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MIRARCHI v. MIRARCHI (11/16/73)

decided: November 16, 1973.

MIRARCHI, APPELLANT,
v.
MIRARCHI



Appeal from order of Court of Common Pleas of Northumberland County, Dec. T., 1970, No. 198, in case of Irene Mirarchi v. Ralph Mirarchi.

COUNSEL

Vincent B. Makowski, with him Lark, Makowski & Marateck, for appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 226 Pa. Super. Page 54]

This appeal presents the novel question of whether a defendant may have a divorce decree entered against himself contrary to the wishes of the party favored by the master.

On January 11, 1971, the appellant, Irene Mirarchi, filed a Complaint in Divorce in the Court of Common Pleas of Northumberland County. Defendant was personally served with the Complaint, and took no action whatsoever. On March 20, 1971, a hearing was held before the master, at which defendant neither appeared nor was represented by counsel. The master then filed his report with the Prothonotary, recommending that a decree of divorce be granted the plaintiff. A notice of the filing of the report was sent to each of the parties stating that "unless exceptions are filed by either of you within ten (10) days from the filing thereof the same will be presented to the Court to enter a final decree in accordance with the recommendation of the master." There were no exceptions to the report by either party.

On September 20, 1971, counsel for the defendant removed the divorce file from the office of the Prothonotary, and asked the Court to issue the final decree.

[ 226 Pa. Super. Page 55]

On the same day, the lower court granted counsel's motion and signed the decree divorcing plaintiff and defendant. Upon receiving notice of the Court's action, plaintiff immediately filed a petition for a rule to show cause why the decree should not be vacated or in the alternative be opened. Following a hearing, the lower court dismissed the rule. This appeal followed.

This is a case of first impression in this Commonwealth. We have found no appellate decision which has considered the issue. We do believe, however, that well-established principles of our divorce law do not permit such a holding.

The appellee, defendant below, calls our attention to the local rule of court, Rule N. C. P. 113.5(f), which provides, in part: "If no exceptions are filed to the report by the master within ten (10) days after the report is filed in the office of the Prothonotary, counsel for the parties shall present the report to the Court . . ." Appellee contends that this Rule permits either party, through his appointed counsel, to present the divorce file to the Court for final decree.

It has always been the law that the party seeking a divorce will not be granted a dissolution of the marriage unless he or she is "an innocent and injured spouse." See, 23 P.S. ยง 10; Shoemaker v. Shoemaker, 199 Pa. Superior Ct. 61, 184 A.2d 282 (1962). While our divorce law provides a complete procedure for the determination of divorce actions, overriding this is the basic interest in the State to preserve the marital unit. As we said in Bonomo v. Bonomo, 123 Pa. Superior Ct. 451, 454, 187 A. 222 (1936), "Marriage is a relation in which the public is deeply interested and is subject to dissolution only for the causes sanctioned by law. Judgment by default or pro confesso does ...


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