE TRUE EXTENT OF HUSBAND'S PREMARITAL STOCK HOLDINGS AND FAILING TO AWARD WIFE A PORTION OF THE POSTMARRIAGE ACQUISITIONS?

[ 388 Pa. Super. Page 503]

II. SHOULD THE INCREASE IN VALUE OF A CERTAIN FUND, HELD IN TRUST FOR HUSBAND, BE INCLUDED AS MARITAL PROPERTY?

III. SHOULD A SINGLE ASSET, THE MARITAL HOME, BE SINGLED OUT FOR AN INCREASED APPRAISAL TWO YEARS AFTER THE MASTER'S HEARING HAS BEEN CLOSED AND THE INCREASE BE TAKEN FROM WIFE, DOLLAR FOR DOLLAR?

IV. MAY WIFE'S REQUEST FOR OVER $40,000.00 IN COUNSEL FEES AND COSTS BE TOTALLY DISMISSED BECAUSE THE HEARINGS ARE NOW OVER AND SO WIFE SHOULD PAY THIS OUT OF HER CASH DISTRIBUTION?

V. WAS AN ALIMONY AWARD OF ONLY $400 A MONTH, FOR FOUR YEARS, SUFFICIENT IN VIEW OF WIFE'S ROUTINE EXPENSES, EXPECTED TUITION AND MORTGAGE COSTS, AND HUSBAND'S EXTREME EARNING CAPACITY?

VI. IS THE AWARD OF ONLY 60% IN EQUITABLE DISTRIBUTION SUFFICIENT CONSIDERING WIFE'S POOR EARNING CAPACITY AND HUSBAND'S DEMONSTRATED POTENTIAL FOR THE ACCUMULATION OF WEALTH?

VII. DID HUSBAND REALLY USE THE $18,000 FROM THE JOINT CAPITAL PRESERVATION FUND TO PAY A JOINT BILL AND SO EXCLUDE THE SUM FROM EQUITABLE DISTRIBUTION?

VIII. DID THE MASTER MAKE AN ARITHMETICAL ERROR OF $8,437 IN OVER-VALUING THE ASSOCIATED SUPPLIERS LIMITED ASSET IN HUSBAND'S POSSESSION?

On cross-appeal, Husband raises the following contentions.

[ 388 Pa. Super. Page 504]

I. WHETHER IT IS AN ABUSE OF DISCRETION TO MAKE AN EQUITABLE DISTRIBUTION AWARD REQUIRING THE PAYMENT OF CASH WHEN THE PAYING SPOUSE HAS NO SOURCE OUT OF WHICH TO PAY OR FROM WHICH TO BORROW?

II. WHETHER IT IS AN ABUSE OF DISCRETION NOT TO CONSIDER THE TAX CONSEQUENCES OF LIQUIDATING AN ASSET IN AN EQUITABLE DISTRIBUTION PROCEEDING?

III. WHETHER IT IS AN ABUSE OF DISCRETION TO AWARD A 60/40 DIVISION OF THE NEW WORTH OF A MARITAL ESTATE WHEN THE ESTATE IS ILLIQUID?

IV. WHETHER A LIFE INSURANCE POLICY PURCHASED PRIOR TO MARRIAGE IS NON-MARITAL PROPERTY, BUT IF MARITAL PROPERTY, SHOULD IT BE VALUED BY ITS CASH SURRENDER VALUE ...


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