Birkel v. Birkel

24 Pa. D. & C.3d 499, 1982 Pa. Dist. & Cnty. Dec. LEXIS 258
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedDecember 28, 1982
Docket10974 of 1981
StatusPublished

This text of 24 Pa. D. & C.3d 499 (Birkel v. Birkel) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Birkel v. Birkel, 24 Pa. D. & C.3d 499, 1982 Pa. Dist. & Cnty. Dec. LEXIS 258 (Pa. Super. Ct. 1982).

Opinion

WETTICK, J.,

This is a claim for equitable distribution and counsel fees. The parties were married on May 31,1977; they separated on January 29, 1981; and they were divorced on May 25, 1982.

Prior to the hearing, the parties divided all marital assets and marital debts except for a house which the husband occupies. At the hearing, the testimony established that these marital assets and debts (excluding the house) were divided more or less equally and that the parties were generally satisfied with the division. We find the division to be equitable and will not disturb the status quo with respect to these assets and debts.

I

The major dispute involves a house in the Mt. Washington section of Pittsburgh which the husband owned prior to the marriage and continues to occupy. This house, which continues to be titled in the [500]*500husband’s name, served as the marital residence. During the marriage, the parties spent at least $12,000 of marital funds and substantial time in making major improvements to the exterior and interior of the house. In addition, the mortgage balance on the property decreased from $15,054 to $13,221 between the date of marriage and the date of separation.

Both parties agree that on the date of their marriage the property was worth approximately $25,000 and that its value increased during the marriage solely as a result of the improvements that the parties made to the house. It is the husband’s opinion that the property had a fair market value of $35,000 on the date of the parties’ separation while the wife’s expert witness valued this property at between $45,000 and $50,000. We find the wife’s evidence to be more persuasive and value the property at $45,000.

II

The wife’s effort to include the increased value of the marital residence as part of her equitable distribution claim raises the issue of how to classify property acquired prior to a marriage whose value has increased during the marriage. The issue arises because the Pennsylvania Divorce Code of 1980 provides for the equitable distribution of only property acquired by either party during the marriage.

While the appellate courts of Pennsylvania have not yet addressed the issue of whether the increase during the marriage in the value of property owned by a party prior to the marriage constitutes property acquired during the marriage, there is substantial case law from other jurisdictions addressing this issue. The issue arises in the community property states because property acquired prior to the marriage does not constitute community property. Also, the issue arises in those equitable distribution [501]*501jurisdictions whose legislation subjects to equitable distribution only property acquired during the marriage without specifically addressing the issue of whether an increase in the value of separate property constitutes marital property.1

The appellate courts of those jurisdictions without legislation specifically addressing this issue characterize as marital property the increase in the value of the separate property if this increase resulted from the contributions and joint efforts of the parties during the marriage, and characterize as non-marital property the increase in the value of the separate property if this increase resulted from inflation and other economic factors. See, e.g., Mol v. Mol, 147 N. J. Super. 5, 370 A. 2d 509 (1977); In re Marriage of Johnson, 625 P. 2d 720 (Court of Appeals, Washington, 1981); Nelson v. Nelson, 114 Ariz. 369, 560 P. 2d 1276 (Court of Appeals, Arizona, 1977); Jensen v. Jensen, 629 S.W. 2d 222 (Court of Appeals, Texas, 1982); Bowman v. Bow[502]*502man, 639 P. 2d 1257 (Court of Appeals, Oklahoma, 1981); Newkirk v. Newkirk, 9 F.L.R. 2089 (Supreme Court, Neb., 1982). Also see In re Marriage of Lattig, 318 N.W. 2d 811 (Court of Appeals, Iowa, 1982).

Moreover, even some courts whose legislation specifically classifies any increase in value during the marriage as separate property have included as marital property those increases in value resulting from the contributions and efforts of the parties during the marriage. See In re Marriage of Lee, 87 111. 2d 64, 430 N.E. 2d 1030 (Supreme Court of Illinois, 1981); Hull v. Hull, 591 S.W. 2d 376 (Court of Appeals, Missouri, 1979). Also see Darling v. Darling, 444 A. 2d 20 (D.C. Court of Appeals, 1982).

The major areas of disagreement involve whether an increase in the value of the separate property will be included as marital property if there was substantial maintenance but no major improvements (compare Nelson v. Nelson, supra, Marriage of Kennedy, 418 N.E. 2d 947 (1981) with In re Marriage of Brown, 587 P. 2d 361 (Supreme Court, Montana (1978)), In re Marriage of Johnson, supra); whether an increase in value attributable primarily to the owning spouse’s efforts will be included as marital property (see e.g., Scherzer v. Scherzer, 136 N.J. Super. 397, 346 A. 2d 434 (1975); Jensen v. Jensen, supra); under what circumstances will the nature and extent of the improvements to the separate property convert the entire asset into marital property (compare Agent v. Agent, 604 P. 2d 862 (Court of Appeals, Oklahoma, 1979), In re Marriage of Metcalf, 598 P. 2d 1140 (Supreme Court, Montana, 1979) with In re Marriage of Westphal, 426 N.E. 2d 303 (Court of Appeals, Illinois, 1981)); how to apportion increases in value which are attributable to both major improvements [503]*503and inflation (compare Brandenburg v. Brandenburg, 617 S.W. 2d 871 (Court of Appeals, Kentucky, 1981) with In re Marriage of Herron, 608 P. 2d 97 (Supreme Court, Montana, 1980), Cockrill v. Cockrill, 124 Ariz. 50, 601 P. 2d 1334 (Supreme Court, Arizona, 1979); and where does the burden of proof rest in those jurisdictions where increases in value can be apportioned (compare Halsey B. S. v. Charlotte S. S., 419 A. 2d 962 (Family Court of Delaware, 1980), Cockrill v. Cockrill, supra, with In re Marriage of Johnson, supra).

This court will follow the case law which includes as marital property any increases in the value of separately owned property that can be attributed to the substantial contributions and joint efforts of the parties to the marriage. This result is dictated by the principles of equitable distribution.

Equitable distribution is a property division based upon the concept of marriage as a shared enterprise in which both parties are deemed to have contributed to the acquisition and preservation of the parties’ assets. In distributing the parties’ assets, a court shall give no consideration to title; the contribution of the parties has replaced title as the controlling factor. Thus if the marital assets and joint efforts of the parties contributed to the value of an asset, this asset should not be entirely outside the marital enterprise. A construction of the Divorce Code which excluded from equitable distribution increases in the value of separate property that can be directly traced to the expenditure of marital funds and the joint efforts of the parties to the marriage would defeat the legislative scheme for distributing marital property by elevating title over the actual contributions of the non-owning spouse. See, generally, Paul W. v. Margaret W., 130 P.L.J. 6(1982).

Before reaching our decision, we considered Rudd [504]*504v. Rudd, 65 Erie 58 (1982), the only reported Pennsylvania case of which we are aware that has dealt with an equitable distribution claim involving the increased value of separate property.

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Related

In Re Marriage of Metcalf
598 P.2d 1140 (Montana Supreme Court, 1979)
In Re the Marriage of Herron
608 P.2d 97 (Montana Supreme Court, 1980)
In Re the Marriage of Johnson
625 P.2d 720 (Court of Appeals of Washington, 1981)
Nelson v. Nelson
560 P.2d 1276 (Court of Appeals of Arizona, 1977)
Cockrill v. Cockrill
601 P.2d 1334 (Arizona Supreme Court, 1979)
Bowman v. Bowman
639 P.2d 1257 (Court of Civil Appeals of Oklahoma, 1981)
In Re the Marriage of Brown
587 P.2d 361 (Montana Supreme Court, 1978)
Brandenburg v. Brandenburg
617 S.W.2d 871 (Court of Appeals of Kentucky, 1981)
Hull v. Hull
591 S.W.2d 376 (Missouri Court of Appeals, 1979)
In Re the Marriage of Lattig
318 N.W.2d 811 (Court of Appeals of Iowa, 1982)
In Re Marriage of Westphal
426 N.E.2d 303 (Appellate Court of Illinois, 1981)
In Re Marriage of Kennedy
418 N.E.2d 947 (Appellate Court of Illinois, 1981)
Mol v. Mol
370 A.2d 509 (New Jersey Superior Court App Division, 1977)
Scherzer v. Scherzer
346 A.2d 434 (New Jersey Superior Court App Division, 1975)
Halsey B. S. v. Charlotte S. S.
419 A.2d 962 (Delaware Family Court, 1980)
Darling v. Darling
444 A.2d 20 (District of Columbia Court of Appeals, 1982)
Jensen v. Jensen
629 S.W.2d 222 (Court of Appeals of Texas, 1982)
Agent v. Agent
604 P.2d 862 (Court of Civil Appeals of Oklahoma, 1980)
In re Marriage of Lee
430 N.E.2d 1030 (Illinois Supreme Court, 1981)

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Bluebook (online)
24 Pa. D. & C.3d 499, 1982 Pa. Dist. & Cnty. Dec. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birkel-v-birkel-pactcomplallegh-1982.