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HomeMy WebLinkAbout88-3493 CivilDIANE W. BRETZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COdNTY, PENNSYLVANIA V. CIVIL ACTION �17 LAW DAVID R. BRETZ, JR., NO. 3493 CIVIL 1988 Defendant IN DIVORCE IN RE: DIVORCE AND ECONOMIC CLAIMS BEFORE OLER, J. ORDkR OF COURT AND NOW, this Z?A day of April, 1992, for the reasons set forth in the accompanying Opinion, it is ordered and directed as follows: (1) A divorce decree pursuant to Section 3301(c) of the Divorce Code shall be entered by the Court, dissolving the marriage of the parties; (2) Title to all marital property in the possession of the parties shall be vested in the party having possession thereof; and (3) Defendant husband shall pay to Plaintiff wife the sum of $27,000.00 within 120 days of the date of this Order. BY THE COURT, J. David H. Stone, Esq. Attorney for Plaintiff Barbara J. Patton, Esq. Attorney for Defendant :rc DIANE W. BRETZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION LAW DAVID R. BRETZ, JR., NO. 3493 CIVIL 1988 Defendant IN DIVORCE IN RE: DIVORCE AND ECONOMIC CLAIMS BEFORE OLER, J. OPINION AND ORDER OF COURT OLER, J. In the present divorce action, which has been heard by the Court,l claims to be resolved involve equitablell distribution of marital property and Plaintiff's request for counsel fees, costs and expenses.' In connection with equitable distribution, the question of primary importance is whether a certain house in Defendant's name, located in East Pennsboro Township, is marital property. FINDINGS OF FACT 1. The Plaintiff is Diane W. Bretz; she resides, now or formerly, at 60 Central View Road, DillsburO, York County, Pennsylvania. 2. The Defendant is David R. Bretz; he res�des at 110 Carol Lane, Enola, Cumberland County, Pennsylvania. 3. Service of the Complaint in this case upon the Defendant was by certified mail on November 3, 1988. 1 See Order of Court, January 14, 1992, a+t No. 3493 Civil 1988 (Direction that case be heard by Court be ause of Divorce Master's prior representation of party). The h aring before the Court in this case was conducted on March 27, 19 2. 2 Stipulation of Counsel, February 13, 19921. No. 3493 Civil 1988 4. The parties were married on October 6, 1979, in East Pennsboro Township, Cumberland County, Pennsylvania. 5. Both parties had resided in the Commonwealth of Pennsylvania in excess of six months prior to the filing of the Complaint herein on November 2, 1988, and both continue to reside in the Commonwealth. 6. One child was born of the parties' marriage, Neil Bretz, whose date of birth is July 17, 1986; no support} order regarding the child is in arrears. 7. Affidavits of consent under Section 3301(Ic) of the Divorce Code were filed on March 5, 1992, by Plaintiff and February 21, 1992, by Defendant. 8. By stipulation of counsel dated February113, 1992, issues in the case remaining to be resolved are equitable distribution of marital property and Plaintiff's claim for counsel fees, costs and expenses. EQUITABLE DISTRIBUTION 9. The parties' marriage lasted from October 6, 1979, until approximately September 15, 1988, when they separated, a period of nine years. 10. Neither party was previously married. 11. The age of Plaintiff wife is 33; the Mage of Defendant husband is 38. 12. Neither of the parties is in poor health. I 2 No. 3493 Civil 1988 13. Plaintiff wife is employed as a Senior Customer Service Representative with Pennsylvania Blue Shield in Camp Hill, Pennsylvania; Defendant husband is self -employe& as a landscaper and light construction worker, based in Enola, PeEnnsylvania. 14. Plaintiff wife receives a net salary of $14,736.80 per year; Defendant husband has a net income of $17,3152.00 per year. 15. Plaintiff wife is a high school graduate. Defendant husband presently has a bachelor's degree in structural engineering and is working toward a master's degree; at the time of the parties' separation, he had a high school diplomalland some college credits. 16. Plaintiff wife has no substantial estatell in her own name. Defendant husband is the owner of a house at 110 Carol Lane, Enola, Pennsylvania, which had a market value of $78,0001.00 at the time of the parties' marriage and was subject to a construction mortgage in the principal amount of $38,400.00; a 1977 pickup truck; and various household items, including a washer, dryelr, refrigerator, and freezer, inter alia. 17. Plaintiff wife has no substantial liabilities. Defendant husband has some liabilities, including approximately $2,000.00 in credit card debt. He also recognizes a moral obligation to repay approximately $60,000.00 given to him by his father over the years. 18. Neither party has any special needs at t'he present time. 19. Neither party contributed in a major way to the other's 3 No. 3493 Civil 1988 education, training or increased earning power, but wife should be credited in some measure with assistance in lconnection with husband's college studies. 20. No evidence has been presented suggesting the likelihood of any unusual future acquisitions of capital assets or income by either party; husband, however, has a greater earning potential than wife by virtue of his higher level of forma]; education. 21. The sources of income of both parties are their jobs, as previously identified. 22. Both parties contributed to such maritall property as they accumulated; neither party dissipated marital assets. 23. During the parties' marriage, they enjoyed a middle class standard of living, but depended heavily upon thej kindness of the father of Defendant husband for financial support. 24. The economic circumstances of each parity are presently adequate to meet their needs. Plaintiff wife 1�ves with a male companion and finds that her financial situation is better than in the past when her father-in-law found it necessary to provide support; Defendant husband resides in the home which he owns and out of which he operates his landscaping business. 25. The parties share custody of their filve-year-old son, Neil. 26. With respect to marital property, the following findings are made: 4 No. 3493 Civil 1988 a. The residence at 110 Carol Lane, Enola [East Pennsboro Township], Cumberland County, Pennsylvania, was acquired by Defendant husband prior to the parties' marriage, was titled in Defendant's name alone, and has never been titled in Plaintiff wife's name. b. The cost of materials for the house at said address, which was built by Defendant and his friends prior to the marriage,3 was approximately $38,000.00, financed by a loan to Defendant from the Harris Savings Association, said loan being eventually paid off during the marriage through a gift to Defendant from his father; the value of the lot, given to Defendant by his parents prior to the marriage, was $9,000.00. C. The fair market value of the residence, including the lot, which residence is found to be non} -marital property of the Defendant husband, at the time of the parties' marriage was $78,000.00. d. The fair market value of the residence at the time of the parties' separation after nine yearsll'lof marriage was $112,000.00, representing an increase in value during the marriage of $34,000.00. e. The fair market value of the residence at the present time is $118,000.00. 3 Plaintiff wife assisted in the construction in a minimal way - e.g., on occasion making meals with her fu ure mother-in-law for the workers. 5 No. 3493 Civil 1988 f. The fair rental value of the residence, to the extent deemed relevant in any subsequent proceedings, is $700.00 per month. g. A 1977 pickup truck was acquired by Defendant husband prior to the patties' marriage, was titled in Defendant's name alone, has never been titled in Plaintiff wife's name, and is hereby found to be nonmarital property of Defendant; its value is estimated to be $500.00. h. A washer, dryer, refrigerator, an& freezer located at the aforesaid residence, as well as a number of household items, tools, and pieces of exercise equipment were acquired by Defendant husband prior to the parties' marriage, and are hereby found to be nonmarital property of Defendant; their value is estimated to be $2500.00. i. A $7,500.00 tractor and $2,500,.00 bucket were acquired by Defendant husband after the parties' separation, with financial assistance in the amount o $2,500.00 from Defendant's father, are hereby found to be nonmarital property of Defendant, and are estimated to have a present value of $7,000.00. j. Items of marital property in the possession of Plaintiff wife, including a living room sett are estimated to have a value of $1,500.00. k. Items of marital property in the possession of 6 No. 3493 Civil 1988 Defendant husband, including four automobiles and a cub tractor cadet, are estimated to have a value) of $12,000.00. ATTORNEY'S FEES 27. The attorney's fees of Plaintiff wife total between two and three thousand dollars: in connection with these divorce proceedings. DISCUSSION Marital estate. As noted in Plaintiff wifell's brief, "[t]he significant issue in the within case is the determination of whether or not the marital residence is maritalll property.i4 In this regard, "'marital property' means all property acquired by either party during the marriage ... [and dyes not include p]roperty acquired prior to the marriage." 23 Pa. C.S. §3501(a)(1). Marital property also includes '�Ithe increase in value, prior to the date of final separation, of any nonmarital property acquired [prior to marriage]." Id.S "In construing Pennsylvania's Divorce Code, we must follow the Pennsylvania legislature's scheme which separates the factors for defining marital property from the factors for distributing marital a li Plaintiff Is Memorandum containing ProposedllFindings of Fact and Conclusions of Law, at 7. s "Property 'acquired' during marriage now includes the 'increase in value' of all premarital assets; brought to the marriage ...." Perlberger, Pennsylvania DivorcelCode §401, at 27 (1988 Supp.). 7 No. 3493 Civil 1988 property. Time of acquisition is the factor that the legislature mandates the courts use in determining whether property is a marital asset." Anthony v. Anthony, 355 Pa. Super. 589, 594, 514 A.2d 91, 93 (1986). "Because it is the time,llrather than the manner, of acquisition that determines whether property constitutes marital property under Pennsylvania's Divorce Code, the spouses' efforts and/or financial contributions are not germane to [the] definition of marital property under the Code." Id. at 593, 514 A.2d at 93 (case involving issue of increase in value of premarital property as marital property). With respect to increase of value of an item during marriage, it has been said that "the 'value' referred to isl the market value of property ...." Clapper v. Clapper, 25 D. & C.3d 467, 475 (Somerset Co. 1982) (case involving alleged increase in value of inheritance through interest). An application of the foregoing statutory language and precedent to the facts of the instant case warrants the conclusion that the marital residence, titled in the name of Defendant husband and acquired by him prior to the parties' marriage„ was nonmarital, and has remained nonmarital, property to the extent of its market value at the time of the marriage; and that the increase in value of the residence during the marriage and prior, to separation - i.e., $34,000.00 - represents marital property, subject to equitable distribution. The latter figure, when added to the value No. 3493 Civil 1988 of marital property in Plaintiff wife's possession ($1,500.00) and in Defendant husband's possession ($12,000.00), establishes a total valuation of the parties' marital estate of $47,500.00. Equitable Distribution. An equitable distribution of the marital estate must be designed to "effectuate leconomic justice between [the] parties ... [to] insure a fair and just determination of their property rights." 23 Pa. C.S. §3102(a)(6). The Court is to "equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties ... inlsuch proportions and in such manner as the Court deems just after considering all relevant factors 23 Pa. C.S. §3502(a). "Since [1986], ... there has been a cleajr line of cases obliterating [any] 50-50 starting point concept ['in connection with a division of marital property under the Code ] .I" Frank & Gale, Pennsylvania Family Practice Manual 97.02(J)(1),, at 223 (1990). "Rather, the factors enumerated in §[3502(a)] of the Divorce Code are to be the bases upon which the Court determines the appropriate distribution." Id. These factors are as follows: (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 sof each of the parties; (4) the contribution by one party to the education, training or increased earning power of the otheEr party; (5) the 9 No. 3493 Civil 1988 opportunity of each party for future acquisitions 'of capital assets and 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 ofleachparty 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 Iparty, including Federal, State and local tax ramifications, at the time the division of property is to become effective; andj(11) whether the party will be serving as the custodian of any dependent minor children. 23 Pa. C.S. §3502(a). The Court agrees with the contention of Plaintiff wife that "[i]n applying the equitable distribution factors set forth in 3502 of the Divorce Code, ... a majority of the marital assets should be awarded to her. ,6 Her vocational skills, educat'Lon, and earnings and earning capacity are less than her husband's, her economic circumstances are considerably inferior to his by virtue of his ownership of a house, and the value of the marital estate to be set apart to either party is of necessity not paiticularly great. Under the circumstances, the Court believes that 'a distribution of �I 6 Plaintiff's Memorandum containing Proposed Findings of Fact and Conclusions of Law, at 14. 10 No. 3493 Civil 1988 60% of the marital estate, or $28,500.00, to Plaintiff wife and 40%, or $19,000.00, to Defendant husband will beequitable; since Defendant presently holds all but $1,500 of the marital estate, he will be directed to pay $27,000.00 to Plaintiff. l Attorney's Fees, Costs and Expel Under Section 3323 of the Divorce Code, a Co*rt's decree in a divorce action is to include a determination w�th regard to an award of reasonable attorney's fees, costs and expenses where these issues are raised in the pleadings.' Howeverj, "[p]arties to litigation usually pay their own costs and attorneys' fees." Johnson v. Johnson, 365 Pa. Super. 409, 420, 529; A.2d 1123, 1128 (1987) (Beck, concurring). And "[a]ctual need must be shown in order to justify an award" of counsel fees. Fitzpatrick v. �I Fitzpatrick, 377 Pa. Super. 268, 281, 547 A.2d ;362, 369 (1988). "Counsel fees are appropriate when necessary to pu't the parties 'on a par' in defending their rights or allowing a dependent spouse to maintain or defend an action for divorce." Johnsoyn v. Johnson, 365 Pa. Super. 409, 415, 529 A.2d 1125, 1126 (1987).; In the present case, the Plaintiff wife is employed, is not in debt, and will be receiving a portion of the marital estate many times in excess of the fees which she is expectedjto pay. For this reason, the Court does not believe that an award of counsel fees, costs and expenses would be appropriate. 23 Pa. C.S. §3323; see also 23 Pa. C.S. 0702. 11 ' No. 3493 Civil 1988 CONCLUSIONS OF LAW 1. The Court has jurisdiction over the parities and subject matter in this litigation. 2. The parties are entitled to entry of a decree in divorce pursuant to Section 3301(c) of the Divorce Code.l 3. The parties are entitled to equitable distribution of marital property in accordance with the foregoing findings and discussion. 4. Plaintiff wife is not entitled to an award of counsel fees, costs and expenses. ORDER OF COURT AND NOW, this 29th day of April, 1992, for the reasons set forth in the accompanying Opinion, it is ordered and directed as follows: (1) A divorce decree pursuant to Section 3301(c) of the Divorce Code shall be entered by the Court, dissolving the marriage of the parties; (2) Title to all marital property in the possession of the parties shall be vested in the party having possession thereof; and I (3) Defendant husband shall pay to Plaintiff wife the 12 No. 3493 Civil 1988 sum of $27,000.00 within 120 days of the date of 'this Order. BY THE COURT, s/ J. Wesley Oler,;Jr. David H. Stone, Esq. Attorney for Plaintiff Barbara J. Patton, Esq. Attorney for Defendant 13 J.