Bonawits v. Bonawits

907 A.2d 611

Sharon S. BONAWITS, Appellant, v. Malcolm W. BONAWITS, Appellee.

Superior Court of Pennsylvania.

Argued April 25, 2006.

Filed August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Sydney C.H. Benson, York, for appellant.

Brian J. Cali, Dunmore, for appellee.

BEFORE: HUDOCK and PANELLA, JJ. and McEWEN, P.J.E.

OPINION BY HUDOCK, J.:

¶ 1 Sharon S. Bonawits (Wife) appeals from the order of the trial court granting the petition for bifurcation filed by Malcolm W. Bonawits (Husband) in their divorce action. At issue in the present case is the question of whether the trial court properly granted bifurcation pursuant to newly amended section 3323 of the Divorce Code, 23 Pa.C.S.A. sections 3101-3904. We affirm.

¶ 2 The facts and protracted procedural history may be summarized as follows: The parties were married on August 17, 1974, and separated in May of 2001 when Wife left the marital residence. They have no children. Wife filed a divorce complaint on February 26, 2002. Following the filing of numerous pleadings by each party, master's hearings were held on May 10, 2004, and September 8, 2004. At the second hearing, Wife's counsel placed on the record the terms of the parties' proposed marital settlement agreement. Subsequently, transfers were made between the parties pursuant to this agreement.

¶ 3 On January 3, 2005, Wife terminated her employment of counsel who negotiated the marital settlement agreement and retained new counsel. New (present) counsel informed Husband's counsel that he did not consider the agreement valid. Wife would also not agree to Husband's request for bifurcation and, in fact, filed several motions, including a complaint for support and a petition for alimony pendente lite. Thus, on February 2, 2005, Husband filed a petition for bifurcation. Wife filed her answer to the petition on February 24, 2005, and a hearing was held on the petition and other related matters on April 11, 2005. By order and opinion filed July 14, 2005, the trial court granted Husband's petition. A divorce decree was entered on August 10, 2005. This timely appeal followed. Both Wife and the trial court have complied with Pa.R.A.P. 1925.

¶ 4 Wife raises the following issues on appeal:

QUESTION 1: Did [Husband] establish grounds under 23 Pa.C.S.A. § 3323(g) for the granting of a bifurcation order?

QUESTION 2: Has [Wife] been afforded sufficient economic protections as to allow the granting of a bifurcation and divorce decree?

Wife's Brief at 4. Because both of Wife's issues concern the trial court's granting of bifurcation, we will address them together.¹

¶ 5 Bifurcation, i.e., the severance of divorce claims from economic claims, is authorized by the Divorce Code. Savage v. Savage, 736 A.2d 633, 644 (Pa.Super.1999). When reviewing the grant of bifurcation, this Court employs an abuse of discretion standard. Brian, 872 A.2d at 845 (citation omitted). "So long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion." Id. Our Supreme Court has defined an "abuse of discretion" as "[n]ot merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence [of] record, discretion is abused." Zullo v. Zullo, 531 Pa. 377, 613 A.2d 544, 545 (1992).

¶ 6 This case involves the interpretation and implementation of newly amended section 3323 of the Divorce Code. This section now reads, in pertinent part, as follows:

§ 3323. Decree of Court

(a) General rule. — In all matrimonial causes, the court may either dismiss the complaint or enter a decree of divorce or annulment of the marriage.

(b) Contents of decree. — A decree granting a divorce or an annulment shall include, after a full hearing, where these matters are raised in any pleadings, an order determining and disposing of existing property rights and interests between the parties, custody, partial custody and visitation rights, child support, alimony, reasonable attorney fees, costs and expenses and any other related matters, including the enforcement of agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any of these matters, the court shall have all necessary powers, including, but not limited to, the power of contempt and the power to attach wages.

* * *

(c.1) Bifurcation. — With the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b). In the absence of the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided in subsection (b) if:

(1) grounds have been established as provided in subsection (g); and

(2) the moving party has demonstrated that:

(i) compelling circumstances exist for the entry of the decree of divorce or annulment; and

(ii) sufficient economic protections have been provided for the other party during the pendency of the disposition of the matters provided for in subsection (b).

* * *

(g) Grounds established. — For purposes of [subsection (c.1)], grounds are established as follows:

(1) In the case of an action for divorce under section 3301(a) or (b) (relating to grounds for divorce), the court adopts a report of the master or makes its own findings that grounds for divorce exist.

(2) In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent.

(3) In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit's averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least two years at the time of the filing of the affidavit.

23 Pa.C.S.A. § 3323.

¶ 7 By enacting Act 175 of 2004, the legislature deleted former subsection 3323(c) and replaced it with subsection (c.1) and (g), effective January 28, 2005. Because of its recent enactment and effective date, our research has revealed no cases that discuss these subsections. Prior to amendment, trial courts, when determining whether bifurcation should be granted, weighed the advantages and disadvantages of such an order. See generally, Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983). As noted in the Source and Official Comments following the rule:

New subsection (c.1) rejects the weighing of advantages and disadvantages under [Wolk, supra], rejects any notion of automatic bifurcation and statutorily provides for bifurcation with the consent of both parties. In absence of consent, bifurcation is permitted only under the limited circumstances provided for under paragraphs (1) and (2).

Part of the reasoning behind paragraph (1) is the idea that knowing bifurcation is not available until the separation period has run might motivate a party to move the process along by being cooperative in discovery and participating in the resolution of economic issues. Subsection (g) provides when grounds are established.

Paragraph (2) is intended to limit bifurcation to cases where compelling circumstances exist and where economic protections have been provided the other party. Paragraph (2) contemplates that the court will exercise its judgment as to what constitutes "compelling circumstances" and "sufficient economic protections."

23 Pa.C.S.A. § 3323, Source and Official Comments.

¶ 8 As noted above, Wife would not consent to bifurcation. Thus, before granting Husband such relief, the trial court was required to find that grounds for divorce existed under subsection 3323(g) and that, pursuant to subsection 3323(c.1), Husband demonstrated that compelling circumstances existed for the entry of a divorce decree and that Wife has been provided with sufficient economic protections during the disposition of economic issues still unresolved between the parties. The trial court concluded that Husband had met this burden:

The transcript of the colloquy of the Divorce Master on September 8, 2004, indicates that [the parties] each executed an Affidavit of Consent for a no-fault divorce. Moreover, the Divorce Master asked [Wife] if she was desirous of the Court accepting the Affidavit of Consent and using it for the basis for granting a divorce. [Wife] stated that she would like the court to accept the affidavit and use it as a basis for granting the divorce.

* * *

Instantly, the record before the Divorce Master is clear that the parties have consented to the divorce. Although [Wife] has now filed a Complaint for Support and a Petition for Alimony Pendente Lite, she has stated on the record that she is desirous of having the court accept the affidavit of Consent and having the court use it as a basis for granting the divorce. Due to the lengthy and arduous litigation between the parties as well as the economic protections afforded [Wife], as demonstrated by the transfer and conveyance of significant marital assets to [Wife], we believe that bifurcation of the [divorce and economic] issues is warranted here. The parties ostensibly had an Agreement concerning the economic division of marital assets and liabilities. Although the record indicates that some issues were to be resolved between the parties, approximately ninety per cent (90%) of the real and personal property was transferred to one party or the other pursuant to the Agreement. Sometime after, [Wife] fired her counsel at the time of the Agreement and hired new counsel who filed a Complaint for Support and a Petition for Alimony Pendente Lite. [Wife] is also contending that the Agreement was simply a colloquy and not a settlement agreement.

In weighing the...