J-A12023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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]

____________________________________________


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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J-A12023-18


       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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