Zollars v. Zollars

579 A.2d 1328, 397 Pa. Super. 204, 1990 Pa. Super. LEXIS 2638
CourtSupreme Court of Pennsylvania
DecidedAugust 28, 1990
Docket1895
StatusPublished
Cited by27 cases

This text of 579 A.2d 1328 (Zollars v. Zollars) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zollars v. Zollars, 579 A.2d 1328, 397 Pa. Super. 204, 1990 Pa. Super. LEXIS 2638 (Pa. 1990).

Opinion

KELLY, Judge:

Robert D. Zollars appeals from an order distributing marital property. He specifically takes issue with the valuation of his pension and with the trial court’s decision to award Dolores 60 percent of the marital property. We affirm the portion of the order granting Dolores 60 percent of the marital property and the valuation of his pension, but reverse as to the manner of distribution.

Robert and Dolores married in June 1959. Robert filed a complaint in divorcé in June 1984 and moved from the marital home in November 1984. The parties’ children are both emancipated and self-supporting.

Robert has been employed by the U.S. Postal Service since September 1959. His position pays approximately $29,000 annually with regular cost of living increases and *207 provides excellent medical coverage and a comfortable, vested retirement plan which matures in 1992.

Dolores was a homemaker since the birth of her first child in 1960 until April 1984. At that time she took a position in a small office with a salary of $15,700 a year but which provided no pension or health plan. Neither Dolores nor Robert are eligible for social security at this time.

After a hearing the master determined, and the trial court agreed, that Robert “has substantial economic advantages over Mrs. Zollars and that those advantages will continue.” (Tr. Ct. Opinion at 11). Accordingly, the trial court awarded Dolores 60 percent of the marital property.

The marital property was composed primarily of the marital home and Robert’s postal pension with only a few thousand dollars attributable to personal property and repayment of some small loan balances.

Exceptions were filed to the master’s report and subsequently an appeal was filed prematurely on May 25, 1989 prior to entry of the decree of divorce. That appeal was quashed. The divorce decree was finally entered on November 13, 1989 under a bifurcated proceeding. Robert then filed this timely appeal on December 7, 1989.

The sole issues raised on appeal are:

A. DID NOT THE COURT ERR IN VALUING APPELLANT’S PENSION?
B. DID NOT THE COURT ERR IN AWARDING TO APPELLEE 60 PERCENT OF MARITAL PROPERTY?

(Appellant’s brief at 6).

Prior to considering Robert’s claims of error, we reiterate the applicable standard of review.

In assessing the propriety of a marital property distribution scheme, our standard of review is whether the trial court, by misapplication of the law, or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987); Thomson v. Thomson, 359 Pa.Super. 540, 519 *208 A.2d 483 (1986); Ganong v. Ganong, 355 Pa.Super. 483, 513 A.2d 1024 (1986); Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); King. v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Moreover, “an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Sergi, supra, 351 Pa.Super. at 591, 506 A.2d at 930, citing Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom, against the provisions of 23 P.S. § 401(d), and the avowed objectives of the Divorce Code, that is, to “effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.” 23 P.S. § 102(a)(6).

Hutnik v. Hutnik, 369 Pa.Super. 263, 266-7, 535 A.2d 151, 152 (1987); Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990).

With this standard in mind, we first address Robert’s dissatisfaction with Dolores’ award of 60 percent of the marital property. We find no abuse of discretion in this award. Our review of the records and transcripts lead us to the same conclusion as that of the master and the trial court. Robert has far greater income, security and benefits available to him than any that may be available to Dolores presently or in the remainder of her working years. Malseed v. Malseed, 388 Pa.Super. 214, 565 A.2d 453 (1989). Accordingly, we find no abuse of discretion in the award.

Robert’s remaining issue is more problematical. Any portion of Robert’s pension attributable to the period from when he was hired through the time of separation is unquestionably marital property. Liciardello v. Liciardello, 391 Pa.Super. 219, 570 A.2d 1062 (1990); Hunsinger v. Hunsinger, 381 Pa.Super. 453, 554 A.2d 89 (1989); Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). The problem here, as in many divorce *209 situations, is how the court is to divide assets that are, as yet, not in the physical possession or control of the parties.

The two primary methods of distribution utilized in this Commonwealth are the immediate offset and deferred distribution. Immediate offset, simply stated, involves reducing all marital property to a present value and then distributing the assets between the parties in accordance with the percentages determined by the court. This is only workable when such present value can be determined and when the assets are sufficient to allow for payments necessary between the parties. Liciardello, 570 A.2d at 1065; Hutnik, 535 A.2d at 154.

In the case before us the two largest marital assets are the marital residence with equity in the amount of $52,104 as of the hearing and Robert’s pension plan. Robert has claimed that the present value of his pension as of separation was $54,825.60. Robert bases this on figures computed using the tables of the Pension Benefit Guarantee Corporation. These tables were designed for use when the employer or other pension guarantor has gone out of business, and no further growth is anticipated. 1 This is not the case with Robert’s pension which continues to grow and which will be supplemented by regular cost of living increases. Growth of the marital contribution is marital property.

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Bluebook (online)
579 A.2d 1328, 397 Pa. Super. 204, 1990 Pa. Super. LEXIS 2638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zollars-v-zollars-pa-1990.