Mackalica v. Mackalica

716 A.2d 653, 1998 Pa. Super. LEXIS 1689
CourtSuperior Court of Pennsylvania
DecidedAugust 13, 1998
StatusPublished
Cited by1 cases

This text of 716 A.2d 653 (Mackalica v. Mackalica) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mackalica v. Mackalica, 716 A.2d 653, 1998 Pa. Super. LEXIS 1689 (Pa. Ct. App. 1998).

Opinion

TAMILIA, Judge:

Appellant, Susan E. Mackalica (hereinafter wife), challenges the Order of June 30, 1997, whereby the trial court modified and then adopted the master’s recommendations regarding equitable distribution of the marital estate. First, wife claims the trial court erred by failing to reconsider the master’s scheme of equitable distribution, which was based on an erroneous burden of proof. She argues that the presumption of marital property may be rebutted by a preponderance of the evidence, rather than clear and convincing evidence. Second, wife contends the trial court improperly refused to award her the full fair rental value of her nonmarital, real property based on a claim for child support. She maintains that contrary to the master’s finding, she never conceded husband’s entitlement to rental value as quid pro quo for his not filing for child support. ' She also argues that rental value cannot be offset against a claim for child support for which no complaint was ever filed.

Appellant and appellee, James S. Maekali-ca, were married on June 28, 1975 and separated on June 25, 1993 when wife left the marital residence. Their marriage produced two children, and husband has an adult daughter from a prior marriage. Husband has a tenth grade education and currently works as a heavy equipment operator, earning a gross 1994 income of $25,700. Wife has an associate’s degree in industrial management and is a limited partner in her family’s business, the Hilliard Family Limited Partnership. Her 1994 wage and tax statement (W-2) indicates an annual income of $11,532.

On June 2, 1993, wife filed a complaint in divorce and thereafter, a pro se petition for protection from abuse, which was withdrawn by agreement of the parties. Thereafter, wife filed a complaint for custody of the couple’s two children and a petition for special relief, seeking possession of the marital [655]*655home.1 The custody conciliator subsequently determined that efforts at conciliation were premature as “the right to possession of [the marital home] will influence mightily the decision as to custody.” Record # 10, Conciliator’s Report, 5/16/95, at 1. On May 19, 1995, the trial court issued an Order, which continued the parties’ current custody “arrangement” and prohibited either party from making negative comments about the other while in the presence of the children. Husband remained in the marital home with the children.

In June of 1995, wife filed a petition for civil contempt of the custody Order of May 19th and a motion for the appointment of a master. Although the trial court dismissed the petition for civil contempt, it granted wife’s petition for special relief and ordered husband to vacate the marital home. The court gave wife primary custody of the children and appointed a master.

On October 3, 1995, the master held a hearing and subsequently filed her report and recommendations. The trial court entered a decree in divorce, and the parties filed exceptions to the master’s recommendations of equitable distribution. The trial court then modified and adopted the master’s recommendations by Order dated June 30, 1997. Wife filed notice of this appeal.

The instant appeal concerns two pieces of real property. The first property is the marital home at 153 Beaver Dam Road, Butler County, Pennsylvania. Wife’s parents previously owned the property and in 1989, they deeded it to wife. The trial court found that this property constituted wife’s separate, nonmarital property, and neither party challenges this finding.2 The second property consists of the 30 acres of land adjoining the marital residence.3 In 1977, wife purchased the property from her brother for $2,000 (Master’s Hearing, N.T., 10/3/95, at 42, 118). Apparently, the property was placed in the names of husband and wife as tenants by the entirety. However, the property had been deep mined, and the Hilliard family business possessed mineral rights over it (N.T. at 129-130).

On appeal, wife argues the trial court erred by adopting the master’s report, which utilized an erroneous standard of proof in determining whether wife had shown that the 30 acres of land was nonmarital property. Generally, “[a]ll real or personal property acquired by either party during the marriage is presumed to be marital property.” 23 Pa.C.S.A. § 3501, Definitions, (b) Presumption. The presumption of marital property is not affected by the name in which title is held or the form of co-ownership. Id, Nevertheless, the presumption may be overcome by a showing that the property fits within certain exceptions. Id. In this ease, wife attempted to show that the 30 acres of land was not marital property because it fit within the exception for “[p]roperty acquired prior to marriage or property acquired in exchange for property acquired prior to the marriage.” 23 Pa.C.S.A. § 3501(a), General rule, (1).

At the equitable distribution hearing, wife^ acknowledged that the property was acquired during the marriage (N.T. at 42).4 Thereafter, the master cited Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223 (1986), and found that wife had not overcome the presumption of marital property by presenting clear and convincing evidence to the contrary. Record # 18, Master’s Report, 11/22/95, at 5. Consequently, the master held that the 30 acres of land was marital property.

After reviewing the record, we conclude that the master applied an erroneous burden of proof. In Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), the Pennsylvania Supreme Court held that it is sufficient to rebut the presumption of marital property by [656]*656a preponderance of the evidence. Thus, the court plainly overruled this Court’s decision in Brown, supra, which had previously required clear and convincing evidence. Husband maintains that the Sutliff and Brown cases apply to separate contexts. However, this assertion is without merit. Husband simply misconstrues language in the Sutliff decision. Sutliff, 543 A.2d at 538. The Sut-liff court did not state that the Brown decision applied to a separate context. Rather, it indicated that its own decision in Holmes’ Estate, 414 Pa. 403, 200 A.2d 745 (1964), involved a separate context, i.e. that of an individual dying intestate. Both Sutliff and Brown construe section 401(f) of the Divorce Code, which is now section 3501(b). Consequently, the presumption of marital property may be rebutted by a preponderance of the evidence.

Having said this, wife’s allegation of error must still fail. Under any standard of proof, wife has simply failed to demonstrate that the 30 acres of land constituted nonmarital property. Wife maintains that the 30 acres were purchased with her separate funds contained in a Mellon Bank savings account, which was closed in 1978 (N.T. at 46, 48-49). However, she provided absolutely no documentation to support such a claim (N.T. at 42-43, 46 — 47). Aside from wife’s testimony, there is no evidence that the savings account existed, no evidence that the funds contained in such an account constituted premarital property, and no evidence connecting the withdrawal of funds to the purchase of the 30 acres of land.

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Related

MacKalica v. MacKalica
716 A.2d 653 (Superior Court of Pennsylvania, 1998)

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Bluebook (online)
716 A.2d 653, 1998 Pa. Super. LEXIS 1689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackalica-v-mackalica-pasuperct-1998.