Verdile v. Verdile

• Decision Date: 19 January 1988
• Citation: 536 A.2d 1364,370 Pa.Super. 475
• Parties: Sylvia VERDILE v. Vincent VERDILE, Appellant.
• Court: Pennsylvania Superior Court

Page 1364

536 A.2d 1364

370 Pa.Super. 475

Sylvia VERDILE v. Vincent VERDILE, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 29, 1987.

Filed Jan. 19, 1988.

Morton B. Debroff, Pittsburgh, for appellant.

Mark T. Knapp, Pittsburgh, for appellee.

Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.

CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County granting a decree in divorce, an award of permanent alimony and counsel fees, and an award of equitable distribution of marital property.

Mrs. Verdile filed a complaint against her husband seeking a divorce, equitable distribution, alimony pendente lite, alimony, counsel fees, and expenses. Mr. Verdile answered the complaint and filed a counterclaim for alimony, equitable distribution, counsel fees, costs, and expenses. A hearing was held before the Honorable R. Stanton Wettick on the economic issues. On June 6, 1984, the court issued an order directing appellant to pay alimony pendente lite in the amount of $300.00 per month and granting Mrs. Verdile exclusive possession of the marital residence for one year.

Another hearing was held on May 6, 1986. A modified order of support was entered on June 2, 1986, ordering Mr. Verdile to pay $250.00 per month as alimony pendente lite, plus arrearages in the amount of $2,358.70. Appellant was determined to be in contempt and given the opportunity to purge himself by compliance with the order. Mr. Verdile's unemployment compensation was attached, and on June 6, 1986 the court issued an order awarding Mrs. Verdile, inter alia, two thirds of the marital share of appellant's retirement benefits and sixty percent of the remaining marital assets. Alimony pendente lite was terminated as of July 1, 1985, and replaced with permanent alimony as of that date in monthly payments of fifty percent of husband's net monthly income over $800.00, not to exceed $4800.00 per year. The order specified that net monthly income did not include the marital share of retirement benefits awarded to Mr. Verdile. Post-trial motions were filed and denied, and Mr. Verdile appealed. On February 17, 1987 a per curiam order was entered quashing the appeal as interlocutory because, due to oversight on the part of the trial court and both parties, a divorce decree had not yet been entered. See Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc) (pre-divorce order of equitable distribution entered before divorce decree is not a final appealable order). See also Pa.R.A.P. 1701(b)(6), 42 Pa.C.S.A.

Thereafter, appellant filed a motion to vacate the June 6 equitable distribution order and Mrs. Verdile petitioned the court to enter a divorce decree. On March 10, 1987, the court entered an order denying appellant's petition to vacate and granting a decree in divorce. At the same time, the court rendered final its equitable distribution order of June 6, 1986. Appellant files this timely appeal.

Mr. Verdile raises the following issues: (1) whether the trial court erred in entering a decree of equitable distribution prior to entering a decree of divorce; (2) whether the court abused its discretion in making findings and entering an order regarding five different categories of matters to which there was no probative testimony presented; and (3) whether the court abused its discretion when it awarded Mrs. Verdile two thirds of her husband's retirement benefits.

I

In Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc), this court was faced with a procedural mishap similar to the one before us. In Campbell, as in the instant case, the trial court and the parties erroneously believed that a decree of divorce had been entered prior to the order of equitable distribution. A pre-divorce order of equitable distribution, even one entered upon the mistaken belief that a divorce decree has been entered, is not a final order. Id. at 488, 516 A.2d at 365. We agree with appellant that entry of an equitable distribution order prior to entry of a divorce decree is error; at that point the order is interlocutory and unappealable. That is why Mr. Verdile's initial appeal was quashed by this court. While "[t]he courts of common pleas have been given [subject matter] jurisdiction to hear and decide divorce actions and related economic claims[,] ... [t]o enter a decree of equitable distribution prior to a divorce decree ... is improper." Reese v. Reese, 351 Pa.Super. 521, 526, 506 A.2d 471, 474 (1986). The courts of common pleas are empowered to order equitable distribution only "contemporaneously with or subsequent to a decree in divorce." Campbell, 357 Pa.Super. at 488-89, 516 A.2d at 366 (citations omitted). "Equitable distribution is an incident of divorce, not marriage." Id. A trial court therefore is empowered to enter a distribution order only when the marriage is legally terminated.

In the case before us, the marriage between Mr. and Mrs. Verdile was legally terminated on March 9, 1987; at that time the court rendered final its equitable distribution order. The distribution order is reviewable once rendered final by entry of a divorce decree. Id. Therefore, we disregard the circuitous route taken in this case and conclude that the equitable distribution order is now ripe for appellate review.

II

Mr. Verdile also claims that the trial court abused its discretion in entering the March 10, 1987 order, which rendered final the equitable distribution order of June 6, 1986. The June 6th order provided:

On this 6th day of June, 1986, upon consideration of the parties' claims for equitable distribution, alimony, and counsel fees, it is hereby ORDERED that:

(1) the wife (Sylvia Verdile) is awarded the marital residence. Within forty-five (45) days, the husband (Vincent Verdile) shall prepare a deed executed by the wife conveying this property to the wife.

(2) The wife is awarded her life insurance, her IRA, the household goods in the marital residence, the U.S. Savings Bonds, and $16,620 of the proceeds of the money market funds and certificates of deposit.

(3) The husband is awarded his life insurance, his IRA, the parties' motor vehicles, and proceeds of $31,980 from the parties' certificates of deposit and money market funds.

(4) The wife is awarded two-thirds of the marital share of the husband's retirement benefits. To implement this award, the parties shall prepare a Qualified Domestic Relations Order which meets the requirements of the Retirement Equity Act of 1984 and is acceptable to the Plan Administrator. For purposes of determining the marital share of these benefits, this court finds that the parties were married on October 8, 1955 and separated on October 27, 1983.

(5) The husband is awarded the remaining share of the retirement benefits.

(6) The wife is awarded counsel fees of $3,000 which shall be paid from the proceeds awarded to the husband.

(7) The outstanding arrearages shall be paid to the wife from the proceeds awarded to the husband.

(8) The current court order governing alimony pendente lite shall terminate as of July 1, 1985. As of July 1, 1985, the wife is awarded permanent alimony calculated pursuant to paragraph 9 that shall terminate upon her death, her remarriage, or when the husband reaches age sixty-five (65).

(9) The wife shall receive monthly alimony payments in an amount of fifty (50%) percent of the husband's net monthly income in excess of $800, provided, however, that the wife shall not receive alimony within any calendar year in excess of $4,800. The husband's net monthly income shall not include the marital share of any retirement benefits awarded to the husband in paragraph 5.

(10) All other claims of either party to equitable distribution, alimony, and counsel fees are dismissed.

(11) This decree shall become final in accordance with Pa.R.C.P. Nos. 1920.52(a) and 227.4.

Mr. Verdile makes the following specific allegations in support of his attack on the order: (1) there is no testimony to support any claim that Mr. Verdile is employable; (2) there is testimony to support a conclusion that Mrs. Verdile is employable; (3) the record contains no probative testimony about the alleged physical or emotional problems of Mrs. Verdile; (4) there is no evidence in the record to support any claim of reasonableness of Mrs. Verdile's counsel fees, or the reasonableness of having Mr. Verdile pay $3000.00 toward those fees; and (5) there is no evidentiary support for the award of permanent alimony to Mrs. Verdile.

The parties were separated in 1983 after twenty-eight years of marriage. They have two emancipated children. At the time of the hearing on May 6, 1986, Mr. Verdile, a former steel worker, was on layoff status and had been unemployed for approximately six months. With respect to employability, he testified: "I don't have any plans for future employment, just figure I do what the rest of the people do in life.... Well, I look for anything, but nothing out there." Moreover, appellant testified that he has the ability to install windows and to do remodeling work. Mr. Verdile's sole income at the time was $100.00 of unemployment benefits. Although he is not retired, Mr. Verdile is eligible for a thirty-year pension benefit in the amount of approximately $588.00 per month.

An order determining equitable distribution will be reversed on appeal only for an abuse of discretion. Sergi v. Sergi, 351 Pa.Super. 588, 591, 506 A.2d 928, 930 (1986). An abuse of discretion is found only if there is insufficient evidence to support the trial court's determination. Fortune v. Fortune, 352 Pa.Super. 547, 553, 508 A.2d 1205, 1208 (1986). In determining whether a court has abused its discretion, we do not usurp the trial court's duty as fact finder. Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Ruth v. Ruth, 316 Pa.Super. 282, 287, 462 A.2d 1351, 1353 (1983).

Keeping in mind that the court was free to...