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Lee v. Lee

July 15, 2009

BRUCE E. LEE APPELLEE
v.
KRISTIN J. LEE APPELLANT



Appeal from the Decree October 18, 2007 In the Court of Common Pleas of Lebanon County Civil No. 2005-20062.

The opinion of the court was delivered by: Kelly, J.

BEFORE: GANTMAN, SHOGAN and KELLY, JJ.

OPINION

¶ 1 Appellant, Kristin J. Lee (Wife), appeals from the equitable distribution decree entered in the Lebanon County Court of Common Pleas. In this case we find, inter alia, that in divorce-related equitable distribution, when a spouse has been excluded from the marital home by a protection from abuse order, the other spouse may raise an equitable defense against the first spouse's claim to rental credit for the time period in which the order was in effect. We affirm the decree in part, reverse in part, and remand for proceedings consistent with this memorandum.

¶ 2 Wife and Appellee, Bruce E. Lee (Husband) were married in 2000. Wife was thirty-five years old at the time, and Husband was forty-seven; it was the second marriage for both. In May of 2001, their son was born. The parties lived in the house that had been Wife's home before the marriage; she had purchased it in 1999 with $70,000 of her savings. In 2001, the parties refinanced the home and Husband's name was added to the deed. Wife then sold two other pre-marital real estate parcels and applied the proceeds toward improving the marital home and paying off the refinanced mortgage.

¶ 3 In January of 2005, the parties separated; Husband left the marital residence and Wife took primary physical custody of their son, continuing to live in the marital home. At that time, Husband was fifty-two years old and Wife was forty. In July of that year, Husband attempted to gain entry to the home and take the child. As a result, on August 18th Wife secured a protection from abuse order (PFA) which banned Husband from the home.

¶ 4 In February of 2005, Wife commenced a divorce but discontinued it one year later. On February 16, 2006, Husband filed a divorce complaint. A special master was appointed, who held an equitable distribution hearing on October 11, 2006. The special master issued his report in June of 2007; both parties filed exceptions, and on October 18, 2007 the trial court entered a divorce decree and an order granting the exceptions in part and denying them in part. The court upheld the master's recommended award of 65% of the marital property to Wife and 35% to Husband. It agreed with the master that Wife had a donative intent when she deeded the marital home in both parties' names, and thus that her premarital residence became marital property. Despite the PFA, the court also granted Husband rental credit for the twenty-five month period that began when the parties separated.

¶ 5 Wife appeals, presenting three issues for our review: whether the trial court abused its discretion in: (1) fashioning equitable distribution, when it failed to consider the duration of the marriage, the economic disparity between the parties, and her contributions to the marital estate; (2) awarding Husband a twenty-five month rental credit; and (3) compelling her to liquidate the home to effectuate the court's distribution arrangements.*fn1

¶ 6 In reviewing equitable distribution orders, [our standard] of review... is limited. It is well established that absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution. [In addition,] when reviewing the record of the proceedings, we are guided by the fact that trial courts have broad equitable powers to effectuate [economic] justice and we will find an abuse of discretion only if the trial court misapplied the laws or failed to follow proper legal procedures. [Further,] the finder of fact is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.

Anzalone v. Anzalone, 835 A.2d 773, 780 (Pa. Super. 2003) (citation omitted). In addition,

We do not evaluate the propriety of the distribution order upon our agreement with the court['s] actions nor do we find a basis for reversal in the court's application of a single factor. Rather, we look at the distribution as a whole, in light of the court's overall application of the [23 Pa.C.S.A. § 3502(a)] factors [for consideration in awarding equitable distribution]. If we fail to find an abuse of discretion, the [o]rder must stand.

Trembach v. Trembach, 615 A.2d 33, 36 (Pa. Super. 1992) (citation and footnote omitted).

¶ 7 In her first issue, Wife avers that the trial court abused its discretion in awarding her only 65% of the marital estate by failing to consider her "significant" contributions to the marital estate, which included her premarital residence that became jointly titled "only... as a result of a mortgage refinancing Husband advocated," and not because of any monetary contribution from him. (Wife's Brief, at 24). Wife maintains she invested money, earned from the sale of two additional premarital properties in the home: $30,000 to make improvements and more than $80,000 to fulfill the mortgage obligation. She also contends the court ignored the short duration-five years-of the marriage, and the fact that it was the second marriage for both parties. In addition, Wife argues that post-separation, there was a "severe economic disparity" between the parties, as Husband enjoyed a financial position much superior to hers, while her financial situation had not returned to what it had been prior to the marriage. (Id. at 25). Wife concludes that the court failed to consider the "vanishing credit theory," which provides that where a marriage has not been of long duration, credit should be given to the parties for definable, premarital assets. Wife urges that she should be granted 100% of the marital home, an award that has been upheld in other cases by this Court.

¶ 8 Under section 3502(a) of the Divorce Code, the court "shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors." Id. (citation omitted). Section 3502(a) sets forth factors to be considered in fashioning an equitable distribution award:

(1) The length of the marriage.

(2) Any prior marriage of either party.

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities ...


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