Perlberger v. Perlberger
| Decision Date | 02 June 1993 |
| Citation | 426 Pa.Super. 245,626 A.2d 1186 |
| Parties | Messody PERLBERGER, Appellant, v. Norman PERLBERGER. Norman PERLBERGER, v. Messody PERLBERGER, Appellant. |
| Court | Pennsylvania Superior Court |
Geoffrey R. Johnson, Philadelphia, for appellant.
Norman Perlberger, in pro per.
Before CIRILLO, TAMILIA and KELLY, JJ.
Appellant Messody Perlberger appeals from consolidated orders of the Court of Common Pleas of Montgomery County entering a final decree in divorce, ordering equitable distribution of the marital property, requiring that Norman Perlberger (husband) pay child support and alimony, and denying wife's post-trial motions regarding the divorce and various economic issues. We affirm in part, and vacate and remand in part.
The parties were married on November 13, 1971. Three children were born of the marriage: Jennifer, age 20, Karen, age 14, and Laura, age 9.
Norman Perlberger is a 1972 graduate of Temple Law School. Following a judicial clerkship with the Honorable Sydney J. Hoffman, husband worked for the law firm of Blank, Rome, Comisky & McCauley (Blank, Rome). He became a partner in the firm in 1979. In 1988 husband left the firm in order to open his own practice, Perlberger & Haft (P & H). Thereafter, husband became the sole owner of the law firm known as Perlberger Law Associates (PLA). PLA has offices in Montgomery County and handles primarily asbestos cases and domestic relations cases. Norman Perlberger is recognized as an expert in domestic relations law, products liability law, and asbestos litigation.
Messody Perlberger was born in French Morocco. In 1969 she emigrated to the United States. Messody Perlberger is a college graduate and holds a master degree and a doctorate in French Literature. Wife's employment history is limited to part-time teaching while her husband was in law school. Wife has not worked outside the home since 1977, choosing instead to dedicate herself to raising her three children and managing the household.
On May 4, 1987, sixteen years after the parties were married, husband left the marital home to live with another woman. On May 6, 1987, husband filed a consolidated complaint in divorce, requesting a divorce under both the fault and no-fault provisions of the Divorce Code, 1 an order for equitable distribution of the marital property, 2 a confirmation of shared physical and legal custody of the children, 3 and a confirmation of voluntary child support. 4
Approximately four and one-half years later, on October 21, 1991, the Honorable Albert R. Subers entered a decree divorcing the parties from the bonds of the marriage. The court also entered an order distributing the marital property and disposing of the remaining economic issues, including counsel fees, child support, and alimony. At the time of distribution, husband was 46 years old, and wife was 42 years old. In its order, the court denied husband's petition for bifurcation. 5 The court's order distributed the marital estate as follows: 6 The court found that wife had an earning capacity of $30,000.00 per year, and order husband to pay alimony to wife in the amount of $585.00 per week for a period of ten years. 8 Husband was also ordered to pay child support for three children in the amount of $701.00 per week from November 10, 1987 to August 31, 1991. Beginning September 1, 1991, husband was ordered to pay support for two children in the amount of $640.00 per week. Husband was also ordered to pay college expenses for the oldest child. The divorce was granted pursuant to section 3301(d) of the Divorce Code. 23 Pa.C.S. § 3301(d).
Wife filed post-trial motions alleging fifty points of error on the part of the trial court. Following oral argument, Judge Subers denied the post-trial motions. On appeal, wife raises the following ten issues: 9
1. Did the trial court err in refusing to grant a fault divorce to wife?
2. Did the trial court err in excluding the value of husband's law firm from the marital estate?
3. Did the trial court err in denying wife discovery regarding husband's law firm?
4. Did the trial court err in concluding that the monies from the Provident Bank accounts were traced into the Merrill Lynch CMA account?
5. Did the trial court err in exercising jurisdiction over the petition to restore the PUGMA accounts?
6. Did the trial court abuse its discretion in ordering wife to restore funds to the PUGMA accounts?
7. Did the trial court err in concluding that wife failed to request alimony pendente lite?
8. Did the trial court abuse its discretion in its determinations of spousal support, child support and alimony?
9. Did the trial court err in precluding wife's discovery of and evidence of husband's earning capacity based on compensation received from completed asbestos cases?
10. Did the trial court err in denying wife counsel fees?
An amendment jointly introduced by Representative Anthony J. Scirica of Montgomery County and Representative Joseph M. Rocks of Philadelphia County formed the basis of what is commonly known as "no-fault" divorce. 10 Section 3301(c) of the Divorce Code provides for a no-fault divorce based upon the parties' mutual consent. 23 Pa.C.S. § 3301(c).
(c) Mutual consent.--The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of parties consents to the divorce.
23 Pa.C.S. § 3301(c). Section 3301(d), the section under which the Perlbergers were divorced, provides for a no-fault divorce if the parties have lived separate and apart for the statutory period and the marriage is irretrievably broken:
(d) Irretrievable breakdown.--
(1) The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken and the defendant either:
(i) Does not deny the allegations set forth in the affidavit.
(ii) Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two years and that the marriage is irretrievably broken.
* * * * * *
In husband's complaint, he sought a divorce based upon both sections 3301(c) and (d), as well as upon fault grounds. The court granted the parties a no-fault divorce pursuant to 23 Pa.C.S. § 3301(d), based upon a finding that the parties had lived separate and apart for the statutory period and that the marriage was irretrievably broken. Id. In her counterclaim, wife had sought, in addition to her economic claims, a divorce based on fault grounds, namely adultery and indignities. See 23 Pa.C.S. § 3301(a)(2), (6). 11 Wife now argues that the court erred in not granting her a divorce based on fault.
When the legislature added the no-fault grounds for divorce, it intended that the Divorce Code retain the traditional fault grounds for divorce. See Restifo v. Restifo, 339 Pa.Super. 352, 489 A.2d 196 (1985). The legislature expressly stated its findings and intent, recognizing that the family is the basic unit of society, and that the protection and preservation of the family is of paramount public concern. 23 Pa.C.S. § 3102(a). Acknowledging this, the legislature pronounced the following as the policy of the Commonwealth: to make the legal dissolution of marriage effective for dealing with the realities of matrimonial experience; to encourage reconciliation and settlement, especially where children are involved; to give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs; to mitigate harm to the parties and children; to seek the causes of family disintegration and utilize available resources; and to effectuate economic justice between parties. 23 Pa.C.S. §§ 3102(a)(1)-(6).
The purpose of enacting no-fault divorce provisions was to provide for the legal dissolution of a marriage in a manner which would keep pace with contemporary social realities. Our lawmakers were reluctant to legislate divorce reform and, after twenty years of debate, 12 the 1980 Divorce Code 13 was enacted.
The sanctity of marriage and the dominant desire to preserve that union was embedded in the theory of the prior Divorce Law; 14 that law remained virtually unchanged since first enacted in 1785 and recodified in 1815. 15 The law acknowledged the strength of the family unit and the necessity of ensuring its preservation. Too frequently, however, the application of the law preserved the family unit in form only, its consequential pain arguably greater than the loss it sought to prevent. Judge Spaeth's dissenting opinion in Dukmen v. Dukmen, 278 Pa.Super. 530, 537, 420 A.2d 667, 671 (1980), is telling:
Perhaps the Divorce Law is flawed in not making the decisive factor in a divorce action the cessation of a loving relationship between the parties. It is our function, however, to apply the law. Thus, this court has consistently held that under the Divorce Law, the inability to live together does not constitute a ground for divorce. (citations omitted). Further, we have equally consistently held "that where both parties are nearly equally at fault, so that neither can clearly be said to be the injured and innocent spouse, the law will grant a divorce to neither on the ground of indignities to the person, but will leave them where they put themselves." Simons v. Simons, 196 Pa.Super. 650, 656, 176 A.2d 105, 108 (1961).
Id., 278 Pa.Super. at 537, 420 A.2d at 671.
The adoption of the 1980 Divorce Code, and in particular the no-fault provision of irretrievable breakdown, see 23 Pa.C.S. § 3301(d),...
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