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08/08/97 DOROTHY WELLNER v. ALBERT JAMES WELLNER

August 8, 1997

DOROTHY WELLNER, APPELLEE
v.
ALBERT JAMES WELLNER, APPELLANT; DOROTHY WELLNER, APPELLANT (AT 696)
v.
ALBERT J. WELLNER, APPELLEE (AT 653)



Appeal from the Order of the Court of Common Pleas of York County, Civil Division at No. 92-SU-05440-02D. Before BRILLHART, J.

Before: Cavanaugh, Popovich and Olszewski, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed August 8, 1997

This appeal and cross-appeal are from the final order of equitable distribution of the Court of Common Pleas of York County. Herein, Albert Wellner asserts that the lower court erred in determining that the parties separated in August of 1992, rather than August of 1979, for the purposes of equitable distribution. In her cross-appeal, Dorothy Wellner asserts that the lower court erred in failing to divide certain rents, interest and profits earned by marital assets between the date of the divorce decree on July 12, 1993, and the date of distribution of those assets. Upon review, we affirm the final order of equitable distribution.

On December 14, 1992, Wife filed a complaint requesting a divorce, equitable distribution of property, alimony and counsel's fees, costs and expenses. The action was bifurcated, and the parties were divorced on July 12, 1993. Subsequently, in November of 1993, Wife filed a petition for special relief which requested the court to award her alimony pendente lite. A master's hearing was held on April 12, 1994. The master issued his report and recommendation on September 28, 1994, and both Husband and Wife filed exceptions to the master's decision. Oral argument on the exceptions was held on May 4, 1995.

On November 10, 1994, in response to Wife's petition for special relief filed almost a year earlier, the court entered an order directing Husband to pay Wife $19,372.80, which represented Husband's alimony obligation of approximately $1400.00 per month from July 12, 1993, the date of divorce, through the date of Husband's retirement on September 1, 1994. This order implemented, in part, the alimony portion of the master's recommendation since Husband did not challenge the master's alimony determination in his exceptions. This order did not compel Husband to continue to pay monthly alimony pendente lite.

On December 13, 1994, Wife filed another petition for special relief which requested division of rents, profits and earnings from marital property, all of which, Wife argued, were in Husband's possession. On December 14, 1995, in response to this motion, the court entered an order directing Husband to pay $650.00 per month in alimony beginning with September of 1994. These alimony pendente lite payments were to be credited towards Husband's final alimony obligation, and, to the extent they exceeded his final alimony obligation, they were to be credited towards Wife's share of the equitable distribution. The order also reserved the issue of rents, interest and profit for determination at the time of final distribution of the marital property. *fn1

On July 10, 1995, the court filed an a opinion which affirmed the master's determination that the date of separation for the purposes of equitable distribution of property was August of 1992, and remanded the case to the master for completion of the record with regard to the value of the MTA Credit Union savings account and the marital portion of the value of Husband's Baltimore City pension. On September 13, 1995, the master held another hearing and, thereafter, on October 19, 1995, filed a supplemental report which determined the value of the MTA Credit Union account and Baltimore city pension and the marital portion of those assets as of the date of separation. The master also recommended the marital estate be distributed to the parties equally, as had previously been decided in his first recommendation.

Exceptions to this report were filed by both Husband and Wife. In an opinion filed August 5, 1996, the lower court rejected for the second time Husband's assertion that the date of separation was actually August of 1979, not August of 1992. The court then affirmed the master's equal division of marital property with each party receiving $361,501.33 in marital property. These appeals followed.

Absent an abuse of discretion, the lower court's findings of fact, if supported by credible evidence of record, are binding upon a reviewing court. Gordon v. Gordon, 436 Pa. Super. 126, 134, 647 A.2d 530, 534 (1994), reversed on other grounds, 545 Pa. 391, 681 A.2d 732 (1996); Campbell v. Campbell, 357 Pa. Super. 483, 490, 516 A.2d 363, 366 (1986). Presently, the lower court adopted the factual findings and legal Conclusion of the master with regard to date of separation. In the report and recommendation of September 28, 1994, the master set forth the facts which are pertinent to the separation issue, as follows:

12. In August, 1979, Husband and Wife were residing together at Regwood Road in Fork, Maryland.

13. In August, 1979, Wife's father was ill and Wife was visiting her mother's home on a daily basis to help with the care of her father. Wife had no car so she was being transported twice a day by her Husband.

14. In August, 1979, the Husband failed to appear to pick up the Wife at her mother's residence but the Husband did arrive a few days later with the Wife's clothes which he left at his mother-in-law's house. There was no ...


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