Bianchini, C. v. Zhu, X. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CRAIG A. BIANCHINI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
XIAO RONG ZHU : No. 66 EDA 2018
Appeal from the Order Entered December 21, 2017
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-FC-1009
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED JULY 2, 2018
Craig A. Bianchini appeals from the order entered in the Court of
Common Pleas of Lehigh County on December 21, 2017, that determined the
date of separation between him and his estranged wife, Xiao Rong Zhu, was
July 30, 2014. In this timely appeal, Bianchini raises three issues, although
they all relate to the single claim that the trial court abused its discretion in
determining the date of separation. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm.
Before we address the substance of this appeal, our standard of review
for a challenge to the determination of the date of separation is abuse of
discretion.
Our standard of review is one of an abuse of discretion. “Absent
an abuse of discretion, the trial court's findings of fact, if
supported by credible evidence of record, are binding upon a
reviewing court.” Wellner v. Wellner, 699 A.2d 1278, 1280 (Pa.
Super. 1997) (citations omitted). Only property acquired “prior to
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the date of final separation” is marital property and therefore
subject to equitable distribution. 23 Pa.C.S. § 3501–02.
The date of final separation revolves around the definition of
“separate and apart.”
The Divorce Code defines “separate and apart” as follows:
“Complete cessation of any and all cohabitation, whether
living in the same residence or not.” 23 Pa.C.S. § 3103. In
Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945(1984), this court held that “cohabitation” means “the
mutual assumption of those rights and duties attendant to
the relationship of husband and wife.” Id., at 47, 483 A.2d
at 948.
Thus, the gravamen of the phrase “separate and apart”
becomes the existence of separate lives not separate roofs
(citations omitted). This position follows the trend of
Pennsylvania case law in which a common residence is not
a bar to showing that the parties live separate and apart
... Flynn v. Flynn, 341 Pa.Super. 76, 81, 491 A.2d 156,
159 (1985). Compare Mackey v. Mackey, 376 Pa.Super.
146, 545 A.2d 362 (1988) (where parties had private living
quarters, no public social life together, and had ceased
sexual relations, the parties lived “separate and apart”
despite the fact that they resided in the same house) with
Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335(1990) (where parties jointly purchased a townhouse,
shared a joint checking account, had a social life as
husband and wife, share the same bedroom and resumed
sexual relations, the court found the parties were not living
“separate and apart.”).
Wellner, 699 A.2d at 1281 (quoting Schmidt v. Krug, 425
Pa.Super. 136, 624 A.2d 183, 185 (1993) and Gordon v.
Gordon, 436 Pa.Super. 126, 647 A.2d 530, 534 (1994) rev’d on
other grounds, 545 Pa. 391, 681 A.2d 732 (1996)).
Teodorski v. Teodorski, 857 A.2d 194, 197-98 (Pa. Super. 2004) (footnote
omitted).
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The Divorce Code specifically addresses the date of separation. See
23 Pa.C.S. § 3103. Our Court has stated:
We are also aware that the definition of “separate and apart”
found at 23 Pa.C.S. § 3103 was amended on November 29, 2004,
and became effective January 28, 2005. Prior to the 2004
amendment, the term “separate and apart” was defined as:
“[c]omplete cessation of any and all cohabitation, whether living
in the same residence or not.” Notably, “[s]ection 5(1) of Act
2004-175 provides that “the amendment of the definition of
‘separate and apart’ ... shall apply to complaints served before,
on or after the effective date of this paragraph.” 23 Pa.C.S. § 3103
Historical and Statutory Notes. Therefore, the fact that the
complaint in the instant case was served prior to the amendment
is of no moment; the amendment applies. The amended definition
reads as follows:
Cessation of cohabitation, whether living in the same
residence or not. In the event a complaint in divorce is filed
and served, it shall be presumed that the parties
commenced to live separate and apart not later than the
date that the complaint was served.
23 Pa.C.S. § 3103 (as amended in 2004 with effective date as of
January 28, 2005).
The new version of the definition contains specific language
pertaining to a presumption that the date of separation, i.e., the
date on which the parties begin living separate and apart, is
established upon the filing and serving of a divorce complaint,
unless an earlier date can be substantiated through the
presentation of evidence confirming an earlier date. “A
presumption ... is a procedural device which not only permits an
inference of the ‘presumed’ fact, but also shifts to the opposing
party the burden of producing evidence to disprove the presumed
fact. Failure to meet this burden of production will normally result
in [a decision] ... in favor of the party invoking the presumption.”.
Commonwealth v. Slaybaugh, 468 Pa. 618, 364 A.2d 687, 689
(1976). In short, “[t]he party attempting to rebut the presumption
has the burden of proof.” CW v. LV, 788 A.2d 1002 (Pa. Super.
2001).
McCoy v. McCoy, 888 A.2d 906, 911-12 (Pa. Super. 2005).
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Finally, as the trial court noted, “the gravamen of the phrase ‘separate
and apart’ [is] the existence of separate lives not separate roofs.” Wellner
v. Wellner, 699 A.2d 1278, 1281 (Pa. Super. 1997), quoting Flynn v. Flynn,
491 A.2d 156, 159 (Pa. Super. 1985).1
As noted above, the trial court determined July 30, 2014, the date
Bianchini filed the complaint in divorce, as the date of separation. Zhu argues
the presumptive date is correct; Bianchini asserts January 5, 2003 is the
proper date. We must examine the trial court’s factual findings to determine
if an abuse of discretion occurred. If the record supports those factual
findings, we are obliged to affirm. The trial court recited the factual history
as follows:
The material facts in this matter are largely undisputed. The
parties in this case were married in Shanghai, China on December
16, 1994. In February of 1995, the parties moved to the United
States. During the hearings before the Master, the parties
testified they began experiencing marital problems very early in
their marriage. [Bianchini] testified to an incident that occurred
while the parties were on the plane flying from China to the United
States where he and [Zhu] had a fight about a stewardess’
conversation with [Bianchini] and his failure to identify [Zhu] as
his wife to the stewardess.
The fighting continued throughout the parties’ relationship. In late
1995, the parties relocated to Jacksonville, Florida for
[Bianchini’s] work. They stayed at a Residence Inn during that
period of time. [Bianchini] testified that as early as late-1995,
while the parties lived in Florida, [Zhu] made comments to
[Bianchini] during the course of verbal fights indicating she
expected they would get divorced in the future. [Bianchini]
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1 Trial Court Opinion, 1/10/2018, at 11.
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further testified [Zhu] threw her wedding rings at him “numerous
times” during that time period.
In late-1996, the parties relocated to Vienna [Austria] for
[Bianchini’s] work. However, during this time, [Bianchini] testified
he sent [Zhu] to live in Shanghai. The parties communicated by
fax and telephone while they lived apart.
Following the completion of [Bianchini’s] project in Vienna,
[Bianchini] and [Zhu] moved back to the United States and
resided with [Bianchini’s] parents. In late-1996, [Bianchini]
traveled by himself to Borneo for another project. [Zhu] was
pregnant when [Bianchini] left, but while [Bianchini] was staying
in Borneo, [Zhu] called and notified him that there was a problem
with the baby. [Bianchini] flew back to Allentown and [Zhu] had
a miscarriage. After that incident, the parties traveled to Borneo
together.
During the parties’ time in Borneo, [Bianchini] testified they
continued fighting and [Zhu] continued making accusations about
[Bianchini’s] infidelity. While the parties were in Borneo, [Zhu]
became pregnant again. She had difficulties with the pregnancy
which prompted [Zhu] to return to the United States in 1997 to
live with [Bianchini’s] parents. While the parties were living apart
from one another during that time, they regularly communicated
by telephone call and fax. The parties’ daughter was born on
December 25, 1997.
[Bianchini] left again for two additional projects, one in India and
one in Indonesia. Neither [Zhu] nor the parties’ daughter traveled
with him to these locations, but he returned to Allentown for two
weeks at a time on two occasions during this project period.
[Bianchini] testified that around April of 1999, [Zhu] asked for a
divorce. Despite that request, neither party filed for divorce and
over the summer of 1999, the parties and their daughter moved
to Florida so [Bianchini] could pursue a Master’s degree.
[Bianchini] testified that during this period of time, he and [Zhu]
continued to fight frequently and their sexual relations largely
ceased. However, they continued to live together and they
remained in the same bedroom.
The parties left Florida and moved to New Hampshire in
September of 2000. [Bianchini] testified that in October of 2001,
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he sent [Zhu] and their daughter back to Shanghai to live with her
parents while he lived with his parents. In February or March of
2002, [Bianchini] moved to China and lived with [Zhu], the
parties’ daughter, and [Zhu’s] parents.
[Bianchini] testified that the parties’ relationship did not
experience any improvements after they moved to China. Their
sex life was largely nonexistent. After [Zhu] complained about
the lack of a sex life to a mutual friend, the parties had sex one
time. According to [Bianchini’s] testimony, that event resulted in
the conception of their second child, who was born in June of
2003.
[Bianchini] testified regarding an incident that occurred on
January 5, 2003, which he identified as the date of separation.
According to [Bianchini] he was starting a work project in the
southern part of China. The parties had an argument while
residing in [Zhu’s] parents’ house. After the argument,
[Bianchini] testified he took off his wedding band and returned it
to [Zhu]. He subsequently moved into a dormitory associated
with the factory where his project was based. He returned to
obtain some of his clothing and personal belongings, but the
parties ceased cohabiting at that point. [Bianchini] further
testified that he asked [Zhu] to file for divorce in China due to the
fact that she was a Chinese citizen and the parties were married
in China.
Following this incident, [Bianchini] testified that contact between
the parties decreased and was primarily limited to
communications about the children. [Bianchini] periodically
visited [Zhu] and the children during the subsequent six years,
primarily staying at [Zhu’s] parent’s house. During that time
period, while [Bianchini] visited [Zhu] and the children in China,
all of them would sometimes stay in a hotel if [Bianchini] was not
staying with [Zhu’s] parents.
After [Bianchini] left the dormitory at his project site in China, he
began living in a hotel and later a condominium. The parties did
not cohabitate for any extended duration after their fight in early-
January of 2003.
[Zhu’s] testimony before the Master concerning the parties’ time
together from February of 1995 through January of 2003 was
largely consistent with [Bianchini’s] testimony. However, in the
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reply brief in opposition to [Bianchini’s] exceptions, [Zhu] asserts
the alleged incident on January 5, 2003 about which [Bianchini]
testified “simply did not occur. [Bianchini] never gave [Zhu] his
wedding ring. In fact, [Bianchini] continued to wear his wedding
ring for years following 2003. To this day, [Zhu] does not know
where [Bianchini’s] wedding ring is located.” ([Zhu’s] Reply Brief,
at 4). [Zhu] did not support these assertions with any citation to
testimony from either of the two days of testimony before Master
Roberts. Based on a review of the transcripts from the Master’s
hearings, defense counsel did not cross-examine [Bianchini] about
his testimony concerning the fight on January 5, 2003.
Furthermore, [Bianchini’s] testimony about the fight itself went
unrebutted by [Zhu]. [Zhu] did not offer any testimony regarding
the alleged incident in January of 2003.[2]
Instead, [Zhu] argued the parties’ date of separation was much
later based on the parties’ interactions after the date [Bianchini]
identified as the date of separation. [Zhu] asserts that even after
the alleged incident where [Bianchini] claims to have returned his
ring, from November of 2001 to November of 2009, [Bianchini]
stayed with [Zhu] and the children at [Zhu’s] parents’ apartment
in Shanghai when he was not away on business. During these
occasions, the parties stayed in the same room and slept in the
same bed in her parents’ two-bedroom apartment. [Zhu] further
asserted the parties maintained contact through email and
telephone every few days. [Bianchini] continued using [Zhu’s]
parents’ address as a mailing address until approximately 2010.
[Zhu] also testified that until [Bianchini] filed a complaint in
divorce, whenever she and the children came to the United States
between 2002 and 2014, they resided with [Bianchini’s] mother,
who provided immigration-related assistance to [Zhu].
[Zhu] testified the parties attended Chinese New Year events with
[Zhu’s] family several times up through 2014. [Zhu] also testified
the parties attended various events together, such as [Bianchini’s]
nephew’s wedding in 2007, [Zhu’s] cousin’s wedding in March of
2011, and another cousin’s wedding from [Zhu’s] side of the
family in 2011. [Zhu’s] sister testified before Master Roberts that
the parties attended her wedding in August of 2013. She indicated
____________________________________________
2 We note that the trial court cites, with approval, testimony from Zhu that
circumstantially rebuts Bianchini’s assertion that he returned his wedding ring
to Zhu in 2003.
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the parties arrived together, sat at the same table, and interacted
with one another as a married couple.
Trial Court Opinion, 1/10/2018, at 2-7 (citations to the record omitted).
Based upon the testimony at the date of separation hearings, the Master
determined that April, 2009, was the date of separation. This choice was
based on the date of a Skype message between the parties wherein Zhu stated
her desire for a divorce. The Master rejected the earlier date proposed by
Bianchini, noting that an earlier date was certainly possible, but the disputed
evidence was simply insufficient to affix a date with any certainty. See Trial
Court Opinion, 1/10/2018, at 7-8.
The trial court rejected the Master’s determination based upon the initial
statutory presumption that the date of separation is the date of filing of the
complaint in divorce and Bianchini’s failure to rebut that presumption with any
degree of certainty.
We have reviewed the certified record and note that this is a unique
situation where the parties have always lived, to some extent, apart from each
other. Bianchini’s work took him around the world. Zhu was from China and
maintained close ties to both her family and the country. Accordingly, living
apart does not necessarily hold the same meaning in this specific situation as
it might in a more “typical” familial situation.
Further, we do not take exception to Bianchini’s assertion that the
certified record contains evidence that could support a finding consistent with
either his proposed date of separation or the Master’s. Our duty, however, is
not to retry the case and base our ruling on the evidence we pick and choose
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to credit. Our duty is to examine the evidence and reasoning of the trial court
and determine whether the trial court’s holding is an abuse of discretion, that
is, whether the trial court’s ruling is based upon competent evidence of record.
See Teordorski, supra. Our review of the certified record leads us to
conclude the trial court’s decision is, in fact, based upon such evidence and,
accordingly, we are required to affirm.
To that end, the trial court recognized several ongoing situations that
led it to conclude Bianchini had not overcome the initial presumption that the
date of filing the complaint in divorce was the date of separation. Specifically,
the trial court opined:
The parties conceived their second child in 2002, and the child
was born on June 19, 2003. [Zhu] testified the parties continued
to maintain contact during her pregnancy despite [Bianchini’s]
absence due to work. This contact was after the date [Bianchini]
identified as the date of separation. When the parties’ second
child was born on June 19, 2003, [Bianchini] stayed overnight with
[Zhu] in the hospital one night and stayed with their older child at
[Zhu’s] parents’ apartment for another three nights. The parties
sent out a Christmas card to family and friends announcing the
birth of their child, which was signed “Craig and Judy 12/03.”
The testimony also showed that after January 5, 2003, the parties
maintained joint financial accounts. According to [Bianchini], he
provided financial assistance to [Zhu] to take care of the children.
During the same period of time, [Zhu] had access to the parties’
joint back accounts and credit cards which was only terminated at
the time [Bianchini] filed for divorce.
Trial Court Opinion, 1/10/2018, at 13.
The trial court also found the parties had a fight in October 2009, well
after Bianchini’s proposed date of separation, over messages to other women,
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which Zhu found on Bianchini’s computer. “After that fight though, neither
party took any affirmative steps to file for divorce, and the parties continued
to spend the night together whenever [Bianchini] came to visit the children.
The parties shared the same bed at the hotel in which they stayed.” Id.
According to [Zhu], throughout 2010, whenever [Bianchini] was
not working, he would return to Shanghai. When [Bianchini’s]
father passed away in the summer of 2010, the parties stayed at
[Bianchini’s] parents’ home for a week after the funeral. [Zhu’s]
sister testified that the parties showed up at a family gathering in
April of 2011 and spent time there together.
Id. at 14. Moreover,
As late as June of 2014, the parties had a conversation regarding
[Zhu] and the parties’ children moving to Allentown from China.
[Bianchini] objected, citing financial reasons. In an email
[Bianchini] wrote to [Zhu] on June 16, 2014, he stated, “We are
not rich and do not have an unlimited source of money.”
[Bianchini] went on to say, “Trust me…I am not happy and am not
enjoying my life. Everything I wanted to do in life will never
happen now that I am married. I had to give it all up…” The email
also repeatedly referenced the parties as “we” and discussed their
joint financial status.
Id. (emphasis added). We note Bianchini sent this email only weeks before
he filed the complaint in divorce.
Furthermore, the trial corut noted:
Most telling, the parties regularly attended events together after
the date [Bianchini] identifies as the date of separation. As
mentioned before, for a number of years between 2003 and 2011,
the parties celebrated Chinese New Year together with [Zhu’s]
family. In 2007, the parties attended [Bianchini’s] nephew’s
wedding near Philadelphia, after which they stayed in the same
room at [Bianchini’s] parents’ home. In March of 2011, the parties
attended [Zhu’s] cousin’s wedding in Shanghai. They also
attended a wedding for another of [Zhu’s] cousins in August of
2011, and [Zhu’s] sister’s wedding in August of 2013. [Zhu’s]
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sister testified the parties arrived together, sat at the same table,
and interacted with one another as a married couple.
Id. At 14.3
In light of the above, we must agree with the trial court that Bianchini
has failed to rebut the statutory presumption that the date of separation in
this matter is the date Bianchini filed the complaint in divorce. After the dates
of separation proposed by both Bianchini and the Master had passed, the
couple repeatedly interacted as a married couple. They shared a bed and
finances. They traveled the world, as a couple, from Shanghai to Allentown
to attend each other’s family functions. They complained about each other’s
behavior, but they took no affirmative steps to end their marriage until July
30, 2014, when Bianchini filed the complaint in divorce. The trial court’s
holding is supported by evidence of record and does not represent an abuse
of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/18
____________________________________________
3Citations to the record, for all of the quotes related above, have been
omitted.
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