Gordon v. Gordon

• Court: Pennsylvania Superior Court
• Writing for the Court: CIRILLO
• Citation: Gordon v. Gordon, 647 A.2d 530, 436 Pa.Super. 126 (Pa. Super. Ct. 1994)
• Decision Date: 14 September 1994
• Parties: William GORDON, Appellant, v. Rosemarie GORDON.

Page 530

647 A.2d 530

436 Pa.Super. 126

William GORDON, Appellant, v. Rosemarie GORDON.

Superior Court of Pennsylvania.

Argued Jan. 11, 1994.

Filed July 11, 1994.

Reargument Denied Sept. 14, 1994.

Stanley M. Shingles, Philadelphia, for appellant.

James D. Crawford, Philadelphia, for appellee.

Before CIRILLO, BECK and HOFFMAN, JJ.

CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County dividing the parties' marital estate. We affirm in part, and vacate and remand in part.

Appellant William Gordon (Husband) and appellee Rosemarie Gordon (Wife) were married on May 31, 1958. Husband initiated this action in January of 1979 with a complaint in divorce alleging indignities to the person. Nine hearings were held, yielding 900 pages of testimony. Now, fifteen years later, the record reads like a Dickens novel. ¹ As a result of the parties' inability to settle their differences and their dissatisfaction with the trial court's evaluation and distribution of the marital estate, the litigation has now endured almost as long as the marriage.

Following several hearings, the master filed a report recommending entry of a divorce decree on the grounds of indignities. Exceptions were filed and denied and the Honorable Domenic D. Jerome entered a decree in divorce on September 4, 1980.

Wife filed an appeal from the trial court's order denying her request to proceed under the Divorce Code of 1980. On appeal, this court reversed and remanded for disposition of the economic issues in accordance with the 1980 Divorce Code. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), affirmed 498 Pa. 570, 449 A.2d 1378 (1982).

Thereafter, on August 2, 1985, the Honorable Frank J. Lynch granted a bifurcated divorce on the grounds of indignities. That judgment was affirmed by this court on March 17, 1987.

Hearings on the economic issues began in 1989. By an order dated September 10, 1991, the trial court entered its order finding the date of separation was December 31, 1977. On October 29, 1992, the court entered an order valuing the marital estate at $677,406.00:

Marital Residence                                                   $161,000.00
                Husband's Sun Oil Pension
                ($293,544.00 x .65 marital coverture fraction)                       190,804.00
                Husband's Retirement Benefits
                Continuation pay (88,749.00 x .65)                                    57,687.00
                Retirement bonus (7,100.00 x .65)                                      4,615.00
                Orbit (82,000.00 x .65)                                               53,300.00
                Husband's Suncap Savings Account                                     100,000.00
                Sun Oil Stock                                                         26,000.00
                Fair Rental Value of Marital Residence Less Wife's Credits for        84,000.00
                  Mortgage Payments and Maintenance
                                                                                    -----------
                                                              TOTAL MARITAL ESTATE  $677,406.00
                                                                                    -----------
                

The court distributed the marital property equally between the parties. Thereafter, on November 9, 1992, Husband filed a "Petition for Reconsideration in the Form of Exceptions to the Court's Opinion and Order." One month later, Husband filed a Supplemental Petition for Reconsideration. The trial court failed to respond and Husband filed this appeal to preserve his appellate rights. Wife then filed a motion to quash which this court denied. ² Pursuant to the trial court's order, Husband filed a concise statement of matters complained of on appeal and the trial court disposed of those issues in an opinion dated June 21, 1993.

On appeal, Husband raises eight issues:

1. Did the court err in finding that the date of separation was December 31, 1977, rather than the Winter of 1975?

2. Did the court err in using the date of Mr. Gordon's retirement to value his pension, rather than the date of separation?

3. Did the court err in concluding that the early retirement incentives offered in the Sun Company Involuntary Termination Program of 1987 were marital assets?

4. To the extent the Sun Stock Savings Plan, Employee Stock Ownership Plan, and Sun Capital Accumulation Plan were derived from post-separation contributions, are they marital assets?

5. Did the court err in characterizing the Optional Retirement Benefit Investment Trust (ORBIT) as both a retirement benefit and a marital asset?

6. Did the court err in treating rental value of the marital residence as a marital asset?

7. Did the court err in not awarding Mr. Gordon a credit equal to one-half the rental income from boarders taken in by Mrs. Gordon?

8. Did the court err in failing to give Mr. Gordon a credit in the amount of $555.60 per month for each month from December, 1987 to the present?

Husband's challenges to the equitable distribution order must be reviewed with the following standard in mind: the trial court has broad discretion in fashioning equitable distribution awards and we will overturn an award only for an abuse of that discretion. Oaks v. Cooper, 536 Pa. 134, 638 A.2d 208 (1994); Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988). The Divorce Code ³ states that the trial court

shall, ... equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such proportions and in such manner as the court deems just after considering all relevant factors....

23 Pa.C.S. § 3502(a) (emphasis added). With these propositions in mind, as well as the Commonwealth's policy to effectuate economic justice between the parties, 23 Pa.C.S. § 3102(a)(6), we review the trial court's distribution order.

Husband worked as a chemical engineer for Sun Oil Company from June 6, 1960 to July 1, 1987, at which time he accepted early retirement. His income consists of stock dividends and pension benefits. At the time of the 1991 hearing Wife worked full time as a secretary at Wyeth Laboratories with an annual income of approximately $20,000.00.

The parties were married for nineteen years. They experienced difficulties beginning in the first year of their marriage. Despite prolonged marriage counseling, the parties were unable to resolve their differences and Husband became the victim of Wife's habitual verbal and physical assaults. Wife disparaged Husband's sexual performance in front of their daughter, and humiliated him in front of his employer and co-workers. She joined a "singles' club" and, in 1975, Wife openly carried on an affair with a co-worker, taunting Husband with that fact. Much of the abuse relayed by Husband was corroborated by Wife's sister, Edna Jane Wescoat.

The evidence also indicated that Husband was not completely innocent; he frequently insulted and provoked Wife, thus establishing a pattern in their altercations. Nonetheless, the court determined that Wife's behavior was excessive and unjustified. A divorce based on indignities, therefore, was granted. See 23 Pa.C.S. § 3301(a)(2), (6). ⁴

In his first claim, Husband argues that the court erred in finding that the parties' separation date was December 31, 1977. Absent an abuse of discretion, the trial court's findings of fact, if supported by credible evidence, are binding upon a reviewing court. Campbell v. Campbell, 357 Pa.Super. 483, 490, 516 A.2d 363, 366 (1986). As a reviewing court, we do not usurp the trial court's duty as finder of fact. Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985).

"Separate and apart" is defined by statute as "complete cessation of any and all cohabitation whether living in the same residence or not." 23 Pa.C.S. § 3103. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), this court interpreted "cohabitation" as "the mutual assumption of those rights and duties attendant to the relationship of husband and wife." Id. at 47, 483 A.2d at 948. Compare Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988) (where the court found critical to the determination of separation the fact that the parties had private living quarters, no longer had a public social life together, and ceased sexual relations; despite the fact that the parties resided in the same house, the court concluded that they lived "separate and apart") with Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990) (where parties jointly purchased a home, shared a checking account, socialized as husband and wife, and had resumed sexual relations, the court found the parties were not living "separate and apart").

Here, Husband testified that the parties continued sexual relations through March of 1978. Wife testified that the parties last engaged in sexual relations in December of 1977. In addition to each party's testimony regarding the date that sexual relations had ceased, the trial court found critical the fact that the parties continued their marriage counseling through December of 1977, and the fact that in November of 1977 they entertained and socialized as husband and wife. The evidence indicates that social and financial interaction continued at least through December of 1977. The trial court determined, therefore, that the parties began living "separate and apart" on December 31, 1977. Thomas, supra. The trial court's findings of fact are supported in the record and are sufficient to uphold the trial court's determination. Campbell, supra.

Next, Husband argues that the trial court erred in valuing his pension from Sun Oil Company. The trial court utilized the hearing date for valuation. Husband contends that the appropriate valuation date is the date of separation. Husband also contends that the use of the coverture fraction is inappropriate; in fact, he argues that the rationale of the fraction, established in Braderman v. Braderman, 339 Pa.Super. 185, 196, 488 A.2d 613, 618 (1985), is a fallacy.

Retirement pension benefits, vested and...