Kohl v. Kohl

• Decision Date: 05 September 1989
• Citation: 564 A.2d 222,387 Pa.Super. 367
• Parties: Catherine M. KOHL v. John Carl KOHL, Appellant. Catherine M. KOHL, Appellant, v. John C. KOHL. 2652 PHILA. 1988 2653 PHILA. 1988 2672 PHILA. 1988
• Court: Pennsylvania Superior Court

Page 222

564 A.2d 222

387 Pa.Super. 367

Catherine M. KOHL v. John Carl KOHL, Appellant.

Catherine M. KOHL, Appellant, v. John C. KOHL.

2652 PHILA. 1988

2653 PHILA. 1988

2672 PHILA. 1988

Superior Court of Pennsylvania.

Argued March 20, 1989.

Filed Sept. 5, 1989.

Arthur L. Jenkins, Jr., Norristown, for John Carl Kohl.

James V. Fareri, Stroudsburg, for Catherine M. Kohl.

Before MONTEMURO, TAMILIA and MONTGOMERY, JJ.

TAMILIA, Judge:

Catherine Kohl (hereinafter "wife") and John Kohl (hereinafter "husband") were married on September 2, 1961 and two children were born of the marriage who are now emancipated. Wife filed a complaint in divorce on August 10, 1983 and the court appointed Salvator Vito as master on April 23, 1985. Several hearings were held between June 1985 and April 1986 and wife filed her brief with the master on January 6, 1987, with husband filing his soon thereafter.

On April 11, 1988 wife petitioned for recusal of master Vito and requested a de novo hearing as Vito had not yet filed his report and in fact, was in contempt of court for failure to abide by court Orders relating to his own acrimonious divorce action. Vito did file the report on April 18, 1988 and exceptions by the parties were filed thereafter, the disposition of which is now being appealed by both parties. Additionally, wife appeals the court's denial of her petition for recusal; we will first address that issue.

Wife argues not only did the master, Vito, fail to timely render a decision in their case, but he was suffering from drug and alcohol abuse and was in the middle of his own divorce, both of which situations prejudiced her. Vito denies any prejudice was suffered by wife and she fails to point to any instance where the master acted in a biased or hostile manner toward her. Although he admits he was not in compliance with the procedural rules regarding the time for filing his report, he counters that wife's counsel did not question the delay until the master's marital difficulties were publicized, thus making it appear wife was simply trying to use the master's personal problems to her advantage to obtain an opportunity to submit new or additional evidence because she was unhappy with the report.

While we understand how wife could believe she was prejudiced under these circumstances, we find the trial court did not err in refusing to grant her petition for recusal. Certainly we do not condone the master's tardiness in filing his report, but the issue of whether he should have been recused because his findings and report were biased against wife must be resolved in the master's favor when, as here, no specific allegations of bias are stated or proven. The master's report and recommendations are advisory only; the trial court is required to make an independent review of the report and recommendations to determine whether they are appropriate. Goodman v. Goodman, 375 Pa.Super. 504, 544 A.2d 1033 (1988). This being the case, any possible bias on the part of the master would be reviewed by the trial court and corrected since the trial court was responsible for making the final Order. ¹

Of the other issues raised by wife, the first is that the court erred in denying her request for alimony, alimony pendente lite and counsel fees and expenses. Under the Divorce Code, ² 23 P.S. § 101 et seq., alimony may be awarded by the court if the party seeking alimony lacks sufficient assets to support herself and is unable to support herself through appropriate employment. 23 P.S. § 501(a). Our review of the record discloses nothing which would cause us to find the trial court abused its discretion in finding the wife has sufficient assets on which to live and support herself and is able to supplement the award by obtaining appropriate employment. We find the trial court was correct in rejecting her claim.

Alimony pendente lite and counsel fees and expenses may be awarded in proper cases by the court upon petition by a party. 23 P.S. § 502. The trial court determined wife was not in need of alimony pendente lite or counsel fees and expenses because the purpose of such an award is to enable the dependent spouse to adequately litigate the divorce action and pursue her rights.

Wife received $200 per week from husband from the time they separated in 1981 until May of 1988. He also made the mortgage payments on the marital residence in which wife has continued to reside, and he paid the taxes, insurance and monthly oil bill for the home. In light of this and the wife's earnings, the court found wife had adequate resources to maintain the divorce action and support herself. Wife is presently earning $100 per week at a part-time job but could obtain full-time employment if her needs warranted it.

Our standard of review is narrow on issues such as this, being an abuse of discretion standard. Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989), Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987). We find the trial court did not err in denying wife's claim for alimony pendente lite and counsel fees and expenses. Counsel fees are not awarded automatically and the petitioning spouse must show actual need before such an award is justified. Adelstein, supra. "Counsel fees are appropriate when necessary to put the parties 'on par' in defending their rights or in allowing an action for divorce." Id. 381 Pa.Super. at ----, 553 A.2d at 437. "An award of alimony pendente lite is designed to enable the dependent spouse to maintain or defend the action in divorce." Barner, supra, 364 Pa.Super. at 18-19, 527 A.2d at 131. Due to husband's continued support payments to wife for approximately seven years after separation and her income, we believe the court was correct in finding an award of alimony pendente lite and counsel fees and expenses was not necessary.

The next issue we must address, the only issue presented by husband on appeal, concerns the trial court's equitable distribution award. Wife argues she did not receive a full 50% of the assets even though the court stated in its decree each party would receive an equal share, whereas husband argues the court should not have concluded the bowling alley corporation was marital property subject to equitable distribution. The focus of both parties' arguments is the bowling alley corporation acquired from husband's father. For the sake of understanding and "readability," prior to our discussion of the equitable distribution of the bowling alley we will address wife's contention the court erred in its valuation of the business.

The trial court found husband's expert to be more credible than wife's and accepted his valuation of $540,000 rather than accepting wife's expert's valuation of between $590,000 and $690,000.

The Divorce Code does not include a specific method of valuing assets. We have previously held that the court must exercise its discretion, relying upon the estimates and inventories submitted by both parties, the records of purchase prices, and appraisals. In determining the value of marital property, the court is free to accept all of the testimony, portions of the testimony, or none of the testimony regarding the true and correct value of the property.

Aletto v. Aletto, 371 Pa.Super. 230, 242, 537 A.2d 1383, 1389 (1988) (citations omitted). We find no error in the trial court's acceptance of husband's expert's valuation, noting that even by using his figure the value of the property increased by 170 per cent during the time period in question.

The parties were married in 1961 at which time husband worked for his father at the bowling alley owned and operated by him. Husband continued to work there until the fall of 1968 when he purchased the business from his father through a purchase agreement. The agreement stated the purchase price as being $200,000, although simultaneous to the execution of the agreement, father made a gift of $50,000 to husband, thereby reducing the indebtedness to $150,000 which was to be repaid at a rate of $909.08 per month. The stock certificates of the corporation were transferred to husband and held in his name alone. ³

Husband operated the business and made the monthly payments to his father until his father died in October 1970. Father's will provided as follows:

FIFTH: I give unto my son, John C. Kohl, any amount due and owing on account of principal or interest on account of certain indebtedness evidenced by the promissory note of my said son in the amount of Two Hundred Thousand ($200,000) Dollars dated September 1, 1968, said indebtedness being the same as that secured by a bond and mortgage given by Stroud Lanes, Inc., the sole stockholder of which is my said son, John C. Kohl.

Defendant's Exhibit # 10.

Husband claims he acquired the bowling alley business as a gift through his father's will, thereby exempting this asset from marital property under section 401(e)(3) of the Divorce Code. ⁴ The trial court rejected this argument, finding the original gift of $50,000 is not includable with marital property but the remainder of the acquisition is marital property subject to equitable distribution. The court went on to determine the value of the business to be $540,000, the value given by husband's expert who had more credibility, according to the court, than wife's expert who valued the business at $590,000 to $690,000. ⁵ According to the trial court, therefore, the total appreciation amounted to $340,000, in addition to the $150,000 original value ($200,000 less $50,000 gift), for a total of $490,000 to be...