Bianchini, C. v. Zhu, X.

J-A12023-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 CRAIG A. BIANCHINI : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : XIAO RONG ZHU : No. 66 EDA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 J-A12023-18 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 ...

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