Ryan v. Ryan

LARSEN, Justice,

concurring.

Although I agree with the majority that Superior Court erred in ordering appellee, Joseph Francis Ryan, to “buy out” appellant Marie Helen Ryan’s fifty percent interest in closely held corporate stock, and that the trial court, on remand, must place a value on the stock that includes the amount of the dividends which accrued on appellant’s interest after the date of the final hearing by the master, I write separately to emphasize that a distribution “in kind” should take precedence over a “buy-out” distribution, pursuant to *193section 401(d) of the Divorce Code, 23 P.S. § 401(d) (repealed), which was in effect at the time the parties herein commenced their divorce proceedings.

As we stated in Barletta v. Barletta, 506 Pa. 404, 409, 485 A.2d 752, 754-55 (1984):

We note that under Section 401(c), the hearing court is given full equity power to “grant such other relief or remedy as equity and justice require”; and we can envision situations where the distribution of certain components of marital property would be truly impracticable or economically unwise. However, we interpret Section 401(c) as a general provision which must be construed as subservient to the more specific provision of Section 401(d) that a hearing court shall “divide, distribute or assign the marital property between the parties. ” This latter mandate must be the hearing court’s primary emphasis. See Pa.C.S. § 1933.
Therefore, we hold that in the context of the present case the remedy of a buy-out was an abuse of discretion. In addition, we hold that prior to a court making or approving a buy-out remedy, it is required to make specific findings as to why a division of the property cannot be effectuated.

(emphasis added) (footnotes deleted)

The majority’s holding herein differs from the holding in Barletta, in that the majority is making the choice of an “in kind” distribution or a “buy-out” distribution a matter of the hearing court’s discretion. If the majority is going to overrule Barletta, it ought to say so, as opposed to impliedly overruling it and leaving the law on this issue in a state of confusion.

On the basis of the facts presented in the case sub judice, I believe that an “in kind” distribution is mandated. Accordingly, I join the remand order of the majority, but I would remand with directions that the trial court reinstate *194its order distributing half of the Jefsaba, Inc. stock to the appellant, plus the accrued interest payments therefrom.

PAPADAKOS, J., joins this concurring opinion.