*1 arrange family reasonable and flexible opportunity but, visits if would were unable to it parties agree, consider a formal for visitation. petition appellants Since now some dissatisfaction with ar- express the visitation rangement parties out, have been able to work a visita- tion order would be if appropriate, requested by appellants. If such request made, is the lower court deal with it should expeditiously.
The extent of such visitation any order is to be determined court, discretion, the lower in its sound consistent but with the minor’s best interests. connection We note in this that the lower court has minor’s determined that the already best interests will be served to maintain a opportunity with both relationship and appellants’ appellees’ branches her Thus, such family. order must be any adequate reasonably assure the child’s continued contact with appel- lant’s branch of the without family a serious unset- causing effect on the tling minor child. the Decree of the
Accordingly, Court Division of Orphans the Court of Common Pleas of Schuylkill County designat- ing appellees guardians of the minor’s person awarding them custody affirmed and the matter is remanded to that court for further on proceedings visitation consistent with this Opinion.
v. BACCHETTA, Lena Appellant. Troiani Supreme Court of Pennsylvania.
Argued Jan. 1982. Decided May *2 Litvin, Chester, Becker, William David C. West for appel- lee. Cullen, T. Albert amicus
Raymond Momjian, Philadelphia, curiae support appellant. Block, Niccolo, Moorshead, R. A. Bruce
Gary Arthur A. Devon, for appellant. O’BRIEN, C.J.,
Before and ROBERTS, NIX, LARSEN, FLAHERTY, HUTCHINSON, McDERMOTT and JJ.
OPINION OF THE COURT ROBERTS, Justice.
This is an action for divorce governed Pennsylvania’s by Code, new Divorce Act of 1980, P.L. 101 et April 101 et seq., seq. (Supp.1981) (effective July P.S. § 1980). The Court of Common Pleas of Chester County refused the request Lena appellant Bacchetta, Troiani pursuant to section 401(d) of the for distri equitable bution of property acquired before the Code’s effective date on the belief that the requested distribution would unconsti tutionally deprive appellee Vincent Louis Bacchetta of his property rights. Upon application this appellant, Court assumed jurisdiction. plenary We conclude that the Legisla ture’s clear direction that all property acquired the during marriage of the parties shall be subject to the equitable distribution of the Divorce Code is a constitutional ly permissible exercise of the Legislature’s to authority the regulate marital relationship. Hence we reverse remand for proceedings consistent with this opinion.* * reassigned April This case was to this writer on 1982.
I The of the Divorce clear that in language Code makes act,” actions all governed the Code the by “provisions those the including relating to distribution equitable marital shall property, apply.1 to property” subject equitable
“Marital
distribution in-
cludes “all
either
the
property acquired by
party during
401(e).
marriage.”
P.S.
There is no basis in the
statute to
this
mandate
the
qualify
legislative
restricting
by
of the
applicability
requirement
distribution
to
that marital
only
acquired after
July
date
Indeed,
effective
of the Code.
of the
specific
seven
exceptions
equitable distribution
none dem-
provision,
the slightest
onstrates
intention that
the date of
legislative
shall be at
acquisition during marriage
all relevant.2
provides:
1.
Section
of the Code
cases,
provisions
apply
“The
of this act shall
whether
to all
prior
subsequent
cause
divorce
for
or annulment arose
or
to enact-
provisions
any
ment of this act. The
of this act shall not affect
suit
pending,
may
proceeded
or action
but the same
with and
be
concluded either under the laws
action was
such suit or
existence when
instituted, notwithstanding
repeal
of such laws
act, or, upon application granted,
provisions
this
under the
of this
provisions
any
apply
shall
act.
of this act
not
case in which
prior
a decree has been
rendered
the effective date of the act.”
23 P.S. 103.
exempts
property”:
Section
from “marital
“(1) Property acquired
exchange
property acquired prior
for
marriage except
during marriage.
for the increase in value
agreement
parties
Property
excluded
valid
entered
before, during
marriage.
into
or after the
(3) Property acquired by gift, bequest,
except
devise or descent
*4
during
marriage.
the increase in value
the
(4)
divorce,
Property acquired
separation
after
until
of
the date
however,
reconcile,
provided
parties separate
proper-
if the
all
and
ty acquired subsequent
separation
to the final
their divorce.
until
(5)
sold,
Property
party
granted, conveyed
which a
has
or other-
disposed
good
prior
wise
of in
faith and for
to the
value
time
proceedings for the divorce are commenced.
attachment, levy
exempt
Veterans’ benefits
from
or seizure
pursuant
except
to
U.S.C.
for
benefits received
[38
§ 3101]
those
by
portion
a veteran where such veteran has waived a
of his
military
pay
Compensa-
retirement
in order to receive Veteran’s
tion.
Divorce Code is
the new
Moreover,
purpose
the stated
of the matrimonial
the “realities
with
effectively
deal
to
to the welfare
consideration
giving “primary
experience”
and their
to spouses
the harm
“mitigating]
family,”
of the
of the marriage,”
dissolution
legal
the
caused
children
and
well as “a fair
as
justice”
“economic
effectuating
and
rights.”
of . . . property
and settlement
determination
just
most cases for
Where,
years
here and in
102(a).
as
23 P.S. §
enactment of
the
were married before
come, the parties
to
the
interpret
Code, it would be unreasonable
Divorce
the
of only
distribution
equitable
as providing
Divorce Code
date. Such
after the Code’seffective
acquired
that property
on
burden
unmanageable
the
impose
would
an interpretation
were
properties
which
determining
litigants
courts
of the
after,
effective date
before, and which
the
acquired
substantially deny
would also
an interpretation
Code. Such
in
marriages
spouses
Code to
of the Divorce
the benefits
enactment,
thereby
the time of the Code’s
existence at
the
very inequity
least a
generation
for at
prolonging
stated pur-
In view of the
sought
remedy.
Legislature
Legisla-
it must be concluded that
of the
poses
ac-
“all property
marital
ture’s definition
includes
marriage”
proper-
during
either party
quired by
date of the Code.
before the effective
ty acquired
II
the equitable
court properly recognized
The trial
all
applies
Divorce Code
of the
provision
distribution
to the
without
marriage
regard
acquired during
However,
erroneously
the trial court
effective date.
Code’s
Co.,
Mutual Life Insurance
that, under Willcox v. Penn
held
(1947),
application
In enacting equitable distribution of the Code, Divorce the Legislature to far sought accomplish different objectives than were sought the Com- enacting munity Property Law. Prior to the enactment of the Di- vorce in many marriages nonworking spouse contrib- uted years service to the but did not realize family, any significant Thus, economic gain. divorce, upon nonworking spouses, who skills, had no were left frequently marketable few, with if assets of their any own and faced the risk of becoming public charges. By for the distribution providing of property acquired the Divorce during marriage, Code permits the correction of the economic which often injustices arose under former law and allows spouses nonworking become self-supporting with the least financial hardship possible. objective providing transition orderly
the dissolution of marriages Legisla within manifestly ture’s broad control over the marital relationship:
“Marriage,
life,
as
the most
creating
important relation
more to do with the
of a
having
morals and civilization
community
state,
In a
half of the income earned
one
spouse
reported
separate
could be
on the
of the other
tax return
spouse.
Property
Community
After the enactment of the
Law of
1947, Congress provided
non-community
for the same result
in all
by adjusting
applied
states
the income tax rate structure
filing joint
Kilcullen,
spouses
Stanley
returns. See
&
Federal Income
1, p.
(1975).
Tax Law
2-2
institution,
always
subject
has
been
other
than
people
any
prescribes
That
legislature.
body
the control
*6
marry,
procedure
contract to
may
which parties
at
age
and
marriage,
the duties
essential to constitute
or form
creates,
rights
it
its
upon
effects
obligations
may
the acts which
and
both,
prospective,
and
present
its
for
dissolution.”
grounds
constitute
190,
723, 726, L.Ed.
205, 8
31
Hill,
v.
125 U.S.
S.Ct.
Maynard
it is within the
As
itself recognized,
Willcox
(1888).
654
exercising
police power
prerogative
Legislature’s
divorce. See
the distribution
for
provide
593,
at 527.
55 A.2d
357 Pa. at
“
abso-
rights
contract
are
rights nor
‘[Neither]
is
private right
fundamental with the
lute ....
Equally
”
interest.’
regulate
it in the common
public
that of the
Robins,
74, 84,
v.
447
100
Center
U.S.
Shopping
PruneYard
v.
741
Nebbia
2035, 2042,
(1980), quoting
64 L.Ed.2d
S.Ct.
523,
502,
505, 510-11,
54
78 L.Ed.
York, 291
S.Ct.
New
U.S.
(1934).
right,
“police power,”
940
That public
’
. . . .
government
the ‘most essential
powers
“is one of
410,
143,
Sebastian,
394,
v.
239
36
Hadacheck
U.S.
S.Ct.
*
* *
145,
(1915).
police power
National
221,
Resources,
Pa.
Environmental
489
Dep’t of
sylvania,
37,
dismissed
231,
(footnote omitted), appeal
414 A.2d
42
803,
449
101 S.Ct.
question,
substantial federal
U.S.
want of
47,
(1980).
234
Due process requires that an
of the police
exercise
“
power
‘shall not be unreasonable,
or
arbitrary
capricious,
and that the means selected shall have a real and substantial
”
relation to the objective sought to be
Prune-
[obtained.]’
Yard
Center
Shopping
Robins,
v.
84,
at
supra,
U.S.
2042,
S.Ct. at
quoting Nebbia v.
York,
New
supra,
U.S.
at
As in other jurisdictions, equitable distribution occurs only
divorce,
when the need for economic assistance to the
spouse with lesser resources is real and immediate. See
Kujawinski v. Kujawinski,
To aid the court in the discretion, exercise of its equitable the Legislature has provided ten factors for the specific court’s consideration:
“(1) The length of the marriage.
(2) Any prior of either marriage party. (3) health, station, The age, amount and sources of in- come, skills, estate, vocational liabilities and employability, needs of each of the parties.
(4) The education, contribution one train- party ing, or increased other earning power party. (5) The of each opportunity for future party acquisitions of capital assets and income.
(6) The sources income of both but parties, including medical, retirement, not limited to insurance or other benefits.
(7) The contribution or dissipation of each in the party acquisition, preservation, depreciation or appreciation the marital the contribution of a property, including party as homemaker.
(8) The value of the set to each apart party. (9) The standard of living parties established dur- ing marriage. economic circumstances of each at the time party
the division of
is to
become effective.”
23 P.S.
A
401(d)(1)-(10).
party claiming
court
§§
should take into account one of the above factors must of
course establish the relevance of the factor to the particular
case.
discretion,
And in
its
exercising
the court is required
to set forth the “reason or reasons for
the distribution
ordered.”
P.S.
This
not
serves
only
*8
enhance the
of
rationality
decisionmaking but also permits
effective
Cf. Commonwealth v. Riggins,
review.
appellate
115,
474 Pa.
Because this tailored carefully provision unques- tionably applies marital property acquired before the Code’s date, effective and because such an is application constitutional, of order the Court of Common Pleas of
Chester County reversed and the record remanded trial court for proceedings consistent with this opinion.4
Order reversed and record remanded.
NIX, J., files a dissenting opinion.
FLAHERTY, J., files a dissenting in which LAR- opinion SEN, J., joins.
NIX, Justice, dissenting. I am in fully agreement with Mr. Justice in his Flaherty conclusion that there was no justification for finding legislative intention in the Pennsylvania New Divorce Act of April P.L. 101 et seq., P.S. 101 et § seq. (Supp.1981) (effective July 1,1980) to apply concept that equitable distribution of property acquired by either spouse before the effective date of the Code. It is a fundamental principle statutory interpretation this Commonwealth that a statute must not be construed to be retroactive in its application unless such an intent is clearly and manifestly apparent from the language that provi- sion, 1 Pa.C.S.A. 1926. The language Code is at best neutral in this regard. This neutrality cannot be over- come the social of some philosophy of the members of this Court.
It is
basic in
equally
statutory interpretation
legisla-
tion should not be
interpreted
such a manner that
it runs
afoul of constitutional mandate.
1922(3);
Pa.C.S.A. §
Wajert v. State
Commission,
Ethics
491 Pa.
420 A.2d
Commonwealth ex rel. Dermendzin v.
(1980);
Myers,
Pa.
4. We do not address
claims that the trial court abused its
awarding
allegedly
discretion in
alimony
insufficient amount of
improperly
that,
and that
the trial
purposes
court
determined
401(e)(4),
parties
23 P.S.
“separated.”
had become
If an
appeal
following
is taken
the trial court’s determination
re-
mand,
course,
appellant may, of
renew these claims.
*9
first
in the very
this
The Constitution of
Commonwealth
the “Inherent
sets forth
Rights
article
the Declaration
that each
Therein it was provided
of Mankind.”
Rights
“have certain inher-
should
resident of this Commonwealth
those..., of
are
which
rights, among
ent
indefeasible
and
In
protecting property...”.
and
possessing
acquiring,
noted:
this Court
concept,
early
the essence of this
defining
over
irresponsible power
legislature possessed
If the
to ac-
... all inducement
estate
private
every [person’s]
. .
would be removed.
and economy
quisition,
industry
taking private
is interdicted from
If the government
without just compensation,
even for
use
public
from one
and
[person]
take it
legislature
how can the
is, that
The great principle
of it as
think fit.
dispose
they
own,
shall
and that
[person]
a [person’s]
[their]
no oth-
according
pleasure (injuring
it
enjoy
[their]
it . . .
it is
in a due
of law that
er...)
proved
process
until
added)
another.
(Emphasis
belongs
(1851)
Ervine’s
263-64
Appeal,
and
I
are not absolute
appreciate
property rights
fully
common
interest. Prune
regulate
that the
public may
Robins,
Center v.
100 S.Ct.
Shopping
Yard
U.S.
However, that
must be in
(1980):
regulation
“The relation of husband and wife is .. . formed of the state to control and both that regulate to the power it; relation and the connected with property rights directly such as does not violate those fundamental legislation which have been established for the protection principles interfer- private personal rights against illegal ence.” 943, 944, Kilgore,
Executors v.
U.S.
S.Ct.
marriage
be addressed
relationship may
by providing
support
alimony,
also
Legislation
and maintenance.
be enacted
may
provid-
for common
a
or future
ing
ownership by present
spouse
*10
property acquired
the
by
other member to the relationship
after the effective date of the enactment. See Willcox v.
Penn Mutual Life
Co.,
Insurance
The constitutional concern is raised by attempt divest retroactively vested property rights of one of the spouses in favor of the other. Regardless of the laudatory purposes sought achieved, be such a means offends well recognized constitutional mandates. Where one voluntarily enters into a marital and relationship is aware that such a step may affect ownership property acquired thereafter, the decision to undertake such a is a step and knowing voluntary one. Here the retroactive application forces an involuntary divestment of property rights without due proc- ess of law.
I, therefore, dissent.
FLAHERTY, Justice, dissenting. I dissent. On April 1981, in the Court of Common Pleas of the Fifteenth Judicial District, a decree was entered the dissolving twenty-six year marriage the appellant, Lena Troiani Bacchetta, and the appellee, Vincent Louis Bacchetta. Appellant was awarded alimony, but was denied equitable division of marital on grounds Divorce Code of 19801 provision authoriz- [hereinafter Code] ing such a division effected a retroactive and unconstitution- al deprivation of The instant property. appeal ensued.
Regarding distribution of spouses’ di- property upon vorce, 401(d)-(f), P.S. provides: In
(d) a proceeding for divorce or annulment, the court shall, upon request either party, divide, equitably dis- tribute or assign the marital between the parties without to marital regard misconduct in such proportions April 1. Act of seq. P.L. No. (Supp. 23 P.S. 101 et 1981). as the court deems after all relevant just considering factors .. .2 including For
(e) purposes of this chapter only, proper- “marital means all ty” either property acquired by party during marriage except. . .3 401(d)
2. The factors set forth in 23 P.S. to be considered process court in the distribution include: (1) length marriage. The (2) Any prior marriage party. of either (3) health, station, age, income, amount sources of voca- skills, estate, employability, tional the liabilities and needs of each of parties. education, party training, The contribution one or earning power party. increased of the other *11 (5) opportunity party acquisitions capital The of each for future assets and income. (6) parties, including The sources of income of both but not limited medical, retirement, to insurance or other benefits. (7) dissipation party acquisition, The contribution or in each the preservation, depreciation including appreciation property, or of the marital party the contribution of a as homemaker. (8) property apart The The standard of party. value of the set to each (9) living parties during of the established the marriage. (10) party The economic circumstances of each at the time the property division of is to become effective. 401(e), following excepted 3. Under 23 P.S. the are from the defini- property”: tion of “marital (1) Property acquired exchange property acquired prior in for to marriage except the during marriage. for the increase in value the (2) Property by agreement parties excluded valid of the entered before, during into marriage. or after the (3) Property acquired by gift, bequest, except devise or descent during the in marriage. increase value the (4) Property acquired separation divorce, after until the date of however, provided reconcile, parties separate proper- if the all ty acquired subsequent separation to the final until their divorce. (5) Property sold, party granted, conveyed which a has or other- disposed good prior wise of in faith and for value time to the proceedings for the divorce are commenced. attachment, exempt levy Veterans’ benefits from or seizure pursuant 2, 1958, 85-857, September to the act of Public Law amended, 3101], except Statute 1229 U.S.C.A. as [38 for those by benefits received portion a veteran where such veteran has waived a military pay of his retirement in order to receive Veteran’s Compensation. (7) Property property to the extent to which such has been mort- gaged good value, or prior otherwise encumbered faith for proceedings time for the divorce are commenced. acquired by All whether real or (f) property, personal, be mari- either the is to during marriage presumed party individually tal of whether title is held regardless property súch as co-ownership or the in some form of parties by the in common or joint tenancy by tenancy, tenancy of marital is over- The entirety. presumption property a acquired by come a that was by showing property (e). method listed subsection the “marital proper- issue on whether principal appeal the foregoing to distribution under ty” subject equitable acquired includes prior July the effective date of the Code. the Code By construing subject such rendering prior-acquired property a retro- distribution, 401(d)-(f) P.S. thereby according effect, vested property active rather than merely prospective date could be before the Code’s effective rights existing decree uncondi- transferring a court abrogated by one to the sole spouse ownership owned tionally by Likewise, tenant, interest as a or spouse’s joint other. being tenant could be entirety, extinguished effec- transferred to the other Prior to the Code’s spouse. date, tive and common law of Common- statutory divorce. upon wealth the status of assets governed spouses’ Hence, assets seeking protect against propertied spouses upon loss divorce relied expectation *12 it titled. DiFlorido v. legally would remain as had been See DiFlorido, 641, (1975). 331 174 459 Pa. A.2d issue raised a retroactive by applica-
The constitutional
tion,
the
of
vested
deprivation
property rights
permitting
date,
effective
is manifest.
Willcox
to the Code’s
See
prior
581, 590-594,
Co.,
Life Insurance
357 Pa.
55
v. Penn Mutual
In
intent
521,
(1947).4
ascertaining legislative
A.2d
526-528
rights
Regarding
application
vested
of a statute so as to divest
the
date,
Court,
prior
this
v. Penn
to the statute’s effective
Willcox
591,
526,
Co.,
the marital distribution effect, is no active rests the conclusion that “[t]here added) basis in the statute” (emphasis limiting whether retroactive effect. provision’s Focusing only upon there is an limitation “in the statute” is a misdirect- express ed a statute’s approach determining question retroactive effect. The approach ignores longstanding Court, precedents this as well as directives of the express which legislature, establish that there need not be clearly in a statute any language limiting application its retroactive Shimer, tional and void.’ And in E.T. Fraim Lock Co. v. assembly Pa.Super. it was ‘An which said act of operates retrospectively give to take the of John Doe and Roe, prohibited by It it to Richard the fundamental law.’ is clear, then, legislature attempted by Community that had the Property spouse Law to transform then owned either community separate property, from into could not such constitutionality.” have stood the test of equally legislative It is clear that a scheme for ordered trans- court divorce, spouses, upon property already fers between owned spouses at the effective date be no of the Divorce Code would *13 less offensive to constitutional standards. 242
in order for a determination to be reached that its effect is prospective only.
A retroactive 401(d)-(f) of 23 has interpretation P.S. § been disfavored expressly legislature, as the Statuto- ry Construction Act of 1972 provides: 1926. Presumption against retroactive effect
§ No statute shall construed to be retroactive unless [be] clearly so manifestly intended the General Assem- bly.
(Emphasis Added.)
6, 1972,
1339,
Act of December
P.L.
No.
290,
3, 1
1926
Pa.C.S.A.
As Mr. Justice
(Supp.1981).
Commonwealth v.
Roberts stated in
273,
497 Pa.
Story,
440
A.2d
(1981),
489
prohibition
a retroactive
against
“[t]he
construction of a statute is long-standing.”
Statutes impair
vested substantive
ing
rights must be construed prospective
where
ly, except
legislative intent
shall act retro
they
is so clear as
preclude
all
question
actively
of retroactive
Fenner,
Smith v.
intendment.
633, 640,
399 Pa.
161 A.2d
Estate
Bertolet,
150, 154 (1960);
496, 502,
See also
483 Pa.
Misitis
Co.,
v.
397 A.2d
City Piping
Steel
(1979);
Pa. at
Clearly,
devoid of any express
language rendering
property acquired prior
the Code’s
effective date
to the same
subject
division
process
as is prospectively acquired property.
the sub-
By defining
“marital
ject
as “all
either
property”
property acquired by
*14
during the
party
marriage”, 23
401(e)
P.S.
fails to clarify
§
whether “acquired” means theretofore acquired, thereafter
or
acquired,
both. When the
of a
language
statute is
so that
it
general,
might be accorded both retroactive and
prospective operation, it will be held to be prospective only,
so
not to
as
affect
interests in
property
existence at the time
its passage.
of
Commonwealth ex rel. Greenawalt v. Gree-
nawalt,
512-513,
date to be subject distribution set process forth in 23 401(d)-(f).5 P.S. §
LARSEN, J., this joins dissenting opinion.
v. *15 BANK, Appellant. Melvin A.
Supreme Court of Pennsylvania.
Argued Jan. 1982. Decided May Eule, John J. Julian D’Angelo, Philadelphia, for appellant. Hammerman, Bell Mary Philadelphia, appellee. O’BRIEN, J., ROBERTS, NIX, LARSEN, Before C. FLAHERTY, HUTCHINSON, McDERMOTT and JJ.
ORDER PER CURIAM: Bacchetta,
Order affirmed. Bacchetta v. See 1194 (1982). 445 A.2d
NIX, J., files a dissenting opinion.
FLAHERTY, J., files in which LAR- dissenting opinion SEN, J., joins. alimony provision, note that directs
5. We Code’s P.S. § parties’ the extent of assets be factor considered as a therefore, determining alimony payable. Inherently, the amount of alimony award will be affected whether distribu- yielded spouse tion has an award of need.