Bower v. Bower

• Decision Date: 17 June 1992
• Citation: 611 A.2d 181,531 Pa. 54
• Parties: William L. BOWER, Appellant, v. Susan J. BOWER, Appellee.
• Court: Pennsylvania Supreme Court

Page 181

611 A.2d 181

531 Pa. 54

William L. BOWER, Appellant, v. Susan J. BOWER, Appellee.

Supreme Court of Pennsylvania.

Submitted April 6, 1992.

Decided June 17, 1992.

[531 Pa. 56] William F. Ochs, Jr., Reading, for appellant.

Susan J. Bower, pro se.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

LARSEN, Justice.

Appellant William L. Bower commenced this action in equity against appellee Susan J. Bower, his former wife, seeking, inter alia, a partition of certain property held in appellee's name and a declaration that appellee holds the property as trustee for appellant. This is an appeal from the order of the Superior Court, 370 Pa.Super. 642, 533 A.2d 1071, affirming the order of the Court of Common Pleas of Berks County, which sustained appellee's preliminary objections and dismissed appellant's complaint.

Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976). To determine whether preliminary objections have been properly sustained, this Court must consider as true all of the well-pleaded material facts set forth in appellant's complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 4, 383 A.2d 791, 792 (1977); Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 42, 371 A.2d 178, 181 (1976).

The relevant facts, as set forth in appellant's complaint, are as follows. On or about April 3, 1973, the parties purchased the property at 501 South Center Road in Exeter Township. Title to the property was taken in the name of Susan I. Meas (later Susan I. Bower) alone because appellant was still married to a third party, and both appellant and appellee wished to avoid any possible claim on the property by appellant's then wife. Appellant and his first wife divorced on April 10, 1973. Four days later, appellant married appellee and established the Exeter Township property as their marital residence.

The purchase price of the Exeter Township property was $34,000. At the time of purchase, the parties mortgaged $27,200 and paid $6,800 in cash. The mortgage was applied for and issued in appellee's name but was co-signed and guaranteed by a collateral bond and warrant signed and delivered by appellant. The $6,800 cash payment derived from a previous sale of property deeded in appellee's name, which property had increased in value due to renovations and repairs made by both parties. The parties agreed before buying the Exeter Township property that they would make repairs and renovations to said property and that the proceeds of the sale of that property would be used to purchase the Exeter Township property.

Appellant and appellee were divorced on May 8, 1985, by decree of the Court of Common Pleas of Berks County, pursuant to Section 201(d) of the Divorce Code. ¹ Appellant initiated the divorce and, as part of the divorce action, signed a standard Pa.R.C.P. 1920.72 affidavit, which stated in part that: "I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted." Appellant did not seek equitable distribution at any time prior to the divorce.

After the divorce, appellant instituted this action in equity on March 7, 1986. Appellee responded by filing preliminary objections to the complaint claiming that appellant failed to state a cause of action. The trial court sustained appellee's preliminary objections and dismissed the complaint stating that:

[Appellant] did not assert a claim for equitable distribution prior to the entry of the divorce decree, and in fact signed an affidavit stating he understood he could lose such rights if he did not claim them prior to the entry of a divorce decree. [Appellant's] property rights were therefore terminated upon the entry of the divorce decree, pursuant to 23 Pa.C.S.A. Section 401(j) ², and appellant effectively waived his remedy at law with respect to any property rights he may have had arising out of the marriage.

Trial Court Opinion at p. 3. On appeal, the Superior Court affirmed based on the trial court opinion.

Appellant claims that his rights to the property in question did not arise out of the marriage or depend upon the marital relation, and therefore, did not terminate pursuant to § 401(j) of the Divorce Code. Thus he argues that he did not waive his rights to the property by failing to seek equitable distribution prior to the final divorce decree. We agree.

Upon request in a divorce action, the court shall equitably distribute the marital property. 23 P.S. § 401(d) (repealed 1990). Section 401(e) of the Divorce Code defines marital property as:

... all property acquired by either party during the marriage except:

(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.

(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.

(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.

(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.

(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.

(6) Veteran's benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran's Compensation.

(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.

23 P.S. § 401(e) (repealed 1990). All property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership. 23 P.S. § 401(f) (repealed 1990).

The facts show that the parties acquired the Exeter Township property on April 3, 1973--eleven days prior to their marriage. Additionally, the cash funds for buying that property derived from joint renovations and repairs made by the parties on the prior-owned property deeded in appellee's name and sold before April 3, 1973, which renovations and repairs increased the value of that property resulting in a higher selling price and more proceeds with which to buy the Exeter Township property. The facts also show that, prior to the parties' marriage, appellant signed the mortgage and collateral bond guaranteeing the mortgage on the Exeter Township property.

These facts, which we must consider as true, reveal that the Exeter Township property was not "acquired by either party during the marriage" and, as such, was not marital property subject to equitable distribution. See 23 P.S. §§ 401(e)-(f). Thus any waiver by appellant of his right to equitable distribution of marital property does not affect whatever rights he may have to the Exeter Township property. Further, the facts show that appellant's right to the property is not "dependent upon such marital relation" since the property was acquired prior to the marriage. Therefore, the divorce decree did not result in a termination of appellant's rights to the property, pursuant to § 401(j) of the Divorce Code, as the trial court incorrectly concluded.

Additionally, appellant may be entitled to imposition of a resulting trust on the Exeter Township property by virtue of the fact that he provided a portion of the down payment, co-signed the mortgage and guaranteed the mortgage. This Court has held that "[w]here a transfer of property is made to one person and the purchase price is paid by another a resulting trust arises in favor of the person by whom the purchase price is paid." Masgai v. Masgai, 460 Pa. 453, 458, 333 A.2d 861, 864 (1975), quoting Restatement (Second) of Trusts § 440 (1959). However, a resulting trust must be intended by the person paying the purchase price. Id. Appellant's complaint does not address either party's intent regarding a resulting trust, and the trial court improperly failed to take such evidence before ruling on the preliminary objections. See Pa.R.C.P. 1028(c) (in determining preliminary objections, the court shall take evidence by depositions or otherwise if an issue of fact arises). Thus, the preliminary objections should not have been sustained, and appellant has the right to seek court determination of what interest, if any, he has in the Exeter Township property.

Accordingly, we reverse the order of the Superior Court and remand to the Court of Common Pleas for further proceedings consistent with this opinion.

McDERMOTT and ZAPPALA, JJ., join this opinion and file concurring opinions.

NIX, C.J., files a concurring opinion.

CAPPY, J., files a dissenting opinion.

McDERMOTT, Justice, concurring.

I agree with the majority to the limited extent that the property acquired prior to the marriage was subject to partition. However, I believe the majority creates the erroneous impression that on remand the entire value of the property will be subject to partition. As I read the applicable section of the Divorce Code, while property jointly acquired...