Dasher v. Dasher

542 A.2d 164, 374 Pa. Super. 96, 1988 Pa. Super. LEXIS 1730
Superior Court of Pennsylvania·Decided June 2, 1988·No. No. 174·Published·Cited by 11 cases

Opinions

WIEAND, Judge:

The principal issue in this appeal from a decree awarding equitable distribution of marital property is whether the trial court erred when it allowed interest on the distributive award made to one of the spouses for the period between separation and the entry of the decree of distribution.

Marcia Stillman Dasher, appellee, and Paul R. Dasher, appellant, were married on June 30, 1957. The couple separated in September of 1971, when the wife-appellee left the marital residence. She instituted two divorce actions, one in 1971 and one in 1978, both of which were dismissed for lack of prosecution. She commenced a third divorce action on August 11, 1980, after enactment of the Divorce Code of April 2, 1980, P.L. 63, 23 P.S. § 101 et seq.

The trial court, following a trial de novo,1 entered a decree awarding wife-appellee fifty (50%) percent of the marital property, minus a sum which the wife had previously removed from a joint savings account. The total award to the wife was $61,700.00. To this, the trial court added interest for the fourteen (14) year period between the separation of the parties and the entry of the court’s decree. This interest, according to the court’s computation, was [98] $65,076.002 and increased the amount payable by husband-appellant to $126,776.00.

Whether prejudgment interest may be awarded as part of a decree of equitable distribution is an issue which has not been addressed by the appellate courts of this Commonwealth. As a general rule, however, a successful litigant is entitled to interest beginning only on the date of the verdict. Sands v. Pennsylvania Ins. Guaranty Ass’n., 283 Pa.Super. 217, 227, 423 A.2d 1224, 1229 (1980). See also: 42 Pa.C.S. § 8101. “[Pjrejudgment interest is compensation allowed by law or fixed by contract for the use or detention of a plaintiffs property by the defendant.” Verner v. Shaffer, 347 Pa.Super. 206, 210, 500 A.2d 479, 481 (1985). Prejudgment interest for breach of contract is recoverable “[i]f the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value.” Id., quoting Restatement (Second) of Contracts, § 101. It may also be awarded when a “defendant holds money or property which belongs in good conscience to the plaintiff, and the objective of the court is to force disgorgement of his unjust enrichment.” Sack v. Feinman, 489 Pa. 152, 164, 413 A.2d 1059, 1065 (1980), quoting D. Dobbs, Remedies 169-170 (1973). Prejudgment interest in such cases is a part of the restitution necessary to avoid injustice. See: Restatement of Restitution, §§ 156 and 157.

The courts of other jurisdictions have refused to award prejudgment interest in cases involving the equitable distribution of marital property between spouses. The reason generally given for this rule is that the individual rights of the parties to specific property or funds is not established until distribution has been determined by the court. Until a decree of distribution is entered, the spouse in possession of marital property cannot know what amount is owed and, therefore, cannot be in default for failing to deliver the [99] same to the other spouse. See: Cockrill v. Cockrill, 139 Ariz. 72, 676 P.2d 1130 (1983) (until judgment, amount to which spouse is entitled not ascertainable); Appelbe v. Appelbe, 76 N.C.App. 391, 333 S.E.2d 312 (1985) (same); Watt v. Watt, 312 N.W.2d 707 (S.D.1981) (“division of property in a divorce action is designed to settle with finality the property rights of the parties as of the time of entry of judgment____ Each party is entitled to their respective property as of that date.” Id. at 711, quoting Lien v. Lien, 278 N.W.2d 436, 444 (S.D.1979).3 Cf. Riley v. Riley, 385 N.W.2d 883 (Minn.App.1986) (interest accrues on money awarded as part of property settlement only on unpaid balance from time payment due until payment made; prejudgment interest specifically prohibited by statute); Ashbrenner v. Ashbrenner, 156 Mich.App. 373, 401 N.W.2d 373 (1986) (where statute authorizing prejudgment interest applies only to money judgments in civil actions and not to property distributions in divorce judgments, trial court lacked authority to award such interest, however, court, in exercise of its discretion, could award interest pursuant to property division where specific amount ordered to be paid was overdue); Lawrence v. Lawrence, 150 Mich.App. 29, 388 N.W.2d 291 (1986) (same); Saber v. Saber, 146 Mich. App. 108, 379 N.W.2d 478 (1985) (same). Contra: Morris v. Morris, 724 P.2d 527 (Alaska 1986) (award of prejudgment interest in divorce proceedings within discretion of trial court).

Although the appellate courts of this Commonwealth have not previously considered the issue of prejudgment interest in the context of a decree equitably distributing marital property between spouses, the Supreme Court has considered whether prejudgment interest is recoverable in proceedings to dissolve a business partnership. In reversing an award of prejudgment interest in Stotsenburg v. [100] Frost, 465 Pa. 187, 348 A.2d 418 (1975), the Court said, “[ijnterest should not be allowed on partnership accounts before there has been an accounting or settlement of the same unless under the peculiar facts of the case the equities demand that interest be charged.” Id., 465 Pa. at 193, 348 A.2d at 421, quoting from Greenan v. Ernst, 408 Pa. 495, 512, 184 A.2d 570, 579 (1962).

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Dasher v. Dasher, 542 A.2d 164, 374 Pa. Super. 96, 1988 Pa. Super. LEXIS 1730 (Pa. Ct. App. 1988).

542 A.2d 164 (Dasher v. Dasher) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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