Teodorski v. Teodorski

• Decision Date: 12 August 2004
• Citation: 857 A.2d 194
• Parties: David TEODORSKI, Appellee, v. Melinda Sue TEODORSKI, Appellant.
• Court: Pennsylvania Superior Court

857 A.2d 194

David TEODORSKI, Appellee, v. Melinda Sue TEODORSKI, Appellant.

Superior Court of Pennsylvania.

Submitted May 10, 2004.

Filed August 12, 2004.

Donald W. Grieshober, Erie, for appellant.

Frank L. Kroto, Jr., Erie, for appellee.

BEFORE: ORIE MELVIN, OLSZEWSKI, and POPOVICH, JJ.

OPINION BY OLSZEWSKI, J.:

¶ 1 Melinda Teodorski (appellant/wife) appeals from the order of the Court of Common Pleas of Erie County (Connelly, J.) denying nearly all of wife's exceptions to the report of the Master in Divorce. We affirm.

¶ 2 The trial court aptly described the procedural history of this case.

The parties were married on October 28, 1988[,] and eventually separated, but the date of actual separation is disputed. On January 12, 1995, [wife] filed a complaint for support and an order was issued on March 3, 1995[,] giving her an award of $290.33 per month. Also, on January 12, 1995, [wife] obtained a Final Protection from Abuse Order (hereinafter PFA). The parties were divorced on a bifurcated basis by decree on August 24, 1998.

On July 13, 1999, [David Teodorski (appellee/husband)] file[d] his Petition for Termination of Spousal Support, which was heard by Judge Michael M. Palmisano on August 6, 1999, and which resulted in an Order terminating support to be made effective in sixty (60) days on October 6, 1999. On November 14, 2002, [wife] filed her Petition for Attorney Fees, Court Costs, Costs of Litigation, Alimony Pendente [sic] Lite [APL], and Retro-Active Alimony which was Pendente [sic] Lite. On December 16, 2002, [wife] filed a Motion for Special Relief, signed by Judge Stephanie Domitrovich, and same was ordered to be heard by this Court at the same time as the other outstanding Petition. On December 18, 2002, a hearing was held before this court to address all of the issues contained in the Petition and Motion for Special Relief.

An injunction was granted by this Court, ordering [husband] to reinstate [wife] as a one-third beneficiary of his pension plan. Briefs were ordered and filed as to the remaining issues. This court issued an Opinion and Order dated March 7, 2003 which denied [wife's] motions to change the date of the divorce decree; denied the reinstatement and retroactive application of APL to [wife]; and denied [wife's] request for counsel fees at that time, but reserved the issue for the Master to award appropriate counsel fees later, along with issues relating to alimony and equitable distribution (i.e., the pension plan). [Wife] filed her Motion for Reconsideration as to the Court's decision on each issue on March 19, 2003, which was denied by this Court on April 22, 2003.

The Master's Hearing was held on May 12, 2003[,] before the court-appointed Master, Mary Alfieri Richmond, Esq. The Master's Report was then issued on August 8, 2003....

[Wife] took several Exceptions to the Master's Report including (1) an exception to the Master's determining the date of separation to be January 12, 1995, rather than February 28, 1998; (2) several exceptions relating to the equitable distribution of marital properly, specifically the 50/50 division ordered by the Master, the separation date as it relates to the pension plan as the only asset to be distributed, and several exceptions relating to the numbers used by Master in discussing the Qualified Domestic Relations Order (QDRO) to be prepared in accordance with the Master's recommendation; (3) an exception to the Master's failure to award alimony to [wife]; and (4) an exception to the Master's award of only $1,140.00 in counsel fees.

Trial court opinion, 11/6/04, at 1-3. The trial court denied all of wife's exceptions, except that the court increased the Master's recommendation of attorney's fees to $2,310.00.

¶ 3 Wife presents four questions for our review.

(1) WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND/OR AN ABUSE OF DISCRETION IN DETERMINING THAT THE SEPARATION DATE FOR THE NUMERATOR OF THE COVERTURE FRACTION WITH REGARD TO THE PENSION PLAN OF APPELLEE, DAVID TEODORSKI, WAS JANUARY 12, 1995?

(2) WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND/OR AN ABUSE OF DISCRETION IN AWARDING APPELLANT, MELINDA SUE TEODORSKI, 50%, TIMES THE COVERTURE FRACTION, WITH REGARD TO THE PENSION PLAN OF APPELLEE, DAVID TEODORSKI?

(3) WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND/OR AN ABUSE OF DISCRETION IN FAILING TO AWARD ALIMONY TO APPELLANT, MELINDA SUE TEODORSKI?

(4) WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND/OR AN ABUSE OF DISCRETION IN FAILING TO AWARD APPROPRIATE AND REASONABLE ATTORNEY FEES TO APPELLANT, MELINDA SUE TEODORSKI?

Appellant's brief, at 3. For the reasons stated below, we affirm.

DATE OF FINAL SEPARATION

¶ 4 The parties dispute the date of final separation. Wife argues that the date of final separation is February 2, 1998, the date the divorce complaint was filed. Husband agrees with the Master and the trial court, arguing that the date of final separation is January 12, 1995, the date wife obtained a protection from abuse (PFA) order against husband.

¶ 5 Our standard of review is one of an abuse of discretion. "Absent an abuse of discretion, the trial court's findings of fact, if supported by credible evidence of record, are binding upon a reviewing court." Wellner v. Wellner, 699 A.2d 1278, 1280 (Pa.Super.1997) (citations omitted). Only property acquired "prior to the date of final separation" is marital property and therefore subject to equitable distribution.¹ 23 Pa.C.S.A. §§ 3501-02.

¶ 6 The date of final separation revolves around the definition of "separate and apart."

The Divorce Code defines "separate and apart" as follows: "Complete cessation of any and all cohabitation, whether living in the same residence or not." 23 Pa.C.S.A. § 3103. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), this court held that "cohabitation" means "the mutual assumption of those rights and duties attendant to the relationship of husband and wife." Id., at 47, 483 A.2d at 948.

Thus, the gravamen of the phrase "separate and apart" becomes the existence of separate lives not separate roofs (citations omitted). This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart... Flynn v. Flynn, 341 Pa.Super. 76, 81, 491 A.2d 156, 159 (1985). Compare Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988)

(where parties had private living quarters, no public social life together, and had ceased sexual relations, the parties lived "separate and apart" despite the fact that they resided in the same house) with Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990) (where parties jointly purchased a townhouse, shared a joint checking account, had a social life as husband and wife, share the same bedroom and resumed sexual relations, the court found the parties were not living "separate and apart.").

Wellner, 699 A.2d at 1281 (quoting Schmidt v. Krug, 425 Pa.Super. 136, 624 A.2d 183, 185 (1993), and Gordon v. Gordon, 436 Pa.Super. 126, 647 A.2d 530, 534 (1994) rev'd on other grounds, 545 Pa. 391, 681 A.2d 732 (1996)).

¶ 7 After a review of the record, we agree with the Master and the trial court that both parties lived separate and apart during the period between the entry of the PFA order (January 12, 1995) and the filing of the divorce complaint (February 2, 1998).²

¶ 8 First, husband and wife continued to have sexual relations between 1995 and 1998. In fact, a second child was born as the result of one of these encounters. While wife testified that these sexual encounters occurred with relative frequency, husband testified that they had sex only once during the separation period. Clearly, the Master and the trial court believed husband's account. But even if the Master and court credited wife's account, mere sexual relations is insufficient to support reconciliation. See Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550, 553 (1986)

("The ties that bind two individuals in a marital relationship involve more than sexual intercourse."). See also Frey v. Frey, 821 A.2d 623, 628 (Pa.Super.2003).

¶ 9 Wife also testified that husband provided for her needs and the needs of the children. Husband did indeed purchase a trailer home, pay alimony and child support (albeit only for one child), and provide other necessities for his children. These facts do not dictate a finding of reconciliation. In Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988), we found that a husband and wife lived separate and apart despite the fact that they lived under the same roof and shared expenses.

For certain, the parties have shared some common household expenses, occupied common living spaces, visited family members together and occasionally entertained mutual friends at their residence. However, Mr. Mackey should not be denied a unilateral divorce merely because he and his wife have demonstrated a level of civility rarely seen in a divorce action.

Mackey, 545 A.2d at 365 (footnote omitted). The instant case is similar. Husband moved out of the marital home after the PFA order, but continued to financially assist his children, visit with his children, and occasionally visit with wife. Husband also provided financial assistance to wife via alimony payments.

¶ 10 Further, husband's agreement to marriage counseling does not imply that husband and wife reconciled to such an extent as to declare that the parties are no longer living separate and apart. Doing so would go against public policy. The legislative intent of the Divorce Code is to "[e]ncourage and effect reconciliation and settlement of differences." 23 Pa.C.S.A. § 3102(a)(2). See also Mackey, 545 A.2d at 365 n. 6

.

¶ 11 Wife argues that the PFA order she filed against husband did not show an intent to separate, and that the only evidence of an intent to separate was husband's filing of the divorce complaint in 1998. It is true that there "must be an independent intent on...