Sergi v. Sergi

WIEAND, Judge,

concurring:

The issue in this appeal is whether marital property, for purposes of making equitable distribution between the spouses, should be valued as of the date of separation or as of the date of hearing before the court. This is a difficult issue. The values of most family investments, whether in the form of real estate, a family business, securities, a pension fund, an automobile or a bank account, fluctuate between the date of separation and the date of making equitable distribution. Frequently they will increase in value because of personal effort or capital expenditures made by one of the spouses. In other instances, the value of marital property may increase or decrease solely because *601of market conditions. Decisions by the courts of other jurisdictions as to a valuation date are not uniform. See: Annot., 34 A.L.R.4th 63 (1984). In Pennsylvania, the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq. does not provide an unequivocal answer. Nevertheless, it must be consulted.

Section 401(e) of the Divorce Code provides that for purposes of making distribution, “ ‘marital property’ means all property acquired by either party during marriage except ... (4) [pjroperty acquired after separation until the date of divorce____” If “increased value” is to be deemed “property acquired after separation,” then it would seem that an increase in value after separation should not be subject to equitable distribution.1 Such a rule seems to be consistent with Pa.R.C.P. 1920.33(a) which directs each party to a divorce action to file, “[wjithin sixty days after service of a pleading or petition containing a claim for ... distribution of property[,]” an inventory and appraisement of property.

I would hold, on the basis of Section 401(e)(4) of the Divorce Code, that in the absence of extraordinary circumstances, the date for evaluating marital property is the date on which the parties separate. In most instances this will achieve a fair result. The use of the date of separation, moreover, will encourage a prompt settlement of property rights between the spouses. It will also have the advantage of allowing the parties to get on with their separate lives as quickly as possible without being required to calculate the effect of each expenditure of time or capital upon a later decree of distribution. Even in protracted divorce actions, the parties’ economic endeavors following separation will not be hampered unnecessarily by fears that they will be robbed of the benefits of their own endeavors by a future decree of court.

Nevertheless, there will be circumstances in which it will be inequitable to place a value on marital property as of the *602date of separation and make distribution according to such a value. In those situations the Divorce Code vests sufficient discretion in the trial court to achieve a fair and equitable result. In making distribution a court is required to consider “all relevant factors including: ... (5) The opportunity of each party for future acquisitions of capital assets and income. (6) The sources of incomes of both parties[.] ... (8) The value of the property set apart to each party____ (10) The economic circumstances of each party at the time the division of property is to become effective.” 23 P.S. § 401(d). In making distribution, therefore, a court may, where necessary to achieve equity, take into consideration events which have occurred and which have affected the value of marital property following separation.

The instant facts present one of those exceptional cases. The marital home which is the subject of dispute in the instant case was owned by husband and wife as tenants by the entireties, having been purchased during the marriage for $36,000.00. On the date of separation it had a value of $50,000.00, and on the date of hearing, it was appraised at $63,000.00. The parties had an equity in the home of $22,765.00 at the time of separation, but this equity had increased by the time of hearing to approximately $39,-500.00. Following separation, the property was occupied by appellant, who, during the four years intervening prior to the hearing, made monthly mortgage payments which contributed to the increased equity in the home. The trial court accepted the value at the time of hearing and divided the equity of $39,500 equally between the parties. Because the court determined that the rental value of the property occupied by appellant and the contributions to capital which he had made were roughly equal, the court did not specifically compute or divide the rental value of the home or the mortgage payments or improvements made.2 Under these circumstances, I agree with the majority that the trial court *603did not abuse its discretion by making distribution according to the value of the dwelling house on the date of the equitable distribution hearing.

. Compare: Anthony v. Anthony, — Pa.Super.-, — A.2d-(J. E1008/85; filed ).

. In an appropriate case, the resolution of these matters by approximation might be questioned. In the instant appeal, however, this aspect of the court’s computation has not been challenged.