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Date of Protection From Abuse Order Considered Separation Date
© 2004 National Legal Research Group, Inc.
PENNSYLVANIA: Teodorski v. Teodorski, 2004 Pa. Super. 313, 857 A.2d 194 (2004).
The trial court did not err in holding that the date of separation the date of classification of marital property under Pennsylvania law was the date on which the court issued a protection from abuse order against the husband, even though the parties continued to have sexual relations and the husband continued to support the wife after that date. The trial court did not err in awarding the wife 50% of the husband's retirement plan, rather than 60% as she requested.
The parties were married in 1988, but the date of their separation preceding the granting of the divorce was disputed. The wife filed a petition for support, which was granted in March 1995. The wife had also received a Final Protection from Abuse Order (PFA) in January 1995. The wife filed a complaint for divorce in February 1998, and the parties were divorced on a bifurcated basis in August 1998. A master's hearing was not held until May 2003, and his report was issued in August 2003, which equitably divided the marital property. The wife filed exceptions to the report, which were denied by the trial court in an opinion issued in November 2003. The wife appealed on a variety of grounds.
The wife first argued that the trial court erred in setting the date of final separation as January 1995, the date of the issuance of the PFA, arguing instead that the date of the filing of the complaint for divorce, February 1998, should have been the date of separation. In determining this question, the appellate court declared that the date of final separation revolves around the definition of "separate and apart." Under the governing statute, 23 Pa. Cons. Stat. Ann. 3501-3502, only property acquired prior to the date of final separation is marital property and is therefore subject to equitable distribution. "Separate and apart" is defined by 23 Pa. C.S.A. 3103 as the complete cessation of any and all cohabitation, whether in the same residence or not. "Cohabitation" has been defined by the courts as the mutual assumption of those rights and duties attendant to the relationship of husband and wife. The gravamen of the phrase "separate and apart" becomes the existence of separate lives, not separate roofs. After reviewing the record, the appellate court agreed with the husband's position that both parties lived separate and apart during the period between the entry of the PFA and the filing of the divorce complaint and that no reconciliation had occurred. While the parties continued to have sexual relations during this time period, which resulted in the birth of a child, mere sexual encounters are insufficient to support reconciliation as the ties that bind two individuals in a marital relationship involve more than sexual intercourse. Moreover, the fact that the husband provided support for the wife in the form of alimony and support for one child, and also provided for the necessities of the other children, did not dictate a finding of reconciliation. It has been recognized that spouses can live separate and apart despite being in the same residence and sharing expenses. This case is similar. The husband moved out of the house following the issuance of the PFA but continued to financially assist the children, visit with them, occasionally visit with his wife, and provide financial assistance to his wife via alimony payments. This was not a reconciliation, and the lower court could have found that the parties were still living "separate and apart." That the husband agreed to marriage counseling also did not imply that he and his wife had reconciled to such an extent as to declare that they were no longer living separate and apart. Doing so would go against public policy as the legislative intent of the Divorce Code is to encourage and effect reconciliation and the settlement of differences. Finally, the wife argued that the PFA she filed did not show an intent to separate and that the only evidence of such an intent was the filing of the divorce complaint. In response, the court concluded that while there must be an independent intent on the part of one of the parties to dissolve the marital union before the statutory period for living separate and apart commences and that this intent must be clearly manifested and communicated, it believed that a PFA filed against a spouse evidences such an intent.
The trial court, therefore, did not abuse its discretion in fixing January 1995 as the date of final separation, and, accordingly, the coverture fraction used to determine the marital portion of the husband's pension plan was proper.
The wife next argued that the trial court erred in dividing the husband's pension plan on a 50-50 basis. She alleged that equitable distribution demanded that she be awarded 60% of the plan. The appellate court disagreed. It noted that the lower court had considered all of the statutory factors for equitably dividing marital assets, 23 Pa. C.S.A. 3502(a). As noted above, the marital portion of the husband's pension plan was the only asset subject to equitable distribution. The court considered factors such as the wife's current poor health, educational needs, source of income, and ability to become employed. However, it also relied upon the deferred nature of the distribution of the pension to determine equitable distribution. Because the pension would not necessarily be available to either party until the husband retired in the future, the wife would not receive money from the pension at the time of the separation and divorce. The court concluded that at the time of the husband's retirement the economic situation between the two parties would likely be very similar in terms of monthly income. Given this rationale for the 50-50 split, the appellate court believed that it could not conclude that the trial court had abused its discretion in its manner of distributing the marital portion of the husband's pension plan.
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