Hutnik v. Hutnik

• Decision Date: 28 December 1987
• Citation: 369 Pa.Super. 263,535 A.2d 151
• Parties: Rosemary HUTNIK, Appellee, v. John S. HUTNIK, Appellant.
• Court: Pennsylvania Superior Court

Page 151

535 A.2d 151

369 Pa.Super. 263

Rosemary HUTNIK, Appellee, v. John S. HUTNIK, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 15, 1987.

Filed Dec. 28, 1987.

Karen A. Feryo, Bethlehem, for appellant.

Richard J. Shiroff, Easton, for appellee.

Before McEWEN, MONTEMURO and KELLY, JJ.

MONTEMURO, Judge:

This is an appeal from an order of equitable distribution.

The parties were married in 1961, and separated twenty years later. A divorce under 23 P.S. § 201(d), requiring a three year separation, was granted in May of 1987, one month after a decree had been entered distributing the marital property 55% to appellee, and 45% to appellant. After rulings on the exceptions of both parties, this appeal followed.

Our first inquiry concerns the appealability of the equitable distribution order. In Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986), an en banc panel of this court held that an order of equitable distribution entered prior to issuance of divorce decree is not final, because such an order, being premature, does not dispose of a divorce action. "This is because the settlement of economic and property claims is merely a part of the trial court's broader power to terminate the marriage. Equitable distribution is an incident of divorce, not marriage." Id. at 489, 516 A.2d at 366. However, the Campbell court, also held that a pre-divorce decree distributing marital property is rendered final by entry of a divorce decree, and examined the decree in question because its prematurity was inadvertent. Id. We find the procedural events in Campbell to approximate those herein, and applying the Campbell precedent, find this appeal properly before us. But see Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987) (appeal quashed where no divorce decree entered).

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Moreover, "an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence." Sergi, supra, 351 Pa.Super. at 591, 506 A.2d 930, citing Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d) ¹, and the avowed objectives of the Divorce Code, that is, to "effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights." 23 P.S. § 102(a)(6).

Appellant and appellee are respectively 51 and 44 years old. Appellant, a college graduate, has, since 1969, been employed in middle management of a manufacturing corporation and receives a weekly gross salary of $623. The company also pays him an annual bonus based on its own profits, as well as insurance and pension benefits. In 1985, appellant received $900 under the bonus arrangement.

Appellee, who possesses a high school education, is employed as a secretary at a net income of $256.42 per week. She also earns $500 annually teaching aerobics.

At the time of the hearing, two of the parties' three children were students and receiving parental support, principally from appellant. One of these children resides with appellant in the marital residence, and one with appellee in a rented apartment. The parties' third child is a self-supporting adult living abroad.

Appellant has presented us with five issues ² which we will address seriatim, albeit in an altered sequence.

Appellant assigns error to the trial court's method of applying several provisions of § 401(d). Initially, appellant argues that the court reached an unsupported conclusion in finding that his earnings are "substantially" greater than appellee's. Since appellant's own brief contains the information that appellant's gross pay per week is more than twice that of appellee for the same period, simple arithmetic would guarantee the percipience of the court's conclusion.

Appellant's other claims with respect to § 401(d) are equally specious, and similarly unpersuasive. Appellant argues that in justifying the unequal division of property, the court erroneously applied such data as the length of the marriage, the appellant's "obviously" higher financial standing, the "likelihood" that the parties relative financial positions would remain unchanged, and the respective worth of the parties' contribution to the marriage ³. In reviewing appellant's own reading of the factors he considers to be controlling, one point is made clear, that is, his insistence that as primary breadwinner he is entitled to more favorable treatment than he was afforded. As the Code is intended to remedy the injustices resulting from precisely that attitude, and because all pertinent information was fully considered in making the unequal award, we find no merit to appellant's assertion.

This assessment does not alter upon examination of appellant's next claim. By means of a somewhat inartfully drawn issue, appellant claims that the trial court should not have adopted the finding of the Master as to the value of his entire pension since no evidence was presented at the hearing as to the specific value of the marital portion. In addressing this contention the trial court found that because the testimony of appellee's expert had been essentially uncontradicted, the Master's assignment of the value of the pension to the entire duration of the marriage, as opposed to a valuation which ceased at date of separation, was appropriate. Bold v. Bold, 358 Pa.Super. 7, 516 A.2d 741 (1986). (Wherein this court found that valuation computed by appellee's expert was acceptable because appellant, having presented the court just with basic figures, failed to point out error in expert's calculations.)

This court has repeatedly stated that in general "[o]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code." Braderman, supra 339 Pa.Super. at 196, 488 A.2d 618. King v. King, 332 Pa.Super 526, 481 A.2d 913 (1984). Also, see generally Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987); 23 Pa.S.A. § 401(e). ⁴ However, an exception to this rule was recently reiterated in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). There we held that "where a plan has vested and value increases aside from contribution of the parties, beyond the date of separation," id. at 344-345, 516 A.2d 12-13, the increase is marital property. Here the facts support application of that principle: appellant's plan, although vested was not yet matured. As we noted in Braderman, "the vast majority of jurisdictions hold that vested, unmatured retirement benefits are marital property." Id. 339 Pa.Super. at 193, 488 A.2d 616. Pennsylvania is included in the majority, and appellant's claim is without merit.

Appellant also complains that the Master should not have relied on the expert's evidence because it was based in part on depositions which are violative of the Pa.R.C.P. 1920.22 prohibition on discovery, other than interrogatories, in divorce cases where claims are made for distribution of property rights or alimony. Interestingly, appellant quotes the hearing testimony of the expert to the effect that, finding the depositions inadequate and confusing, he based his computations on a letter from the administrator of retirement benefits at appellant's place of employment. Appellant's argument as to the basis for those computations is without merit.

It is contended, in addition, that the wrong principle of distribution was applied in regard to the pension. The trial court, citing Braderman, supra, found that under the circumstances of this case, the immediate offset method used by the Master was appropriate. We agree.

The immediate offset method has the advantage of avoiding further entanglement between the parties. Problems with continuing court supervision and enforcement are also avoided. This method's greatest virtue, however, is that it effectuates a final and immediate settlement of the distribution of the retirement benefits.

Id. at 198, 488 A.2d 620. The immediate offset method is justified herein not only by its finality, but because there is sufficient property other than the pension to render the more cumbersome deferred distribution method unnecessary.

Appellant next argues that the court's reappraisal of the marital residence, and the award to appellee of one half its rental value is error. The basis of the claim is that appellant's payments of mortgage, insurance, taxes, and upkeep on the house are not sufficiently considered. The award to appellee of one half the rental value of the house is consistent with our holding in Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983), that the party out of possession must in some manner be compensated for his or her "rights and interests in the land." Id. at 35 n. 2, 460 A.2d at 360 n. 2. Herein the rental value was reduced by appellee's share of the payments made by appellant for mortgage, etc. during the separation. Appellant's claim, therefore, has no merit.

Appellant's penultimate claim is that there was error in the court's award to appellee of one half her attorney's fees, and two thirds of the court costs. Our standard of review in regard to these items has recently been reiterated by this court in Johnson v. Johnson, supra.

In determining the propriety of an award of counsel fees, we also utilize an abuse of...