Capo v. Capo

32 Pa. D. & C.3d 435, 1984 Pa. Dist. & Cnty. Dec. LEXIS 338
CourtPennsylvania Court of Common Pleas, Beaver County
DecidedJanuary 12, 1984
Docketno. 1219 of 1981
StatusPublished

This text of 32 Pa. D. & C.3d 435 (Capo v. Capo) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Beaver County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Capo v. Capo, 32 Pa. D. & C.3d 435, 1984 Pa. Dist. & Cnty. Dec. LEXIS 338 (Pa. Super. Ct. 1984).

Opinion

SAWYER, P.J.,

This case comes before us on exceptions filed by both parties to the report and recommendations of the master appointed in this divorce proceeding. The complaint in divorce was filed on June 17, 1981 by plaintiff-husband. W. John Rackley was appointed a master to hear testimony and recommend to the court action with regard to the following:

1. the action of divorce

2. equitable distribution of the property

3. alimony

4. counsel fees

Following several days of hearing, the master submitted his report to the court which recommended [436]*436that the divorce be granted, that the marital assets be distributed 60 percent to plaintiff-husband and 40 percent to defendant-wife, that plaintiff pay $750 of defendant’s counsel fees, and that plaintiff bear the costs of the proceedings. Both parties filed numerous exceptions to the master’s findings and recommendations. Plaintiff’s exceptions relate to the inclusion of various assets as marital property, the valuation of various assets, the master’s finding of a reconcilliation in 1975 and subsequent final separation date for purposes of the equitable distribution, and the awarding of counsel fees and allocation of costs. Defendant’s exceptions are all related to the distribution of the assets 60 percent to plaintiff and 40 percent to defendant. Having heard oral argument on the exceptions, we now review the findings and recommendations of the master.

At the outset, we note that our scope of review of the master’s recommendations and findings is broad. Although the factual findings of the master are to be given the fullest consideration due to his actual observation of the demeanor of the witnesses, nevertheless those findings are advisory only. The court must still independently satisfy itself as to witness credibility and the appropriateness of the recommendations. Aloi v. Aloi, 290 Pa. Super. 125, 434 A.2d 161 (1981); Rollman v. Rollman, 280 Pa. Super. 344, 421 A.2d 755 (1980). Thus the court has the power to make its own factual determinations. Fishel v. Fishel, 217 Pa. Super. 171, 269 A.2d 372 (1970).

DIVORCE

In the case before us, both husband and wife have executed affidavits of consent pursuant to §201(c) of the Pennsylvania Divorce Code of 1980, and the grounds for the divorce are that the mar[437]*437riage is irretrievably broken. Because the residence requirements of §302 of the Divorce Code have been met, and because the consents have been filed, we are in accord with the master’s recommendation that the divorce prayed for be granted.

EQUITABLE DISTRIBUTION

The divorce issue having been resolved, we must address the issue of equitable distribution. Factors which the court should consider are enumerated in Section 401(d) of the Divorce Code and include:

(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 party to the education, training, or increased earning power of the other party.

(5). The 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 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 at the time the division of property is to become effective.

[438]*438In the case before us, the parties have been married for 25 years. This was the first marriage for each of them. Plaintiff, aged 46, and defendant, aged 44, are both in good health at present, although in the mid-70’s, defendant had been suffering from medical problems for which she underwent surgery. Apparently, she is once again in good health. Plaintiff, who has several years of college education, is employed as an antique furniture dealer and a real estate investor and salesman; he is part owner of the antique furniture store in which he works (Capo Furniture), and he is a partner in a company which purchases rental investment properties (Elm Lawn, Inc.). From both property owned and rented by Elm Lawn as well as property individually owned and rented by plaintiff, plaintiff has rental income. Defendant is employed as a sales clerk for K-Mart. Although she has three months business training and worked as a bookkeeper for Capo Furniture, she has never obtained formal training in bookkeeping which would make her skills much more marketable. She presently earns between $125 and $130 per week. For $9.90 per month, defendant is provided some health and accident insurance by her employer, but she will not be eligible for any retirement benefits unless she works at least seven more years for K-Mart. Neither party contributed to the education or training of the other. Considering plaintiff’s present skills, personal and business contracts, and his present real estate and business holdings, he has a good opportunity for future acquisitions of capital assets and income; defendant, in comparison, has little opportunity for further acquisitions.

Although plaintiff provided the money with which all of the marital assets were acquired and has provided the funds to maintain them, defendant [439]*439has apparently provided all or nearly all of the homemaker services, providing for the domestic comfort and well being of plaintiff, and entertaining plaintiff’s business associates. Defendant also has continuously lived with and cared for the parties’ son (who is now 21) throughout his entire life. Through the contributions of both plaintiff and defendant, the parties were able to achieve a comfortable standard of living.

The economic circumstances of the parties is discussed in more detail below, but can be summarized as follows. Plaintiff has non-marital assets totalling $105,343, he has ownership interests in Capo Furniture and Elm Lawn, Inc., and other parcels of income producing real estate, and he is likely to acquire capital assets and income in the future. Defendant, on the other hand, has no non-marital assets, has a limited income of $125 to $130 net per week, and has, realistically, no opportunity for future acquisitions of capital or income. The marital assets to be equitably distributed total $332,320.

Before discussing how the marital estate shall be distributed, we first shall explain how we determine what was to be included in the marital estate and how both the marital and non-marital assets were valued.

Section 401(e) of the Divorce Code provides an extensive definition of “marital property”. It includes all property acquired by either spouse during the marriage, regardless of how title is held. It also includes all property acquired during the marriage until the final separation.

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Related

Aloi v. Aloi
434 A.2d 161 (Superior Court of Pennsylvania, 1981)
McDivitt v. Pymatuning Mutual Fire Insurance
449 A.2d 612 (Supreme Court of Pennsylvania, 1982)
Rollman v. Rollman
421 A.2d 755 (Superior Court of Pennsylvania, 1980)
Fishel v. Fishel
269 A.2d 372 (Superior Court of Pennsylvania, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
32 Pa. D. & C.3d 435, 1984 Pa. Dist. & Cnty. Dec. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capo-v-capo-pactcomplbeaver-1984.