HomeMy WebLinkAbout88-3493 Civil (2)9
8/12/92
DIANE W. BRETZ,
Plaintiff
V.
DAVID R. BRETZ, JR.,
Defendant
IN THE COURT OF C MMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - W
NO. 3493 CIVIL 1 88
IN DIVORCE
IN RE: DEFENDANT'S POST -TRIAL MOTION
BEFORE: BAYLEY, HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 12t4 day of August, 1992,
consideration of Defendant's post -trial motion, and J
stated in the accompanying Opinion, the motion is DE1
of Divorce and a Decree Respecting Equitable Di:
entered contemporaneously herewith.
BY THE COURT,
David H. Stone, Esq.
Attorney for Plaintiff
Barbara J. Patton, Esq.
Attorney for Defendant
:rc
upon careful
or the reasons
D. A Decree
ibution are
J.
DIANE W. BRETZ,
Plaintiff
v.
DAVID R. BRETZ, JR.,
Defendant
OLER, J.
IN THE COURT OF Cf bMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -
NO. 3493 CIVIL 1188
IN DIVORCE
IN RE: DEFENDANT'S POST -TRIAL MOTION
BEFORE: BAYLEY, HESS and OLER, JJ.
OPINION AND ORDER OF COURT
At issue in the present divorce action, which was heard by a
judge,' is whether the Court properly found that v rious sums of
money given to Defendant by his father were not a marital debt.
This issue is presented by Defendant husband's post -trial motion'
in response to the Court's decision regarding equitable
distribution.' The pertinent facts are as follows:
' The hearing was before Judge Oler pursuant to an Order of
President Judge Harold E. Sheely dated January 11, 1992. The
Divorce Master was not utilized for the proceeding by reason of
his prior representation of one of the parties. O der of Court,
January 14, 1992.
' Following a hearing and decision by the court on a claim
respecting marital property, a post -trial motion is the proper
instrument for challenge to the ruling. Pa. R.C.P. 1920.52(a)
(direction of recourse to Pa. R.C.P. 227.1 - 227.4 following
decision). "If claims are heard by the trial judg', . . . post-
trial motions must be filed." Frank & Gale, Pennsylvania Family
Practice Manual §2.09(B), at 59 (1990) (emphasis in 'original).
Although Defendant has characterized his filing',as "Exceptions
to the Opinion and Order of Court," it will be rega ded as a post-
trial motion. See Liberto v. Liberto, 360 Pa. Super284, 520 A.2d
458 (1987); Pa. R.C.P. 126 (prescription of libera construction
and application of rules).
3 The issue regarding the alleged marita debt is the
exclusive subject of Defendant's brief on his posttrial motion.
See C.C.C.P. 210-7. Although the brief is titled "D fendants Brief
in Support of His Exceptions to Master's Order," it hould be noted
that no master was involved in the present case.
No. 3493 Civil 1988
The parties were married on October 6, 1979, and separated on
or about September 14, 1988.4 Affidavits of consent to a divorce
were filed by the Plaintiff and Defendant on Marc 5, 1992, and
February 21, 1992, respectively.' However, economic issues as to
equitable distribution of marital property and Plaintiff's claim
for counsel fees, costs and expenses were no resolved by
agreement.'
A pre -hearing conference was held on February 13, 1992. At
the conference, counsel stipulated that the mair. issue to be
resolved by the Court in the case was whether the parties'
residence in East Pennsboro Township, Cumbe land County,
Pennsylvania, was marital property, and if so to what extent.'
Following a hearing on March 27, 1992,8 the ourt found in
favor of Defendant on both economic issues, denyi g Plaintiff's
request for attorney's fees, costs and expenses a d determining
that the residence, which was titled in Defenda it's name, was
4 See Opinion and Order of Court, Findings of Vact, April 29,
1992, paragraph 9. Facts recited herein with ref rences to the
Court's Opinion and Order have not been made the subject of
Defendant's motion and will thus be regarded for present purposes
as accepted by the parties.
' Id., paragraph 7.
6 Id., paragraph 8.
' Stipulation of Counsel, February 13, 1992, accepted, Order
of Court, February 13, 1992.
8 See Opinion and Order of Court, April 29, 11192, at 1 n.l.
2
No. 3493 Civil 1988
marital property only to the extent of its increase
value during
the marriage.' As a consequence of the latter holding, Defendant
was accorded sole ownership of an unencumbered residence worth
$118,000;10 the marital estate amounted in value to only
$47,500.11
Notwithstanding the foregoing outcome, Defend*nt now argues
that $26,300 of approximately $60,000 given to Del ndant by his
father over many years should have been considered marital debt
and joint obligation of the parties.12 In this re ard, however,
the moneys given by Defendant's father to his son sere never the
subject of any note or other document evidencing anagreementfor
repayment, were never secured as to repayment by al y mortgage or
other instrument for collateral, were never in f ac t repaid, and
were consistent in nature with the gift of land on which the son
built his home.
To impose a legal undertaking On the part of
' See Opinion and Order of Court, April 29, 11
10 Id., Findings of Fact, paragraph 26.
)92.
11 Id. The marital estate was divided as follows: 60% to
Plaintiff wife and 40% to Defendant husband. It i3 noted in the
Defendant's brief that "[t]he Defendant does not ob ect to the 60%
- 40% distribution of the marital assets." Defen ants Brief in
Support of His Exceptions to Master's Order, at 3.
12 Defendant's Brief in Support of His Exceptions to Master's
Order, at 2. Most of the money given by Def endant 's father was
used by Defendant to pay off a mortgage on Defendant's home; as a
consequence, Defendant seeks to categorize only a Dortion of the
funds as a joint debt. Defendant's Brief in S pport of His
Exceptions to Master's Order, at 2.
3
No. 3493 Civil 1988
Plaintiff to repay funds given to her husband by hid
these circumstances would be unsupportable.
father under
"If a voluntary delivery of personal property be proved, and
a subsequent retention by the donee, a presumption of donative
intent ordinarily arises, at least where the claimed gift is
between relatives, in the absence of evidence of circumstances
inconsistent therewith." 17 P.L.E. Gifts X41, at 143 (1986)."
More specifically, "[t]here is a presumption that assets
transferred between parent and child are gifts. ." Eckell v.
Borbidge, 114 B.R. 63, 67 (E.D. Pa. 1990). This presumption is
entirely appropriate to the present case.
The Court en banc incorporates the Court's deci'ion previously
entered on April 29, 1992, a copy of which is attached hereto and
made, a part hereof. Contemporaneously herewith a decree of
divorce and a decree respecting equitable distri ution will be
entered in accordance with the decision.
ORDER OF COURT
AND NOW, this ►'Zt4 day of August, 1992, upon careful
consideration of Defendant's post -trial motion, and for the reasons
stated in the accompanying Opinion, the Motion is DENIED. A Decree
of Divorce and a Decree Respecting Equitable Distribution are
4
No. 3493 Civil 1988
entered contemporaneously herewith.
David H. Stone, Esq.
Attorney for Plaintiff
Barbara J. Patton, Esq.
Attorney for Defendant
:rc
BY THE COURT,
5
Wes
J.
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
DECREE RESPECTING EQUITABLE DISTRIBUTTs
AND NOW, this IZ,, day of August, 1992, it ordered and
decreed as follows:
(1) Title to all marital property in the possession of
the parties shall be vested in the party having possession thereof;
and
(2 ) Defendant husband shall pay to Plainti:
of $27,000.00 within 120 days of April 29, 1992.
BY THE COURT,
David H. Stone, Esq.
Attorney for Plaintiff
Barbara J. Patton, Esq.
Attorney for Defendant
:rc
Ef wife the sum
J.
IN THE COURT OF COMN
s
OF CUMBERLAND COI
STATE OF PEN
c
----Diane-- W -----Bretz_- -- --- ----- --------- --------------
'349
N c ...........
-------------------------------------------------------------------------------
Versus
David R. Bretz, Jr.
1
DECREE Ih
n��inDrC
•o
i
N PLEAS
TY
s
ivil88
..................19
AND NOW, ....('►.v. �v S�...1292
......... 19 ..... ii is ordered and `
y
Diane W. Bretz
decreed that..... plaintiff,
ok .:
David R. Bretz, Jr.
and.................................................... .. , defendant,
are divorced from the bonds of matrimony.
The court retains jurisdiction of the following claims which have
been raised of record in this action for which a final order has not yet
• been entered;
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---
o
By The Court
-------------
Attest: -- ----- Attest.
t 4
r
Prothonotary
'i
DIANE W. BRETZ,
Plaintiff
V.
DAVID R. BRETZ, JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COU TY, PENNSYLVANIA
CIVIL ACTION -'LAW
NO. 3493 CIVIL'1988
IN DIVORCE
BEFORE OLER, J.
ORDLR OF COURT
AND NOW, this 2 1?A day of April, 1992, for
forth in the accompanying Opinion, it is ordered
follows:
the reasons set
and directed as
(1) A divorce decree pursuant to Secti'n 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 tie possession of
the parties shall be vested in the party having possession thereof;
and
(3) Defendant husband shall pay to Pl intiff 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,
Plaintiff
V.
DAVID R. BRETZ, JR.,
Defendant
OLER, J.
IN THE COURT OF C MMON PLEAS OF
CUMBERLAND COUNTYL PENNSYLVANIA
CIVIL ACTION -
NO. 3493 CIVIL 1188
IN DIVORCE
IN RE: DIVORCE AND ECONOMIC CLAIMS
BEFORE OLER, J.
l;;
OPINION AND ORDER OF COURT
In the present divorce action, which has been
Court,' claims to be resolved involve equitable di
heard by the
stribution of
marital property and Plaintiff's request for counsell fees, costs
and expenses.' In connection with equitable distribution, the
question of primary importance is whether a cert lain house in
Defendant's name, located in East Pennsboro Townshi , is marital
property.
FINDINGS OF FACT
1. The Plaintiff is Diane W. Bretz; she re ides, now or
formerly, at 60 Central View Road, Dillsburg, York County,
Pennsylvania.
2. The Defendant is David R. Bretz; he reside 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, at N . 3493 Civil
1988 (Direction that case be heard by Court becau a of Divorce
Master's prior representation of party). The hear'ng before the
Court in this case was conducted on March 27, 1992.;
2 Stipulation of Counsel, February 13, 1992.
No. 3493 Civil 1988
4. The parties were married on October 6, ]979, in East
Pennsboro Township, Cumberland County, Pennsylvania.
5. Both parties had resided in the Co onwealth of
Pennsylvania in excess of six months prior to the filing of the
Complaint herein on November .a, 1988, and both cont nue to reside
in the Commonwealth.
6. One child was born of the parties' marriagei, 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(c) Of the Divorce
Code were filed on March 5, 1992, by Plaintiff andIFebruary 21,
1992, by Defendant.
8. By stipulation of counsel dated February 13,1 1992, issues
in the case remaining to be resolved are equitable distribution of
marital property and Plaintiff's claim for counsel f''es, 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 age' of Defendant
husband is 38.
12. Neither of the parties is in poor health.
2
No. 3493 Civil 1988
13. Plaintiff wife is employed as a Senior Cu tomer Service
Representative with Pennsylvania Blue Shield id Camp Hill,
Pennsylvania; Defendant husband is self-employed asi a landscaper
and light construction worker, based in Enola, Penn ylvania.
14. Plaintiff wife rece=ives a net salary of 14,736.80 per
year; Defendant husband has a net income of $17,3521'00 per year.
15. Plaintiff wife is a high school graduat . Defendant
husband presently has a bachelor's degree in structur 1 engineering
and is working toward a master's degree; at thelll time of the
parties' separation, he had a high school diploma an some college
credits.
16. Plaintiff wife has no substantial estate in', her own name.
Defendant husband is the owner of a house at 110 Carol Lane, Enola,
Pennsylvania, which had a market value of $78,000.0 at the time
of the parties' marriage and was subject to a constru 11 tion mortgage
in the principal amount of $38,400.00; a 1977 pic Ip truck; and
various household items, including a washer, dryer,:refrigerator,
and freezer, inter alia.
17. Plaintiff wife has no substantial liabiliti s. Defendant
husband has some liabilities, including approximatell $2,000.00 in
credit card debt. He also recognizes a moral obliglltion to repay
approximately $60,000.00 given to him by his father ovIer the years.
18. Neither party has any special needs at thelresent time.
19. Neither party contributed in a major way o the other's
3
No. 3493 Civil 1988
education, training or increased earning power, but ife should be
credited in some measure with assistance in coinection 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 formal education.
21. The sources of income of both parties are their jobs, as
previously identified.
22. Both parties contributed to such marital pr'perty as they
accumulated; neither party dissipated marital assets.
23. During the parties' marriage, they enjoyed middle class
standard of living, but depended heavily upon the kindness of the
father of Defendant husband for financial support.
24. The economic circumstances of each party ',are presently
adequate to meet their needs. Plaintiff wife live with a male
companion and finds that her financial situation is bletter than in
the past when her father-in-law found it necessall 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 five�year-old son,
Neil.
26. With respect to marital property, the foll wing findings
are made:
4
No. 3493 Civil 1988
a. The residence at 110 Carol Lane, Enol [East
Pennsboro Township], Cumberland County, Pennsylvania, was
acquired by Defendant husband prior to the partes' marriage,
was titled in Defendant's name alone, and has Aever been
titled in Plaintiff wife's name.
b. The cost of materials for the house atI'said address,
which was built by Defendant and his friends p4ior to the
marriage,' was approximately $38,000.00, finan ed by a loan
to Defendant from the Harris Savings Association, said loan
being eventually paid off during the marriage hrough 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 residenc , including
the lot, which residence is found to be non-ma�ital
property of the Defendant husband, at the time of the
parties' marriage was $78,000.00.
d. The fair market value of the residencd at the time
of the parties' separation after nine years of 'marriage
was $112,000.00, representing an increase in va ue during the
marriage of $34,000.00.
e. The fair market value of the residenc' at the
present time is $118,000.00.
' Plaintiff wife assisted in the constructior.
way - e.g., on occasion making meals with her future
for the workers.
5
in a minimal
mother-in-law
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 parties' marriage, was titled in
Defendant's name alone, has never been titled n Plaintiff
wife's name, and is hereby found to be nonmari al property
of Defendant; its value is estimated to be $500.00.
h. A washer, dryer, refrigerator, and fr ezer located
at the aforesaid residence, as well as a numbei of household
items, tools, and pieces of exercise equipment were acquired
by Defendant husband prior to the parties' mar iage, 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 of $2,500.00 from
Defendant's father, are hereby found to be norma ital property
of Defendant, and are estimated to have a present value of
$7,000.00.
j. Items of marital property in the poss ssion of
Plaintiff wife, including a living room set, a e estimated
to have a value of $1,500.00.
k. Items of marital property in the poss ssion of
C
No. 3493 Civil 1988
Defendant husband, including four automobiles
tractor cadet, are estimated to have a value o
nd a cub
$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.
itable Dist
DISCUSSION
Marital estate. As noted in Plaintiff wife'slbrief, "[t]he
significant issue in the within case is the determination of
whether or not the marital residence is marital
this regard, "'marital property' means all propert
either party during the marriage ... [and does
p]roperty acquired prior to the marriage."
§3501(a)(1). Marital_ property also includes "the
value, prior to the date of final separation, of
property acquired [prior to marriage]." Id.S
"In construing Pennsylvania's Divorce Code, we
Pennsylvania legislature's scheme which separates t
defining marital property from the factors for distri
4 Plaintiff's Memorandum containing Proposed F
and Conclusions of Law, at 7.
operty.i4 In
acquired by
not include
23 Pa. C. S.
increase in
nonmarital
t follow the
factors for
ting marital
ngs of Fact
5 "Property 'acquired' during marriage now I includes the
'increase in value' of all premarital assets bought to the
marriage Perlberger, Pennsylvania Divorce Code §401, at 27
(1988 Supp.).
7
No. 3493 Civil 1988
property. Time of acquisition is the factor that tie legislature
mandates the courts use in determining whether roperty is a
marital asset." Anthony v. Anthony, 355 Pa. Super. 589, 594, 514
A.2d 91, 93 (1986). "Because it is the time, ra her than the
manner, of acquisition that determines whether proper y 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 du ing marriage,
it has been said that "the 'value' referred to is th market value
of property Clapper v. Clapper, 25 D. & C.3d 467, 475
(Somerset Co. 1982) (case involving alleged increa a 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 Del endant 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 tD separation -
i.e., $34,000.00 - represents marital property, subject to
equitable distribution. The latter figure, when added to the value
N.
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 desighed to "effectuate ec nomic 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 kin or otherwise,
the marital property between the parties ... in such 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 clear line of cases
obliterating [any] 50-50 starting point concept [in connection with
a division of marital property under the Code]." 'Frank & Gale,
Pennsylvania Family Practice Manual §7.02(J)(1), at 223 (1990).
"Rather, the factors enumerated in S[3502(a)] of t'e 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) tht age, health,
station, amount and sources of income, voca Tonal skills,
employability, estate, liabilities and needs of each of the
parties; (4) the contribution by one party to the education,
training or increased earning power of the other 'party; (5) the
E
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, insur nce 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 cf a party as
homemaker; (8) the value of the property set apart to each party;
(9) the standard of living of the parties establi hed during the
marriage; (10) the economic circumstances of each Farty, 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 Jependent minor
children. 23 Pa. C.S. §3502(a).
The Court agrees with the contention of Plaintiff wife that
n applying the equitable distribution factors et forth in 3502
of the Divorce Code, ... a majority of the marital assets should be
awarded to her.i6 Her vocational skills, education, and earnings
and earning capacity are less than her husband's, her economic
circumstances are considerably inferior to his y 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 particularly great.
Under the circumstances, the Court believes that distribution of
6 Plaintiff's Memorandum containing Propose
and Conclusions of Law, at 14.
10
Findings of Fact
No. 3493 Civil 1988
60% of the marital estate, or $28,500.00, to Plain iff wife and
40%, or $19,000.00, to Defendant husband will be equitable; since
Defendant presently holds all but $1,500 of the marital estate, he
will be directed to pay $27,000.00 to Plaintiff.
Attorney's Fees, Costs and Expenses
Under Section 3323 of the Divorce Code, a Court s decree in a
divorce action is to include a determination with regard to an
award of reasonable attorney's fees, costs and expense's where these
issues are raised in the pleadings.' However, '[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.
Fitzpatrick, 377 Pa. Super. 268, 281, 547 A.2d 362'1 369 (1988).
"Counsel fees are appropriate when necessary to put the parties 'on
a par' in defending their rights or allowing a dependent spouse to
maintain or defend an action for divorce." Johnson 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 marit 1 estate many
times in excess of the fees which she is expected to Pay. For this
reason, the Court does not believe that an award ofcounsel fees,
costs and expenses would be appropriate.
23 Pa. C.S. §3323; see also 23 Pa. C.S. §372.
11
No. 3493 Civil 1988
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the partie
matter in this litigation.
and subject
2. The parties are entitled to entry of a dec�ee in divorce
pursuant to Section 3301(c) of:the Divorce Code.
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 awakd 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 301(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 posse sion thereof;
and
(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 th*s Order.
David H. Stone, Esq.
Attorney for Plaintiff
Barbara J. Patton, Esq.
Attorney for Defendant
BY THE COURT,
s/ J. Wesley Oler, Jr
13
M