*1 McNAUGHTON, Appellant, B. Linda McNAUGHTON, Appellee. David K. McNAUGHTON, Appellee, Linda B. McNAUGHTON, Appellant. K. David Pennsylvania. Superior Court Argued Dec. 13, 1992.
Filed Feb. *3 (at 147) and Strokoff, Harrisburg, appellant A. for Elliot (at 187). appellee (at 187) and Indiana, for appellant Earley, J.
Morton 147). (at apрellee BROSKY, OLSZEWSKI, JJ. HUDOCK
Before OLSZEWSKI, Judge: Court of Common the decree of the an from appeal
This February dated County of Cumberland Pleas of this divorce action. economic issues some of the settling attempted decree below to reach an equitable distribu- parties’ tion of the marital assets. Since that the discretion, lower court abused its we affirm in part and reverse and remand in part.
A discussion of the case follows. The this action were married December of 1968 and separated During of 1984. January marriage coursе of the consid- erable marital acquired. assets were Included among marital parcels assets were numerous of real estate and an in McNaughton’s business, interest Mr. family McNaughton Oil.
The master handed down his recommendations in at which time as evidence was received to the value of the property to be distributed. The lower court handed down 11, 1991, February its distribution and the parties filed the timely appeals which are now before court.
Each party raises several issues on appeal. Since some overlap, issues we will discuss those together. issues Linda raises three appeal. issues on Ms. argues first that the lower court abused its discretion by accepting stale valuations for property subject to distribution. David also raises an regarding issue court’s valuation of the real property business, and the interest in the family McNaugh- ton McNaughton argues Oil. Mr. the lower court should have valued the business and the real property on the same dates. We will discuss the parties’ arguments Second, surrounding property together. valuation Ms. *4 McNaughton argues that the lower court abused its discre- establishing tion in a 50/50 distribution of the marital Third, assets. Ms. McNaughton argues that the lower failing grant court erred in to her counsel litigation fees and costs. Mr. raises a of question whether the failing give $7,178.00 lower court erred in to him credit for costs, in litigation paid which he to Ms. to in pursue litigation allow her to the the court below. We parties’ arguments surrounding will consider both counsel fees and together. Finally, McNaughton argues costs
413
$124,315.20
a debt of
assigning
erred in
that the lower court
of
not
the
personal
and
a
debt
a
of
Oil
as debt
the
court abused
find that
parties. Since we
property,
real
discretion,
valuing the
by
properly
not
in part.
remand
affirm in
and reverse and
part
in a
actions of a
court
reviewing the
When
of
to a determination
action, we are limited
whether
divorce
v.
395
Wayda Wayda,
there
an abuse of discretion.
was
(1990).
the master’s
94,
Although
Pa.Super.
We
actions nor do we
our
with the court’s
upon
agreement
in
a
application
find
basis for reversal
the court’s
Rather,
at
distribution as a
single factor.
we look
of the
whоle,
application
in
of the court’s overall
light
discretion,
an
401(d)1
If we fail
abuse
factors.
must
stand.
[o]rder
at
(1984)). equitable an making to be considered factors 3502(a)(l)-(ll). in 23 are set forth Pa.C.S.A.
distribution § is necessarily of the lower Our review light of whether the entire limited to a determination distribution, by forth considering all the factors set up take an abuse of discretion occurred. We legislature, parties claims of both below. contended that the lower Both have for the real estate set the values accepting erred 3502(a). 401(d) § been codified at 23 Pa.C.S.A. Former 23 P.S. § *5 414
master. The master’s
in this
report
case was handed down
in
court,
1987. The
later,
some three years
handed
down a
adopting
values set
by
master.
There is no set date for the valuation of property;
rather
the lower court has it
within
discretion to adopt a date
for valuation which best
economic justice
works
between
parties.
Miller,
Miller v.
395 Pa.Super.
577 A.2d
(1990).
205
only
We will
reverse the decision of the lower
regard
court in
setting
of the date for the valuаtion
of the marital assets on the
basis
an abuse of discretion.
Although
Id.
the lower court has
in
considerable discretion
regard to setting a date for the valuation of the marital
assets,
we believe
this case the lower court abused its
discretion.
In cases
long рeriod
where a
of time
passed
separation
distribution,
between the
and the
the court
should set values as close to
possible.
distribution as
Sut-
(1988).
518 Pa.
Sutliff,
erred in valuing business as of the date of separation and the real estate as of the date hearing. of the master’s The lower court should valued have the real estate as close We, however, to the time of distribution as possible. no abuse of discretion the court’s valuing the interest in McNaughton Oil as of the time of separation. The lower in selecting a date for objective the valuation of marital assets is to select a date which works economic justice parties. guarantee between the There is no that the same date will work economic justice with аll assets. Al though we have held above the lower court should have valued the real estate as close to the time of distribution as possible, the interest Oil will be difficult to separation. the parties’ after value at date *6 the largely is under control of which family Oil is a business naturally follows that the value of It McNaughton. David McNaugh- to due David vary greatly such a business will have Although the lower court should ton’s influence. to date of distribution as as close the valued the real estate in the lower court’s find abuse of discretion possible, nо we separation. of McNaughton Oil as of the date valuing is McNaughton Oil affirmed. court’s valuation of lower is the argument second McNaughton’s Linda establishing a 50/50 its discretion lower abused McNaughton argues of the assets. Ms. distribution overriding the 60/40 by its discretion the court abused The lоwer court has by established the master. distribution distribution, therefore, and, establishing the duty of subject is the of our review. set the court 339, Morschauser, Pa.Super 357 516 A.2d Morschauser of a (1986). 10 the master’s recommendation Although subject it is not the given great weight, is 60/40 distribution court’s ratio of have reviewed our review. We whole, as a no considering the distribution nale and setting in the a 50/50 distribu abuse of discretion court’s setting a is The lower court’s 50/50 distribution tion. affirmed. argument third is that the McNaughton’s
Linda grant her counsel fees and failing court erred in to reviewing “In denials agree. We dо not awards or costs. lite, we are alimony expenses, of counsel fees pendente whether the trial court abused limited to a determination of McNulty McNulty, discretion.” properly The lower court has 500 A.2d adopt in its the lower opinion, issue and we analyzed this here, following explanation. The rationale with the a deal expended great have parties undoubtedly here both paid has of on counsel fees. Mr. money for the reasons an pendente lite since One alimony is of limited party lite to allow alimоny pendente award litigation. pursuing to afford the cost of divorce means Mr. paid has also to Ms. McNaughton some $7,178.00 in costs to pursue allow Ms. this litigation. Further, distributed, when the property Ms. McNaughton will a large receive distribution. We believe the lower court committеd no abuse by finding discretion parties responsible for their own counsel fees and costs.
Mr. McNaughton argues that the lower court erred in not $7,178.00 him for giving credit he litigation costs paid on behalf of Ms. McNaughton. We find no abuse discretion the lower crediting court’s not McNаughton for those costs. The lower court found that the court Mr. McNaughton ordered that those pay costs upon based the economic circumstances at the *7 time of the order. We find no of abuse discretion in the finding McNaughton that Mr. should not now be credited for those costs. Neither party contended the payment that was unfair at the time the costs were awarded. We find the lower court’s of handling the attor fair, and, fees and costs ney’s therefore, find very no abuse of discretion. The handling lower court’s of fees attorney’s and costs is affirmed in all respects.
The final issue raised in appeal this is whether the abused its discretion a of assigning debt $124,315.20 as a McNaughton McNaugh debt of Oil. Mr. argues ton there were mortgages two each with a principal $124,000.00 of approximately of around time balance and separation, that the lower court improperly assigned $124,315.20 the debt of as a of debt McNaughton Oil and a personal parties. not debt of the The lower court found single only a debt existed and that this debt was a debt McNaughton of Oil. of
Our review the record indicates that mortgages two $160,000.00 with a existed: One face value of into entered $350,- of and a June a second with face of value 000.00 entered into in ofMay 1982. Mr. McNaughton’s testimony mortgage indicates that the first was entered into property purchase to finance a and to refinance certain represents mortgage a the second properties, and that other of line credit. McNaughton Oil’s of collateralization de- sheet shows a balance Oil’s consolidated McNaughton $124,995.00 in November of mand note in the amount this is appears 1983. It again in November however, Court, This does credit. Oil’s line of make this determina- we do not not sit as a fact finder and mortgage for a is of record mortgage A statement tion. $124,135.20 December of as of a principal with balance 1983. mortgаge, one only there was
The lower court found that pay- December 1983 taking into consideration because $124,995.00, principal on note ment the demand agree $124,315.20. do not with We equaled balance mortgage state- Examining the calculation. lower court’s $124,315.20 hаd a ment, mortgage with balance Adding on it in December paid principal $685.40 principal into the back principal payment the December $125,000.60 for No- a balance get principal we balance slight merely is a deviation Possibly this vember 1983. loan, this not certain. a but single due on the amounts point. on this Nevertheless, for a remand see no reason mortgages secured one of the admits that $124,000.00 time of separa- at the approximately a debt of line Oil’s represented this debt tion and that $124,000.00 should have been debt of Clearly credit. *8 other debts parties’ McNaughton Oil. assigned to in be satisfied real estate should on the marital which exist to remand to the find no reason We the distribution. to the debts involved. regard in court for reasons, to the lower we remand For the above as subject to distribution the real estate a re-valuation of the respects, all other as In possible. close to is affirmed. case in part. affirmed part, remanded and
Reversed
and dissents.
BROSKY, J., concurs
BROSKY, Judge, concurring and dissenting.
I am in
all
agreement
aspects
with
the
well-
majority’s
exсept
reasoned
opinion
determination that
the trial
err in valuing McNaughton
court did not
asOil
of the date
separation
parties.
of the
I see no reason why
McNaughton Oil should be accorded treatment different
than that
to the real
given
estate involvеd in the instant
I
with
agree
case.
the
that the
majority
trial court is free
select
to
a valuation date which best
to provide
serves
for
Miller,
economic
the
justice
parties.
between
Miller v.
However,
[While t]he the governing selection a date to be for used valuation property, marital where equitable distribution is con- cerned, ... in the implicit statutory provisions ... [i]t governing equitable distribution that a valuation date proximate must, to reasonably the date of distribution case, the usual be utilized.
If ... property marital values were be fixed as of the date parties’ separation of the injustices ... severe would upon at times inflicted parties bе concerned. Volatile market changing conditions and economic circumstances can render assets had been valuable months or years earlier virtually present, worthless ver- vice sa____ Privately owned business may interests be valued mine, as gold scrimption, or as a depending on times.
Id., 381, 383, at Pa. 543 A.2d at
Since separated were in January, 1984 and McNaughton Oil was as I date, valued of that feel trial court abused its discretion in not re-valuing the busi- Hence, ness at the 1990 I distribution. would also remand this issue to trial court for a of McNaugh- re-valuation ton Oil “as close to possible.” distribution as