Leister v. Leister

TAMILIA, Judge,

dissenting:

The majority, without reviewing the merits of this appeal, quashes the appeal as being interlocutory. The termination is based on the decision rendered in Calibeo v. Calibeo, 443 Pa.Super. 694 , 663 A.2d 184 (1995) (Calibeo III). Calibeo , sua sponte, determined that a change in the rules dealing with the entering of a divorce decree mandated a change in appeals of support cases rendering all support actions, whether or not separate from a divorce action, to be non-appealable pending a final decree. The rule relied on, Pa.R.C.P. 1920.76, Form of Divorce Decree, provides, in the paragraph which follows the provision for retaining jurisdiction of any claims raised where a final Order has not been made,

Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending.

This provision should not be read to mean that all spousal support Orders become alimony Orders when a divorce action is pursued. From the title of the rule, Form of Divorce Decree, it is clearly limited to situations wherein a divorce decree has been entered while a support Order remains outstanding. The term “hereafter” refers to the date of the divorce decree and not to the date of the entry of the rule.

*592 Among other things, Calibeo and the majority ignore the fact that by the erroneous interpretation of the sentence added to the divorce decree form, a profound change has been wrought in the historic treatment of support and alimony as two different entities. The majority ignores the context in which that sentence is contained, that being an Order granting a divorce decree from the bonds of matrimony (I) where jurisdiction is retained over claims for which a final Order has not yet been entered and (2) where a spousal support Order exists. To protect an existing spousal support Order, which would terminate upon the entry of a decree, when there would be continuing need because significant claims of custody, permanent alimony and equitable distribution remain to be decided, the spousal support would hereafter be treated as alimony pendente lite, which continues throughout the litigation on the other claims.

The majority has taken the word “hereafter” totally out of its contextual parameters and gratuitously applied it to all spousal support Orders, however and whenever entered once an action in divorce is filed. It ignores the fact that the one-sentence provision is contained in Rules on Divorce and Annulment and applies very specifically to the contents of the form of the Divorce Decree, while nothing has been changed to qualify the status of support Orders in the controlling Rule 1910.01 et seq., Actions for Support. If the majority believes the provision of Rule 1920.76 somehow becomes incorporated into Rule 1910, it cannot have a nullifying effect. The Explanatory Comment-1994 provides:

Nothing in this rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.

Thus, it is conclusive that once a spousal support Order is entered separate from a divorce action or claim thereto, it retains its unique character under case law, including appealability until a final decree in divorce has been entered at which time the divorce decree Rule 1920.76 treats it as a continuing alimony pendente lite Order, when otherwise it would have been extinguished by operation of law. It was immediately *593 sensible to incorporate such a provision because marital claims more often than not continue in litigation long after a decree has been entered. The provision for bifurcation had to be adopted because the idealistic goal of original versions of the divorce code contemplated all issues to be resolved and determined in one proceeding and formalized simultaneously in a single, final decree. The resulting bifurcated proceeding and decree imposed a significant hardship upon spouses with a spousal support Order not included in the divorce action (but not on those incorporated in the divorce action) which is corrected by the additional language in Rule 1920.76. This was intended to right a wrong and not to deny a significant right, that of immediate appeal, which has been assured from time immemorium by statutory law, case law and the rules of civil procedure.

The action in this case was initiated pursuant to support rules 1910.10 and 1910.11 and not pursuant to a claim for alimony pendente lite or spousal support under divorce rule 1920.31, Joinder of Related Claims, Child and Spousal Support, Alimony, Alimony Pendente Lite, Counsel Fees, Expenses. Rule 1920.31(d) which provides, “[u]pon entry of a decree in divorce, any existing order for spousal support shall be deemed an order for alimony pendente lite if any economic claims remain pending”, reenforces the position that spousal support Orders are not ipso facto converted into alimony pendente lite Orders upon filing of an action in divorce, but only become so upon entry of a decree when any economic claims remain pending. For various reasons, a support action may have been pursued distinct from the divorce action or a claim for alimony because alimony and support are distinguishable. A spouse may need the desirable aspect of a support Order, one of which is its appealability. Support may be denied due to fault or consensual separation (as here) whereas alimony is generally based purely on need (fault may be considered). 23 Pa.C.S. § 3701, Alimony. Significance of fault is lessened by the fact it is one of 17 statutory factors. Nuttall v. Nuttall, 386 Pa.Super. 148 , 562 A.2d 841 (1989). Support Orders terminate upon entry of the divorce decree; *594 alimony pendente lite (as well as permanent alimony) continue after the decree under certain circumstances such as bifurcation of economic issues. Support actions may be filed during a separation when divorce is not immediately contemplated or during the waiting period of two years required under section 3301, Grounds for Divorce, section (d), Irretrievable breakdown.

In Calibeo , much is made of the fact that alimony as well as support may now be determined by the guidelines pursuant to Pa.R.C.P. 1910.16-1. This does not alter the distinction between support and alimony but simply treats the calculation of the amount payable in a uniform fashion and expedites the process of computing alimony, a necessary elimination of confusing and conflicting standards.

Because the support Order provision in section 1910 — 16(b) provides that an unallocated Order in favor of a spouse and one or more children is a final Order and appealable does not mean that a spousal support Order alone is not a final Order and not appealable as stated in Calibeo III. The majority infers this issue, which it now declines to discuss, would aid it, without explaining how that result is achieved. The rules of civil procedure clearly establish the procedure for processing review and appeal of support actions separately initiated and not part of a joinder of related claims in a divorce proceeding. Should support be sought after separation and not as a claim joined in a divorce action, the final Order is appealable as are all final Orders in civil proceedings. Rule 1930.2, No Post Trial Practice. Motions for Reconsideration, provides there shall be no post-trial relief in any domestic relations matters except in paternity actions tried by jury (then permitted in accordance with Pa.R.C.P. 227.1). A party aggrieved by the decision of the court (1930.2(b)) may file a motion for reconsideration in accordance with Pa.R.A.P. 1701(b)(3). If not granted, the time for filing notice of appeal will run as if the motion for reconsideration had never been filed. The Note advises that Pa.R.A.P. 903, Time for Appeal, applies, requiring that notice of appeal shall be filed within thirty days after the entry of the Order from which the appeal was taken.

*595 Calibeo III has misconstrued the intent and extent of the rule changes which accomplished two purposes, first, to make alimony subject to the support rules and guidelines and secondly, to provide the continuance of a spousal support Order as alimony pendente lite upon entry of a divorce decree when bifurcation as to economic issues has occurred. This was obviously a well-considered revision to prevent termination of an existing support Order and to provide for alimony pendente lite, when such an action could no longer be entertained because the decree had been entered. 23 Pa.C.S. § 3104, Bases of jurisdiction. See Foley v. Foley, 392 Pa.Super. 9 , 572 A.2d 6 (1990); Thill v. Larner, 321 Pa.Super. 62 , 467 A.2d 894 (1983). The provisions extended protection to the dependent spouse and should not be construed to limit a right to appeal which could impose a detriment to that spouse.

The facts of this case are simple. Husband filed for divorce on June 29, 1993 and a property settlement agreement was entered into on September 9, 1993. Husband and wife separated on September 28, 1993, at which time the wife left the marital residence. Wife then filed a petition seeking spousal support (separate from any divorce complaint) on March 9, 1994. On May 4, 1994, a support Order was entered requiring husband to pay spousal support in the amount of $468 per week. Husband requested a de novo hearing and, on December 4, 1994, the trial court affirmed the spousal support Order. Husband appeals alleging the separation was consensual and wife is not entitled to support. These facts raise issues which do not involve the divorce action and, regardless as to how resolved by the trial court, should be appealable as imposing hardship to either party in the event of error by the trial court. If the trial court had determined the wife was ineligible for support because of her consensual separation or desertion under the ruling by the majority, she could not appeal that decision until a final decree of divorce was entered, which could extend for a considerable period of time, imposing severe hardship on the wife. The husband might or might not be in a better position depending upon assets available at *596 distribution of the estate and the length of time it took to obtain a final Order.

In summation, the amendments to the guidelines were not intended to limit the right to appeal in spousal support cases nor were they intended to convert all support Orders into alimony Orders upon filing of a divorce action. It is clear that nothing in the amendments to the guidelines has the effect of eliminating appeals in support cases during the pendency of a divorce case, and the one reference to appeal of unallocated child and spousal support Orders cannot be construed to eliminate the right of appeal in spousal support cases. The guidelines state that there cannot be an alimony pendente lite and spousal support Order existing at the same time which indicates that one is not exclusive of the other but one may be a substitute for the other. Finally, the clear intent of the amendments is to provide for continuing spousal support in the form of alimony pendente lite, upon the entrance of a divorce decree when economic interests remain to be litigated in a bifurcated case. Those revisions were necessary for two reasons. First, if alimony pendente lite (or permanent alimony) is not requested in the divorce complaint or an amendment thereto before the divorce decree is entered, it is waived and may not thereafter be claimed. See Thill, supra. Second, once a divorce decree is entered, support ends and only a previously existing alimony pendente lite Order survives the decree in a bifurcated case. The dependent spouse may be left without support for some time, dependent upon the entrance of a permanent alimony Order which might be one of the economic issues preserved. If the rules intended that all support Orders, upon filing of a divorce complaint, became alimony pendente lite Orders, this would have been clearly stated. As written, the rules provide for conversion of spousal support Orders to alimony pendente lite only upon entrance of a divorce decree where economic issues have been preserved, and not upon filing of a divorce complaint or any time a support Order is entered thereafter. The cases are legion wherein the spousal support Orders preexist the divorce complaint or is obtained well after the filing of the *597 complaint. To deny the right to appeal from these Orders, which are separate from the divorce action, takes away a substantial right from a spouse to appeal an inequitable Order during sometimes prolonged divorce proceedings. A perfect example is Calibeo III, cited as authority by the majority. In that case, the parties separated on May 13,1987; wife filed for divorce on April 21, 1988 and claimed for spousal support and equitable distribution. Under Ritter v. Ritter, 359 Pa.Super. 12 , 518 A.2d 319 (1986), she was not entitled to appeal the spousal support Order. However, in the initial Calibeo case, the support Order was appealed and this Court affirmed the Order rather than quashing the appeal. Calibeo v. Calibeo, 397 Pa.Super. 636 , 571 A.2d 497 (1989) (unpublished Memorandum) (Calibeo I). The appeal of both parties on divorce issues was appealed, heard and decided by this Court on July 8, 1994. Calibeo v. Calibeo, 437 Pa.Super. 659 , 649 A.2d 457 (1994) (unpublished memorandum) (Calibeo II). Ultimately, in the published Opinion, Calibeo III, supra, the support issues were revisited, and contrary to the statement in Calibeo I (support filed as part of the divorce complaint), Calibeo III held sua sponte that it was a separate support action but nevertheless was untimely due to the changes in the guidelines. This Opinion was filed July 31, 1995. This extended case points out, however, the benefit to a dependent spouse that comes from being able to file a separate support action, distinct from the divorce complaint where a divorce, as here, is in progress for over eight years. Such Orders can be appealed and reviewed periodically and thereby prevent hardship. Nothing in the guidelines changes the effect of Ritter, supra, and Myers v. Myers, 405 Pa.Super. 290 , 592 A.2d 339 (1991). Calibeo III should not be construed or permitted to overrule two other published cases when the intent was not clearly spelled out by the guidelines to do so.

I would decide the case on its merits and not quash the appeal.