# Leister v. Leister

> Superior Court of Pennsylvania · October 28, 1996 · 453 Pa. Super. 576

URL: https://www.frixlaw.com/law-library/cases/9752663

## Case

- **Full name:** Colleen LEISTER v. Raymond LEISTER, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** October 28, 1996
- **Citations:** 453 Pa. Super. 576; 684 A.2d 192; 1996 Pa. Super. LEXIS 3519
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** McEwen, Sole, Beck, Tamilia, Kelly, Popovich, Johnson, Hudock, Schiller
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752663

## How later opinions describe it (automated extraction)

- holding that spousal support orders, when entered during the pendency of a divorce action, are interlocutory and unappealable, even if entered pursuant to a separately filed complaint for support
- holding that a spousal support order entered during the pendency of a companion divorce action is not appealable until all claims connected with the divorce action are resolved
- holding spousal support action initiated by complaint filed separately from companion divorce action is not to be differentiated from the divorce action for purpose of deciding appealability of spousal support order
- holding that spousal support claims are not appealable until all economic issues have been resolved and a final divorce decree has been entered
- holding that spousal support orders are interlocutory and not appealable when entered during the pendency of divorce claims

## Opinion text

JOHNSON, Judge,
dissenting:
My distinguished colleagues consider the appealability of an award of spousal support entered in response to a complaint for support, where the support action is separate from a related divorce action. However, Raymond P. Leister, the appellant, asks us to consider only the question of whether the trial court abused its discretion in finding a consensual separation of the parties thereby entitling the wife to spousal support where a lapse clause in a property settlement agreement between the parties required a reversion back to the parties’ positions prior to separation.
I believe that by considering the appealability of an otherwise final order we have exceeded our scope of appellate review. I further believe that the record facts do not permit the analysis which is undertaken by my colleagues. Finally, after my review of the entire record, I would affirm the order granting spousal support. For all of these reasons, I must respectfully dissent.
I turn, first, to our scope of appellate review. Our supreme court provides clear guidance in two cases, both of which, like the matter here before us, involve appellate review of a domestic relations order. In Wiegand v. Wiegand, 461 Pa. 482 , 337 A.2d 256 (1975), wife filed for a bed and board divorce and petitioned for alimony and preliminary counsel fees pendente lite. The trial court granted wife’s petition and ordered husband to pay both alimony and preliminary counsel fees. *584 Later, wife petitioned for additional fees and reimbursement of costs, both of which were granted. On appeal to this Court, husband asserted that the trial court (1) erred in denying husband’s right of cross-examination concerning wife’s separate estate and (2) abused its discretion in awarding counsel fees of $5,000. This Court, instead of addressing those issues, declared that it was “compelled to consider whether, in light of the adoption of the Equal Rights Amendment to the Pennsylvania Constitution, §§ 11 and 46 of the Divorce Law ... providing respectively that wives, but not husbands, may obtain divorces from bed and board and be allowed reasonable alimony pendente lite, counsel fees, and costs in a divorce action, still pass constitutional muster.” Wiegand v. Wiegand, 226 Pa.Super. 278, 280-81 , 310 A.2d 426, 427 (1973) (footnotes omitted). This Court held that §§ 11 and 46 impermissibly discriminated on the basis of sex and were therefore void as repugnant to the Constitution. Id. at 286, 310 A.2d at 430 .
In reversing this Court’s decision, our supreme court held as follows:
The Superior Court by sua sponte deciding the constitutional issue exceeded its proper appellate function of deciding controversies presented to it. The court thereby unnecessarily disturbed the processes of orderly judicial decision making. Sua sponte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel’s advocacy.... Furthermore, sua sponte determinations raise many of the considerations that led this Court to require without exception that issues presented on appeal be properly preserved for appellate review by timely objection in the trial court.
461 Pa. at 485 , 337 A.2d at 257 (citations omitted). In Wiegand, our supreme court concluded that this Court should not have considered an unpresented issue, but instead should have resolved the appeal on the basis of the issues raised by the parties. Id. at 485, 337 A.2d at 257-58 . The matter was reversed and remanded to this Court for consideration of the issues raised at trial and properly preserved for appellate review. Id. at 485 , 337 A.2d at 258 .
*585 In another case, husband brought an appeal to this Court from that portion of a final divorce decree that distributed the parties’ property. Estep v. Estep, 326 Pa.Super. 404 , 474 A.2d 302 (1984). The husband had preserved his objections in the trial court based upon an alleged improper division of the marital assets. On appeal, this Court reversed, holding that the disputed property items were “non-marital” assets and therefore not subject to equitable distribution. Wife then appealed to our supreme court, which reversed our decision, stating that this Court’s holding that the assets were “non-marital” was outside the scope of proper appellate review. Estep v. Estep, 508 Pa. 623 , 500 A.2d 418 (1985). As in Wiegand, our supreme court remanded the matter for consideration of any outstanding issues not previously considered. Id. at 628, 500 A.2d at 420 .
More recently, this Court had received an appeal from the denial of a petition to remove a compulsory nonsuit. Franek v. Sun Oil Company, 352 Pa.Super. 621 , 505 A.2d 1038 (1985) (table). Without addressing the trial court’s alleged abuse of discretion in refusing to remove the nonsuit, we held that the granting of the nonsuit was premature under Pa.R.C.P. 230.1 because no evidence had yet been presented in the case. On further appeal, our supreme court, citing to Estep, once again reversed and remanded. Franek v. Sun Oil Company, 515 Pa. 220 , 527 A.2d 1006 (1987) (per curiam).
In this case, the Brief for Appellant sets forth the only issue upon which review is sought as follows:
SHOULD THE COURT REVERSE THE AWARD OF SUPPORT UNDER CIRCUMSTANCES WHERE THE LAPSE CLAUSE IN THE AGREEMENT REQUIRES A REVERSION BACK TO THE PARTIES’ POSITION PRIOR TO THE SEPARATION AND THE PRE-SEPARATION POSITION WAS SUCH THAT WIFE HAD NO ADEQUATE GROUNDS, NOR HUSBAND’S CONSENT, TO SEPARATE FROM THE MARITAL RESIDENCE?
Brief for Appellant at 4. The order from which the appeal has been taken sets forth, in its entirety:
*586 ORDER OF COURT
AND NOW, this 16th day of September, 1994, after full review of the record, and in accordance with Order of Court dated August 31, 1994, record indicating that consensual separation does not impair the obligation of the defendant for spousal support, defendant’s Objections to the Order of Court entered May 4,1994 are denied and dismissed.
Defendant is directed to comply with said Order. Wage attachment to remain in full force and effect.
BY THE COURT:
s/James C. Hogan J.
Order, filed September 20,1994.
Neither the Appellant nor the Appellee have included anything in their briefs to this Court on the issue of the appealability of the order. I find nothing in the certified record to suggest that the issue which my colleagues address was even raised in the trial court prior to entry of the order prompting this appeal. I conclude that the question which my colleagues seek to answer — the question of the immediate appealability of a spousal support order, entered in response to an independent complaint for support and during a separate divorce action — is beyond the scope of our proper appellate review. Estep v. Estep, supra, at 628, 500 A.2d at 420 ; Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 233 , 478 A.2d 800, 804-805 (1984) (Superior Court exceeded proper scope of appellate review by reviewing the record independently of the issues raised by the parties); Wiegand, supra, at 485, 337 A.2d at 257-58 . see also Smith v. King’s Grant Condominium, 418 Pa.Super. 260, 273 , 614 A.2d 261, 268 (1992) (per Ford Elliott, J., with one judge concurring in the result) (reviewing court exceeds its scope of review by considering an issue sua sponte), aff'd 537 Pa. 51 , 640 A.2d 1276 (1994).
Next, I consider whether, assuming that the issue presented by Husband is within our scope of review, there is sufficient information within this certified record to answer it.
First, I begin with what is not in the certified record presented to this Court. It is only through the testimony of *587 Colleen Leister (“Wife”) at the hearing on support in this case that we may assume that a complaint in divorce was filed in another case on or about June 29, 1993. N.T., August 31, 1994, at 8-9. I have found nothing in the record setting forth either the docket number or the court in which the divorce action may have been filed. No pleadings from the alleged divorce action have been attached, or even cited, in this case. As to the scope and status of the alleged divorce action, we have the assertion of the trial judge, the Honorable James C. Hogan, in his Memorandum Opinion filed pursuant to Pa. R.A.P. 1925(a), that Wife has not filed for spousal support in the divorce action. Opinion, filed December 5, 1994, at 2. This is consistent with the representations of counsel made to the trial court at the support hearing, wherein the following transpired:
THE COURT: Is there a divorce action pending?
MR. DESCHLER [Wife’s Counsel]: Yes, there is.
THE COURT: Has the matter been scheduled before a master for equitable distribution?
MR. DESCHLER: No, Your Honor.
THE COURT: Is it demanded by either party?
MS. FENCHEN [Husband’s Counsel]: Your Honor, as far as we’re concerned, yes. And as a matter of fact, / would like to at this point request that we be allowed leave to add an equitable distribution count to the divorce complaint, as it was not included in the original filing. Do you have any objection to that?
MR. DESCHLER: Well, Your Honor, number one, we’re here for a support matter. And secondly, I don’t think we need leave of court to do that, as long as it’s raised before the final decree.
N.T., supra, at 3-4 (emphasis added).
It is not clear from this record where the divorce action was filed. From the colloquy between the trial court and counsel, however, it may be assumed that the complaint was filed in the Court of Common Pleas of Northampton County. What is clear, nevertheless, is that both at the time of the last hearing *588 in this matter and at the time the trial court entered its order we now review, a prayer for equitable distribution had not been pleaded, and Wife had not filed a claim for spousal support in the divorce complaint.
With this background, I turn to the analysis of my colleagues concerning the appealability of the order awarding spousal support. In support of its conclusion that the appeal in this case must be quashed, the Majority Opinion relies on dictum found in a panel opinion of this Court, Calibeo v. Calibeo, 443 Pa.Super. 694 , 663 A.2d 184 (1995). In my view, that case is distinguishable because the Calibeo court treated the appeal as a divorce action determined by the civil procedure rules governing actions of divorce, Pa.R.C.P. 1920.1-1920.92, rather than the rules governing actions for support, Pa.R.C.P. 1910.1-1910.49. This Court said, in Calibeo :
[S]ince a divorce was entered in this case and the supplemented record now reflects that no economic claims remain to be decided, the spousal support award is deemed alimony pendente lite [pursuant to amended Rule 1920.31(d) ] and will be reviewed on its merits.
Id. at 698 , 663 A.2d at 186 . In the dictum found in Calibeo concerning the appealability of a spousal support order in a separately filed complaint for support, no authority is cited, nor is any analysis provided, to support the implied premise that the rules governing actions for support and the rules governing actions of divorce may be commingled and interpreted together, on the basis that “the difference between alimony pendente lite and spousal support, no matter if it is part of the divorce action or filed separately, is negligible.” Id. at 697-98 , 663 A.2d at 185 .
Until the dictum expressed in Calibeo , the law in this area was clear. Where a spousal support order was entered in a support proceeding instituted by complaint filed separately from any divorce action, the order was final and appealable. Myers v. Myers, 405 Pa.Super. 290 , 592 A.2d 339 (1991). The Majority suggests that the holding in Myers depended upon a footnote found in Ritter v. Ritter, 359 Pa.Super. 12 , 16 n. 2, 518 A.2d 319 , 321 n. 2 (1986). However, I am unaware of any *589 case decided before Ritter and Myers which would have suggested any contrary result. The result in Myers follows both logic and common sense, since matters filed separately in the court of common pleas are always treated separately on appeal, unless they are ordered to be consolidated. See Pa.R.A.P. 513. The majority cites to no case law that permits an appellate court to go outside the record of a case on appeal for purposes of determining whether there might be some other case which would control the appealability of the case then before the appellate court.
If our supreme court desired to establish the non-appealability of a final order in an action for support, it would have done so by adopting an amendment either to the rules governing actions for support, Pa.R.C.P. 1910.1-1910.49, or in the Rules of Appellate Procedure, rather than challenging the bench and bar to locate that new principle of law in a rule found within the rules governing an action of divorce, Pa. R.C.P. 1920.1-1920.92. While surely not intended, the Majority’s declarations regarding the legal impact that amendments to the divorce rules will have on separate actions for support constitutes, in my view, an improper incursion into the exclusive jurisdiction of our supreme court. The formal purpose of this Court is to maintain and effectuate the decisional law of the Supreme Court of Pennsylvania as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 545 , 486 A.2d 382, 386 (1985); Commonwealth v. Fiore, 445 Pa.Super. 401, 418 , 665 A.2d 1185, 1193 (1995); Miller v. Berschler, 423 Pa.Super. 405, 408 , 621 A.2d 595, 597 (1993), overruled on other grounds by McMahon v. Shea, 441 Pa.Super. 304, 313 , 657 A.2d 938, 942 (1995) (en banc), allocatur granted 544 Pa. 611 , 674 A.2d 1074 (1996) . I am prepared to await the pronouncement from our supreme court that actions in support are not governed by the rules governing those actions but rather by the rules governing actions of divorce.
Because I believe this Court is required to address the issue brought to us by the appellant, I now turn to that matter. On September 10, 1993, Wife filed a petition for spousal support. She later withdrew her petition after execution of the parties’ *590 property settlement agreement. Under the agreement, Wife received a 1991 Mitsubishi automobile, payment of one month’s rent, two months’ support of $250.00, and relief from certain debt obligations incurred during the marriage. Husband received the marital residence. Under the terms of the agreement, it would become null and void after six months if a divorce between the parties were not effectuated. Prior to the expiration of the six-month period, Wife indicated her intention to not abide by all of the terms of the agreement. The matter was litigated and the trial court declared the agreement null and void. Wife filed a second petition for spousal support, leading up to the award of support from which this appeal has been brought.
On appeal, Husband contends that the separation of the parties was non-consensual, and that Wife’s departure from the marital abode was willful, malicious, and without consent or encouragement. Wife argues that the separation was consensual.
This Court has set forth the standard by which we review support orders as follows:
“Initially we note that our scope of review from an Order awarding support is very narrow. We can reverse a support Order only if we find that the Order cannot be sustained on any valid ground. The decision of the trial court will not be reversed absent an abuse of discretion or an error of law.”
Hoag v. Hoag, 435 Pa.Super. 428, 433 , 646 A.2d 578, 581 (1994), aff'd by an equally divided court, 541 Pa. 621 , 664 A.2d 1354 (1995), quoting McAuliffe v. McAuliffe, 418 Pa.Super. 39, 42 , 613 A.2d 20, 22 (1992) (citations omitted). A finding of an abuse of discretion with respect to support proceedings is not lightly made and is determined only upon a showing of clear and convincing evidence that would require reversal. Commonwealth ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 127 , 326 A.2d 908, 910 (1974). Wife’s failure to live with Husband does not justify Husband’s refusal to support Wife unless the separation is willful and malicious and without consent or encouragement. Id. at 128-29 , 326 A.2d at 911 .
*591 Based upon my review of the certified record, I would conclude that the sole contention advanced by Husband on this appeal is meritless. The Memorandum Opinion filed by Judge Hogan pursuant to Pa.R.A.P. 1925(a) contains an adequate analysis and complete response to the only issue presented by Husband. Accordingly, I would affirm the order of September 16,1994 which denied and dismissed Husband’s objections to the earlier order of May 4, 1994, awarding support to Wife.
I conclude that the appealability issue which my esteemed colleagues consider is beyond the proper scope of appellate review. Because I would entertain the appeal and, after review, affirm the trial court’s order, I must respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752663. Public record. Not legal advice.