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i CLOYD A. BARRICK, JR,. ) IN TIlE COURT OF COMMON
II Plaintiff ) PLEAS OF CUMBERLAND COUNTY,
) PENNSYLVANIA
)
vs. ) CIVIL ACTION - LAW
) 96- 'J,4D~
) NO. CIVIL TERM
JOLENE N. BARRICK, )
Defendant ) IN DIVORCE
NOTICF. TO DF.FFJlD AND CI,A 1M RIGIn'S
You have been sued in court. If you wish to defend against the claims set forth in
the foregoing pages, you must take prompt action. You are warned that if you fail to do
so, the case may proceed without you and a decree iu divorce or annulment may he
entered against you by the court. A judgment may a)so be entered against you for any
other claim or relief requested in these papers by the plaintiff. You may lose money or
property or other rights important to you, including custody or visitation of your
children.
When the ground for the divorce is indignities or irretrievable breakdown of the
marriage. you may request marriage counseling. A list of marriage counselors is
available in the Office of the Prothonotary at:
Office of the Prothonotary
Cumberland County Court House
Carlisle, Pennsylvania 17013
I IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR
EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOIl MAY LOSE THE RIGHT TO CLAIM ANY
OF THEM.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOll DO NOT HAVE A LAWYER OR
I CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Court Administrator, Fourth Floor
Cumberland County Court House
Carlisle, Pennsylvania ]70]3
Telephone: (717) 240-6200
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CLOYD A. BARRICK, JR"
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
vs,
CIVIL ACTION. LAW
JOLENE N. BARRICK.
Defendant
NO. 96-3408 CIVIL TERM
IN DIVORCE
I
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I 1. A Complaint in Divorce under Section 3301 (c) of the Divorce Code was filed on
! 18 June 1996 and was served upon the Defendant on or about 21 June 1996,
AFFIDAVIT OF CONSENT
2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90)
days have elapsed from the date of filing of the complaint and the date of service of the
complaint on the Defendant,
3. I consent to the entry of a final decree in divorce either after service of a Notice of
Intention to Request Entry of the Decree or upon filing of my Waiver of the Notice of
Intention to Request Entry of the Decree.
4. I have been advised of the availability of marriage counseling and understand that
the Court maintains a list of marriage counselors and that I may request the Court to require
my spouse and I to participate in counseling and, being so advised. do not request that the
Court require that my spouse and I participate in counseling prior to the divorce becoming
final.
I verify that the statements made in this Affidavit are true and correct and I
understand that false statements herein are made subject to the penalties of 18 Pa. C.S,
I 10 - s - '19
DATE
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CLOYD A, BARRICK, JR..
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY. PENNSYLVANIA
i, vs,
!j
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ilJOLENE N. BARRICK,
I: Defendant
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ii 1. A Complaint in Divorce under Section 3301 (c) of the Divorce Code was filed on 18
Ii
~une 1996 and was served upon the Defendant on or about 21 June 1996,
,.
II 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days
~,: ave elapsed from the date of filing of the complaint and the date of service of the complaint
~n the Defendant,
'i
CIVIL ACTION. LAW
NO, 96-3408 CIVIL TERM
IN DIVORCE
AFFIDAVIT OF CONSENT
3. I consent to the entry of a final decree in divorce either after service of a Notice of
ntention to Request Entry of the Decree or upon filing of my Waiver of the Notice of Intention
I
.0 Request Entry of the Decree.
I
i
~he Court maintains a list of marriage counselors and that I may request the Court to require
ty spouse and I to participate in counseling and. being so advised, do not request that the
fourt require that my spouse and I participate in counseling prior to the divorce becoming
~inal.
II I verify that the statements made in this Affidavit are true and correct and I understand
I
,
~hat false statements herein are made subject to the penalties of 18 Pa. C,S, Section 4904
~elating to unsworn falsification to authorities,
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DATE
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4. I have been advised of the availability of marriage counseling and understand that
'~ roll"'" n,
JOL E N. BARRICK
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96-3408 CIVIL TERM
IN DIVORCE
CLOYD A. BARRICK, JR.,
Plaintiff/Respondent
t
JOLENE N. BARRICK,
Defendant/Petitioner
THIS Agreement made this ~ ~ day of Pr-~\., ,,>1' , 1999 by anti
between JOLENE N. BARRICK, of R. R. 1, Box 902, Landlsburg, Perry County, Pennsylvania,
hereinafter referred to as WIFE, and CLOYD A. BARRICK, JR.. of 6 Mountain View Drive, Mt. Holly
Springs, Cumberland County, Pennsylvania, hereinafter referred to as HUSBAND,
WITNESSETH:
WHEREAS, the parties hereto are husband and wife, having been joined In marriage on
August 27,1972, In Carlisle, Cumberland County, Pennsylvania; and
WHEREAS, a Complaint for Divorce has been filed in the Court of Common Pleas of
County, Pennsylvania, to No. 96 - 3408, Civil Term; and
WHEREAS, the parties hereto are desirous of settling fully and finally their respective
financial and property rights and obligations as betWeen each other, Including, without limitation, the
settling of all matters between them relating to the ownership of real and personal property, claims
for spousal support, alimony, alimony pendente lite. counsel fees and costs, and In general, the
settling of any and all claims and possible claims against the other or against their respective
estates.
I jollnl msa AuguIl18. 1999
NOW, THEREFORE, in consideration of these considerations, and the mutual promises and
undertakings hereinafter set forth, and for other good and vaiuable consideration, receipt and
sufficiency of which is hereby acknowledged hy each of the parties heroto, HUSBAND and WIFE,
each Intending to be legally bound, hereby covenant and agree as follows:
1. Advice of Counsel: The parties hereto acknowledge that each has been notified of
his or her right to consult with counsel of his or her choice, and have been provided a copy of this
agreement with which to consuit with counsel. WIFE Is represented by Carol J. Lindsay, Esquire,
and HUSBAND is represented by Samuel L. Andes, Esquire. Each party acknowledges and
accepts that this agreement is, in the circumstances, fair and equitable, and that it is being entered
Into freely and voluntarily, after having received such advice and with such knowledge as each has
sought from counsel, and that execution of this agreement Is not the result of any duress or undue
Innuence, and that It is not the resuit of any Improper or illegal agreement or agreements.
2. Divorce: The parties agree to the entry of a Decree in Divorce. The parties will
execute, on the date of this agreement, Affidavits of Consent and Waivers of Notir,,: under Section
3301 (c) of the Divorce Code, consenting to the entry of a Decree in Divorce.
3. Personal Property: The parties acknowledge that they have equitably and
satisfactorily divided all of their personal property, and that all personal property shall be the sole
and individual property of the party in whose possession it is as of the date of this agreement.
WIFE will retain the proceeds of sale of the parties' mobile home in the amount of $8,800.28, a 1993
Corsica automobile, $547.00 which has been escrowed in the Office of Samuel Andes, Esquire,
from the sale of the parties' cabin, and her TIAAlCREF retirement account. WIFE will also retain the
two cemetery lots of the parties'. HUSBAND will retain his Rose Metal System stock, and his Legg-
Mason IRA, provided however that HUSBAND will transfer to WIFE $35,000.00 from said Legg-
2
jol'~. ms' Augusl18. 1999
Mason IRA through a Qualified Domestic Relations Order. The Order will be prepared by WIFE's
CQunsel, and will call for the transfer as of the date of the Agreement with any gains or losses
thereon, from that date to the date of actual transfer. HUSBAND will cooperate by providing any
Information requested In order to prepare the Qualified Domestic Relations Order.
4. Alimony: The parties waive any claim that they may have one against the other for
alimony, alimony pendente lite or spousal support. The parties acknowledge that each has sufficient
assets with which to maintain themselves after divorce. The parties agreo that irrespective of the
date of entry of the Decree in Divorce, HUSBAND's obligation for alimony pendente lite shall cease
as of the date of this Agreement. Any arrearages due on the date of termination of alimony
pendente lite shall be paid at the rate of $350.00 per month which shall continue to be wage
attached until paid In full.
5. Marital Debt: The parties have, In their own names, certain credit card accounts
which may Include soma marital debt. Each party will be responsible for the debt on the credit card
accounts in his or her name. Each party will Incur no debt for which the other may be liable, and will
Indemnify and hold the other harmless for any debt so Incurred. HUSBAND shall be solely
responsible for the Members First account, the account with Blazer, the Sears account, the
Consumer One loan, and the American General loan. WIFE will be solely responsible for the car
loan taken for the purchase of the 1993 Corsica at Members First and a separate Members First
loan. The parties each shall Indemnify and hold the other harmless on account of any loss as a
result of the financial obligations each assumes In this paragraph. Each party will Incur no debt for
which the other may be liable, and will Indemnify and hold the other harmless for any debt so
incurred.
3
jolono "'.. AuguDI18, 1~99
6. Exchange of Information: The parties have requested from each other and received
a{1Y information regarding t.l1eir assets, liabilities, income and expenses which the party requires
prior to entering into the terms of this Agreement. The parties acknowledge that the terms of this
Agreement are fair and equitable and constitute an equitable distribution of marital property and
debt, taking Into account all of the ralevEmt factors set out In Section 3502 of the Divorce Code, 23
Pa. C.S.g3502 inclUding the length of the marriage; any prior marriage of the parties; the age,
health, station, amounts and sources of income, vocational skills, employability, estate, liabilities and
needs of each of the parties; the contribution by each party to the education, training or Increased
eamlng power of the other; the opportunity of each party for future acquisitions of capital assets and
Income; the sources of income of both parties, including but not limited to, medical, retirement,
Insurance or other benefits; the contribution or diSSipation of each party In the acquisition,
preservation, depreciation, or apprecfate of the marital property, including the contribution of a party
as homemaker; the value of the property set apart to each party; the standard of living of the parties
during the marriage; the economic circumstances of each party Including federal, state and local tax
ramifications at the time of the division of the property, and whether the party will be serving as
custodian of any dependent minor children.
7. Modification: No modification, rescission, or amendment of this agreement shall be
effective unless in writing signed by each of the parties hereto.
8. Applicable Law: All acts contemplated by this agreement shall be construed and
enforced under the laws of the Commonwealth of Pennsylvania.
9. Agreement Binding on Parties and Heirs: This agreement, except as otherwise
expressly provided herein, shall bind the parties hereto, and their respective heirs, executors,
administrators, legal representatives, assigns and successors in any Interest of the parties.
4
100Ino "~. Augusl 18, 1909
10. AgrelJment Not to be Merged: This agreement shall be incorporated Into the final
dqcreB of divorce of the parties hereto for purposes of enforcement only, but otherwise shall not be
merged Into said decree. The parties shall have the right to enforce this agreement under the
Divorce Code of 1980, as amended, and In addition, shall retain any remedies In law or In equity
under this agreement as an Independent ccntract. Such remedies In law or equity are specifically
not waived or released.
11. Documents: The parties hereto agree that they will execute and deliver one to the
other any documents necessary to give effect to the terms of this Agreement.
12. Full and Final Settlament: WIFE and HUSBAND each do hereby mutually remise,
release, quitclaim and forever discharge the other and the estate of such other, for all time to come,
and for all purposes whatsoever, of and from any and all rights, titles, Interests or claims In or
against the property (Including income and gain from property hereafter accruing, of the other) or
against the estate of such other, of whatever nature and wheresoever situate, which she or he now
has or at any time hereafter may have against such other, the estate of such other or any part
thereof, whether arising out of any former acts, contracts, engagements or liabilities of such other, or
by way of dower or curtesy, or claims In the nature of dower or curtesy, or widows' or widowers'
rights, family exemption or similar allowance, or under the Intestate laws, or the right to take against
the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other
rights of a surviving spouse to participate In a deceased spouse's estate, whether arising under the
laws of Pennsylvania, any other State, or any other Country, or any rights which either spouse may
have, or at any time hereafter have, for past, present or future support or maintenance, alimony,
alimony pendente lite, counsel fees, costs or expanses, whether arising as a result of the marital
relation or otherwise, except and only except, all rights and agreements and obligations of
5
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96 - 3408 CIVIL
CLOYD A. BARRICK JR.,
Plaintiff
JOLENE N. BARRICK,
Defendant
IN DIVORCE
RE: Pre-Hearing Conference Memorandum
DATE: Friday, November 6, 1998
Present for the Plaintiff, Cloyd A. Barrick Jr., is
attorney Samuel L. Andes, and present for the Defendant, Jolene
N. Barrick, is attorney Carol J. Lindsay.
A divorce complaint was filed on June 18, 1996,
raising grounds for divorce of irretrievable breakdown of the
marriage. No economic claims were raised in the complaint. On
May 5, 1998, husband filed an affidavit under section 3301(d) of
the Domestic Relations Code averring that the parties have been
separated for a period in excess of two years. However, counsel
have indicated that the parties will execute and file affidavits
of consent and waivers of notice of intention to request entry
of divorce decree prior to the hearing so that the divorce can
be concluded under section 3301(C).
On July 7, 1998, the Defendant filed a counterclaim
raising the economic issues of equitable distribution and
alimony. No claim for counsel fees and costs has been raised.
with respect to the alimony claim, counsel for wife has
indicated that she may withdraw that claim. If that is to be
done, the Master directs that at least a month prior to the
hearing to be scheduled that wife file a praecipe with the
Prothonotary specifically withdrawing the alimony issue. The
reason the Master has requested the withdrawal of the claim
prior to the hearing is for the purpose of avoiding the need for
either counsel to have to prepare for alimony testimony in the
case.
The parties were married on August 27, 1972, and
separated April 15, 1996. There are three adult children of the
marriage, all of whom are emancipated.
Husband is 43 years of age and resides at 6
Mountain View Drive, Mt. Holly Springs, Pennsylvania, 17065 with
a female friend. He is a high school graduate and works as a
job superintendent in Rose Metal Systems, Inc. The support
office on September 11, 1998, computed his net monthly income to
be $2,587.00. There is an issue with respect to husband
receiving $20,000.00 in Subchapter S Income as shown on the 1997
tax return. Husband claims that he actually does not receive
any of those funds but they are reported on his return which
represents profit in the company. Attorney Lindsay has
questioned whether or not husband gete any payment from the
company to pay the tax liability that is due on his having to
report that money as income. Husband is currently under a court
order to pay alimony pendente lite to wife in the amount of
$350.00 per month. That order is on appeal. Husband has not
raised any health issues.
Wife is 47 years of age and resides at RD 1, Box
901, Landisburg, Pennsylvania 17014 with a male friend. She is
a high school graduate and works as a custodian for Dickinson
college. The support office computed her net monthly income to
be $1,307.00. She has not raised any health issues.
We believe both parties have health insurance
benefits through their respective employers but if that is not
correct, counsel can update this information at the hearing.
The parties currently own a mobile home located at
21 Mountainview Terrace, Newville, Pennsylvania. The mobile
home is listed for sale and hopefully it will be sold by the
time of the hearing so we can use the sale price as a
representative of the value of the home. There is a lien
against the home which will be paid off out of the sale
proceeds. Mr. Andes has raised a question with opposing counsel
today regarding the repair or replacement of the heating system
in the mobile home and counsel are going to address this before
they leave today because it will be important that the heating
system be in operating condition in order for the home to be
sold.
Husband received 15% of the stock in Rose Metal
Systems, Inc., when he began his employment with the company and
Mr. Andes has stated on his pre-trial statement a value of
$5,000.00. Attorney Lindsay, however, is going to pursue having
Mr. Barrick's interest in the company evaluated if the parties
cannot agree to a value of the shares of stock.
Husband has an IRA which he acquired through his
prior employment which has a value in excess of $60,000.00.
Counsel are going to update that value because it appears as if
husband made no contributions since the date of separation so we
can use the statement of the IRA to represent the date of
hearing value.
The parties had a savings account which the
pre-trial statement noted had a value of $377.00 as of April
1996 which was held in the Member's 1st Federal Credit Union.
Counsel believe that husband most likely received those funds.
Wife has a retirement with TIAA-CREF and counsel
are going to update the marital portion of that pension.
Apparently TIAA-CREF will cooperate in assisting and providing a
date of separation value and then update that value to the date
of hearing based on the marital interest.
The parties sold husband's interest in a hunting
cabin and received proceeds in the amount of $6,805.32. Husband
used a substantial portion of those proceeds to pay on account
of marital debt leaving a balance in an escrow account currently
in excess of around $1,200.00. There was also other marital
debt which husband has paid since separation and Mr. Andes is
going to provide substantiation of the debt husband paid so that
husband can receive appropriate credit for assumption of marital
debt which he has paid from his own funds. Mr. Andes does list
an exhibit on his pre-trial statement showing the total amount
of debt that husband apparently has assumed.
wife is currently in possession of a 1993 Chevrolet
Corsica automobile and she has valued that vehicle at $4,625.00.
Both counsel have the right to have the vehicle appraised if
they want to present testimony on the value; otherwise, counsel
perhaps may be able to stipulate to the value at $4,625.00.
Wife claims that she received a 1936 Hahn fire
truck from her father as a gift in 1988. Husband has placed a
value on the fire truck at $10,000.00. There is a question,
however, as to whether or not we are dealing with a marital
asset or the increase in value of a nonmarital asset. In any
event, counsel are going to present their opinions as to value
and we will then determine how we address the truck, namely,
whether it is a marital or nonmarital asset. Mr. Andes has
indicated that he will most likely have the truck appraised.
The parties have each received certain items of
household tangible personal property and counsel are going to
determine if they can agree on the distribution and whether or
not there should be an appraisal. If thore is an appraisal,
then counsel can decide if we are going to have to use values in
the equitable distribution computation for the property each of
the parties received.
There are cemetery lots and most likely each of the
parties would like to have the other party receive the lots in
CLOYD A. BARRICK, JR.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96 - 3408
vs.
CIVIL ACTION - LAW
JOL~NE N. BARRICK,
Defendant
IN DIVORCE
ORDER AND NOTICE SETTING HEARING
TO: Cloyd A. [larrick, Jr. Plaintiff
,
Samuel L. Andes Counsel for Plaintiff
,
Jolene N. [larrick Defendant
,
Carol J. Lindsay Counsel for Defendant
,
You are directed to appear for a hearing to take
testimony on the outstanding issues in the above captioned
divcrce proceedings at the Office of the Divorce Master, 9 North
Hanover Street, Carlisle, Pennsylvania on the 21st ___ day
of January 1999, at q,OO a.m., at which
place and time you will be given the opportunity to present
witnesses and exhibits in support of your case.
President Judge
Date of Order and
Notice: 11/10/98
By:
Divorce Master
Ir YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FOR1'H BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL f1ELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLl':. PA 17013
TELEPIIONI': uln 249-:1166
CLOYD A. BARRICK, JR.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSiLVANIA
NO. 96 - 3408
"s.
:
JOLENE N. BARRICK,
Defendant
CIVIL ACTION - LAW
IN DIVORCE
ORDER AND NOTICE SETTING HEARING
TO: Cloyd A. Barrick, Jr. , Plaintiff
Samuel L. Andes , Counsel for Plaintiff
Jolene N. Barrick , Defendant
Carol J. Lindsay , Counsel for Defendant
You are directed to appear for a hearing to take
testimony on the outstanding issues in the above captioned
divorce proceedings at the Office of the Divorce Master, 9 North
Hanover Street, Carlisle, Pennsylvania on the 22nd day
of ,Tilly , 1999, at 9:00 a.m., at which
place and time you will be given the opportunity to present
witnesses and exhibits in support of your case.
~y, ~fir<.
I. r9" ,. t:L
Pres iden t ,Judge
,1
Date of Order and
Notice: --1121/99
By:
Divorce Master
IF' YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL HELP.
CUMI3I':RLAND COUNTY BAH Assnc l^,l'lON
2 1.11ll-:HTY 1\ VENti E
CAill.lSI.E. PA 1701 J
TEI.E1'llllNE (/1"/) .',1')-;11,(,
CLOYD A. BARRICK, JR.,
Plaintiff
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96 - 340B
.
.
vs.
CIVIL ACTION - LAW
JOLENE N. BARRICK,
De fendan t
IN DIVORCE
RESCHEDULED HEARING
ORDER AND NOTICE SETTING HEARING
TO: Cloyd A. Barrick, Jr. , Plaintiff
Samuel L. Andes . Counsel for Plaintiff
Jolene N. Barrick , Defendant
Carol ,J. Lindsay , Counsel for Defendant
You are directed to appear for a hearing to take
testimony on the outstanding issues in the above captioned
divorce proceedings at the Office of the Divorce Master, 9 North
Hanover Street, Carlisle, Pennsylvania on the 21st day
of September ,1999, at 9:00 a.m.. at which
place and time you will be given the opportunity to present
witnesses and exhibits in support of your case.
'f(t
<go e. t~t.
President Judge
Uate of Order and
Notice: 7/9/99
By:
Divorce Master
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO eR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL HELP.
CUMBERLAND COUNTY DAH ASSOCIATION
2 LIBEhTY AVENUE
CARLISLE, PA 17013
TEl.EPIlONE (717) 24')-316(,
~
OFFICE OF DIVORCE MASTER
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
9 NOrlh Hanover Street
Carlisle, PA 17013
(717) 240.6535
E. Robert Elicker, II
Divorce Master
Tr.cl Jo COlyer
Office Manager/Reporter
West Shore
697.0371 Exl. 6535
February 23, 1999
Samuel L, Andes, Esquire
525 North Twelfth Street
P.O. Box 168
Lemoyne PA 17043
Carol J. Lindsay Attorney at Law
FLOWER, MORGENTIIAL, FLOWER &
L1NDSA Y
II East High Street
Carlisle, PA 17013
RE: Cloyd A. Barrick, Jr. vs, Jolene N. Barrick
No, 96-3407 Civil Action
In Divorce
Dear Mr. Andes and Ms. Lindsay:
I have reviewed the lelters/memorandums from counsel with enclosures and am going to
set forth my impressions and findings with respect to the issue presented. That issue as defined by
counsel is when we value the stock of Mr. Barrick in Rose Metal Systems, Inc. The courts use the
date of separation as a benchmark date in detennining what pr'Jperty or interest in property can be
characterized as marital. However,the date of valuation of the marital asset in question seems to
me to be left to the discretion of the court.
My first level of inquiry took me to the McNau~hton case, which was a case from
Cumberland County. Although that case dealt with the valuation of real estate and the Superior
Court detennined that the valuation date should be the aate of distribution since a substantial
period of time passed between the date of separation and the date of distribution, some comments
in that case I think are relevant to our present situation. The MeNau~hton case states that .....the
lower court has it within its discretion to adopt a date for valuation whieh best works economic
justice between the parties." The McNau~hton case cites for that proposition the case of Miller v.
Miller 395 Pa. Super. 255, 577 A.2d 205 (1990),
In looking at the Adelstein ease in relation to the Sutliff case, it appears to me that the
Adelstein case refines the broad Propositions set forth in the Sutliffcase with respect to the date
of valuation, Although the Adelstein case is initially dealing with what is marital property at the
date of scpo ration, and in that case determined that husband's interest in the company was a one-
halfinterest because he owned one of two shares at date of separation; nevcrtheless, the Court
goes on to state the general Proposition in the Sutliffcase, lIolVever,the Court refin~s that broad
Sutliff definition nnd directs us to look at what post separation contributions may have been made
to the increase in value of the asset and states that that is a factor that c.ln be considered by the
trial court in ordering distribution of marital assets between husband and wil~ in an equitable
way.
SAI'IlfEI. 1. ANDJo;~
A'J"TOHNEY AT LAW
l\wn NORTIS TWr.I.l'"TJI HTIIRt;T
P. O. BOX 11ttl
LI!MOYNE, I:tENSS\.L"ANIA 170.l:l
ftO,I!I'1tIlNK
11" 1111' n~lIl1
,..
Pll' 1f1l-14:.1n
17 February 1999
E. Robert Elicker, II
Office of the Divorce Master
9 North Hanover Street
Carlisle, PA 17013
RE: Cloyd A. Barrick, Jr. vs, Jolene N. Barrick
Dear Mr. Elicker:
I write In response to Carol Lindsay's letter to you of 8 February 1999,
setting out her position regarding the proper date to value Mr. Barrick's
Interest In Rose Metal Systems, Inc.
First, I believe Ms. Lindsay misstates the facts as they were produced
at the hearing before you, particularly from the testimony of Steven Rose.
Mr. Rose made It clear that he would never have started Rose Metal
Systems, Inc. without having Mr. Barrick "on board" with him, that the
corporation would not have probably succeeded without t-Ir. Barrick's
services, and would certainly not have grown but for Barrick's contributions.
Rose testified that the company provided a service and that Its most
Important commodity was Its reputation for producing that service in a
reliable and timely fashion. Rose testified that, no matter how good a job
Rose did In selling the company and Its services, Barrick's performance In
getting the company's work done properly and promptly, Is what made for
repeat business for the company. I believe Rose's testimony made it very
clear that the corporation would not have grown, or even succeeded, had It
not been for Cloyd Barrick's contributions.
I believe Ms. Lindsay also misunderstands or mis-cites the
significance of the Adelstein case. Adelstein was decided after the Supreme
Court's decision In Sutliff v. Sutliff. 518 Pa. 378, 543 A.2d 534 (1988), and
set out a clear exception to the general finding made In S..Y.tlill that assets
should be valued as of the date of distribution. The Superior Court
specifically stated:
E. Robert Elicker, II
2
17 February 1999
In the Instant case, however, the corporation has
appreciated In value since the separation and now has a value
In excess of Seven Hundred Thousand ($700,000.00) Dollars.
This has been accomplished In large measure because of the
post-separation efforts of hU5band and his co-owner of the
business. To these post-separation efforts, the wife-appellant
has made no contribution. This, t'JO, may be corasldel'ed by the
trial court In ordering distribution of marital assets equitably
between Hartman and wife. Husl;land, who has already paid a
part of his work product to the wife-appellant as support, should
not be deprived totally of the fruits of his labor, (553 A.2d at
439).
It Is difficult to Imagine a case which Is more precisely the same as
that here. Cloyd Barrick is a part owner of a business that has grown
significantly In value since the date of his separation. During the time of
separation, he pa:d support to Jolene Barrick from his earnings from the
corporation. Just as It would be unfair for Mr. Adelstein to have to make
payment a second time from the fruits of his efforts, It would be equally
unfair for Mr. Barrick.
The appellate courts of Pennsyivania have reached similar conclusions
In other cases Involving assets which have changed significantly In value
since the date of separation. In a case which arose In Cumberland County,
McNaughton vs, McNaughton 412 Pa. Super 409, 603 A.2d 646 (1992), the
Superior Court, after finding the tilnl court erred in valuing the rt:al e!>tate
at the date of separation, reversed so the trial court could value the real
estate at the date of distribution. The Superior Court, however, specifically
directed that the husband's interest In a business corporation be valued at
the date of separation, not at the date of distribution, The court made It
clear that the business corporation was to be treated differently than the
real estate and the logic for that is very easy to see. Real estate Increases
In value without any effort or contribution by Its owner. Business
corporations, however, rise and fall in value :n large part because of the
efforts and sacrifices of their owners. Just as a spouse Is not entitled to
participate In post-separation contributions to bank accounts, pensions, and
similar Investment assets, the spouse should not be entitled to share In the
contributions made to a business corporation.
E, Robert Elicker, II
3
17 February 1999
The Superior Cour~ reached a similar rE!sult In Benson vs. Benson, 425
Pa. Super 215,624 A.2d 644 (1993) albeit for what appear to be different
reasons, In Benson, the trial court valued f>lr. Benson's business at the time
of separation. On appeal, the Superior Court reversed the trial court and
directed that the business be valued at the date of distribution. The trial
court, after further proceedings, reinstated Its prior order, valuing the
business at the date of separation, which was contrary to the direction
given It by the Superior Court. On the second appeal, the Superior Court
reconsidered Its earlier decision and determined that the trial court was
entirely proper In valuing Mr. Benson's business at the time of separation.
That decision appears to have been based upon a conclusion that the
corporation decreased In value, presumably because of a lack of effort and
contribution by Mr, Benson. The Superior Court concluded that It was not
fair to penalize one spouse for the lack of contribution by the other, Logic
would tell us that the converse Is equally true. Just as one party should not
be penalized for the other party's lack of effort, they should not be rewarded
for, or permitted to share in, efforts of that other spouse made after the
date of separation.
Read together, these three cases layout a very logical way to deal
with the valuation of a business owned by a spouse going through a
divorce. Where the evidence establishes that a business Increases In value
because of the post-separation contributions of a spouse, or decreases In
value because of the post-separation failure of the spouse to make such
contributions, logic tells us the business should be valued at the date of
sepGlratlon. Where the business Increases or decreases In value purely
because of factors unrelated to the post-separation efforts or contributions
of the spouse, the date of distribution would be appropriate,
Our courts have made It clear that there Is no \\Iock-stp.p" method to
determine the date of evaluation, but that every case must be considered
on Its merits and facts. Sutliff Ibid. These cases make It clear that, In
circumstances such as those present In the Instant case, the proper and
logical date to value Cloyd Barrick's Interest In Rose Metal Systems, Inc, Is
the date the parties finally separated.
I believe Carol Lindsay and I have covered these points fairly well
with our correspondence. I do not think further argument will be productive
In helping you resolve the case. What both of us are looking for you to do
Is tell us, formally or Informally, whether you will value Cloyd Barrick's
IJIW OFFICI':S
FLOWER, MORGENTHAL, FLOWER & LINDSAY
,\ I'IUWES:llc)N/\I. nWI'OI<t/\Tl(lN
11 r,AST 111011 Sm"I';T
CARLl'3LE, PENNSYI.VANIA 17013-3016
lAMES D. I'LOWER
RCKiER M. MOROENTlIAL
IMWS 0 I'!.OWER, JR.
CAROl. I LINDSAY
{717IHl.HU
FAX: (7171 H.l Mill
E-IIl:l11:(;!\lrl.I.J.....rItJtlll.:tlll1
IlIETSl'Il"" MORGENTlIAI.
(It"5.ll)tI~)
1'l.OWER, ~RAMER
MORGENTII.\I."" FI.OWER
II'J85-11)112)
February 8,1999
E. Robert Elicker, II, Esquire
9 North High Street
Carlisle, PA 17013
Re: Date of Valuation of Stock
in a Closely Held Corporation
Dear Bob:
Thank you for the opportunity to respond to the issue raisArl by Mr, Barrick on the
valuation date for his stock in the closely held corporation owned by him and Mr. Rose.
Mr. Barrick contends that the proper valuation date is the date of separation, He cites the
case of Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989), for this
proposition. We, however, assert that the valuation date of marital property Is the date of
distribution, as set down by the Supreme Court in Sutliff v. Sutliff, 518 Pa. 378,543 A.2d
534 (1988). This letter address Adelstein and the proper interpretation of that case as
relates to the present one.
Cloyd Barrick is a 15% stockholder in a contracting business run by Steven J. Rose,
who owns the other 85%. Mr, Barrick supervises the work crews and oversees field
operations. Mr. Rose makes business contacts, finds clients, and brings In the contracts.
Both men have put in long hours over the life of the business and the value has grown
substantially. Mr. Rose admits, however that the business would have been successful
without Mr. Barrick and that someone else could have done his job, albeit not as well.
Some of the growth is certainly due to the good economy In this region, and market forces
over which neither Mr. Rose nor Mr. Barrick has control.
Mr. Barrick ciaims that Jolene Barrick is not entitled to any of the Increase in value
of the corporation since separation. He argues that because the stock is In a closely held
corporation and Mr. Barrick was instrumental in increasing the value of the company after
the separation, the valuation date for the stock should be the date of separation instead
of the date of distribution, He cites the case of Adelstein v. Adelstein, 381 Pa.Super. 221,
552 A.2d 436 (1989), for this proposition, He mistakes the holding of Adelstein, however.
The main issue of Adelstein with regard to stock was the date used to determine
what is marital property. jQ, at 225, 438. On the date of separation, the husband, Mr.
Adelstein and his co-owner in the corporation Mr. DeMuro, were equal shareholders, each
5,13 A,2d 5301
57 USLW 2011
(CIl. us: 518 I'u. 378, 543 A.2d 534)
~
(;regory L. SIITI.I...., Ap"elllllll,
v.
Curlell. SIITI......, AI'pl'llee.
Supreme Court of Pcnnsylv:ll1ii\,
Argued Jail. 20, 19M8,
Decided JUlie I, 1988,
Husballd liIed complaint III dlv",ce, Aner parties
'1Ipulaled 10 blfurealed divorce alld I1l1al divorce
decree was entereu, the COUft of Common PIC;IS,
Cumberland County, Civil Divisillll, No, 33 Civil
1982, Sbeely, J.. entered judgmenl providing for
equllable distribulion, Husbaod appellled and wife
cross-appealed, 111e Superior COUrl. Nos. 3501 and
361 Harrisburg 1985, aflirmed in pari and remanded.
361 Pa,Super. 5Q.1, 522 A,2d 1101.1. and appeal was
laken. The Supreme COUrl. No, 017 M,D, Appeal
Doekel, 1987, Flaheny, J.. beld Ihal: (I) proper dale
for valuing parties' marital asselS was dlstribulion
dale, ralher lhan dale panic, separaled, aod (2)
presumplion Ihal propeny acquired during marriage
was marital properly could be rebulled by
preponderance of Ihe evidence.
Remanded.
MeDermoll, I" tiled concurring opinion.
Zappala, I.. liIed concurring and dissenting opinion
In which Larsen, I., joincd.
[I] IlIVORCE <!?253(3)
134k253(3)
Proper dale Illr valuing panics' marital assels in
making equitable di'lribution of property Iilllnwing
divorce was dlslribulion dale, ralher Ihan dale panics
separaled; eonsiderahle Ilnte had passed bel ween
separallon and dislribulion of marital asselS, so lbal
subslanlial Iluclualion in value of Ihose assels may
have necurred, 23 P.S, ~~ I02(a)(6), 0I01(d, c).
12] D1VORct: <!?2S3(2)
1301k253(2)
Presumplion Ihal propeny acqnired dnring marriage
was marilal property could be rebulled by
prcpomlcrancc of the evidence: showing hy clear IUlt..l
convincing evidence was nol required III rehut
presumplion, 23 1',5, ~ 0I0l(e, I),
I'ag. I
[31Il1VORCE <!?253(2)
IJ.lk253(2)
Evidence established lhal husballd's conveyance III his
wife. iT: her sule 11;11111:, of line Imlf intcrc~1 In I11Milal
residence. which previously had becn held as lenmlls
hy Ihe cluirctics, Wt1S nn inlcrspuusal gift that was nut
snlljecllo eqllilable dlSlribUlioll in divorce proceeding.
despite husballd's claim Ihal transfer was mOlivaled
for rcil:;ons or tax planning 10 rcuu!.:c federal CS\iltc tilX
ralher lhan by "love alld affel'lioll" for his wife. 23
1',5, ~ 0I0I(e)(3),
I4lll1VOltCE <!?252.3(3)
13,tk252,3(3}
Divorce COlic docs not contemplale thai, uner gift h.ls
been made. inquiry will be eOllducled Inro whelher
reasons for gift were sufliciclltly "loving" as 10
warranl reeognllion, 23 1',5, ~ 0I0I(e)(3),
[5J CONSTITlITIONAL I.AW <!?191
92kl91
Equitable distribulion provisions of divorce code cOllld
be eonslillllionally llpplied 10 property rights which
vesled prior In code's effeclive dale. 23 P.S. ~ 0I01(d.
c),
[5] IlIVORCE <!?4
1301kol
E'Iuilable distribulion pmvisions of divorce cooe could
be eonstitullonally llpplied 10 property rights which
vested prior In code's effeclive dale. 23 1',5. ~ 0I01(d,
c).
..S35 .380 Bonllie D. Menaker, for llppellant.
Ronllld M. Katlman, Illr appellee.
Be line NIX.
MeDERMOTf.
STOUT, JI.
llnd LARSEN, FLAHERTY,
ZAPPALA, PAPADAKOS alld
OPINION OF THE COURT
FLAHERTY,lu";.;e.
This is an appeal from an order of lhe Superior Court
which llmrmed In part, and remanded for furlher
proceedings. wilh respect to un oruer of the Court of
COllllllOU Pleas of Cllmberland Counly delermi.ling
eqllilllble distribution of certaill pmperty following II
divorce, 361 Pll.Super. 504, 522 A.2d 110I.\. The
ilction for equiHlhlc distribution arose from the divorce
of appellanr, Gregory L. SlIlliff. and appellee,
Copr, ':' Wesl 199') No Claim 10 Orig, U ,S, GOVI. Works
543 A.2d 534
(Clt.Il~: 518 I'll. 378, "3Hll, 543 ,\.2d 534, "535)
Carlene SUlliff. afler lheir marriage of nearly 25
years, Appellant liIed a eomplaim in divorce in 1982,
and. aflet numerous hearings were held hcforc 11
masler, a report was liIed in 1984, Suhse'foelllly, in
Decemher, 1984. lhe parties liled a slipulalion
providing lur, inter alia. a bifureilled divorce, A Iinal
divorce decree was Ihen inunediillely elllered, On
May 7, 1985, Ihe Court of Common Pleas liIed an
order providing for e'fuirable dislribUlion, An appeal
and cross appeal were laken In lhe Superior Court.
whereupon certain elemellls of lbe e'fuirahle
distribution scheme Were ilffirmcd ma! others were
remanded It)c further uc(crnlinatiollS ilnd/llc
modiliealinns to be made. The inslanl appeal ensued.
II J The lirsl issue 10 be addressed is whelher lhe
Superior Court erred in ilS seleclion of a I'alualion
date for the marital assets. The Court of Common
Picas ulilized Octoher 2 I. 1981, lhe dare when lhe
parties separaled. as lhe valualion dale. The Superior
COUrl concluded, however, lhat valualion of Illarilal
assels should rellect values as of lhe dislribulion dale,
"536 ralher than Ihe sep.ration dare, and,
accordingly I lhe case WlIS remanded for revaluation of
"381 certain business interem, including aUlolllobile
dealerships, lhal were subjecl 10 dislribulion. The
basis for lhe Superior Court's aClion was thaI, because
lhere had been a considerable passage of lime between
separarion of the parlies and dislribulion of Iheir
Illarllal assels, subslamial /Iuelualions in Ihe values of
those assels may have occurred, whieh, from an
equilable slandpoint. should be rellecled in lhe
distribulion order. We agree.
The Divorce Code conlains no express provision
governing lhe seleelion of a dale 10 he used Ii"
valualion of marital property. where e'fuirahle
distribulion is concerned. While the Code clearly
slares Ihat property aC(iuired afler sepamlion is nor 10
be considered marilal property, 23 p.S. * 401(e). lhe
queslion presented here is nOl whelher particular
assels arc 10 be deemed mariral, as opposed III
individually owned. bUl ralher whelher assels given 10
be marilal in nalure arc 10 be valued 'II one level or
anolher. Il is implicil, however, in lhe stalulory
provisions governing equirable dislribution lhat a
valuation dalc ,"asonably proxima Ie to Ihe dale of
dislribulion musl, in lhe usual ease. he ulilized,
Specilically. 23 P,S. * 401(d) provides:
In a proceeding for divorce or annulment. the Court
shall. upon request of either party, e(luilahly divide.
dislribule or assign lhe Illarilal property bel ween lhe
parties without regard 10 maril;,1 misl:onducl in such
proportions as the court deems just ilner cOllsillcring
HII n:lL'villU fm.:tors including:
(I) The lenglh of Ihe marriage,
(2) Any prior marriage or ehher pany,
(3) The age, heallh. sl:llion, :U11111nll and sources of
income, vocatitlllal skills, c:mplo)';lhilily, estale,
liahililies and needs of each of lhe panics,
H) The eOlllrihuliol1 hy one party to lhe eduealion.
trilining, or hu.:rei.ISeU earning power of Ihe other
party,
(5) The opponunity of each parry lur fUlure
ilctjuisitiollS of capilal assels illld income.
"3H2 (6) The sources of income of bolh panics,
including hut not limited In medicnl, relirement,
insurilllce or olher bellenls.
(7) The COUlribuliou or dissipalion of each party in
the ::icquisilion. preservmiol1, deprecialion or
apprecialion of Ihe marllal propeny, inclUding Ihe
conlribUlion of a party ;.IS a hOl11el11ilker.
(8) 111e value of lhe properly sel aparllo each parly.
(9) 111e slandard of living of lhe panics eSlablished
during the marriage.
(10) 11le economic circumslances of each pany al
lhe lime lhe division of property is 10 become
effeclive,
E,xaminalion of lhis slalulOry proVIsion reveals
numerous grounds for an inference lhat marilal
property musl be dimibuled whh reference 10 hs
value al the date of dislrlbulion. Indeed, il is
inconceivable thai the requiremenl lhal the dislribution
be made in such proportions as the eoun deems "jusl"
could be salis lied Wilhoul reference 10 the eurrelll
values of Ihe assels. The slatule, in hs enumeralion of
laelors 10 be considered in making a dislribulion of
marilal propeny. sels lunh a numb~r of faelors which
IllCUS on IIle preselll needs and linancial situations of
lhe parties, including lheir "amounl and sources of
incol11c," "employability." "eslale, liabilities and
needs." chances for "rulure acquisitions of capiral
asscls nnd incomc," "sources of income," the "value
of lhe propeny sel apart" as non-marilal propeny,
"slandard nf living." and lhe "economic circumslanees
or each party allhe lime lhe division of propeny is 10
becumc effective." In view of these t~lclors, and with
particular reference 10 1I1e lasl one which encompasses
generally all of lhe Ilmncr, and which expressly
focuses on the parties I linanchll circumslances at the
lime when marilal propeny is 10 he dislribuled, il is
inconceivable Ulal lhe legislalure illlended marilal
property 10 he vnlued ill some olher time. Grilllled,
Ihere Ill"y be SilUi.llions where rmlril:ll :Isseis have hcen
consumed or disposed of by one of thc parties, thus
rcndering " current Villu.lliol1 impossihle i.1I1d making it
nccessary 10 rely on d:ua 111<11 "3H3 would olherwise
Copr. " Wesl I ~9~ No Claim 10 Orig, U ,5, Gov!. Works
1'1I~e 2
543 A,2d 534
(Clle lIS: 5181'". 378, .383, 543 '\.211 534, "536)
be considered slale, but such is nul the case here. See
"537 generally Sergi v, Sergi, 351 Pa.Super, 588.
5lJ.l, 506 A.2d 928, 931. 931 (1986) (discussion of
valuation where mariH11 property is 110 lunger in
c:dstcllcc). In the usual easc. 1100\'c\'cr. givclllh.lllhc
parties' present nceds and circull1s[.uu.:cs nee 10 he a
major factor in distributing marital iISSCIS. ic would he
impossible to construct a distrihutiun scheme Ihat
would be fully responsive 10 Ihose needs amI
circumstances if (he court \\Iere 10 act \l.:ilhout laking
cognizance of the current valUl:s of the "sse IS hcing
distribuled.
As slaled in Oacchella v, Oaechella, 498 Pa. 227.
232,445 A,2d 1194, 1197 (1982), "By providing lilr
lhe distribulion of properly aClluired during Ihe
marriage. lhe Divorce Codc permits the correction of
,.. economic injustices...." See also 23 P,S. !i
102(a)(6) Oegislillive imem of Ihe Divorce Code is to
"[eJffeclUille ccooomic justice belween parties who arc
divorced ... and insure a fair and jusI delerlllinalion
and sClllemem <If Iheir properly righls,") Yel, one
can readily imagine Ihe economic injuslices thaI would
be inflicted by dislributing properly wilhout regard 10
ilS value. It eannol be said thaI dislributions bascd
upon stale valuations are based on value, lilC value is
by no means a conslan!.
If, as bas been suggesled, marilal properly values
were 10 be lixed as of dIe dale of Ihe parlies'
separalion, or as of the dale of lillng a complaint in
divorce, severe injustices would al times be inllieled
upon lhe parlies concerned. Volalile markcl
conditions and changing economic circumstances cnD
render assels Ihat had been valuable months or years
earlier virtually worlhless in dIe present. and vice
versa. Publicly Iraded securilies may be worth a
fOrlune one day, and a pillance lhe nexl. PrivalCly
owned business imerests may be valued as a gold
mine, or as a scrimptiont depending on the times.
Automobiles thaI were once of considerable WOrlh
may, through abuse or neglecl. rapidly hecome
valueless. Other examples too numerous to mention
scarcely rcquire enumeralion. In vieIV of lhcse
commonly .384 recognized aspeels of valualion. iI is
diflicult 10 conceive juslilication Ii" Ihc vieIV that slale
valuation dala, Le.. data thaI docs nnt rellect values
reasonably proxinlille III Ihe date of dislrihulion.
should be used by the courl in seuiog a dislrihulion
scheme, S~e Sergi v. Sergi, 351 Pa,Super. al 594,
506 A.2d al 932 ("IElquilahle resulrs willmosllikely
llow from providing the court with the most recent
Informalion availahle"., "),
l'age 3
The present CilSC prCSCl1lS a prime CX:lltlflh: of
circumstances where reliam:c upon stale Villu;\litm d..ta
could lead to ao unjust diSlrihUlion of property, Th~
parties sCll'lralcd in OCloher of 1981. a complaint in
divorce was liIed in Fehruary of 1982. and
dislrihulion of marilal assels IVas ordered hy Ihe Court
of COlllmon Pleas in MayoI' 1985, Clearly. lhe lime
lapse helween lhe Ii'rmer dales and 1I1e laller dal:,
when dislribulion was ordcred. is such lhal highly
signilkam vuIue lluctu.ullll1s may have occurred. Tn
dislrihllle property without regard to those Iluclualions
would he illogical. nnd would undermine the
legislalive huenl of making th~ equilahle dislrihution
process responsive to the COl1lcl11flonmcous necds ond
linancial sitmllions of the p.uries. We conclude,
Iherefore, lhal the Superior COUrl properly rClllanded
this t:i1SC for determination of revised asset valuations,
therehy negaling Ihe COUrl of COlllmon Pleas' reliance
upon values lixcd as of the dale of separalion,
121 The next issue presemed concerns dIe
classilicalion of property as marilal. or non.marilal,
undcr provisions sel limh in 23 P.S. !i 401. A
slatulllry presumplion is eSlabllshed in favor of
classifying properly as marilal when iI was acquired
during marriage:
All property, wh~lher realnr personal. acquired by
eilher party during lhe marriage is presumed 10 be
nmrilal properly regardless of whcther title is held
individually or by Ihe parties in some form of co-
ownership such as juim lenancy, lenancy in common
or lenancy by the emirety. 111e presumption of
marilal property is ovcrcome .385 by a showing Ihal
Ihe properly was acquired by a melhod lis led in
subseclion (c).
23 P.S, !i 401(1). Thus, properly is deemed marilal
unless iI was a~quired hy one 01 "538 dIe methods
enumeratcd in 23 P.S, !i 401(e), as, for example,
property acquired in exchange for property held prior
to the marriage. propCrlY excluded hy agrcement of
the parlies, property acquired by gift. properlY
'Icquired after separalion. elc. 111e specinc issue
rais~d in lhis uppeal, however. is whclher rebullal of
the presumplion as 10 maritul properly requires a
showing by clear and convincing evid~nce, or whedler
il is suflicielll III r~but the presumption by a
preponderance of the ~vidcnee, In Ihe procecdings
below. belilrc Ihe masler and the Courl of Commoll
Picas, l\ rC1luircmcnl of clear and cunvincing evidence
wus imposed, Thc Superior Court uflinned as 10 lhal
rCllUircll1L'l1l. \Vc reverse.
In t1ftirming the slandtlru of Ch.'itT lUlLl convincing
cvidcm:c, the Superior Court rcnsnllcLl that because
Copr, ,., WCSl 19~9 No Claim 10 Orig, U,S. Gov\. Works
Sol3 ,\,2d '34
(Cite IL~: SI8 I'u. 378, .J8S, S43 A.2d S.14, "S.1H)
Ihal slandard Is applied In eerlain olher civil eases, il
should be applied in Ihis eonle>! as well. For
example, Ihe Superior Courlnoted lhat Ihe slandanl is
applicable where frand is 10 he proved. e,g"
Mollneux v. Reed. '16 I'a, 31)8, '32 '\.2d 792. 79.1
(1987), where one alleml'ts 10 rehlll the prcsumption
Ihal properlY purchascd by a hushand or wife and
expressly lilled in lhe names of Ixuh Ihe hushand and
wife conslilules a compleled gin and an eslate hy Ihe
emlrelies, see lIolmes ESlale, 414 I'a. .IOJ, 21X) /\,2d
74' (19601), and where parcmal righls in children are
10 be severed, e,g.. In re T,R,. 502 Pa, 165, 167, ,165
/\,2d 6012, M2-M3 (1983), See aim 3!/\ C.J,S,
Evidence ~ 1023 Iclear lInd eonvilleing evidence
required in a limiled number of eivil cases), In shorl,
the Superior Cuurt fucused unly UPUIl those civil emiL'S
where Ihe more demanding slandard of prlXlf has hccn
applied. ratller IIl1m u(lOn Ihe predominam numher of
civil CllSCS where Ihe evidenllllry hurden requires only
proof by II preponderance of Ihe evidence, It is lIIU
apparenl whal conneclion is III he perceived in
comparing Ihe presenl case 10 Ihose ciled, Iilr Ihe
Issucs presemed :md consideralions .386 involved are
clearly diSlincI. Indecd, Ihc presem case is one where
Ihe presumplion in queSllon was created hy an express
sla!ulllry provision In the Divoree Code, and where
Ihe "showing" necessary 10 rebullhe presumplion hilS
likewise been referenced by slalUle, 23 P.S, ~ 401(1).
The basis for imposing Ihe slllndard of clear and
convincing proof was Indlcalcd in Ihe dccision below
10 be lhal Ihe wisdom of experience has demonslraled
a need for grealer eerlalmy when dealing wilh IIIlS
subjecl maller, due 10 Ihe facI Ihut cerlain social
consequences and harsh ur far. reaching effects un
Individuals may ensue from a delerminalion lhal any
given properlY is 1101 marilal in nalure. Yel, in any
case where economic interests of the parti~s arc tn he
adjudlcaled, as is lhe case where righls It) marilal
properly arc 10 be delCrmlned. il is obvious Ihal lhe
parlies Involved will Incur lhe el"fecls of Ihe
adjudicallon. II is nol clear. however, Ihm Ihe effeelS
arc any grealer In Ihis realm Ihan when olher
economic and properlY ImereslS arc m slake, and,
Ihus, il docs nol appear lhal a higher swndard of proof
is. of neeessily, required.
131141151 Indeed. If Ihe legislalure had imended II
higher Sllllldllrd of proof 10 be applied in rehunal of
the SIQIUwry presumption regarding nmriHl1 prupcny.
Ihe sllllulory hmguage would surely have so Indiealed,
Instead, Ihe legislature crcillcd a ruh.' of suhstanti,,'c
law Ihal properly acquired during marriage Is In he
deemed marital in nature, ahsellt n "shuwing" that the
l'uNe 4
properlY was ou:quirctl by one of the methods
enumeraled in suhwelion Ie), 23 ('.5. ~ 4(111),
Cl'r1;linly, lhe mere I'm: I Ih.ll a sl.lttllory presumption
hilS hl'en en.u:tell, ,\.'ilh provision fur the presumption
tn he rehulh:ll upon .1 proper showing, is not llasis In
itself for inferring Ihat clear muJ convincing cvidence
is needed to rehut the presul11ption. Sec. e.g..
Fawcell ESlale, 4.1l) Pa. 497, 297 1\.2d 799 (1972),
We pereeive nil hasls. In Illgic. puhlic p"licy, Ilr
1l1herwise, III Infer Ihal Ihe "showing" required under
Ihe Inslanl sl:IlUle was imended by the legislalllre III he
.111 cnhanced nile. rcquiring l1lore than the usual
prcpondcnmcc of evidl.'nce It) I.'stahlish the -3H7
necessary prollf. Thus, inasmuch as an Improper
evillellliary slandard was applied hy Ihe courlS 1.cIIlW,
01 rcnmnd is ncccss.lry 10 --.539 permit reconsideration
Ilf Ihe case inlighl of lhe appropriale slandard, IFNII
FNJ. Thl' n.'II1Olininl: is!\ucs r"bed hy appcllanllllay he
addrl'!\!\l'd in SUl1l1uary fashiun. Appellant challcnges
11l1' ma!\h:r's 1l1'ICrminaliol11hal ollc-half uf Ihe marital
re!\iJcllcc wali Ihe !\eparate pruperl)' uf appellalll's
\I.'ife, ill1d, hcm:e. th,,1 !\uch one-half interc~H was Jlill
suhjccI In elluilahle dio.lrihuliull. Thl' ma!\lcr's
delerllliml:illl1 was hased upnll a tindilll: of an
interspnus;11 gill in 11I1' Ii.JrIIl uf a conveyance IIIJJe in
197K hy i1ppellalU In his wife. in hcr snle name, tlf a
une.hillf inle:n:sl in lhl' marilal rc.",hJcncc, whkh. ulllil
Ihen. had he:en held as lel1allls hy Ihe ellllrcties. Sce
Sema!'lck v. Semasd, 509 POI. 2K2, 502 A.211 109
(I9K5) (prnpert)' can he renJerl.'lI nlllt.marltal via an
inlcr!'lptJu!'Ial l:in, !'Ice Divorce Cud..:, 23 P.S. ~
401(e)(3)). AppellalU clHuends thai Ihe cllnvcyance
was made fur re:a~(lns (If lax. planning In fL"lIuce
federal e~lale la"-es, UptUl the n.'Cul1l11u:ndalinn uf a
law linn Ihal a gili he: maJe fur Ihal purpose. and
Ihil1, hccau!\e appellanl WilS not lIIutivalL'\I hy "Inve
and alTccliun" fur his will', Ihe cnn\'cyancc: :'ihllUhJ I1tll
CllullI as a gift I'llI' purpllses \If Ihe Divorce Cnlle.
Ul.lllali\'C il\lel\l is. of cuur"'e, an eSM:lllial c1cmelll tlf..
valid gili. Id, al 2K6, 502 A,2d al III, DUlnnce II is
delerlllined thai dlll1ali\'e illtelll was presenl, irotlulr)'
illln Ihe rea!\llll or lIlutive: I'llI' a l:ili hl-colllcs
llleanin!;lcss. ^ Iransler lIlotivated by all allempt In
avnid inheritilllce laxes is "UIII incol1!\islCIll with a
donath'e illlel1l. hUl ralher pusilh'cly su~gests such an
illlelll." ClilY v. Kcber, 460 Pol. 620. 626. 627 n. 3,
334 ,\.2d 263. 266 II, 3 (1975), II calUxll he said Ihal
Ihe: lllil!\lcr errl.'d in lilldin)J an illlcr~ptlu!\al gili IUlhis
ca...e, and e:\cn appellalll dOl's Ikll deny Ihal Ihe
wme)'ance shuuld he regarded as;1I1 cfll'clh'c gin IiiI'
fclll..'ral la\ purpo!\cs. In es...e:nCe, ap(lCllanl reqUl'sls
Ihilt IWII caleguries tlf gins he rccngnil.l.'\I. Le., Ihn...e
made !ilr rea",ol\\ uf "Im'e and allectiulI," and Ihme
lIlade: fur (Hher reasons, Sll Ihal, lIl'pe:nlling un Ihe
IlCca!\iun presented. .lp(lCllalll clluld a...'crt ur deny a
gih ilS he'll SUilS his il1lcrc\ls. Such a position is
Cllpr. t', Wesl 1999 Nil Claillll\l Orig, U,S, Go,,!. Works
S43 A,2d S34
(Cite us: 518 Pu. 378, 0387, 543 '\.211 534, "539)
dearly ulIlcnahlc. The Divorce ('II\Jc dne... mil
contemplate Ihal, ~licr a Mill ha, Ill'ClI madc, .1Il
inquiry will he wlllIucu:d into whether Ihe n:a'itJllS lilT
the gift were suflicicllIly ~Jtlvillg" iI'" Itl w"rrlllll
TL't:ucnillun.
l\ppcllal1l further illh.'gc... that llle l'IlUWi hduw
crrulIL"\lusly ittlcrprctcll a !ollipulalitlll of Ihe partie... in a
manner Ihal pn.'cludL,'J them frul1l cuw'IklL'rillt; Ihe
alleged dislincllull hcl\H'1.'11 "'uvillg" gin... illlJ tllh~'r
types ur gilis. InJMIIUeh as Ihe alll'cell dhlinclioll j...
without hasi.li, Ihe quest!un nl' whether the slipulillinl1
was prnJK.'rly ImcrprclcJ h of 1111 cllmClllIL'IICC.
Finally, appcllalll ClIllh:nds Ih;1l lilt.' clJuilahlc
dhtrihulinn pruvbitll1s nf the Divorce Cndc call1lot
conslitutionally he applied hi properly rights .....hkh
vesled prim In July 1. 19liO, Ihl.' effc\:llvc \Jail.' Ill' till.'
CudI.'. Such a clllltelllillll h:ls alreillly heel1 wlI~iJcred
anll rej~'Clell hy a majorilY of this Cuurl.
nUlwithManlllng vigoruus L1is.~ents. BlI\:chella \'.
naCCllclla, 498 Pa, 227.445 A,2J 1194 (1982) (Mr,
Juslicc:. now Chief Juslke. Ni..... lIisscnting. anll Mr.
Juslice Flahcrty. di\selllinJ;. juincll 111' Mr. Juslkc
Larsen). See also Krcllzclak v. I\rellzclak. .503 Pa.
373. 469 A,2J 987 (1983) (Jue process c'ccplion In
relroaclive applicatiun tlf equilahle lIblrlhulitJlI
pruvisiUll'i whcre riGlns of a third p:lrty Irallslcrcc are
cuncerned).
0388 Case remanded In Ihe Court of Common Pleas
for proceedings consislelll with lhis opinion.
McDERMOTf, J., joins in the majorily opinion and
liIes u separate concurring opinion,
ZAPPALA, J.. liIes a concurring and disseming
opinion in which LARSEN, J.. joins.
STOUT. J.. did not parlicipale in lhe consideralion or
decision of this maUer.
McDERMorr. Joslice, concurring.
I join in lhe opinion of Mr, Justice F1ahcrty,
However, I write separalely to emphasize lhar the
dislribulion dale is the datc the common pleas courr
elllers an order of distriburion, and lhat the disposilion
dale of post-lrial motions or appeals docs 1ll1l nni:cl
lhe use of that original date as lhc valualion poin!.
Thcrefurc. a Iiligant cannut contest the relalive value
of assels on lhe grounds lhal they subslamially
changed while the case WaS being fUrlhcr Iitigarcd,
ZAPPALA, Justicc. concurring and dissellling.
While I join the majority Opinion with rcspecl 10 lhe
burden of proof rcquired 10 delcrmine a marilal asset,
I'uge 5
and Ihe issue sunul1arily disposed of in footnllle no. I,
I mil>! dissenl flllm lhal parl of the majority Opinion
n:ganJing the valuation dale or the m;uit<ll property.
Under Section .1I)3(b) of lhe Divorce Code. IXlth
parries mils I sllbmit a delailcd invclllory and appraisal
of illl property uwned ill the time the action is
commenced. likewise, undcr Pa,R,Civ.P, 1920,33,
we relluire each parlY who seeks distribution of
plllperl)' 10 lile a delailed inventory, listing the marital
plllperly valued as of the date "540 of lhe complailll,
within sixty dilYS aftl,.'r service of a ple:lding containing
a chlim tin distribution of property. Pn.R.Civ.P.
1920,33(a)(.l), 0389 Therefore, it is clear 10 me Ihat
lhe aJlpropriale <laIC for valuiog nUlrital properly is Ihe
uiile the action was cOl1ullcnced. It wuuld seem
somewhat or an anomaly to require the parties to set
values as or a cert;:lin uale, yet ignore that valuation at
lhe time of distrihulion, Nowhere else in lhe Divorce
Code arc lhe parti.,s required to set fOrlh lhe valoes of
lhe properly III a differenr lime, Furthermore. using
lhe date that Ihe aClion was commenced as Ihe time
for valualion nm only provides certaimy, bUI is also
consistem wilh lhe Divorce Code's aUempl to expedile
an otherwise emotioIH11 or cxplosive period,
I disagrce with lhe majorily's reasooing U161 using lhe
dare of liIing lhe complaim will result in severe
injusticcs, Eilher parlY can liIe a complaim 01 any
lime. TIlerefore, each party has Ihe equal opportunity
of setting the lime for which the property will be
valued, Once a complainl is liIed, both parties can
mutually agree 10 lerminare Ihe marriage and expedile
properly dissolotion. Using the lime requirelllems set
1<>rIh in our Rules will result in an orderly procedure
and limely distribution of properly. TIle Iluclunrions
in values lhlll the majority is trying to avoid will nol
occur.
I ndmit that in a case such as the one now before this
Court, using values us of Ihe liIing dale of the
complainr when lhe property is dislrihuled lIlore lhan
three years laler may resull in slale values, TIlls docs
nol appcar 10 me to he lhe falllt of Ihe Rule or Ihe
Court. but uf the parties themselves, To prevem this
occurrence, bOlh p:lrties could have agrced to a
divorce undor Scction 201(c) of lhe Divorce Code nnd
expedilcd propcrly distribulion in accordance with lhe
Rules. lIo\l,'c\'cr, fwm the numher of uppenls that
have bcen liIed hy these parlies (see Sutliff v. SOlliff,
361 Pa,Super. 194, S22 A,2d 80 (1987); Slllliff v,
SUlliff, Sl5 Pa, 393. S28 A,2d 1318 (1987\; SUllilTv.
SUllilf, 326 Pa,Super, .1%, 017.1 A.2d S99 (1984)), II
is dear that it swift resolve W:IS not their highest
Copr." Wesl 1999 No Claimtll Orig, U ,S. GlIVl. Works
553 A,2u 436
(Clle us: .IHII'u.SUpH. 221, 55.\ '\.2d 4.1(.)
Murgurcl ,\IlEJ.STt:IN. '\pp<'lIUIII,
v.
Sheldllll AIlEJ.STEI:IO, App<'lle,'.
SUllCriur CtlUrl (If PCl1nsyl\'ill1ia.
Suhmiueu Sepl. 9, 1988,
Filed Jail, 26. 1989,
Actiun WOlS brought fur eJivon.:c, The Court or
Cllmmllll Pleas. Lackawalllla COllmy. Civil Divisioll.
Nil, 81 of 4412. Walsh, J.. elllereu dccree III'
e'luitahle distrihulillll alld appeal was lakell, The
Superior Coull, No, 572 Philadelphia 1988. Wicalld.
J.. held Ihal: (I) lrial coun did mn ahuse its
discretiun in awarding wife alimony at nile of 550 per
week for olle year; (2) Irial coun did not abuse lIs
discretion in orderillg ea.:h pany lU pay Iheir 11'1'11
legal ICes; alld (3) Imercst ill busilless tll he
dlstribuleu as marital properlY was olle.half illlelest
held by husballu al time III' scpar.nillo,
Reversed and remandcd.
[1) mVORO: €:=>247
134k247
Trial coun did nol abuse its discretion III awarding
alimony 10 wife at rate of S50 per week for one year;
evldellce dlselosed no Impediment, whelher physical,
menIal, or edU':aliollal, lhal would prevelll wife from
supporling herself.
[2J mVORCE €:=>224
134k224
Spouse's separale eSlale is legitimale cllnsideratilln ill
trial court's determination of rC<lucsl for counsel fees
in divorce action.
[.IJ IlIVORCE €:=>223
134k223
Trial court did nol abuse its discretiun ill di\'on.:c
action in uClcrmining that cat.:h spouse h:ld sullidcnt
<Isseis to pay his or her own cuunsel fees.
[4J IlIVORCE €:=>252.5(\)
134k252.5(1 )
Trilll court did not abuse its discretion in distrihuting
proceeds from sale or lll.nil,,1 home in al1loUI11 of
.$35,000 equally between spouses in divorce "clion.
[51 DIVORCE €:=>252..1(1)
134k252,3( I)
One-half inlen.:st in corporulion owned hy hushilllll :.II
l'U~l' I
time of marit:ll sl'lwr:lIion WilS suhject 10 dislrihutiol1
as maril;\1 propl'rty llot\\'ithsl;lIldinp. fu!,,;t that while
lIivon.:e :1I.:tiol1 was pending tJK slwres uf Ireasury
l'i1t1l.:Ker Wl'rc issucd, wilhmll mldili\)llill ~t1llsidcratitlU
paid, 10 l.:tHIWller or husiness: liltl'r issu:IIlCl' of
trCi\sury SltH.:k without nev,' cunsidl'r:lliol1 did 1I0t
Ch:ll1gl' inleresl which hushand uwned at time or
sl'lli1rtltiol1 iIIuJ which w:as suhjecl to distribution in
diHlrn' pHl\:eeuillgs.
((,I COIU'ORATIO:lOS €:=>(,29
IDlk(,2,}
\Vhl'rc t\\"o shareholders OW lied ont.' share e:u.:I1, vulue
of each shme W:IS Clluiv:llcnl 10 one Imlf uf l.:orpor:lte
assels ilvitilahlc for Iilluid:atioll purposes.
(71 III VORCE €:=>252.3(1)
13.lk252,3(1 )
In division of maril:11 assets, nonsh:ueholdcr's spouse
is emilled III participale in lhal which shareholder
spouse would have realized if his or her interest in
curpor:lliol1 had hel'n liquidated,
[HIIlIVOIICE €:=>252..I(1)
134k252.3(1)
Wife was Ilol emllled to appreciarioll in value of
corporation due 10 postsepararioll effons of husballd
nnd CO-(}\\'l1er of business,
"4.16.222 William R, Lee, SCnnlloll. Il>r appellant.
David p, Posatko, Public Defend,:r, Tunkhalllloek,
lor appellee.
llefore WIEAND, McEWEN and ~1ELlNSON, JJ.
"437 WIEAND, Judge.
The tri:ll court, m:ling upon reconunendmions made
by a maSler. emered a decree of e'lUllable dislrlbulion
which (I) .22.1 awarded alimony to Ihe wile III the
rale of lifry (S50) dollars per week Il>r olle year; (2)
direcled each party 10 pay his or her own counsel fees
allu e,'penses; (3) directed thaI the proceeds derived
from lhe sale 01 lhe nHlrilal home be divided equally;
.\Ild (01) uwardeu wire u olle-hulf ( 1/2 ) illleresl ill II
single sh:ue or stock owned by husband and
representing a nne nne-hul1l1redlhs interest in :l closely
held husiness cllrpllrutillll, The wire appeuled. In
every respect, she coutl'nils, the awurds made to her
were inadelluall', \Vc Iind mcrit in the 1:15t uf her
l.:llI\IClllhIllS: and. therefore, we reverse :md rem:lI1u
hlr funhl'r ctlllsideralitm.
Cllpl. " Wesl I')I)'} Nil Clui\lllll Orig, 1I,S, GIII'1. Works
f\targaret :1I111 Sheldon Adelstein were married 011
553 A,2d 436
(Clle us: 3HI Pu.Suprr. 221, .223, 55.1 '\.2d 43(1, ..4.17)
April 25. IW>1. Fllllllwing marriage. Mar!':lrel
tJiscolltinuCll her c,'mplnymcnt ilnd for Ihe Ill,,'.\t
eighteen )'L'ars hcc:unc :1 hOIllc,'llIakcr .1I1U mother.
IFN II Shel~lln was line llr tWll sharehlll~ers in NEPp
Wire produclS. Ine,. a c111sely hcl~ cllrporalilln
cngagl.'d in the husiness or m;lI1ufilf.:luring hUllp sh:ll.k's
and lamp Cllltlpllnenls, The panies separaled in I ~82.
and a divorce uClion followed, Prinr to llu.' 11l..':lring
hcfnn: u maSh..'r I most ih:II1S Ill' personal property had
hcen dislrihllle~ by allll hel'H'cn the panics, The
master, after laking (l'Slimony, l11;lllc .Hhliliollal
rCl.:oltlmclluillions \vhkh the coun, dl'spitl.' l'XCC!lliollS
by bOlh spouses. incorporalc:d inlo U final dl'~rcc.
FN 1, Twu chilJn:n were horn of lilt.' lIIarriage. AI
the lime Ill' 1111: Ifiill court's I.kcbiull, Ihc)' were 21 lint..!
19 years old. Thcir support is IItl! in h,ul.'.
11112113) 111e lrial Cllun's llrder regarding 1Ilimllny
must be cvnluated againsl an abuse of discretion
slandard, Mazzei v. Mallei. 331 Pa,Super, 432,
437, 480 A,2d 1111, 1113 (I~8.1), "IIII' a party
receiving 1Ilill111ny is lIhle III provi~e fllr [herl
reasonable needs lhruugh employment, the court is to
fashion lIn alimony order 10 he in eflect only umil
such ell1ploYll1elll has been ohlained or the party has
develope~ an lIpprupriate employable skill." I~, al
443.480 A.2d at 1116. quoting Geyer v, Geyer, 310
PlI.Super. 456, 46<1. 456 A,2d 1025,1029 (198.1),
Here, lhe husband-lIppellce has suppllrted the wiiC-
lIppellllnl during .224 lhe pen~ency of the divorce
proccedings. and the trial court louud Ihal wife-
uppellalll. in an addilillulll year. shoul~ be ahle III
become selr-supporting, Tbe record discloses nll
impedill1elll. whether physical, l11emal, or eduealiooal,
thllt would prevelll lIppellant from suppllning herself,
Under these circumstances, thL're is 110 basis in this
case lor linding an abuse of the trial court's discretion
in lhe thing or 1Ilimony.
10 delermining lhe prupriely or an award of counsel
fees, we also utilizc an abuse of discretion stmuJan.l
of review. Miller v, Miller, 352 Pa,Super. 432.
44.1. 508 A,2d 550. 556 (1986); PlIngallll v,
PlIngallll, 32~ Pa,Super, 25. 31. 477 A.2d 885, 888
(I~84); ProLZoly v, Pronoly, .127 Pa,Super. 326,
331. 475 A,2~ 820,823 (1984); RUlh v, RUlh. 3111
PlI.Super, 282. 285. 462 A,2d 1351, 1352-135.1
(ItJ83). However, counsel fees :Ire not awarded tn
either spouse autllln.ukally. Di.lIl1ontl v. Dimnund,
1360 Pa.Super. 101. 116. 51~ A,2d 1012. IO!')
(1987) J, "Aemal nee~ l11usl he showu in order III
justiry an award," Deell v, Deeh. 3.12 Pa,Super. 17.
23. 4~2 A.2~ 41. 44 (1~85). citiug II110ver v,
Hoover, 288 Pa,Super, 15~. 101-102, 4.11 A,2~
"1IJ:<<.' 2
.1.17, .1.18 (1')81), CounscliCes arc appropriale when
IH,,'ce,sary hI put the p"rtiL's "011 a par" in defending
IIlL'ir rights or in llllowing a dCJlendcnt spouse to
l1Iaintain or defend .111 m:tiun fur divon:e. See:
~Iiller v, Miller. supra .152 1'.1. Super, at ,142. 508
,\,2d 'II 55(>; Oech v, Dech. supra; Yllung v.
Yllung. 27,1 Pa,Super. 2~8. 302, 41H '\.2d .115, .117
(I')SO!.
Johnson v, Jllhnson. 305 Pa,Super. 409. .115, 529
'\,2~ 112.1. 1126 (I~871. in the inslanl case, the
coun delerl11irlL'd lhilt the dislribution of properly was
sufficiellt to n.'lluire hoth spouses In pay their own
legal fees. A spousc's separate esl:lte is a Icgitimate
cOllsideration in the Iri:.ll coun's ....38 determin:.lliun
of a rcqucst f()r counsel fees. Fitl.putrick v.
Fil/P:llrick, 377 Pa,Super. 268. 271. 547 t\.2d 362.
369 (1~8H). We lind no abnse of discretion in lhe
Irial coun's delerminalioo lhm each pllrly had
sufliciclll :Isseis to pay his or her own counsel fecs.
.225 H I The I11l1ril31 home WllS sol~ during Ihe
divorce procee~ings Il>r lhiny-live thousand (S35,OOO)
dollars, The lrial coun dislrihute~ these proceeds
elJnally helween the parlies. Ahhllugh we lind no
ahusc uf di!icretioll in lhe coun's equal division of the
procceds. we ohservc that some revision may he
necessary in or~er to correcl Ihe error l11ade hy lhe
CllUrl in dislribuling husblln~-appellee's illleresl in
NEpp Wire Products, Inc., a c111Sely held husiness
corpor.llion.
NEPp Wire Pro~ucts. Ine, was organized in 1979 hy
Ihe hush.ll1d-appellee and Gene DeMuro, Irs inilial
capilali/alion \Vas rllrlY lbousand ($-l0,()()(J) dollllrs.
or Ihis 1II110unt, husband. appellee cOlllrihuled lwelve
Ilwusand live hun~red (SI2.500) dollars, len lhousan~
or which bad bcen borro\Ved rrom DeMuro, The
balance of the inilial Cllpillll was cOlllribuled by
DeMuro, Alrbough line hundred (100) shares of slOck
had heen aUlhori/ed. nnll' two shares were issue~.
One share \\'HS issued tu DeMuro, and one sharc \Vas
issucd III the hnsban~-appellee. Tbis \l'lIS inlen~ed 10
\'Cst an cqual interest in the cnrponlle owners. The
remaining ninety-eight (98) sllilres were held as
Ireasury slOck.
IS) The exislence and nalure or marilal propeny lire
dClcrmined as of the l.hue of separation. Divorce
Code llf April 2. 1~80, p.L. 63. Nll, 26. * 401(e)(4),
23 P,S. * 401(e)(,I), When Margaret and Sheldon
Adelstein sepanllell in 1982, Sheldon owned a 0111.'.
half il1lcrest in NEPP \Virc Products, Inc. This one-
hall' illleresl \l'as l11aril:ll properly, IFN21
Ctlpr. I' \\'CSI IlJlJlJ No CI.llm tll Ol'ig, U.S. GO\1. Wllrk"i
553 A.2<1436
(Cite us: 3811'u,Super. 221, "225, 553 '\.2<1 436, "4.18)
FN2. On Ihal Jillt:. Ill' \:llursc, ShdJolI AJchlclll WOlS
also il1l.khh.:J lU DeMuro ill Ihe amount Ill' lell Ihou'JT1!J
($10,000) "ollm,
In 1983. while lhe divorcc aClion was pending. lhe
ninety-eight shares or treasury Sind' were issued to
DeMuro. There was no m.lditional i:onsidcrution p.dd
for Ihese shares of slock, The issuance of the stock,
aCl.:onling to the testimony. was intcl1~h:d to
compensate DeMuro for his greater capital
contribution alld also to repay the initial loan ur lell
thousand ($IO.(XXl) dollars which he had made to Ihe
husband-appellee, The I:ller issue of Ireasury stock
without neW cunsidcratiun did not change the interest
whieh lhe "226 husband-appellee owned nt the time "I'
sepuralion and which was subject III dislribulion in Ihe
divorce proeeedings, That interest could not be
diluled by the issuance of lreasury stoek 10 DeMuro
wilhoUl consideration, When the court held thaI only
husband-appellee's one.one hundredth ( 1/ IIX) )
interesl constituled marital property, Iherefore, it
erred,
[6117J The anempl by Ihe shareholders inter se 10
rearrange their respective interests in the corponllion
did not aiter Adelstein's obligation 10 accoUIll in the
divorce aClion for his inlerest in lhe eorporalion on lite
date when he and his wife separaled. IFN3) On Ihat
date, only two shares of stock were outslanding, and
the husbund owoed one of them, If the corporal ion
had been Iiquidaled on Ihe date of separalion, its
assels would have been dislribuled equally belween its
authorized stockholders, 18 C.J.S, Corporations ~
212. See also: Commonwealth v. Aja, Melal Co..
29 Dauph. 4. 8 Pa.D, & C, 30 (1925), Ahhough 98
shares Were then in the corporale treasury, these
shares had no Iiquidaling value and could nol have
parrieipaled in the dislribulion; lhey would not have
been a faclor in distributing the corporate assels,
Henn. The Law of Corporalions (2d edition) al 291.
See also, Nott', The Legal Sial us of Treasury Shares.
85 U.Pa,L.Rev. 622. 626 (1937), Where. as here.
two shareholders owned one slu1rc each, the \falue of
l'uUe 3
cal:h share was cquiv.llcnt tu one.half of the corporall.'
assets availahle for liquidation purposes. In a division
of marital assets, the llon-slmn:llIlhJcr spouse is
entitled to parlicipale in Ihat which the shareholder
....39 spouse would have rcnlilcu if his or her interest
iu the corporation had been Iiquidaled, fletcher,
Cyclopedia of Corporations, Slock & Stockholders. 9
5102, al 116, Therefore. when a!,!,ellam and appellee
scparatcll, the interest ill the husinl'ss In he dislributed
itS 111arilal property was .1 0111..'.half ( 1/2 ) interest
therein.
FN3. It is Ilhvlous lhal appdlcc.hu'ihanJ cnm-iJcn:J
hill1~dr lIIore than " tine pcrcl.'1It owner of the
CllrpnrJliulI. fur the "ctlllsidcraliol1" fur the Irall~rCr of
Ihe remaining share'i uf slOd from the corporatilln's
treasury was, ill part, appcllt:c's pcrslIffill debt uf
510,000 10 DeMuro. Appellee was, in fat.:I, using
(Urporah: assets, i.e., Ireilsury Slllt.:k, 10 satisfy a
pcrsllllal t.h:ht.
"21.7 181 The Supreme Coun of Pennsylvania has
held lhatmarital propeny is 10 be evaluated atlhe dale
of dislribution, Sutliff v, SUlliIT. 518 Pa. 378, 543
A,2<.1 534 (1988). In the inslam ease. however, the
eorporation has apprecialed in value since lhe
separation and now has a value in excess of seven
hun<.lred thousand ($700.000) dollars, This has been
accomplished in large measure beeause of the post.
separation effons of husband and his co-owner of the
husiness. To these posl-separUlion efforts, lhe wife-
appellam bas made no contribution, ntis. too. rnuy
be considered by the lrial coun in ordering
distribulinn of marital assets equitably between
husound and wife, Husband. who hus already paid a
pan of his wnrk product to the wire-appellant as
sllpporr, sbould not be deprived totally of the fruits of
his labor,
Reversed and remanded Ill( furlher consideralion in
ut;cor~ance with the foregoing opinion. Jurisdiction is
not retained.
END OF DOCUMENT
Cupr. t' \Vest l(jtJt) No Clail1110 Orig. U.S. Govt. Works
621 A,2d 659
(Clle us: 42.1 l'u.Super. 5.10, 621 ,\.2d 65'1)
,.
Curul E. IIliTI.ER, ApJlellee.
v.
l.eulIl. IIFI'I.ER, ,\ppellulIl.
Curul E. IIFI'U:R, Apllelllllll,
v.
1.l11J\ I. IIFI'I.ER, Apllellee.
Superior Court (If Pennsylvania.
Arglled JUlIe.1, 19'12,
Filed March 2, 19'J)'
In divorce proceedings, the Cuurt III' Cumlllon Picas,
York CUlImy. Civil No, 84 S 63, Duruey, J.. emered
un order of cquil:.lhlc distribution. Appcal :Ull1 (,:ross
appeal were laken, The Superior CUUrI, Nos, 1i80 and
69.1 Harrisburg 1991. Kelly, J.. held Ihul: (I) lhe
value of Ihe husband's share of uwuership in an
accounting practice as of the dilt~ of equitahle
distribution, not as of the date of separatiun. was
commlling: (2) Ihe value sel in a buy-sell agreemem
for lhe husband's share in lhe praelice was nol
commlling; (3) goodwill iu lhe praeliee was a marilal
assel subject 10 equhable distributiun; (4) the trial
court did nut abuse hs discretion ill awarding the wife
alimony pendeme lite and auorney rees and CUSlS: and
(5) the fair remal value of lhe marilal residence should
not have been included in lhe marilal estllle,
Order vaealed and remanded.
[I) DIVORCE <F>150.1(2)
134kl50, 1(2)
Master's recommendations on mailers related to
equhable dislribulion. alimony pendellle lite, alimony,
attorney fces. and costs arc entitled tu great
consideration by trial court. hut arc not binding upon
trial cour!. 23 Pa,C.S.A, ** 3101 el seq" .1102(a)(6),
3502(a),
[2] DIVORCE <F>25.1(.1)
134k253(3)
Value of marhal properlY is 10 be delermined m dme
of equhable distrihulioll. ahhough slalUS of properlY
as marital is idcntilicd at date of separation. 23
Pa.C,S,A, * 3501.
(31 DIVORCE <F>252..1(1)
1J4k252.3( I)
EllUil<lblc distrihution scheme WilS (0 he hased on
hushand's 50% ownership of accounting firm ;IS of
dale of clluilahlc distribution, rather 111;111 hb lIne-thinl
l'uMe 4
\harc \)1' tl\\'I1\.'f\hip as of \Iah." of lIlil.'ill:r's hcaril1~ 011
e1llliwhle dhlnlllll'"l1 nlalll''', H l'a,C,S,"\, ~ .15111,
HIIJI\'ORO: <F>2~.I(.I)
Illk25.ll.1)
Valu\,.' !'iel in huy-~L'l1 ilgn.'cl1lcnl for hll.'ihallll's sharI.' of
ill:cllullling pnll:lh.:c \\w. 1I1111.:lll1lrulling in \'i1IUiltitlll of
accounting practkl.' whl'rc huslmnd WU!i 1l1U: Ill' two
shan:holdcrs III praclkc at lime of rimal sL'IJanllinn,
illlll where agrn'l1ll:nl did 1I0t p,i\L' c1eaf valuation or
hu,<hanll's illleresl. 23 l'a,C,S,A, ~ 3102(a)(()),
[51 DIVORCE <F>25.1(.I)
I J.Ik25.1())
Goodwill value of acclIuming linn of which hushand
\\';15 ol1c~lml r owner WOIS husiness asset suhject to
cquil:lhlc distrihUlion where linn I1mj heen ongoing
bdilre hushand juined it and where Iinll eUlllinued to
exist even aflcr ils original owner had died;
husband's pracliee cOllld nor be equaled with sole
proprietorship. 23 Pa.C.S,A. * .1I02(a)(6),
[61 J>IVORCE <F>209
134k209
Purpose of alimony pendeme Iile is to sus(ain
dependem spouse on equal basis with (Jlher spouse
while he or she lllnintains or defends divorce aClion.
[7] OIVORCE <F>212
134k212
Mere fael Ihlll one spouse carns more lhan the oilier
docs nol autol1lalically emille spouse with lesser
income to receive alimony pendente lite: rather,
spouse seeking such alimony must need relief to
defend his or her righls adeqUinely,
IHI J>IVORCE <F>214(.1)
1J4k214(3)
Evidence supported trial court's nnding that wife was
emitled 10 alimony pendenle lile. giv,," subslamial
disparil)' between incol11e levels of parties and
evidellce that wife had resorted to selling her jewelry
in order In maintain divorce proceedings.
19) DIVORCE <F>221
134k221
Purpose of award of atlnrney fees is 10 ensure that
linancially dependenl spollse will he ahle to maimain
or defend divon.:c actitm, as well :'IS 10 elfectuate
economic justice.
[Wi J>IVOI{CE <F>212
1J.lk212
Copr. (' \VI.'.~l 1')I)l) Nu Claillllll Orig. u.s. GO\'!. WtJrk~
621 A,2d 659
(Clle us: 42J l'u.Suller. SJO, (,21 A,2d6S'J)
Financially depcn~elll sp"use nHlY he enlitled III h"th
alimony pendente lite mid lIttorney fees in llnkr 10
muinlain or defend di\'OTI.:C proceeding.
[IOIIlIVORCE ~224
1J4k224
financhllly dcpcmh:nt SpU\lSC milY h,,' elltitled III holh
nlimuny pendente Iilc.' mul ullorm,'j' ICl:~ in order Itl
Il1lliulain ur d,,'fcnd divon:c pn1\:cL'lling.
[II) IlIVORCE ~22.\
1J.lk223
Trial court did 1101 nhusl.' its L1isl.:n:linn in awarding
wife ullorncy fees illld ClIsts in divun.:c action, even
Ihuugh she wuuld alsl) receive .Ilimony pCl1dCIIIC lite
.lOd S5'}t of l1l.1rilal estate; IlSSCSSlIlclll of fel.'s ilIlll
costs ulluwed wife 10 dcl't.'nu herscH' in l1ivon:c lIclinn
and effectuated economic justice.
[12] IlIVORCt: ~2S2.S(J)
134k252,5(3)
Equilable dislributions may inclu~e award to
nonpossessing spouse of one half of relllal value of
marital residence if marital residence is possessed
exclusively by the olher spouse during panics'
separalion and divorce procee~ings. 23 Pa,C.S,A, *
3502(a)(7).
[IJ] DIVORCE ~252.S(J)
134k252.5(3)
Award 10 nonpossessing spouse of one half of relllal
value of marilal residence occupied exclusively by lhe
other spouse during divorce proceedings is not
mandatory, 23 Pa,C.S,A, * 3502(a)(7).
[14] DIVORCE ~252.S(J)
134k252.5(3)
Fair markel relllal value ui' marilal home occupied by
wife should nol have been included in marilal eslale
for equilable dimibulion purposes; ralher. husban~
should have been grallled credil tl>r his share of
l'oregone fair market relllal value hy deducling his
shure of foregone revenues I'rlHll wife's ullim:tlc
dislribulion of marital eslale, 23 Pa.C.S,A, *
3502(a)(7).
[14] DIVORCE ~2SJ(J)
1J4k253(J)
F::lir market rCl1t~tl \'O\luc or Il1l1rit;:t1 hOllll: occupied hy
wife should nol h;I\'C been included in marital estate
fur equitahle distribution pur(lo:\l's; mther. hushand
shout..! have been granted credit I~Jr his sh;irc of
foregone fair m;:arkcl renlal value hy dculu:ling llis
share of furcgonc revellUl'S from wilt."s ultimalc
IJUI:C 5
distrihlltilln llf lI1aril:l1 estate, 23 l'a,C,S.A. *
3502(a)(7).
..MI .S.!.\ Rehecca N, Torlllrid. Yllrk, fllr Carol
Bllller.
"1It1rew B Brown, Yor~, i'llr LellnBlltler.
Belt>re MONTEMlJRO, IFNI I KELLY ami
CHlCONE. Jj,
rN l. r\hhougll Judge Mnllh..'lIIlltll parlll:lpllll'tJ in Ihe
Illiliill dl'l:i'iillll n:lltlcrc:tl 11\ 11I1"i L'a"C,', rc:ClllI,itkraliull
Ill' Ih,1I lki:I'iillll \"'11' "iuh'iC{IIll.'lltl)' ~raUll.'l1 h)' Ihc 1"11
rCl11illllill~ p.lnd IIIl:mlxol''''l ,Iflcr JW'IIII':C MtllIIClIIIIW','i
;1"'l'L'lhiulIlu the PCIII1,,)'I...illIl;1 SU(Jn.'IlIC Courl. Thus,
JU"Ih:l.' r-.tnllll'IIIUfn Jill 11111 parlh:lpalc in the
rt:l,;lIn..hJcr;lllllllllt' IlIb \.:....c.
KELL Y, Ju~ge:
In this opininn, we arc called upon to determine
whcther ti,e lrial courl cnrnmiued error by
apportioning the nUlrital lISScIS, including an
iU.:counling nrm in which Ihe husband is a
shareholder, by lheir value on the hearing dale inslCad
of lheir value Oil the scparalion dale when Ihe
husband's ownership inleresl in lhe aceourning firm
decreased from a one-half interest at thc time of
sepamtiun to a one-thinJ interest on the he.uing dute.
In addilion, we arc called upon 10 delermine wbether
the Irial coun properly ascribed lhe going concern
value 10 lhe husban~'s shares in the accounting firm
ralher lhan valuing lhem in accordance 10 lhe
accounting !irm's shareholders buy-sell agreement,
For Ihe reasons 11m follow, we v.eale the order of
equitable distribulion and remand l'or arc-
delermination eonSiSlenl Wilh the principles Slare~
herein,
The relevant faels and procedural hislOry of Ibis case
arc as t'ollows. Carol BUller and Leon Butler were
married 011 May 10, 1964, In lhe early years of lheir
marriage. the wife worked as a school teacher. but
later stayed at homc to care for the parties' three
children, In 1980, lhe wife re-enlered .SJ4 Ihe job
market as a retnil sales clerk and brielly oWlled a gifr
shop. Leon Butler is employed as " partner in a
l..:ertilicu puhlic accounting linn.
In MayoI' 1983. after ninctecn ycars of m;:uri.lge, the
partil:s scparmeu, A hricf reconciliation from May III
December 198.1 ende~ whell lhc parties finally
separated. The wife remained in the marital rcsidcm:c
with the couple's children, When the parties were
Copr. I', West (1)1)1) Nil Claim hi Orig. U.S. Gu\'1. \Vorks
621 A,2d 6j1)
(Clle ll!J: 423 l'u.Super. 530, 0534, 621 A.2d (,Sf), "(,61)
divureed by a decree elllered on t'pril 12. 1')M8, Ihe
issue of clluitahh: distrihutiun of (he maril;.'1 property
remained unn:su)vcu.
A clIun'ilPlluinh,:d master Ill'll! hC;lrings alld rCI.:I..'ivl...d
c:vidence on maltefs rchllcu In equitable Ji!'itrihulilln.
.llimuny pCnUCnll.' lite. illillltll1}', I.:OUlIsL'l fees, ilnd
emus. The illlcrim IItjlSh,'r's report of Dl'cL'lI1hcr II.
11)8M recommended lhal lhe wile recelY<' $-IlKI.1Kl per
\\leek of ulimony pt.'lldcI1IC lite. retroactive III ~tlY I,
11)88,
Evidence pn:sclIlcU before the master shm".cu Ihill ill
the lime uf Ihe panics scptlr:alillll. the husband was :l
tifty percent oWller in the certified public m,:clHlllting
Iinll of Einhorn, BUller alld Gingerich. In 11)86, Ihe
finll acquired all addilional partner, reducing lhe
husb:lI1d's inleresl in the lirm to one. third,
According 10 lhe wilC's expefl, lhe linll had a value
of $546,881),00. TIle husband assefled lhal the value
of his illleresl in the linn was aelually S2..150.IKI. Ihe
sale price of the husband's shares. as determined in
the buy/sell agreemenl,
TIle master also heard evidence lhal the wite was
I'u"e 6
\\orking in retail Silh:s ;.1m) carning a ~fIISS monthly
salary III' Sl,lKl8.42 per Illllnth, The wife inlrlllluced
Cl,'idl.'llJ.:l.' Ihat hl'r monthl)' expenses iU1l011l1ll'd 10
$I,2J7,lKl. The wife le'lified thaI Illllnelary
ao\'anCl.'lIll.'l1t would rcquirl' .111 additional sh 10 Sl.'VI..'h
)'cilrs of work 1.'.'pl.'ricl)(.'c. Al Ihc lime III' till' hc:arluH.
lhc' parties' y"ungesl child wu' 'lill living in lhe
marilal rC'siul'nce with thl.' wifc, lInd Ihe c1dC:f
childrC:II, who were :away ul t.:llllcge, would rclUrn In
the marital reshlclll:c liming lheir school vw,:atilllls.
From Ihc time of Iinal scpar;llioll ill Ol,,'ccmher of
11)8,1 unlil Oewher IIf 1')88, Ihe hu,hand Illainlained
the Illalilal residence 05.15 an~ paid child suppurl.
During this lillle, "(,(,2 lhe hllshand Illade Ihe
Illolllhly Illllrtgage paYlllenls, a. well a. repair hills,
insurance, utilities, ano ulher costs ussocil.llcll with the
nminlcllilllcC of the m;trital fcsicJcncl',
The masler deterlllined thai the 1111:11 value of lhe
Illarilal assets was $-1.14,411).25 and reelllllmended
that the wile receive fifty. five percent of rIle value of
Ihe Illarilal assets. The masler delermined lhal lhe
fulluwing were Illarital assets rClained by the husband:
1. 200 East Market Street.. ..., ....,.... ... ......... $107,092.99
2. 1 1/3 interest in Einhorn, Butler and Gingerich... 141,148.16
3. Stocks as follows
140 shares W.L. Morgan ....... ..... 1,558.00
761,86 shares Mellon Bank ..... ,., 20,379.00
44 shares Figgie . ......"."..,.,. 1,903.00
75 shares William Home Products ... 3,023.00
4. Dividends on stocks............,.................... 8,456.00
5. O.K. Corral,....................................... 10,000.00
6. Life insurance.......................,.............. 5,210.00
7. Aut.omobiles
Mercedes
Az t ec ,............................................ 2:2 I 500 . 00
8. Husband's pension ....... ....... ... ......... ......... 7,800.00
9, Orandfather clock ...,.,.......,'....,.,.....,.,.... 10,000.00
10. Bank accounts
Community National,. .,. .,.."..,....'..", ..,.., ...". 44,46
York Federal .,..,....,......"...."..,.,'."...",.. 250.00
York Bank and Trust ..,.,.........,.,."...".,....,... 60.00
11. B.E.G. Associates..,........,..................,........ 0,00
12. Cash Management Account. ........ '.. ,.,..,., ......, $25,120,72
Total $364,545.33
Husband to pay the loan he made to fund "All Tied Up" ..,... 16,000.00
and to pay the Einhorn Est..,.... .. .. .. .. .. .. .. .. .. , .. .. ,.. 141,791. "7
and to pay his loan from
Sheldon Lipsity ,....",...",.",...."".,.,..,."".,..." 6,765.00
Total $199.988,66
COpf. c \Vl.'SI I t)l)tJ Nt) Claim 10 Orig. U.S. GnvL \Vorks
621 A,2d 659
(Clle u.~: oI2J l'u.Super. SJO, .SJS, 621 '\.211 6~'), "Ml2)
The master .tlso rCCllJllI1lCIU.h:lI Ih;1I the hU.'ih;lIlu
"uue 7
shollld lake Ihe ollke hllildillg suhjecl 10 lhe
ellclllllhrallce in favor of Ihe York lJallk, In addilion,
the master Jctcl'mincu Ihal the wife ouglu to retain lhe
following marital assels:
1, 60 Tyler Run Road ......"............,...,........,....,..,.., $15..035,25
2. Fixtureo, furniture, allver-w.lre, c1hltteln ,It 60 Tyler Run
Road Inot including the gl'andfilthel' c10ckl ........,........,.. 20.000,00
3 . J ewe 1 ry ",.".,',..,.,",.""",.".""""."."",.",."." 1 3 , 0 0 0 , 0 0
4, Renault ,1utomobile ,.".,"',.."."".",."""""...,.."".., 4,500,00
5. 551.39 ahareD Continental Bilnk .",.", ,", ,.". ,. ,." ,.",..,." 21,996,06
6. 222 shares Drovero Dank CQrporation .............................. 8,880.00
7. Caoh-.Caoh Management account.,. ....,.......... ,................ 32,514.28
9. Stock dividendo......,..,........,..,........,....,....,..,...... 2,272,00
9. Life InDuranee (Penn. National) "."",." ,.", ,. ,.,. ,..,..".". 1,000.00
Total.. $258,187.59
Wife to pay Dauphin Depooit Loan..................,....,........ 13,757.00
"(,6J .SJ6 The maSler alslI recomlllended lhal the
wife lake lhe marital residence suhjcctto a Illongage
and lhal she pay a $1,000.00 credit card debl.
Master's ReJlOrt of 5112/88 ar25-27.
Alier delermining that lhe fair remal value of lhe
marital home was $1,500,00 per month. the llIaster
recommended mal the husband receive a eredil for
one half of Ihe fair relllal value for lhe period of May.
1983 until November, 1988. when the wife occupied
Ihe home renl-free. In addilion, lhe master further
recommended mallhe wile receive $300,00 per week
in alimony. Finally, lhe mmter delermined that lhe
wife should be awarded counsel lees of $7,500.00 and
expenses of $1,750.00. Both the wife and husband
liIed exceptions to the master's reporl.
On October 2. 1991. lhe lrial court issued ilS opinion
and order aflirming mosl of lhe master's
recommendations, thereby dismissing the majority of
the parties' exceptions. However. the trial t;llurt
modi lied lhe master's recommended alimony pendenle
lite award of $400.00 per week relroaclive 10 I\lay I.
1988 10 an alimony pendellle lile award of $400,00
per week for the period of l\J,iy 1. 1988 lhrough June
15, 1989 and $300,00 per week for the period of June
16, 1989 lhrough the date of the elllry of lhe trial
court's order. The lrial court also direeled lhal Ihe
husband pay $300,00 per week in alimony 10 the wife
Ii" a period of lilliI' years, The wife tiled lhis timelv
appeal and lhe husband liIed a cross.appeal. -
Total.. $244,430,59
On appeal. lhe wife raises lhe following issue Ii" our
review:
.S37 I. THE TRIAL COURT IMPROPERLY
DETERMINED THAT THE IIUSBAND OWNED
ONE- THIRD OF HIS ACCOUNTING PRACTICE
FOR EQUITABLE DISTRIBUTION PURPOSES
WHEN HUSBAND OWNS FIFrY PERCENT OF
THE PRACTICE FOR EQUITABLE
DISTRIBUTION PURPOSES.
Wife's Brief at 5.
In a cross.appeal, lhe husband raises the following
issues for our review:
I. DID THE LOWER COURT ERR IN
ESTABUSHING HIE VALUE OF THE
PROFESSIONAL CORPORATION PARTLY
OWNED BY THE HUSBAND, AND
PARTICUL,\RLY THE "INTANGIBLE" VALUE
OF THE CORPORATION?
2. DID TilE LOWER COURT ERR IN
AWARDING COUNSEL FEES TO THE WIFE IN
ADDITION TO AWARDING AUMONY
PENDENTE UTE TO HIE WIFE?
J, DID HIE LOWER COURT ERR BY FINDING
THAT TilE HUSBAND WAS DUE A CREDIT
FOR ONE-IIALF OF THE FAIR RENTAL
VALUE or THE MARITAL RESIDENCE
IJETWEEN DECEMIJER, 1984 AND OCTOIJER,
1988 AND TIIEN FMUNG TO INCORPORATE
SAID CREDIT INTO TilE FINAL EQUITAIJLE
DISTRIBUTION ORDER!
lIushand's IIrief nr I,
COpT. (' \Vest Jl)tJl) Nll C1ailllltl Orig. U.S. Gtl\'t. \V(lrks
621 A,2d 659
(Cite u.': 423 "a.Super. 530. .537, 6; I '\.2<1659, "M.I)
(II The hushillllJ .mtl the wife raise various issues Oil
.ll>pc;\1 ,hallcnging the trial cuun's arnrmatiun of lhe
m..lstcr'.1 rccommcndillilll1S. Initially. WI.' note lhal our
slumhlru of review is a limited one. We m.'ell
determine whether the trial court. hy misapplication of
lhe law or failure lu fulluw pTllper legal pTl>cedure.
ahused ils discreliun, Zullars v, Zullars. 3'J7
Pu,Super. 21~1. 579 ,\,2d 1328 (19'~1). allue, denied.
527 Pa, 603. 589 ,\,2d 693 {IWI); ~Iahe,'d v,
Malseed. 388 Pa,Super, 214, 565 ,\,2d ,153 (1')8')1;
Johnson v. Juhnson. 365 Pa.Super. .IlN, 521) ,\.1d
1123 (1987). alllle, dellied, 517 Pa, T12J, 538 ,\,2d
877 (19H8L Mnfco\o'cr, "all ahml.' Ill' di'il.:rclioll is 11111
fuund lightly. hut unly upon a showing of drar ami
!;ollvim::ing cvidcru.:c." .!JH Zollars, supra, .1tJ7
Pa,Super. al 208. 579 ,\,2d at 1330. qUilling Sergi v,
Sergi, 351 Pa,Super, 588. 591. 506 ,Ud 928, 930
(1986), Specitkally, we measure the eireumstauees uf
the case am! the coru.:lusions drawn therefrom by the
trial euun againsl lhe provision uf 23 Pa,C,S,'\, *
3502('1), [FN21 lInd lhe avowed illlellliolls ..M..! of
the Divorce Codc. mUllcly to "effectuate CCllllmnic
juslice between [lheJ pllrlies ..' and iosure a fair and
jusl delerminalion of their pTllpeTly righls," 23
Pu,C,S,A. * 3102(a)(6), [FN3[ A mllsler's repoTl is
enlilled 10 greut consideTliliuns by. bUl is nol binding
upon, the Irial courl. Morsehhauser v. Morschhauser.
357 Pa,Super, 339. 349. 516 A.2d 10. 15 (/986)
(Cillllions omined),
FN2, 23 1',5. * 40t (repealed). The Divorce Cnde,
2) Pa.C.S,A. 9 3LOI Cl seq., replaced the c.,bting
cooc. 23 P.S. ~ 101 cl scq. Thus. we will refer IU the
seclinn Ilumhcrs under Ihe new cudc.
FN3, 23 1',5, ! 102 (rcpcaled),
12J The wife argues lhal lhe lrial COUTl erred in
amrming lhe masler's lindings that Ihe husband
owned one'lhird of lhe aeeounling pracliee. The wife
eOnlends that Ihe lrial couTl misapplied lhe law when
ir used the day of Ihe hearing as a benchmark for hoth
idenlifying and valuing the marilal assels, The wife
argues that the husband's interest in the accounting
nrm must be identitied as of the date of separation or
distribution because either of those dales \\.'ould
provide most adequately for economic juslkc. We
agree in part, and we linll that the trial court
misapplied Ihe law in looking lU Ihe hearing dale 10
dctcrminc the hushand's shiue of the m:coullling
practice.
OUf courls distinguish tla.' dale for h.Jcntifying marital
property from the do\te hy whkh hI phil':!.' H \'HllIe Oil
"alle 8
marital assets for Cl{Uit;lhlc distrihution. Sce Adelstein
v, '\delsleill, 381 Pa,Super, 221. 553 ,\,2d 436
1198'!); Sergi v, Sergi, .151 l'a,Super, 588. 506,\,2d
928, 930.31 (1986), The Divuree ('"de mandales Ihe
our ~1I11r1S eXilminc thc rank's' properl)' ilS of the uate
of tillal ~cparathlll in order to identify which Hssets me
marilal propeny, See 23 l'a,C.S,'\, l 3501, In lhe
'iann: vein, this ('ourt has stiltcU lIull Ihe Mlc)xistem:e
and nature uf mariwl properlY un: determined liS of
Ihe dale of '1.'llilraliol1," .~.l'J ,\dc1slcill. !Iupra, 381
l'a,Super, at 225. 55.1 ,\,2,1 'II ,1.18, ,\lIhough maril:!1
propl.'r1y is hlelllilkd al Ihe dale of M:llilralioll, thl.'
\alul.' of lhe PWIH.:rty is dell.'r1uiIlL'd ill Ihl.' datI.' of
d"lnhulinll, ildelslein, supra; SUlliff v, SUlliff. 518
Pa, .178, 5.U ,\,2d 5.1.1 (1')88),
131 \Vheu Ihe panies Iinally separaled in Deeemher of
1984. lhe hushand owned a Ulu:.half imerest in lhe
uccountillg praclice, At the lime of the master's
hearing in Oeluher of 1988, lhe lIeCDunling linn had
acquired an addilional parlner (thos reducing lhe
hushand's share 10 one-Ihird), lIowever. the dedsive
date Oil which to determille which of tile parlies'
assets were nmrital assets available for equilable
division was the date of Ihe tinal separation.
Therefore, on remand. lhe equilable dislribulion
seheOle mllst be based on lhe husband's Iifty percelll
ownership of Ihe accouming linn of Einhorn. BUller
and Gingerich.
In his cross-appeal, Ihe husband argues thar the trial
court errcd in aflirming the master's conclusion that
lhe value or Ihe accoullling lirm was $423.+l0.50.
Specilically, the husband comends Ih;1l goodwill W;tS
improperly included ill Ihe valuation of the linn and
thaI Ihe valuc uf the linn is controlled by lhe buy/sell
agreement, \Vc c.1I1nol agree.
AUl1linedly. placing a valuation un a spouse's illleresl
in a small business is a diflicult task. lIowever, our
courts hllve addressed Ihe faclors to be considered, In
Buckl v, Buekl, lhis Coun slaled thar inilial
consideralion must be givcn to an agreement
governing the value of an ownership illlereSI. 373
Pa,Super, 521. 532. 542 A.2d 65, 70 (1988) (en
hanel, lIo\\'ever, Ihe Buekl court noted thaI il was
mindful lh"l "it is mosl unlikely lhat Ihe agreelllelll
will ul.'al with v.llu.lIion of a partncr1s inlerest vis a vis
equit<lhlc distributiun upon dissolution of the martial
rel:lliOllshi"." and lhal it "muslluuk 'II the relllilies of
the situation mid avoid all Unrl.'aliSlic valuation," Id.
Thus, olhl.'r factors must he cOllsidereu, namely. "the
Itlonelary \I,.'nrth of the professional partnership
diminished by lhe anmunt of aCCllunts pnyahlc ...
Copr. to Wl.'st It)t)t) No Claillllo Orig. U,S, uovt. \Vorks
621 ",2d 659
(Clle us: 423 !'a.Super. 530, '53'1, 621 A.2d 659, "(,(H)
landl any mher liabilities nllt rellected 1111 the
partnership bUllks," Id, The '540 Buckl ellurt further
slaled that 1Il1.' partllcrship's fI1()lIl'tary worth
..66! \':()I1SiSllsJ of the pllrtlll.'rS' ~apil;1I ;u.;COUllls,
aCClJUlUs rc\:d\'ilhlc, the \rHlue of \\ork in progfl.",'i,
any apprl'dullon in the Irm,' \\,(}rlh of lilllglhh:
PWIk.'rty O\ier ilUll i1hoH.' hOtlk valtu:. together with
g..>dwill, ,hlluld lh,'re he allY,
Id,
This Court hilS dcfilll'd 'l1-\tlodwlll" ,Pi "thl' !'.lvor
which the mllnilgement or a 11I1SlIIl'S" llils WllII fwm 1111:
public, an" prubahilily Ihal Ill" C'''llIlII''" wIll
cUlllinue thdr palrollage." lIuLk!. SlIP"1. al 5.111, 5,12
A,2" al fl'), The !luckl cuurt cllrrcLlly IU'lc" Ihat "the
concept of gootlwill b nebulous ill hest ami
consequently, Ihe placing or a dollar \'illuillion is IlIl1st
dimcull." Iluck!. supra. al 52'). 542 A,2" al 68, We
ha\c also dl:scrihcd the considerations in deciding
whether to include goodwill in the \'ollul: or a husiness
as li,lIows:
If the nalUrc of the c\:onomic good will is purely
pcrsomll 10 the professional spouse, it is not
alienable; hcnce, ir cannol aClually he realize" an"
may nO! be indude" intbc equilable "islrihulion, II'.
however. a portion of Ihe economic goud will is
auributable separUlcly 10 the corpuraliol1 '" busincss
~n" can be realize" by sale 10 another (by selling the
enterprise in whole or in pari, buy-in's an" bUY-OUl'S
induded). lhen to that eXlent, tltere is good will
value subjeClto equitable distribulion,
Fexa v, Fexa. 396 Pa.Super. 481, 487. 578 A.2"
1314, 1317 (1990), \Vbclher lhere is goodwill subjeCl
10 equitable dislribulion ultimalely depends upon 1I1e
faCls of each particular case. Id.
[4J The husban" alleges lhal lhe lrial courl erre" in
nnt relying solely on lhe buy-sell agreemenl in placing
a value on his interest in the accounting practkc. In
sUPPOrl of this argumcm. the husband eires our
Supreme COUrl'S "ecision in McCabe v, McCabc. 525
Pa. 25, 575 A,2d 87 (1990), Husban" argues ,hat
MeCabc man"ales a valualion base" on the buy-sell
agreement alone.
'541 In McCabc. supra. our Supreme Court held ,hat
Ibis Court properly reman"e" the case to ,he lrial
court to rc.dctcrmil1c lhe distribution award based on
lhe value of Ihc busban"'s partnership interesl as liste"
in the partnership agn:clllcl1t I mlher than the going
concern value ascribed by the trial courl. Id. aI 31.
575 ",2" aI 89, Thc Supreme COUrl del ermine" Ihal
it would be illcquilahh: 10 apply a going cnnccrn value
to the husband's partnership inh.:n,:sl where the going
PUJ:C 9
concern value could IICVt:f he n.'aliLcd by the hushaluJ
hcc;lu.'il.' the hushand's slliln:s could nul be puhlidy or
privalely traded (thus there W.IS 1111 market fllr
cSlahlbhing the value of the pilrlllership il1lcfesll, the
firm \.:(}(lld lIot he .'\olJ Ilf li1luidall:J at a partner's
lJin:L'lion, anti, under the parlllL'rship Hgn:L'I11CltI, 1I
parlner cOlIlJ nut:
relllme fWIlI 1111: lirlll II prupClrlitln.t1c share uf the
llL'Cllllllls n..'ct,'iv ilhlL', \\'()rk- in.pnlgn:s"i m:ClIlllll.lJ, or
11I11I:r ;1l:COllIII.'i inclulled In the 'going concern' value
(;1 .., retchc it prOpOrlilllliltL' shan: uf the linll's
lolill \'"hlL', illduding e1luiplllelll, i1Cl.'lIlJllls
fn'l'jvahlL', ell,:; ." ~dl his illh..'re,'it 10 i111t1ther
individual: '" IlIrl rClin' from Ihe firm ;lIld cllluinuc
hI rl'cl'i\L' a ,11iIfC of tl1(.' linn's prolllS.
hI.
Thc hu,hand argues lhal McCahe is ",elually
HlHllngous to the l.'i1'l' .It hand and mawJ:ues that the
Iriall.'llurt valul.' his illll.'rcsI in the accounting practice
al $2.4~O,tX), as lixe" t,y lhc buy-sell agrcemelll
entered itllo by lhe hushand an" his fellow
sharcholucr, We Uti nllt agree.
The faels in McCabe arc dislinguishable in "everal
respects. First. Ihc husban" iu McCabe was one of
many parrners in a largc law firm. 525 Pa, at 28, 575
A,2" at 88. Hcre, the husband was one of' lwo
shareholders at the lime of Ihe parties' final
separalinn, Secon". the parrnership agreemelll in
McCabe limile" the parrner's recovery upon leaving
the firm 10 bis share of lhe capilal aceOUIll. less
in"ebtedness 10 the firm an" his share of undislribute"
profits, i".. an" provi"ed lilal the same sum was
payable upon the death of a parlner. Id. al n, I.
flere. lhc buy-scll agreemelll sped lies lbat upon
lerlllinalion of' employmenl or "isabililY, the company
'542 waul" purchase the husban"'s sbares for $10.00
cacho or a IOlal of $2,450.00, However. "6<.6 in thc
cl'elll lhe busballd "ied owning shares, the company
woul" purchase lhem for $100.000.00. Tbus, in
contrast to ~IcC3hc. the agreemcnt here tJocs not give
a dear valu.ltion for the husband's illlCreSI.
In Bcasley V. beasley, 3~9 Pa,Super. 20. 518 A.2d
545 (1986), Ihis Coun condu"e" that a sole
proprielorship "id nol have goo"will for equilable
"istribution, The Beasley court sla'ed:
lal sole proprielorship can be "islinguishe" from a
partl1crship, or a profcssiolltll l.'Orpllri.uiol1, to which
:111 :lscertainahle value com he ast.:riheu for the
purpose of huying into Of withdrawlIlg from the
rclilliollship; hut it is the associatillll, or slime share
of ii, lhal is valued HIIU not the individual p:lnller
Copr. {' We't I~'N No Claim 10 Orig, lJ,S, GOI'1. Works
621 A,2d 659
(Clle...<: 423 ('u.Super. 530. '542, (.21 '\.2<1 (,59, "(i6(,
upon whil.:h Ihe \';lllIe is ptu.:cd. See Gccshrq~ht .....
G~eshreglll, 570 S,W,2d -127 (T~"Civ,'\pp,I'i781.
Till': prodm.:ti\.ity llr work effort of the partlll:r j"
often not the measure uf thL.' shim.' )lllsscsscd hy
variuus mcmhcrs of the asso..:iatiol1. That '1harc is a
mCHsurahlc und m:arkctahh..' l:OllullllcJity and b
g~nerally d~r.n~d hy culllrac!. Wh~n a sule
propriclOr terminalI.'"' his w.:livil}'. the Iiglu.s gtl '1111.
(he value (If the sllle propril'lt1rslup is c:\lingublu,.'ll
,lIld i~ llllll.trilllsfcrahh:; the chellis in (he lilW firm
1.:.1111101 he sold. thc~ l.::Ul only he trallsfl'rrL'lI and Ihl.'Y
Imvc the i1hSllhllC flghl It) sch:d Ihcir 1\\1.:11 hllml'
rcprcsclllalion: nothing rCl1mins in n:siduc \\ hh.:h
l.:uuld be determined III' value ;aside from lallgihlc
physkal property. ur wurk perf,IfIllcd ull partially
cumpleted caSC~i. whkh milY elllillc 1111.' lawYc"r or hb
heirs to Il tlUamuml11cruil pilymen!.
Id, 359 Pa,Super. 'II 35. 518 ",2d at5~!, Thcr~, Ih~
hushand. a sule proprietor. illone generated husiness,
Th~ cliem, patronil~d the hushand. 1101 Ihe nrm,
Thus, goodwill was nlll includ~d in Ihe eljUilahle
dislributiulI of marilalp"'peny,
Similarly. ill D~Masi v, DeMasi. 366 Pa,Snper, 19,
530 A,2d 871 (1987). thi, Coun did nlll illclude
goodwill when valuing :. SptlUSC'S business for
~quilahle disrribution. Th~re, a' in Beilsley, lh~ cnurl
~onsid~r~d the hushand, a medical dllclOr with a
,pedalty in rheumatology. 10 be a sole practililln~r.
The DeMasi coun reason~d Iltat b~~aus~ Ihe husband
did not '543 share c1i~lIls wilh his partn~r. the
goodwill of the hushand's praclice was m~rc\y
personal and had no "pr~sclll value" (0 be dislribuled,
Id. at +1-015,530 A,2d a188.J.
On !he orher hand. lllis Court has d~lermined llta!
goodwill ought to be illcluded in th~ value of a
spouse's business, In F~'a, supra, we cnnelud~dlhal
Ihc value of th~ hush,md's illl~resl in a d~lIlalpra~tice
~olllain~d goodwill subject 10 equitable dislrihUlion.
There, w~ 1I0led thai ahhough Ihe d~lIlal praclice
experienced several changes in its panm:rship
mak~up,
[tJIlt: form of the business :md its \"'mk cot1linued
unchanged. ..' llter~hy demonstrating Ihal lh~ good
will of ,h~ c1iems of the husiness IOwardlh~ busin~ss
was not tied cxclusivcly to the pn'sclH':C or skills uf
particular individuals but W<lS tied to some extc,'nt 10
lite servic~ lhal could he pro\'id~d hy any of a
numher or delllists.... The gt10U will was capahle uf
being v.tllled for the purpose of huying into or
withdrawing frnmlhe partnership ibelf. making II an
assct It) lhe husiness, ralhcr Ihan :1 purely personal
asset.
('u~e 10
Fe".. supra, 3'i1> l'a,SIlp~r, al .189. 578 ",2d al
1.l18,
1511nslamly, we find Ihal th~ gouuw.1I \'alu~ 01 t11~
;Il,,:coUllling firm of Einhorn, BUller, .1I1J Gingerich is a
husil1l.:ss assel suhjCL:l Itl c.'ljuilahle dblrilmtion. ,\
close ,crulin)' of tit"" rCL:llHl rc\.'e;tls Ihill the facls in
lhis case an.' more similar to FC,',.1 th.1l1 to Beasley ilJ1d
Ilc~la", II~", II", hushand's f,"her ~slahlish~<I th~
.1\':l.:ounlill~ prill.:lic.'e, mltl Ihe hushalld jllint.'d Ihe liflll
:liter ~rj\lIu;alin~ from c"lllli,.'gc. Fllllnwinf.( Ihe
hush;llId's f;i1hcr's llcalh, il Itunl shilreholdl.'r C:lmL'
Illllllh~ Iirm an<l was suhseljUenlly hllnghllllll, y~llh~
linn slill rl'lIlilined. Iherchlre, the hushill1\I's pral.:tke
Cilllllot he I.'llU;ltctl with a stile proprietorship ilS in
Beasl~y and ()~/.lasi. Morelller. the Itnsh,m<l himself
aClluircd dil.'l1ls from his father, w:lrralllil1lt all
inferelll:l.' Ihat the dients h:ld SOllie loyalty 10 the linn
ralher 111iI1l a partiL:ular acclllmtilnl's skills.
"(11.7 Th~ hushand n~'1 raises lh~ issu~ of whelh~r
lhe trial court may award hOlh alimony {lend~nte lil~
and counsel fees :ll1d t.:osls. The hush~Ulu '{lnlends
lhm Ih~ trial court erred in awarding lh~ \\'if~ tiny.
tiv~ p~rc~lll of lh~ marilal asselS, '5+1111gelher Wilh
alimony pend~lll~ lile. and couns~1 fc~s, We cannol
agree,
The rel.:ommendalions of the masler in a divorce
pro"e~ding. although ~Illir\cd 10 careful consideralion,
arc advisory only; Ihe trial court is required 10 review
the master's reporl, del~rmine if his or her
reconunemlations arc appropriate. and enter a tinal
decr~e, Reed v, R~ed, 3501 Pa,Super. 284, 511 A.2d
8701 (1986). However. Ihe del~rminalion of th~
amount of alimony pendellle lil~ warrallled rem in !he
tirst instance on the Irial cuurt' s exercise of sound
discretion, absent an abuse of discretion. a trial
court's award of alimony pendenle Iil~ will not DC
disturh~d. Miller v, Mill~r. 352 l'a,Supcr. 0132. 508
",2d 550 (1986).
161171 Th~ purpose of alimony pcnd~lll~ lile is to
sustain the dependent spouse on an equill basis with
11t~ olh~r spous~ while h~ or sh~ ll1ainlaills or defellds
a divorce action. Krakovsky v. Krakovsky, 400
"a,Super. 260.583 A,2d 485 (1990), The simple facl
that 0111.' spousc carns lI10rc than the other spousc docs
nnt automatically entitle the other spouse tn alimony
pcnuel1lc,' lite. Rather. Ihe spousc sl.'cking alimony
pendcntc lite musl nl.:cd SUl.:h relief to adequately
lIcfcnu his nr her ri&hls in the prindpill Iilig:llioll,
SUlliff \" SUllilf, 326 l'a,Sop~r, 01%. 47,1 '\,2<1 599
( 198.1),
Copr. " W~SI I")')') Nu Claim to Orig, U,S, Ciml. Works
621 A.2~ 659
(Cite 11.,; oI23I'u.Super. 530, .S+I, 621 ,\.2d 65'), "(,(17)
181 luslanrly. the lrial coun reviewed Ihe master's
rCl.:U1umCndaliul1s thai the wife receive alimony
pen~enre lite and wncu"ed Wilh the reporl. The lrial
cuurt weighed the rclcvuI\t fill.:!mS necessary 10
uclcTminc an awaru of alimony pendellte lite ami
dCh.'rl11inl.'u that the wire WilS c:ntith:,) 10 alimony
pcndcl\Il: iiiI.'. Our review "I' thl.' n:conl rl'veals that
there \\'as u great displlrity hClwcCI1 the income 1cwls
of the panies, with the hnshaml enjoying a
suhslululally hiltlll:r im.:lll11c. Also. the n:ctlul ~htlws
thai Ihe wife resorted to selling. 11I.:r jl.'wl.'lry hI
1I1.linlilin the divnn':L' prm:cc,lil1gs. I\cctlnlingly, \\'1,.'
lind amp"': c\'idcm:c ill the rcnmlltl support the trial
c.;uun's Iinding Ihilt the wife \VilS entitled to alimon)'
pen~enle Iile.
.SoIS 1911101 The purp",e of an awanlof counsd kes
is III ensure dUll the financially dcpcmh:1ll spouse ,..'ill
be able In mainHlin or defcnd ug:ainst .Ul iu.:tion for
lIivon.:e, as well as tn effcctmlle eCOIuJlllic justicc.
Schuberl v, ~chuberl, 398 Pa.Super, 28,1. 580 A.2~
1351 (1990), Counsd fees in a ~ivoree proceeding
arc not awarded automatically; the petitioning spouse
must show aClllal nee~ before soch an award is
justilie~, Kohl v, Kohl, 387 Pa.Super, 367, 56-1 A.2~
222 (1989), Moreover, a "~epen~ent spouse may he
emilled to alimony pendente lite an~ counsd fees
bocause both are necessary 10 maintain the divorce
procee~ing," DeMasi, supra at 530 A,2d at 88J. The
amount of ;.\11 award for counsel fees, costs, ilnd
expenses awarded in a divorce action is within the
discretion of lbe lrial court and is subjeet to an abuse
of discretion slandar~ on appeal. Williamson v,
Williamson. 402 Pa,Super, 276. 586 A,2d 967
(1991).
[IIJ Here, the trial courl a~opted the masler's
recommendations thaI, due to the greal disparity in lhe
parties incomes, the wife was entitled to have the
husband pay a portion of her counsd fees and coslS,
Simply beeause lbe wifc will reedve alimony
pen~eme lile an~ lifly-live percent of the marital
estate ~ues not predu~e an award 01 counsd fees an~
costs. Our review of the record reveals thm Ihe
assessment of the wife's counsel fees and costs to the
hushan~ allows the wife to defell~ hersell' in lhis
divorce action and effectuates economic justice.
Accor~ingly. we lind no abuse of diserelioll ill Ihe
trial court's adoption of the muster's recollullemJ:atillll
thaI the hushand be "'~ere~ 10 pay a pOri ion of Ihe
wife's counsel fees and COSts.
Finally, the hush:md asserts Ihat the trial court
impmpt.'rly credited him with the fair rental valuc Ill'
I'u~e II
thl.' marilal rcsidcltcL'. The hushand nrgucs tlHIt the
trial court erred in including the fair rent.11 villue of
Ihe marilal residence. S301,500,(X}, in the ..668
marital e~tate, then crcLliling the wife ilS Imving
rel.:ch'cd h....r ~hare tlf the fair rental vOIlue. \Vc ;Igrcc.
1121 A court eugilge,1 iu e'luitahly dislributiug lhe
marital e~tilte l1Iust consider the erforts c:lch spouse
..."p....mh:lI 10 .~4(. pn:~er\'e lI1arital assets. Sec 23
1'i1,C.S,A, ~ .1502(:1)(7), Thus. au elJuilahle
di'ilriluuiun SdlCIllL' mOlY include UIl ~1\\'arLl, to the non.
ptlsses~ill1t SptlllSl', of onc-half of the rentul vuluc of
Ihe marital resideuce, when possessed exclusively by
the lither spuusc during the (Hlnies' scpar:l1iol1.
I'owcll v, Powell. 395 Pa,Super. 3015. 577 A,2d 5i6
(l91){)); Gruver v. Gruver. 372 l'a,Super, 1901, 200,
5.19 A,2~ 395, 398 (1988): IIUIUik v. lIulllik. 369
PiI,Super, 263, 270. 535 A.2d 151, 154 (1987): Gee
v, Gee. 314 Pa,Super. 31. .160 A.2d 358 (1983),
IIm,,"ver, we have also uphold deduclious from relllal
v<lllle av,:ards for: Ihe nun-possessing spausc's share
of expenses re)atetllo preserving the marit:11 residence
(i.e. morlgage, insurance, laxes, maintenance), see
Powdl; lIutnik: Gee, and for amoums owed by the
non-possessing spouse 10 the possessing spouse's
parents, See Gruver, supra, 372 Pa.Super. at 200,
539 A.2d "I 398.
(131 While we have aflirmed the lrial eourl's
:lwarding one spouse u portion of the rental valuc of
the maritul home. when possessed exclusively by lhe
olher spouse, an award of rem is nOlmandatory. In
Sutliff v. Sutliff, supra, we aflirmed an equitable
distribution schemo which lacked an award for rom
I'lt the non-possessing spouse. 361 Pa.Super. 5lJ.l,
522 A.2d 11401 (1987), reversed on other grounds,
518 Pa. 378. 543 A.2d 534 (1988). See also King v.
King. 332 Pa,Super. 526. 481 A,2d 913 (1984). In
declining to mandate such a pnlctice. we stated in
Sutliff Ihal;
'allthough an award of rent is permissible. we dUIlOl
t1eem it un ahuse uf discretion by the court to refuse
to take such un actiun in this casc.... \Ve cvuluate
the court's ~ecision iu light of the IOlality of lhe
drcumstances an~ the equitable distribUlion order as
a wholL'.
361 Pa.Super. at 525, 522 A.2d at 1154, Likewise,
in Powdl, supra. we st:\led; "(iln the trial court's
diseretion. he Ithe nOIl-pnssessor spousel may be
cntitled to a portion of the fair market rental vulue of
Ihe marital home." 395 Pa,Super, al 361.577 A.2d:\l
58.1 (emphasis udlJcd). This is cunsislent wilh nur
opinioo in lIutnik, supra, where we held thaI lhe
~pOll:jC who is uul of possession lUust he compens:ltelJ
Copr, " \Vest I'}')') Nil Claim 10 Orig, U,S, Gov\. Works
621 A.2d 659
(Clle us: 423 J'u.Super. 530, .547, 621 A.2d 659, ..66H)
for his or her .547 rigllls and inlerests in lhe marilal
properly, and Ihal an award of fair markel rental value
of the marital resident;c, while in 1111..' ex.clusive
possession of the otlll:r spouse. w;\s one proper means
of compensating the IltHl.posscssur. See also Gce,
supra (renlal payments, lhough 11111 specilieally
n:qucslcLl, cnJ11)lcnsmcd lhe 11011~pOSscssur spouse for
righls and interest inland and nol ahuse of discretion).
114) /Iere, lhe hnshand lenthe marilal residence and
lhe wife remained in Ihe home wilh Ihe wuple's
youngest child and lheir older children. who would
return (() the mnrilill home 1111 school vlIciuions.
Although he was not in possession of lite mariwl
residence, the husband preserved Ihe marital residence
by paying the mOrlgage paymellls. insurance. bills and
ulilities from lhe lime of separalion until Ocwber,
1988. The lrial courr included the fair markel rental
value of the marital residence as nn asset in the
marilal eslale. Having included the fair markel rental
value intbe marilal estate. the Irial eourlthen erediled
Ihe wife as bavlng received her one-half of Ihe rental
value, We lind Ihe methodology employed by lhe
trial court of adding in lhe entire fair markel rental
value into the marilal eslale as a marital assel before
lhe division of the marital estate. lhen multiplying lhe
emire marital eSlale by wife's liny-live percelll share
and graming the husband a eredll from this ligure of
one. half the fair markel value of rhe marilal home 10
be incorreCI for the following reasons.
The fair markel relllal value of lhe marilal residence
eannol be considered a marital assel subjecl 10
equitable distribution as it repre5ems revenues Ihal
were foregone by the marilal estale due 10 the wife's
residence in the properlY afler lhe parlies separated.
Therefore, Ihe fair markel remal value of lhe marilal
home was improperly "669 deemed a marital assel
by the Irial court. lhereby arliliclally inl1ating lhe
value of lhe marital eslalC. As Ihe wife's share of
lhese foregone potemial revenues, whkh would have
been part of the aggregate nmrita) estate, were
consumed during her tenure in the marital home; she
l'UAe 12
is nol entitled to receive ;;any portion of these foregone
revenues, Aewrdingly, lbe plllper melhodolugy li>r
.54H granling lhe hushand a eredll fur his share of the
foregone fair market fClllal value of the m.lritill
residcm.:c is In dedw,,:t his ~hare of the foregone
revcnucs from the wife's ultimilte distrihution of the
marilill estatc.
In mltlition. wc ntlle Ihal Ihc trinl eoun incurreclly
cilh.:ulaled the f;lir rCIlI:!1 \'ulue hased on rurty.t\\'O
nlillllhs, The hu,ha11l1 Iinancially mainlainell lhe
marital resilience while Ihe wife enjoyed exclusive
!ll)sscsshll1 1(lr l()rty.sc\'ell I1lllllths, IUIt forty-two
m(lIl1hs. Thus, Ihe trial coon should have used the
forty-scvcn month Iigure in its cah.:uli\tion uf the fair
rentill vHlue of the marilill home.
lu lighl of nor determination thatlhe lrial eoun erred
by using the hearing dale in its valualion of Ihe
hushand's husiness ralher than the date of separalion,
and both ils improper inclusion of the fair markel
remal value of lhe marilal home inlo the marital estate
and its failure to calculate the fair markel renlal of lhe
marital home based upon lhe forry-seven months thaI
the wife exclusively possessed it. lhe order of
equilable dislribulion must be vaealcd and Ihe mailer
is remanded for fUrlher proceedings. Addllionally, as
the Irial coun's usage of Ihe separation dalC for the
valualinn of the husband's business will subslantially
change lhe economic posilions of lhe panics and upsel
the original carefully era lied scheme of Ihe trial
coun's order concerning alimony pendcnle Iile,
counsel fees and cOSIS, Ihe dislribution of rhe marilal
estate, ilml the wife's alimony award, we arc
constrained to vacate entirely the trial court's onJ~r
and rcmand lhe case for proceedings eonsislclll wilh
this opinion. so that economic justice between the
parties may he achieved.
Order vaealed and remanded.
relinquished,
Jurisdielion
END OF DOCUMENT
Copr. I" Wf:~1 JI)l)I) r\ll (,(;dlll hi Ori!L U,S. Cill\'1. \\'lIcks
6,16 Po.
62~ ATLANTIC REPORTEIl, 2d SERIES
on dalll that would otherwise he consid.
ered slllle," Sutliff'" Sut/if/. 518 Po. at
38, 54:1 A,2d at 536, Thus. we (jnd the
December :U, 1987 ralue to be more ap-
propriate in this particular case,
BerulOn {, ,i81 A.2d 967 (Table).
Benaon { was Ciled on Aug"Kt 8, 1990.
remanding the case to the trial court (or
proceedings consistent with ita holding,
On August 10, 1990, the trial court remand.
ed the matter to the master (or red'Ktrib.
ution and ordered the parties to submit a
valuation of M & D as of August 10, 1990,
Neither party complied with the order and
on August 19. 1991, the trial court entered
an order adopting the master's recommen.
dation that the court reinsbte ita original
order, again valuing the business as of the
date of separation. The master reasoned
that since Dean was the sole proprietor of
M & D Truck Lines and had the ability to
direetly control the business's assets, the
date of separation better worked economie
justice between the parties. Dean filed
exceptions to the new order, claiming that
the trial court was obliged to follow the
Superior Court's order in Benson I and
value the business as of 1987, His excep.
tions were denied on March 3, 1992.
[1.2) In ita opinion supporting ita denial
of Dean's exeeptions, the trial court cites
McNaughton, supra, for the proposition
that the trial judge has diGcretion to ehoose
valuation dates of marital ass eta in sueh a
way that will work justice between the
parties. McNaughton held that it was not
an abuse of discretion for a trial judge to
value, as of the date of s.paration, a elose.
Iy held bu.iness which is largely under the
eontrol o( one spouse to the exclusion o(
the other. A (amlly business warranta a
deviation (rom the Keneml rule that asseta
should be valued U8 o( tbe date of diKtribu.
tion because o( the Kreat innuellce that the
controllillg spouse may huvo upon tho busi.
ness's aKKl!ta, .lfCNIIUghtclII at 41:1, 60:1
A,2d at 1;411, Wo hold thut whilo a trial
court may nut .r1menllly be excu,lwd erom
eomplyinK with 1111 ardor (rom tho Ilppollate
court, tht! triut judl{c's e{(orl to comply
with tlw l)rdl~r and tlw e41uitahlu nuluro lIt
the Vivort'l! Cllllt~ wurrnlll uJlJllkuliulI of
,1(cNllughton in this case, The trial jUdi
did not abuse his diKcrotion in valuinK ~II.
o us of the date the purties separated. W.
there(o:-I! affirm the trial court's order.
We recoKnizo that Kenerally a trial cour
may not rail to rollow an order rrom tho
appollaw court. In Hllcftle t'. Davi3. :lE(
Pa. 94, 110 A.2d 233 (1955), uppellant ar
gued thut tho triul court erred whea it
refused to hear "additional evidence" thaI
supported his contention that the lower
court lackod 8ubjeet muller jurisdiction. In
an earlier appeal in the 8ame case, the
Supreme Court held that appellant did Oat
meet his burden in eSlllblishing that the
lower court lacked jurisdictiun. On sub...
quent appeal to the Supreme Court, appel.
lant urgued that sinco subject mailer juris.
diction cannot be waived, the lower court
erred in refusing to permit him to introduce
the "additional evidence" after the flnt
remand. The Supreme Court sbted:
Here the question o( jurisdietion was
raised in this Court and determined. A
lower court is without power to modif}',
alter, amend. set aside, or in any manner
disturb or depart (rom the judgment of
the reviewing court as to any matrer
decided on appeal. Under any other rule,
litigation would never cease and finality
and respect (or orderly processes of law
would be overcome by chaos and con.
tempt. One trial o( an issue is enough.
{d. at 95, 110 A.2d at 235 (dbtions omit.
ted); see also. Stymiller t'. Blleeanli, 236
Pa,Super, 211, 344 A.2d 680 (1975); Pa.
R.A,P. Rule 259I(n).
In this case. tho Benson I panel consid.
ered the argumenta made by both parties
and determined that the trial judge abused
his di8cretion by valuing the business on
tho dato o( sepumlion. However, the B'n.
6011 { parwl, in ("d.ring the trial court tD
valuo M & /J on th. dat. clooe8t to the date
ol distribution, t.1xprvlIKed It..s preference tor
th. 1087 valuution, tho most recent valua.
liun lw{ure it. Since the CBSl! was not
r.,"lInd.<I until (mil), the trial court proper'
ly ordered tlJlI parULis to tilt! current valuA'
tions, A lrilll court l{en.rally eannot be
rllult..d (or ,"o'<linl{ un order dcoil{ned tD
irnlllt'llll'nt thl' al'lll'lIuw court's dL'cision.
DENSON Y. liENS ON
ell. AI 'l4 A.Jd .... (PLSUpet. I"JI
S.. lacoponi v. Pliska, 419 Po. 398. 214 by the discriminatinK exercise or judicial
A.2d 504 (1966) (trial court may creaw an power.
onter which is within the scope of an appel. Burke I'. Pi/I.tburgh /.imcs/one Corp" 376
late court's order). When neilher Dean nor Pa. 390, 393, 100 A,2d 696, 598 (1953),
Joann~ responded to, the trial court's orde~, We find that the equilable considerations
the trIal court was In the uneavlable POSI' ,
' f 'lh I' th b' 'f of McNaughton Rhould apply to thIS case.
tion 0 el er YO umg e USlneS8 In ruB" I...
tra" f B I (b I' th b . McNaughton s prem..e IS the SImple propo-
...on 0 enson y va ulng e USI. . . . .
th d t f t') I"t sltlon that whea one spouse main tams con.
ness on e a e 0 separa Ion or va umg I .
in f strat' f th D' C d (b trol over the assets of a closely held busl'
ru Ion 0 e Ivorce 0 e y us- . .
. '-1 I t' ) S' ""./ ness to the exclaslOn or the other, lhere IS
109 a R~ e va ua Ion. mce ",cHaug" on d" 'b'l' h h
was decided before the trial judge ruled on a Istmct pOSSI II~y t at t e spouse, may
Dean's exceptions to valuing the business exert that coatrol !n a.n effort to gam fa.
as of the date of separation we can h dl vorable treatment m dIvorce court. Thus,
, ar Y. h . . 't i t b f
fault him for reRolving his dilemma by rely- m sue a SItuatIon, I s no an a use 0
ing on it. discretion to deviate from the general valu.
. ation rules. To require the excluded
(3,41 Moreover" we note that smce the spouse to show actual proof of his or her
B.naon I panel deCIded that M & D should spouse's improper finagling, as the B.nson
be ~alued ~n ~ da~ closest to lhe date of I panel would, defies McNaugh/on's prem-
eqUItable dIstributIon, w~, ~ould no~alJy ise. Thus, we would be working a paten-
be ~.recluded from "revlslt.mg the. ~ssue. tial injustice to Joanne under the pretense
The law of the case doctrine prohIbIts an 01 protecting finslity
sppellate court from revisiting an issue . . '.
that has been decided in an earlier appeal The DIvorce Cod~ seeks ~ attam a lair
in the same case between the same parties. result lor both partIes ~ a. dIvorce. Here,
lYra Indus/n'es v. Wood, 418 Pa,Super. the master and th. trial Judge, whJ are
296, 614 A.2d 279 (1992). However, Our best situated to lormulate an e'luitable dis.
Supreme Court has indicated that the law tribution scheme, have twice held that a
of the case doctrine does not have absolute more fair result would be achieved by valu.
preclusive effect: ing M & D Truck Lines at the date the
The doctrine of "the law of the case" is parties separated. This is the precise sce-
that, when an appellate court has consid- nario sanctioned by, A/cNaugh/on. . To ig.
ered and decided a question submitted to nore !rlcNaugh/on m favor of an Illusory
it upon appeal, it will not, upon a subse- interest in finality (the case has already
quent appeal on another phase of the been in the courts for yea.. beyond what
caae, reverse its previous ruling even should be necessary to fashion an e'luitnble
though convinced it was erroneous, This distribution), would be anomalous.
rule has been adopted and frequentiy Judgmenl affirmed.
applied in our own Stnte, It is not, how.
ever, Inflexible. It does not have the
finality of the doctrine of rts judicata,
"The prior ruling may have been fol-
lowed as the law of lhe case butlhere is
· difference between such adherence and
..." judicata; one directs discretion, and
the other supercedes it and compels jUdg.
ment. In other wonls, in one it is a
question of power, in the other or sub.
miaslon." The rule of the "law or the
casell is one larKely DC convenience and
public policy, both of which ore served hy
liability in judicial decision., and it mUDt
be accommodated to the needs or justice
Pa. 6.&7
Concurring stntement by WIEAND, J.
WIEAND, Judge, concurring:
I concur. The date of seporntion, in my
judgment, was lhe date contemplated by
the legislature for the evaluotion or mariUlI
IlSI:H!ts in divorce IIctions. See: 23 Pa.C,S.
f 3501(n), This is purticularly so in cases
whert! one sJlouse owns and operates n
business. The other sJlouse should ncitllt~r
benerit from nor be prejudiced by lhe indi.
vidual activity of the business.operotinK
spouse after separntiun. To lu.!rmit the
volup of Uw business tn he inCfl'UHl'd or
fJ
n
~
(/I " 0
'" ~
14 .
Q ~ . <
< " ~
z .. .
-r: ... 0: = ~
< 5 ~ ;;
-l M )0
)0 " 0 ~
... '" ~ " ~
~ ~
14 0: d '"
;.J 0 ;:: .: ll.
:r. ~ .
0 .j
< < . ~
rn "
" 0
" 7-
'"
..
EXHIBIT A - MARITAL PROPERTY
DATE OF MARITAL AMOUNT OF
ASSET VALUE VALUATION PORTION LIENS LIEN
Double-Wide mobile $25,000.00 6/98 100% Purchase $14,000.00
home situate at 21 (est'd) loan (approx.1
Mountsinview Terrace, owed to
Newville, PA PNC
Bank,
N.A.
Husband's stock in Rose Unknown but 4/96 100% as None N/A
Metal Systems, Inc. believed to be of that
(15% of total stock less than date
outstanding) $5,000.00
Husband's IRA with $60,983.22 3/31/98 100% None N/A
Legg Mason Wood and
Walker, Inc.
Wife's retirement $22,657.53 9/30/96 100% None NIA
benefits (Husband plus earnings
believes this is an after date of
account with T1AA- separation
CREF)
Two cemetary lots Unknown 6/98 100% None N/A
Cash proceeds from sale $6,805.32 12/96 100% None N/A
of Husband's interest in
hunting cabin
Savings account at $377.00 4/96 100% None N/A
Members First Federal
Credit Union
Wife's 1993 Chevrolet Unknown 4/96 100% None N/A
Corsica automobile
1996 Hahn Fire Truck $10,000.00 4/96 Unknown None N/A
at this
time
Household furnishings $5,000.00 4/96 100% None N/A
and appliances
. c.;ulIl.ot uUfllhv'
OMU NQ, 1546.0008
b ElllplOV"', ldenUhcauon flUItlbM
25-1'/55542
D lmporet'. nam.. Idd,..., "'" liP cod.
RODe Metal Syotems, Inc.
1412 Trindle Road, Suite E
Carlisle, ~A 17013
d fmpklV.... aoc:laJ HCUflly number
20B-42-695B
. EmpklV"" nama, .dd'..., Ind ZIP cod.
Cloyd A. Barrick Jr.
6 Mountain View Drive
Mt.llo11ySpringe, PA 17065
II IlaI, Emplov.,'. .111. 1.0. No. 17 1IIf, ...... lit.. tic.
. .~~..I..~.~.~.~.?.?. ~.~ ..........., ....~.~.~.~~.:.~.
~ W-2
Wage and Tall
Statement
1997
INFORMATION RE1'URN
For Slate CII or Em 10 er File Co 0
WtOI.. IIpI. au. tompIflllUon a fld.,lllncom. t.. wlthhlAd
39350.0B 5571.33
. Boclll 'Kurllv ..~. 4 Social 'tcUfU,;, 'I. .llhh.1d
393 O.OB 2439.94
8 M.diCI,. .10" and IIpI I MedIC.... 'I' wllhhl6d
39350.0B 570.71
, Social IICUIU,;, lipl . AIlor:lltd lip.
0.00
I AdvAne. Ele pavm.nl 10 Dependtnl call benehl.
0.00
11 Nonqullili.d plan. 12 Bln"il' included In bo. 1
13 S.. 1n,1l.. 'Of FOfm W.2
14 Othlr
$10.00 0Pl'
15SIjllJtory DcuUN ""'101I LtG"
'mpIo}u ~ It,
"....
....
Od'lItd
COIIIft"'...,.
11 SUI, Income III
1101.6
11 Loc.IiIV f\atM 20 loul wlft. I.... lie
39350.0
21l.._"""u.
393.7
............... ....................
..................
o.pll1m.nl of thl T"..ury-Int.,,,., R....enue Semel
for Plp.twO'''' n.ductlon Acl Nallel,
,.. l'p"I'e InlltucUonl.
'.
Exhibit
f)
. Conlla' number
Cap, C 'or .UPLOY.... "_CORD. IS.. ~lC. On PAC" 04 COII'Y'1 or
O,,"INu n<tsOOOG Cap.. :110 ho Flied Wllh Elllflloyoo', Slnlo, elly or loc"" IlIcome fila Allum
- .
WIO'I. lip., oIher tOIll*l..hon 2 htJI.lllotom. II. wllhhlkJ
915.00
b EII1pkJYIf" 6denllllClllon number
25-1755542
a EmpIo)'tf" nam.. ....dr.... and liP code
ROSE Mm'1\L SYS'l'EMS, INC.
1412 TRINOIE RanO, SUI~~ E
ClIRLISLE P1I 17013
d Employ..', .~I" 'ecUftly w'.mbll
208-42-6958
, Emp60v,,', "~, addl.... 8nd liP cod.
CIDYD 11. DARRICK JR.
6 mum'1IIN VIEW DRIVE
Mr. IIOLLYSPRINGS P1I 17065
.1 ..... EII1ptQy.,'. ,'11. 1.0, No,
,..~.~..l...) ),7.rm~.... ........
17 Itllt .1011. IIpUk
I W.2
Wage and Tn
Statement
1997
3 Soc"l 'OCUllt., WIO" 4 SocIaJ MCUllly II. wIU-.h,kJ
915.00
I Mldk". wig.. 'I'd Up. I M~k;.,. lu wllhheld
915.00
I Social 'OGUllly Up, I .Alkx:lltd lip.
I AdYlnCI EIC Ply",'", 10 o.pmdenl CIII b~llII,
11 NonqUIUllld plan. 12 Oln,llll Includ,d In boll 1
915.00
13 5" In'lIl. 101 boll 13 14 0111.,
"SlallolIGly Otmud PlltUOft l'V.
tnlplor" plln '"
H....
.""
O.I,"M
COIf\9fnu11Olll
,. $1,1. Incoml lu
111 LOCalilV NmI 20 hul w,o...I.... tiC
...................?J.!?,!!9......
21 hullft(omtlh
OIptl1mlnl 01 the Tllnury-Inlemll A'YIf'RJI SIMeI
ThI.lnlotmlllOt'l II btlna lurnlthld 10 an. tnl,mll AlYlr1U41 S,rvlct. II 'tOll If. llqu1f.d to
fll., I'. IIluI!'Z . n.Olrg,nc. p.".lly Dr DIIl.r ..nctlon m.V bllmpolld on VUU If Ihl.
IncDmlI.I..... and yuu lallD report II. .
EXPENSE STATEMENT
WORKSHEET
Please complete this document as best you can using the monthly expense column.
The columns headed "week" and "year" should only be used to calculate the average monthly
expenses. Please list the average monthly expense for each item.
EXPENSE WEEK MONTH YEAR
HOME
Mortgage/Rent $ $682.51 $
Maintenance $ $ $
Utilities $ $ $
I Electric $ $45.00 $
I
! Gas $ $ $
,
Oil $ $20.00 $
Telephone $ $40.00 $
Trash $ $9.50 $
Water $ $12.50 $
Sewer $ $11.00 $
Other $ $ $
EMPLOYMENT
Public Transportation $ $ $
Lunch $ $75.00 $
TAXES
Real Estate $ $ $
Personal Property $ $ $
Income $ $ $
Personal Tax $ $ $
INSURANCE
EXPENSE WEEK MONTH YEAR
Homeowners $ $ $
Automobile $ $ $
Life $ $ $
Accident $ $ $
Health $ $ $
Other $ $32.00 (Boat) $
I AUTOMOBILE
i Payments $ $241.23 $
$ $120.00 (boat) $
r Fuel
I
i Repairs/Maintenance $ $ $
i
, MEDICAL
Doctor $ $ $
Dentist $ $ $
Orthodontist $ $ $
Hospital $ $ $
Medicine $ $ $
Special needs (glasses, $ $ $
braces, orthopedic devices)
EDUCATION
Private School $ $ $
Parochial School $ $ $
College $ $ $
Religious $ $ $
PERSONAL
Clothing $ $75.00 $
Food $ $300.00 $
EXPENSE WEEK MONTH YEAR
Barber/Hairdresser $ $7.00 $
Credit Payments: Charge $ $100.00 $
Card
Cherge Accounts
Memberships $ $66.00 $
I.OAN.S
PNC $321.57 (trailer)
Lot Rent $160.00
Members First $ $222.00 $
Bleyer $90.00
MISCELLANEOUS
Household Help $ $75.00 $
Child Care $ $ $
Papers/Books/Magazines $ $13.00 $
Entertainment $ $75.00 $
Pay TV $ $30.00 $
Vacation $ $ $
Gifts $ $25.00 $
Legal Fees $ $ $
Charitable Contributions $ $ $
Other: Child support $ $ $
Alimony Payments $ $ $
OTHER
$ $ $
$ $ $
TOTAL EXPENSES $2,848.31
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CLOYD A. BARRICK, JR., ) IN THE COURT OF COMMON
Plaintiff ) PLEAS OF CUMBERLAND
) COUNTY, PENNSYLVANIA
vs. )
) CIVIL ACTION. LAW
JOLENE N. BARRICK, )
Detendant ) NO. 96.3408 CIVIL TERM
)
) IN DIVORCE
NQIlCE TO DEFENDANI
If you wish to deny any of the statements set forth in this Affidavit, you must file a
Counter Affidavit within twenty (20) days after this aftidavit has been served on you or the
statements will be admitted.
PLAINTIFF'S AFFIDAVIT UNDER SECTION 3301(d)
OF THE DIVORCE CODE
1. The parties to this action separated on 15 April 1996 and have continued to live
separately and apart for a period of at least two years.
2. The marriage is irretrievably broken.
3. I understand that I may lose rights concerning alimony, division of property,
lawyer's fees or expenses It I do not claim them before a divorce is granted.
I verity that the statements made in this Affidavit are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating
to unsworn falsification to authorities.
Date: J c. y.. ~.., if"
TRUE COpy ROFi1 RECORD
In Tostlmony whoreof, I here unto set my hand
and the seal of said Court at Car1lsle, ~..)
Thl .;;.. y I (!l v , t9 ..
'-~ ~'~\~h~ (l /~J.',}V~ I J ~')cF'
Piolhonolary
.r / //) ,,/'
..'..,/// 4!t,
Cloyd A. Barrick, Jr.
.;./'l
; ~
"
,0
CLOYD A. BARRICK, JR.. ) IN THE COURT OF COMMON
Plaintiff ) PLEAS OF CUMBERLAND
) COUNTY, PENNSYLVANIA
vs. )
) CIVIL ACTION. LAW
JOLENE N. BARRICK, )
Defendant ) NO. 96.3408 CIVIL TERM
)
) IN DIVORCE
NOTICE TO DEFENDANT
If you wish to deny any of the statements set forth in this Affidavit, you must file a
Counter Affidavit within twenty (20) days after this affidavit has been served on you or the
statements will be admitted.
PLAINTIFF'S AFFIDAVIT UNDER SECTION 3301(d)
OF THE DIVORCE CODE
1. The parties to this action separated on 15 April 1996 and have continued to live
separateiy and apart for a period of at least two years.
2. The marriage is irretrievably broken.
3. I understand that I may lose rights concerning alimony, division of property,
lawyer's fees or expenses if I do not claim them before a divorce is granted.
I verify that the statements made in this Affidavit are true and correct. I understand
that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904 relating
to unsworn falsification to authorities.
Date: ,r- :Y - '7 f?'
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Cia d A. Barrick, Jr.
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.::\wp.Sl\jnh:nc\.Inh\\-cr July 1.111IM.
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYlVANIA
CLOYD A. BARRICK, JR.,
vs.
CIVIL ACTION. LAW
NO. 96.3408 CIVIL TERM
JOLENE N. BARRICK,
Defendant
IN DIVORCE
ANSWER AND COUNTER-CLAIM
Now comes Jolene N. Barrick, Defendant above, by and through her counsel, FLOWER,
MORGENTHAL, FLOWER & LINDSAY, P,C., and answers the Complaint in Divorce as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. No answer required.
8. No answer required.
WHEREFORE, Detendant requests this Honorable Court to enter a Decree in divorce
divorcing Plaintiff from Defendant.
COUNTER-CLAIM
COUNT I: EQUIT^BLE DISTRIBUTION
9. The averments of Paragraph 1-8 are incorporated herein by reference as though set
out in fl.ill.
~';\wr.~I\jlllc;"c;\t'1lunlc;r.d," Ilk '."i.\'1H.'JN-lIl \1;1) I!.\'J')N
CLOYD A. BARRICK, JR.,
Plaintiff/Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CIVIL ACTION - LAW
NO. 96.3408 CIVIL TERM
JOLENE N. BARRICK,
Defendant/Petitioner
IN DIVORCE
ANSWER AND COUNTER-CLAIM.
TO COMPLAINT IN DIVORCE
Now comes JOLENE N. BARRICK, by and through her counsel, FLOWER, MORGENTHAL,
FLOWER & LINDSAY, P.C., and answers the Complaint in Divorce filed by Plaintiff as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
WHEREFORE, Defendant/Petitioner prays this Honorable Court to enter a Decree in
Divorce divorcing Plaintiff from Defendant.
COUNTER-CLAIM
9. The averments in Paragraphs 1-8 are incorporated herein by reference as if set out
in full.
~';\wf1.sI\jtlh:nc\ilnlo""[!r July},jlJ')Ii.
CLOYD A. BARRICK, JR.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96.3408 CIVIL TERM
YS.
JOLENE N. BARRICK,
Defendant
IN DIVORCE
ANSWER AND COUNTER-CLAIM
Now comes Jolene N. Barrick, Defendant above, by and through her counsel, FLOWER,
MORGENTHAL, FLOWER & L1NDSA'{, P.C., and answers the Complaint in Divorce as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
7. No answer required.
8. No answer required.
WHEREFORE, Defendant requests this Honorable Court to enter a Decree in divorce
divorcing Plaintiff from Defendant.
COUNTER.CLAIM
COUNT I: EQUITABLE DISTRIBUTION
9. The averments of Paragraph 1-8 are incorporated herein by reference as though set
out In full.
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006481
DJ!FENOANTS
E.XnIIfTNQ~
fOlllo<HTlfICAnOH{)2.. <:.
DATL4bltf,/m,r "/
N~m~SmEllS,llC. NAME CIo d A. Barrick Jr. DEPARTMENT Hourl 006481
. . . .
Salary 173.08 5.000 865.38 Federal WH 167.4 00006481 J
Soc Sec WH 53.6
Mcare WH 12,5 ., ,-
State1 WH 24.2.
Local1 WH 8.6 12/31/98
..
Fm: 12/20/9
To: 12/26/9
Memo:
, . '.
48826.85 865.38 208-42-6958 266.49
,- , . .
0.00 9438.74 3027.22 707.98 1367.13 488.22
ROSE METAL SYSTEMS, INC,
PAYROll ACCOUNT
1412 TRINDlE ROAD. SUITE E
CARLISLE. PA 17013
(717) 2~5.0883
FULTON BANK
Hood Olflco: Laneutor, Ponnsylvanla 17604
006481
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0006481
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,
:
(FIVE HUNDRED NINETY EIGHT DOLLARS AND 89/CENTS)
DATE
-""'IlIIl~
12/31l91*.:::~":::-=-8. 89
PAY
TO THE
ORDER
OF
Cloyd A. Barrick Jr.
6 Mountain View Drive
Mt.HollySprings, PA 17065
,\
:c
COPY NOT NEGOTIABLE
lI'OObl,a~II' I:O:lUO~I,22I: 25~ 'lbb ?:lO 21"
In the Court of Common Pleas of
County, Pennsyl~ania
PIIont:
Fa~:
Plainriff Name:
Defendanr Name:
Docket Number:
PACSES Case Number:
Other S~te ID Number:
PltAH 0011'1 AU (orrespoadmc:r IDwllDcludr tbt PACSE../ii ClUe Sumbtr.
Income and E:I(pense Statement
THIS FORM MUST DE FILLED OUT
(If you are self-employed or If you are salaried by a business of which you are owner in whole or pan. you must
also fill out the Supplemental Income Statement which appears on the IISI page of this Incmne and expense
stalement.)
INCOME STATEMENT OF ("-trGf cl . 611,a~L fh
I ~erify wtthe stalements made in this Income and Expense Statement are lrue and correct. I undersrand that
false statel1lCnlS herein arc subJcctlo the criminal penahies of 18 Pa. C.S. ~ 4904, relating 10 unsworn
falsification 10 authorities.
Dale 4;Plaintlff or DefeDdant
INCOME: '~/1 f71d' t2
Employer -1'-' 0 - 'r-tE....t' 'tlt;rlf).. '1\,,(
Address ,1../1,). .7i3t,n..//' 6..,./, A{~ l e lirld:J. ~. 17rJl..3
Type of Work
Payroll No. t'1::JJ.... Gross Pay per Pay Period S '?(,,'5 3'.:f Pay Period (wkly.. bl.wkly.. etc.) ~
hemiud Payroll Deductions:
Federal Withholding S(t/J.-II Social SecurilY S 5:%::' Local Wage Tax S'i'.')'
Stale Iocome Tax ~" .2 Rerlremenr S 0 Saviogs Bonds S 0
Credit Union S Life Insurance S Heahh Insurance S
OilIer Deducti.lns (specify) f'lIc..o.'-'<- W 1-\ SIl.S' S
Net Pay per Pay Period S .jqCJ.:r?
Service Type
DEFENDANTS
EXIlIIITNQ. ~
FOR IDlNTlflCATlOH
DA"'4Isr~pe.S
Foml1N.OO8
Worker ID
I II" "lie all~ Exp<:n'e Slnmelll
PACSES Case Sumher
OTHER (Fill ill Appmpriale Culumll)
INCOME
WEEK MONTH VEAR
IlIleresl $ $ S
Divi~en~s
Pe,!>;;un
Annuily
SlIciaJ Security
Rems
Royahles
Elpense A'COUDI
Gifts P.>.>4\,0A,\} .5l5. C,O
;. .""<
UnemplDymem
Compensalion
Workmen's
CompensalioD
IRS Refund
Olher
Olher
TOTAL $ $ $
TOTAL INCOME S
(Fill In Appropriate Column)
EXPENSES
WEEK
MONTH
YEAR
Home
Mongage/ReDl
Malmenaru:e
Ulilities
s
$
8=:' J1
s
Eleclric
gr.-
Gas
011
- / 6;0. ~
50. ell
Teiephone C-RJLlL
Service Type
Page 2 of 6
FumIIN.OO8
Worker ID
hl."OI< ami EX(lCIl'" Sr.lemenl
P,\CSES CJse Sumher
(Fill ill Apprupriale C"lumn)
EXPENSES
(conllnued) WEEK MONTII YEAR
Waler $ $ .~O. - - 100. - .3...,,,1/, S
Sewer ~I,.- "
~,,'>\\ ~"1 ~" ,.
Employmenl
Puhlic Transpnnalion $ $ S
Lunch 60. tit!
'-
Tua ,rl-' /
Real ESlale $ ~ / ,n.v w1.r' "'.'- $
_~<"~~ {-.'-'It ~~ .Il>'~ V ~4,1,~" 11.60 - ~ .1'5 ~. s><./
Personal Pmpuly
Income \,,/ ~,"H.DOL (, ......IUI"~
Insurance
Homeowners $ $ $
Automobile
Life
Accldenl
Health
Other
~cAo\. T .or. ...A~, 0 ...."'1 - A~' ou 3~3. -
Aulomoblle
Payments $ $ $
Fuel \ A.l...., - 'D~~
Repairs
?_+ Po. . \ ri'-\.\ J.~ .
Medical \
. - ^
Doclor ( -ru,,-I-\ $ $ {)..'t ~{:<),<"r,-Ly..;.S/ $ 4'd .00
.
Dentisl
Onhooontisl
Page 3 nr 6
FornI IN.Q08
WorkerlD
Service Ty(lC
10"'''"'0 allll EX!,<Jl'o SlalomOll1
PACSES C.,o :'>IunI~or
(Fill ill Approprialo C"lullllIl
EXPENSES
(conllnued) WEEK MOmtl VEAR
HllSpi~1
Mcdi~11l&:
S!,<cial noolls (alas.ses.
hra,os, onhu!,<dk
d~vkes)
EdlKatlon
Privale School S S S
Parochial School
Colleae
ReUa10us
Personal
Clolhing S S S
Food
( Barbe""r7.Haircltcs.scr 10. (lu
Credit PaymenlS:
Credit Card
Charge Account
Memberships c..\",~ ..;-:50 1,,'/. - ',--
Loans
Credit Union M...\- \\\ S S 111. .- s
0-.\ ~_ dJ> Qc, -
Miscellaneous
Household Help S S S
Child Care
Papers/Books/Magazine
EmonailUllem 56 00
Pay TV 31. "'~
Vacalillll ~. . < (\.. ", \:"
Pago 4 of 6
Fom. IN.DOS
Worker ID
Sorvke Type
1I.."me allll Expt:ll,e Slalemem
PACSES Ca,e Numhe,
(Fill in Apprupriale C"lunul)
EXPENSES WEEK
((onUnued) MONTlI VEAR
\ .LA\-O",",."0~
Gitis :q~7 l.' ....,. :>'..........,c
n. , .."-
Legal Fees 1~~.lndO , o 0 -L.L.L-: I
<j -/ -'i''i
Charil.1hle CUnlribulions
allier Child Suppun
Alimuny Paymenrs
Other
S S S
TOTAL EXPENSES $ $ .2/5',-/. (p Y $ '1Uo. f<lJ
Ownership ·
,,/rh'/VALUE H W J
.. OCl, -
ChecldDg ACCOUDlS S 5/. elll 'f.
Savings Accounts ~ L/ 37. ;21.,
CrecUr Union
Stocks/BoDds
Real Estate
Other
TOTAL $
INCOME AND EXPENSE SrATE~IENT
I' ACSES C\SE NI \1:II'R
OTlIER (Fill m ApProf1rllllt' ('OIWIlII)
INCOME
WEEK MONTH YEAR
IOCl."fcst S S S
DlVidco<lS
Pension
Annuity
Social Security
Rents
Royahies
Expense Account
Gifts
Unemployment
Compensation
W orkmen's
Compensation
I RS Refund
Other
Other
TOTAL S S S
TOTAL INCOME S
EXPENSES
(FiII;1/ Appropril/te ('0/1/1111')
WEEK
MONTII
YEAR
HOME
Mong.ge/Rent
s
S 150.00
s
Maintenance:
UtilitIes
Eleelrie
35,00
10,00
300.00
Gas
Oil
20,00
Telephone
Semee T) pe
008
Page :! of (,
Ftlnn IN-
Worker ID
INCOME AND EXPENSE S r A rE~lrN r
j'ACSES elSE Nl',IIUI'R
EXPENSES (Fill ill Al'pmprtlllt.. ('ollllm.)
(contlnned)
WEEK MONTJI \'E,\R
IValer S S S
Sewer
EMPLOYMENT
Public Transponallon S S S
lunch 10.00
TAXES
Real Estale S S S
Personal Propcny
Income 289.56
INSURANCE
Homeowners S S S
AUlomobile 50,00
Life
Accidenl .44
Hcahh 27.02
Other
Automobile
Payments S S S
Fuel 20.00
Repairs 200,00
Medlc.1
Doctor S S S 100,00
DemiSI
Onhodontisl
Service Type
1);Jgt: J of h
",,""IN.OIJS
\\'urJ..cr 10
INCOME AND EXI'ENSE Sf A fEMEN r
PACSES Clsr NI',\IIlEK
EXPENSES (Fill ill Appropriatt! ('ol"'"IJ)
(eoallnued)
WEEK MONTI! YEAR
Hospital S S S
Medicine 10.00
Special nceds (g/lUseS.
bracL's, orthopl!Jic tlf!~I;ces)
EDUCATION
Private School S S S
Parochial School
College
Religioos
PERSONAL
Clothing S S S 200.00
Food 40.00
Barber/Hairdresser
Credit Payments:
Credit Card
Charge Account 40.00.
Memberships 25.00
LOANS
Credit Union S S 140,00" S
Mlseellloeou.
Household Help S
Child Care
Papers/Books/Magazine
Entertainment \5.00
Pay TV 28.69
Vocation
.FdShlOn Bug JO.()(); Fmg.:r IIUI JO.UtJ .. PaymC!l1I em Hl1ill'l1Iccd ","r;(al dt.'bt
Service Type PilgC ~ of 6
FomlIN-OOS
IV orker ID
INCOME AND EXPENSE Sf ^ TI'~IE~T
PACSES C.\SE NUMIlER
EXPENSES
(coolinued)
(Fill ill Appropriate Colllmn)
WEEK
MONTH
\'EAR
Gifts
s
s
S 400,00
Legal Fees
Chwiloble Contribullons
2000,00 unpUld I"gal rccs
Other Child SUppol1
Alimony PaymL'tlts
OTHER
s
s
s
TOTAL EXPENSES S
PROPERTY Ownership'
OWNED DESCRIPTION VALUE
H IV J
Checking Accounts 100.00 .
Savings Accounts 30.00 .
Credil Union
Slocks/Bonds
Reol Estale
Other
TOTAL S
INSURANCE COMPANY POLICY # Coverage ..
II W C
Hosr,ilUl
B uc Cross
Olher Health Amll1ca .
Medical
Blue Cross
Other
'II . Husband W - IV,f. C. Combll1cd J - JOin'
Scrvlce T)-pc
Page 5 of 6
Funn IN.OOg
Worker ID
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'Jolene msa August 18. 1999
NOW, THEREFORE, in consideration of these considerations, and the mutual promises and
undertakings hereinafter set forth, and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, HUSBAND and WIFE,
each Intending to be legally bound, hereby covenant and agree as follows:
1. Advice of Counsel: The parties hereto acknowledge that each has been notified of
his or her right to consult wilh counsel of his or her choice, and have been provided a copy of this
agreement with which to consult with counsel. WIFE is represented by Carol J. Lindsay, Esquire,
and HUSBAND is represented by Samuel L. Andes, Esquire. Each party acknowledges and
accepts that this agreement is, In the circumstances, fair and equitable, and that it is being entered
into freely and voluntarily, after having received such advice and with such knowledge as each has
sought from counsel, and that execution of this agreement is not the result of any duress or undue
Influence, and that it is not the result of any improper or illegal agreement or agreements.
2. Divorce: The parties agree to the entry of a Decree in Divorce. The parties will
execute, on the date of this agreement, Affidavits of Consent and Waivers of Notice under Section
3301 (c) of the Divorce Code, consenting to the entry of a Decree in Divorce.
3. Personal Property: The parties acknowledge that they have equitably and
satisfactorily divided all of their personal property, and that all personal property shall be the sole
and individual property of the party in whose possession It is as of the date of this agreement.
WIFE will retain the proceeds of sale of the parties' mobile home in the amount of $8,800.28, a 1993
Corsica automobile, $547.00 which has been escrowed in the Office of Samuel Andes, Esquire,
from the sale of the parties' cabin, and her TIAAlCREF retirement account. WIFE will also retain the
two cemetery lots of the parties'. HUSBAND will retain his Rose Metal System slock, and his Legg-
Mason IRA, provided however that HUSBAND will transfer to WIFE $35,000.00 from said Legg-
2
. Jolono ms. Augusl18. 1999
Mason IRA through a Qualified Domestic Relations Order. The Order will be prepared by WIFE's
counsel, and will call for the transfer as of the date of the Agreement with any gains or losses
thereon, from that date to the date of actual transfer. HUSBAND will cooperate by providing any
Information requested In order to prepare the Qualified Domestic Relations Order.
4. Alimony: The parties waive any claim that they may have one against the other for
alimony, alimony pendente /ite or spousal support. The parties acknowledge that each has sufficient
assets with which to maintain themselves after divorce. The parties agree that irrespective of the
date of entry of the Decree In Divorce, HUSBAND's obligation for alimony pendente /ite shall cease
as of the date of this Agreement. Any arrearages due on the date of termination of alimony
pendente lite shall be paid at the rate of $350.00 per month which shall continue to be wage
attached until paid In full.
5. Marital Debt: The parties have, in their own names, certain credit card accounts
which may include some marital debt. Each party will be responsible for the debt on the credit card
accounts in his or her name. Each party will Incur no debt for which the other may be liable, and will
indemnify and hold the other harmless for any debt so Incurred. HUSBAND shall be solely
responsible for the Members First account, the account with Blazer, the Sears account, the
Consumer One loan, and the American General loan. WIFE will be solely responsible for the car
loan taken for the purchase of the 1993 Corsica at Members First and a separate Members First
loan. The parties each shall indemnify and hold the other harmless on account of any loss as a
result of the financial obligations each assumes In this paragraph. Each party will incur no debt for
which the other may be liable, and will indemnify and hold the other harmless for any debt so
incurred.
3
. lolon. maa August 18. 1999
6. Exchange of Information: The parties have requested from each other and received
any information regarding their assets, lia!Jilities, income and expenses wh!ch the party requires
prior to entering Into the terms of this Agreement. The parties acknowledge that the terms of this
Agreement are fair and equitable and constitute an equitable distribution of marital property and
debt, taking Into account all of the relevant factors set out in Section 3502 of the Divorce Code, 23
Pa. C.S.~3502 including the length of the marriage; any prior marriage of the parties; the age,
health, station, amounts and sources of Income, vocational skills, employability, estate, liabilities and
needs of each of the parties; the contribution by each party to the education, training or Increased
eaming power of the other; the opportunity of each party for future acquisitions of capital assets and
income; the sources of income of both parties, Including but not limited to, medical, retirement,
Insurance or other benefits; the contribution or dissipation of each party In the acquisition,
preservation, depreciation. or appreciate of the marital property, Including the contribution of a party
as homemaker; the value of the property set apart to each party; the standard of living of the parties
during the marriage; the economic circumstances of each party including federal, state and local tax
ramifications at the time of the division of the property, and whether the party will be serving as
custodian of any dependent minor children.
7. Modification: No modification, rescission, or amendment of this agreement shall be
effective unless in writing signed by each of the parties hereto.
8. Applicable Law: Ail acts contemplated by this agreement shall be construed and
enforced under the laws of the Commonwealth of Pennsylvania.
9. Agreement Binding on Parties and Heirs: This agreement, except as otherwise
expressly provided herein, shall bind the parties hereto, and their respective heirs, executors,
administrators, legal ropresentatives, assigns and successors In any Interest of the parties.
4
'Jolono ms. August 18. 1999
10. Agreement Not to be Merged: This agreement shall be incorporated Into the final
decree of divorce of the parties hereto for purposes of enforcement only, but otherwise shall not be
merged Into said decree. The parties shall have the right to enforce this agreement under the
Divorce Code of 1980, as amended, and in addition, shall retain any remedies in law or in equity
under this agreement as an independent contract. Such remedies in law or equity are specifically
not waivl:ld or released.
11. Documents: The parties hereto agree that they will execute and deliver one to the
other any documents necessary to give affect to the terms of this Agreement.
12. Full and Final Settlement: WIFE and HUSBAND each do hereby mutually remise,
release, quitclaim and forever discharge the other and the estate of such other, for all time to come,
and for all purposes whatsoever, of and from any and all rights, titles, interests or claims in or
against the property (Including income and gain from property hereafter accruing, of the other) or
against the estate of such other, of whatever nature and wheresoever situate, which she or he now
has or at any time hereafter may have against such other, the estate of such other or any part
thereof, whether arising out of any former acts, contracts, engagements or liabilities of such other, or
by way of dower or curtesy, or claims In the nature of dower or curtesy, or widows' or widowers'
rights, family exemption or similar allowance, or under the intestate laws, or the right to take against
the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other
rights of a surviVing spouse to participate in a deceased spouse's estate, whether ariSing under the
laws of Pennsylvania, any other State, or any other Country, or any rights which either spouse may
have, or at any time hereafter have, for past, present or future support or maintenance, alimony,
alimony pendente lite, counsel fees, costs or expenses, whether ariSing as a result of the marital
relation or otherwise, except and only except, all rights and agreements and obligations of
5
CLOYD A. BARRICK, JR.,
Plaintiff/Respondent
vs,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96.3408 CIVIL TERM
IN DIVORCE
JOLENE N. BARRICK,
Defendant/Petitioner
THIS Agreement made this ~ ~ day of T.1,~\_, '" '}- , 1999 by and
between JOLENE N. BARRICK, of R. R. 1, Box 902, Land'isburg, Perry County, Pennsylvania,
hereinafter referred to as WIFE, and CLOYD A. BARRICK. JR., of 6 Mountain View Drive, Mt. Holly
Springs, Cumberland County, Pennsylvania, hereinafter referred to as HUSBAND,
WITNESSETH:
WHEREAS, the parties hereto are husband and wife. having been joined In marriage on
August 27,1972, in Carlisle, Cumberland County, Pennsylvania; and
WHEREAS. a Complaint for Divorce has been filed in the Court of Common Pleas of
County, Pennsylvania, to No. 96 - 3408, Civil Term; and
WHEREAS, the parties hereto are desirous of settling fully and finally theIr respective
financial and property rights and obligations as between each other, including, without limitation, the
settling of all matters between them relating to the ownership of real and personal property, claims
for spousal support, alimony, alimony pendente life, counsel fees and costs, and in general, the
settling of any and all claims and possible claims against the other or against their respective
estates.
JoIono mo. Auguol18, 1999
NOW, THEREFORE, In consideration of these considerations, and the mutual promises and
undertakings hereinafter set forth, and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, HUSBAND and WIFE,
each Intending to be legally bound, hereby covenant and agree as follows:
1. Advice of Counsol: The parties hereto acknowledge that each has been notifIed of
his or her right to consult with counsel of his or her choice, and have been provided a copy of this
agreement wilh which to consult with counsel. WIFE Is represented by Carol J. Lindsay, Esquire,
and HUSBAND Is represented by Samuel L. Andes, Esquire. Each party acknowledges and
accepts that this agreement Is, In the circumstances, fair and equitable, and that ills being entered
Into freely and voluntarily, after having received such advice and with such knowledge as each has
sought from counsel, and that execution of this agreement Is not the result of any duress or undue
Influence, and that it Is not the result of any Improper or Illegal agreement or agreements.
2. Divorce: The parties agree to the entry of a Decree in Divorce. The parties will
execute, on Ihe date of this agreement, Affidavits of Consent and Waivers of Notice under Section
3301 (c) of the Divorce Code, consenting to the entry of a Decree In Divorce.
3. Personal Property: The parties acknowledge that they have equitably and
satisfactorily divided all of their personal property, and that all personal property shall be the sole
and Individual property of the party In whose possession il Is as of the date of this agreement.
WIFE will retain the proceeds of sale of the parties' mobile home in the amount of $8,800.28, a 1993
Corsica automobile, $547.00 which has been escrowed In the Office of Samuel Andes, Esquire,
from the sale of the parties' cabin, and her TIAAlCREF retirement account. WIFE will also retain the
two cemetery lots of the parties'. HUSBAND will retain his Rose Metal System stock, and his Legg-
Mason IRA, provided however that HUSBAND will transfer to WIFE $35,000.00 from said Legg-
2
JOI.~. me. Auguel 18. 1000
Mason IRA through a Qualified Domestic Relations Order. The Order will be prepared by WIFE's
counsel, and will call for the transfer as of the date of the Agreement with any gains or losses
thereon, from that date to the date of actual transfer. HUSBAND will cooperate by providing any
Information requested In order to prepare the Qualified Domestic Relations Order.
4. Alimony: The parties waive any claim that they may have one agalnstlhe other for
alimony, alimony pendente lite or spousal support. The parties acknowledge that each has sufficient
assets with which to maintain themselves after divorce. The parties agree that Irrespective of the
date of entry of the Decree In Divorce, HUSBAND's obligation for alimony pendente lite shall cease
as of the date of this Agreement. Any arrearages due on the date of termination of alimony
pendente lite shall be paid at the rate of $350.00 per month which shall continue to be wage
attached until paid In full.
5. Marital Debt: The parties have, in their own names, certain credit card accounts
which may include some marital debt. Each party will be responsible for the debt on the credit card
accounts In his or her name. Each party will Incur no debt for which the other may be liable, and will
Indemnify and hold the other harmless for any debt so incurred. HUSBAND shall be solely
responsible for the Members First account, the account with Blazer, the Sears account, the
Consumer One loan, and the American General loan. WIFE will be solely responsible for the car
loan taken for the purchase of the 1993 Corsica at Members First and a separate Members First
loan. The parties each shall Indemnify and hold the other harmless on account of any ioss as a
result of the financial obligations each assumes in this paragraph. Each party will Incur no debt for
which the other may be liable, and will Indemnify and hold the other harm!ess for any debt so
incurred.
3
jm.n. mo. Augu.118.1999
6. Exchange of Information: The parties have requested from each other and received
any Information regarding their assets, liabilities, Income and expenses which the party requires
prior to entering into the terms of this Agreement. The parties acknowledge that the terms of this
Agreement are fair and equitable and constitute an equitable distribution of marital property and
debt, taking Into account all of the relevant factors set out In Section 3502 of the Divorce Code, 23
Pa. C.S.~3502 Including the length of the marriage; any prior marriage of the parties; the age,
heaith, station, amounts and sources of Income, vocational skills, employability, estate, liabilities and
needs of each of the parties; the contribution by each party to the education, training or Increased
eaming power of the other; the opportunity of each party for future acquisitions of capital assets and
Income; the sources of income of both parties, Including but not limited to, medical, retirement,
Insurance or other benefits; the contribution or dissipation of each party In the acquisition,
preservation, depreciation, or appreciate of the marital property, Including the contribution of a party
as homemaker; the value of the property set apart to each party; the standard of living of the parties
during the marriage; the economic circumstances of each party Including federal, state and local tax
ramifications at the time of the division of the property, and whether the party will be serving as
custodian of any dependent minor children.
7. Modification: No modification, rescission, or amendment of this agreement shali be
effective unless in writing signed by each of the parties hereto.
8. Applicable Law: All acts contemplated by this agreement shall be construed and
enforced under the laws of the Commonwealth of Pennsylvania.
9. Agreement Binding on Parties and Heirs: This agreement, except as otherwise
expressly provided herein, shall bind the parties hereto, and their respective heirs, executors,
administrators, legal representatives, assigns and successors in any Interest of the parties.
4
. J~I.n. "lSa August lB. 1999
10. Agreement Not to be Merged: This agreement shall be incorporated into the final
decree of divorce of the parties hereto for purposes of enforcement only, but otherwise shall not be
merged into said decree. The parties shall have the right to enforce this agreement under the
Divorce Code of 1980, as amended, and In addition, shall retain any remedies In law or In equity
under this agreement as an Independent contract. Such remedies in law or equity are specifically
not waived or released.
11. Documents: The parties hereto agree that they will execute and deliver one to the
other any documents necessary to give effect to the terms of this Agreement.
12. Full and Final Settlement: WIFE and HUSBAND each do hereby mutually remise,
release, quitclaim and forever discharge the other and the estate of such other, for all time to come,
and for all purposes whatsoever, of and from any and all rights, titles, interests or claims In or
against the property (Including income and gain from property hereafter accruing, of the other) or
agalristthe estate of such other, of whatever nature and wheresoever situate, which she or he now
has or at any time hereafter may have against such other, the estate of such other or any part
thereof, whether arising out of any former acts, contracts, engagements or liabilities of such other, or
by way of dower or curtesy, or claims In the nature of dower or curtesy, or widows' or widowers'
rights, family exemption or similar allowance, or under the Intestate laws, or the right to take against
the spouse's will; or the right to treat a lifetime conveyance by the other as testamentary, or all other
rights of a surviving spouse to participate in a deceased spouse's estate, whether arising under the
laws of Pennsylvania, any other State, or any other Country, or any rights which either spouse may
have, or at any time hereafter have, for past, present or future support or maintenance, alimony,
alimony pendente lite, counsel fees, costs or expenses, whether arising as a resuit of the marital
relation or otherwise, except and only except, all rights and agreements and obligations of
5
In the Court of Common Pleas of CUMBERLAND County, Pennsylvania
DOMESTIC RELATIONS SECTION
JOLI!NB N. BARRICK ) Do.;ket Numhcr 96-3409 CV
Plaintiff )
vs. ) PACSES Case Numhcr 155100BO
CLOYD A. BARRICK JR ) ,n71o~
Defenualll ) Other Sl~le ID Number b~
Order
AND NOW to wit, this
it is hereby Ordered
SEPTEMBER 29, 1999
that:
THB ABOVE CAPTIONED ORDBR OF ALIMONY PENDENTB LITE IS TERMlNATBD, EFFBCTlVE
AUGUST 30, 1999, PURSUANT TO AN AGREEMENT OF THE PARTIES.
THB REMAINING BALANCI! OF $2,795.97 OWED TO THE PETITIONER AND $3.42 IN
REMAINING SERVICB FBB OWBO TO THE DOMESTIC RELATIONS SBCTION IS TO BB PAID
WITH THE EFFBCTlVE WAGB ATl'ACHMBNT AT $350.00 PER MONTH.
BY THE COURT:
DRO.
CCI
CCI
CCI
R.J. Shadday
plaintiff and defendant
Carol Lindsay, Esq.
Samuel L. I\ndes, Esq.
Service Type M
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JUDGE
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