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HomeMy WebLinkAbout96-6205 CivilDEBBIE L. SHAW, Plaintiff EDWARD B. SHAW, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -- LAW . : NO. 96-6205 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. SUPPLEMENTAL D~CREE RESPECTING EQUITABLE DISTRIBUTION AND NOW, this ~- day of July, 1999, upon consideration of Plaintiff's complaint in divorce, following a trial and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Plaintiff shall retain or receive ownership of her federal retirement plan, the 1986 Dodge Caravan automobile, the household furnishings in her possession, and the United States Savings Bonds. 2. Defendant shall retain or receive ownership of his Capitol Products pension plan, the marital residence, the stock in the Ethyl Corporation, Albermarle and Tredegar, his life insurance policy, the Harris Savings certificate of deposit, the 1992 Subaru automobile, the Harris Savings account, and the household furnishings in his possession. 3. Within 60 days of the date of this Order, Defendant shall effect a transfer of cash or marketable securities having a value of $40,624.48 to Plaintiff. The transfer may be made, tat Defendant's option, in whole or in part from his Dayton Parts 401-K fund, and to the extent that the transfer is made from that fund the parties shall cooperate so that the transfer is accomplished without adverse tax consequences to either party at the time of transfer.* Defendant shall retain ownership of any portion of the fund not so 'transferred. 4. Defendant shall use his best efforts to have Plaintiff removed as a debtor on the mortgage on the marital residence, and shall in any event indemnify and save her harmless against and from any loss arising out of the mortgage debt. Debbie L. Shaw 35 Robin Court Mechanicsburg, PA 17055 Plaintiff, Pro Se Carol J. Lindsay, Esq. 11 East High Street Carlisle, PA 17013 Attorney for Defendant * This will presumably involve Plaintiff's establishment of an account qualified to receive the funds without the occurrence of a taxable event. Whether she chooses to preserve the funds in that account free of immediate tax consequences to her would be her decision. DEBBIE L. SHAW, Plaintiff Vo EDWARD B. SHAW, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -- LAW :NO. 96-6205 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and DECREES OLER, J., July ~, , 1999. This is a divorce action in which the parties agree that the marriage is irretrievably broken and that two years have passed since the parties' separation. The proper division of marital property remains in dispute? Trial was held before the writer of this opinion on Thursday, June 17, 1999. Plaintiff represented herself at the trial, and Defendant was represented by counsel. Based upon the evidence presented at trial, the following'Findings of Fact, Discussion, Conclusions of Law, and Decrees will be made and entered. FINDINGS OF FACT 1. Plaintiff is Debbie Louise Shaw; she resides at 35 Robin Court, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant is Edward B. Shaw; he resides at 5 Nottingham Road, Camp Hill, Cumberland County, Pennsylvania. 3. The parties were married on June 16, 1984. 4. One child was bom of the parties' marriage, Lindsey Nicole Shaw, whose date of birth is September 24, 1987. ~ Although the court has been unable to locate a petition or pleading raising the issue of equitable distribution in the record, both parties have proceeded upon the premise that the court will be making a determination as to equitable distribution. 5.The parties effectively separated on November 12, 1996; Plaintiff filed a complaint for divorce on that date, based upon an irretrievable breakdown of the marriage.2 Plaintiff was subsequently permitted to amend the complaint to add indignities as a ground for divorce? 6. The parties have lived separate and apart for a period of at least two years and their marriage is irretrievably broken. 7. Both parties have requested that the marital estate be equitably divided, with Plaintiff suggesting a 60/40 division and Defendant recommending a 50/50 distribution. 8. As of the parties' separation and the filing of the divorce complaint on November 12, 1996, the parties' marital property 'consisted of the following: the marital residence, located at 5 Nottingham Road, Camp Hill, Cumberland County, Pennsylvania; stock in the form of 52 shares of Ethyl Corporation, 19 shares of Albermarle, and 12 shares of Tredegar; Defendant's 401-K Dayton Parts fund; Defendant's Prudential Life Insurance Policy; a portion of a Harris Savings certificate of deposit; the coverture portion of Plaintiff's federal retirement plan; the coverture portion of Defendant's Capitol Products pension plan; a 1992 Subaru automobile; a 1986 Dodge Caravan automobile; a Harris savings account; and United States Savings bonds. 9. The values of these items, calculated as of the present date where such a determination has proven feasible, and calculated as of the date of separation where it has Plaintiff physically left the marital home on June 14, 1997. Order of Court, February 19, 1999. 2 not, are as follows: Marital Residence Stock Ethyl Corporation Albermarle Tredegar 401-K Dayton Parts Fund Life Insurance Policy Harris Savings Certificate of Deposit Plaintiff's Federal Retirement Plan Defendant's Capitol Products Pension Plan Automobiles 1992 Subaru 1986 Dodge Caravan Harris Savings Account Household Furnishings United States Savings Bonds TOTAL 76,701.004 253.76 unknown 267.00 53,629.01 6,501.80 1,979.68 unknown unknown 3,730.00 1,300.00 1,301.90 3,000.00 200.00 $148,864.15 9. Of these assets, Plaintiff is in possession of, or has received, the Dodge Caravan automobile, the United States Savings Bonds, household furnishings having a value of $1,500.00, and money as herea~er descri, bed; Defendant has possession of, or has received, the balance. 10. The primary marital debt is a joint obligation on a mortgage on the marital residence; the principal amount of the debt was about $15,000.00 as of the separation/complaint date of November 12, 1996, but has since been reduced by payments of Defendant to $7,300.00.s 11. With respect to the Albermarle stock, the value of which has not been ascertained, the parties have been unable to find a listing for the company which would assist in providing 4This figure represents a present-day appraisal of $92,000.00, less an outstanding mortgage of $7,300.00 and a post-separation reduction of principal on the mortgage by Defendant of $7,999.00. See supra note 4. 3 a valuation. 12. With respect to Plaintiff's federal retirement plan, the marital value of which has not been ascertained, an amount of $11,741.11 appears to be credited to Plaintiff in the fund, which accumulated from November 3, 1975, to November 28, 1987; the coverture portion of this asset would extend from the date of marriage on June 16, 1984, to November 28, 1987. 13. With respect to Defendant's Capitol Products pension plan, the marital value of which has not been ascertained, a payout of $95.40 per month commencing in October of 2014, contingent upon Defendant's survival to that date, is provided for; the coverture portion of this asset would extend from 1984 to November 28, 1987. 14. By means of an agreement dated June 3, 1997, the parties divided various items of property between themselves, without prejudice to their positions on the ultimate issue of equitable distribution. 15. Pursuant to the said agreement, Plaintiffwife received $40,000.00, certain tangible personal property from the marital residence, possession of the 1986 Dodge Caravan automobile, and a right of indemnification for any liability on the mortgage; Defendant husband received ownership of the marital residence, certain tangible personal property from the residence, and possession of the 1992 Subaru automobile. 16. In addition, Defendant has advanced $1,290.00 in cash (or by check), and $1,426.73 by way of payment for certain new furniture, to Plaintiff in anticipation of equitable distribution. 17. Of the total value of marital property of $148,864.15, Plaintiff has thus received $45,716.73 and Defendant has received $103,147.42. 18. A review of the factors enumerated in Section 3502(a) in the Divorce Code as relevant to an equitable division of marital property results in the following findings: (a) The length of the parties' marriage was 12 years. (b) Neither party was previously married. 4 (c) Plaintiff is 41 years old, has a high school education, and was most recently employed by the federal government in 1987 as an office worker at a salary of $24,000.00 per year; she has no unusual sources of income or assets,6 and appears to be under a certain degree of mental stress. Defendant is 49 years old, has an associate's degree in industrial automation, and is a maintenance technician .for Dayton Parts at a salary of $50,000.00 per year; he has no unusual sources of income; his primary asset is the aforesaid marital residence. Plaintiff is relatively less qualified in terms of employment than Defendant, but does appear to the court to be able to work. (d) Plaintiff's contribution to the marriage as a homemaker and caretaker for the parties' child tended to promote Defendant's acquisition of an associate's degree in 1988. (e) Neither party has any unusual prospects for the future acquisition of capital assets or income; Defendant's earnings, however, may be expected to exceed those of Plaintiff. (f) Neither party has any substantial sources of income beyond his or her income/earning capacity. (g) Plaintiff contributed to the parties' accumulation of marital property, initially (for about three years) as an employee of the federal government, and thereafter as a homemaker. Defendant contributed to the parties' accumulation of marital property through his employment as a maintenance technician. (h) As will be provided for hereinafter, property in the amount of $86,341.21 will be set aside to Plaintiff, and $62,522.94 will be set aside to Defendant. (i) The parties established a middle class standard of living during the marriage. (j) Neither party enjoys particularly good economic circumstances, although Defendant appears to be more capable of sound financial management and is the owner of the aforesaid 6 Pending the conclusion of the divorce case, Plaintiff has been receiving alimony pendente lite payments of $765.00 per month. Order of Court, September 29, 1998 (Hess, J.). marital residence. Whether Plaintiff has preserved any portion of the marital property which she has thus far received, with the exception of the Dodge Caravan, is not clear from the record. (k) Defendant is the primary custodian of the parties' minor child and will continue to act in that capacity unless custody litigation between the parties results in a change in the custody order. 19. Based upon a consideration of the foregoing factors, a distribution of the marital property with 58% being allotted to Plaintiff and 42% being allotted to Defendant will, in the court's view, be equitable. 20. To effectuate this distribution, it will be necessary for Defendant to transfer property having a value of $40,624.48 to Plaintiff. DISCUSSION With respect to dissolution of a marriage, a divorce decree is appropriately entered where the parties' marriage is irretrievably broken and they have been separated for a period of at least two years. See Act of December 19, 1990, P.L. 1240, § 2, 23 Pa. C.S. § 3301(d)(1). With respect to a division of the marital estate, marital property includes "all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any nonmarital property acquired [prior to marriage or by gift, bequest, devise or descent]." Act of December 19, 1990, P.L. 1240, § 2, 23 Pa. C.S. § 3501(a). The date of separation is used in determining which assets should be included in the marital estate. Smith v. Smith, 439 Pa. Super. 283,306, 653 A.2d 1259, 1270, appeal denied, 541 Pa. 641,663 A.2d 693 (1995). An equitable distribution of the marital estate must be designed to "effectuate economic justice between [the] parties ... [to] insure a fair and just determination and settlement of their property rights." Act of December 19, 1990, P.L. 1240, § 2, 23 Pa. C.S. § 3102(a)(6). The court is to "equitably divide, distribute or assign, in kind or otherwise, the 6 marital property between the parties ... in such proportions and in such manner as the court deems just after considering all relevant factors .... "Id., § 3502(a). These factors include the following statutory considerations: (1) the length of the marriage; (2) any prior marriage of either party; (3) the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (4) the contribution by one patty to the education, training or increased earning power of the other party; (5) the opportunity of each party for future acquisitions of capital assets or income; (6) the sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits; (7) the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation of the marital property, including the contribution of a party as homemaker; (8) the value of the property set apart to each party; (9) the standard of living of the parties established during the marriage; (10) the economic circumstances of each party, including Federal, State, and local tax ramifications, at the time the division of property is to become effective; and (11) whether the party will be serving as the custodian of any dependent minor children. Act of December 19, 1990, P.L. 1240, § 2, 23 Pa. C.S. §3502(a)(1-11). However, this statutory list of factors is not exhaustive. Smith v. Smith, 439 Pa. Super. 283,294, 653 A.2d 1259, 1264, appeal denied, 541 Pa. 641,663 A.2d 693 (1995). Additionally, the weight assigned to each of these factors is left to the discretion of the court. Id. In determining which date should be used to value marital property for equitable distribution purposes, the court is given the discretion to choose a valuation date which will best provide for "'economic justice' between the parties." Id. at 306, 653 A.2d at 1270. It has been noted that "equitable results will most likely flow from providing the court with the most recent information available .... "Id., quoting Sergi v. Sergi, 351 Pa. 588, 594-96, 506 A.2d 928, 932 (1986). However, "there may be circumstances where it is more appropriate to value marital assets as of the date of separation." Id. at 306, 653 A.2d at 1270 (1995). In valuing marital property, the "court must exercise discretion and rely on the 7 estimates, inventories, records of purchase prices, and appraisals submitted by both parties." Id. at 297, 653 A.2d at 1265-66. The court "is free to believe all, part, or none of the evidence" presented. Id. at 293,653 A.2d at 1264, quoting Fonzi v. Fonzi, 430 Pa. Super. 95, 99-100, 633 A.2d 634, 636-37 (1993). In the present case, several factors tend to militate in favor of awarding Plaintiff wife a somewhat larger share of the marital estate than Defendant husband: her relative disadvantage in terms of education and employment history, the mental stress which she seems to be experiencing, and her contributions to the marital estate and to Defendant's educational opportunities as a wage earner and homemaker. On the other hand, factors supportive of Defendant's position on equitable distribution include his contributions to the marital estate as a wage earner, his relatively shorter work-life expectancy, and his present status as primary custodian of the parties' minor daughter. Given the moderate size of the marital estate to be divided, the court is of the view that a 58/42 percent distribution of the assets of known value7 will best provide for economic justice between the parties. The primary marital assets of the parties are the marital residence and Defendant's 401-K Dayton Parts fund. The house has been conveyed to Defendant, leaving the 401-K fund as the most logical source for accommodation of Plaintiff's interest in the marital estate. Based upon the foregoing, a decree in divorce and a supplemental decree respecting equitable distribution as provided hereafter will be entered. CONCLUSIONS OF LAW 1. This court has jurisdiction over the parties and subject matter of this litigation. 2. The parties are entitled to the entry of a decree in divorce by reason of an irretrievable breakdown of their marriage and a two-year separation. 3. The parties are entitled to equitable distribution of their marital property in the form of a supplemental decree as provided hereafter. 7 The court's order will also provide for a retention by the owner of those items which the parties did not regard as of sufficient importance to pursue on the record in terms of valuation. SUPPLEMENTAL DECREE RESPECTING EQUITABLE DISTRIBIJTION AND NOW, this(~'l ~tay of July, 1999, upon consideration of Plaintiff's complaint in divorce, following a trial and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. Plaintiff shall retain or receive ownership of her federal retirement plan, the 1986 Dodge Caravan automobile, the household furnishings in her possesssion, and the United States Savings Bonds. 2. Defendant shall retain or receive ownership of his Capitol Products pension plan, the marital residence, the stock in the Ethyl Corporation, Albermarle and Tredegar, his life insurance policy, the Harris Savings certificate of deposit, the 1992 Subaru automobile, the Harris Savings account, and the household furnishings in his possession. 3. Within 60 days of the date of this Order, Defendant shall effect a transfer of cash or marketable securities having a value of $40,624.48 to Plaintiff. The transfer may be made, at Defendant's option, in whole or in part from his Dayton Pans 401-K fund, and to the extent that the transfer is made from that fund the parties shall cooperate so that the transfer is accomplished without adverse tax consequences to either party at the time of transfer.8 Defendant shall retain ownership of any portion of the fund not so transferred. 4. Defendant shall use his best efforts to have Plaintiff 8 This will presumably involve Plaintiff's establishment of an account qualified to receive the funds without the occurrence of a taxable event. Whether she chooses to preserve the funds in that account free of immediate tax consequences to her would be her decision. 9 removed as a debtor on the mortgage on the marital residence, and shall in any event indemnify and save her harmless against and from any loss arising out of the mortgage debt. BY THE COURT, Debbie L. Shaw 35 Robin Court Mechanicsburg, PA 17055 Plaintiff, Pro Se Carol J. Lindsay, Esq. 11 East High Street Carlisle, PA 17013 Attorney for Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 10