No. 2121 October Term 1979, Appeal from Order of the Court of Common Pleas of Schuylkill County At No. S-1362 of 1977.
Maureen E. Hogan, Pottsville, for appellant.
William J. Krencewicz, Shenandoah, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 283 Pa. Super. Page 256]
This is an appeal from a decree granting a divorce on the ground of indignities. Appellant has also petitioned to have the case remanded to the lower court for consideration under the Divorce Code of 1980, Act of April 2, 1980, P.L. 26, 23 P.S. § 101 et seq. It will be convenient to consider first whether we should remand, and then the merits.
Section 103 of the Divorce Code provides that "[the Code] shall not apply to any case in which a decree has been rendered prior to the effective date of [the Code]." The lower court's decree granting the divorce in this case was entered on August 13, 1979, well before the effective date of the Divorce Code, which was July 1, 1980. However, on July 1, 1980, the decree was on appeal to this court. This sequence of events suggests that we are confronted with the necessity of choosing between two equally plausible but mutually inconsistent interpretations of Section 103 of the Divorce Code. On the one hand, we might say that the Code cannot apply to this case because the decree was "rendered" on August 13, 1979, "prior to the effective date of [the Code]." On this interpretation the petition to remand should be denied. On the other hand, we might say that the
[ 283 Pa. Super. Page 257]
Divorce Code can apply to this case because a decree is not "rendered" until we decide on appeal that it should be affirmed. On this interpretation, the petition to remand should (barring some other consideration) be granted. We think, however, that an examination of the cases will show that the necessity of such a choice of interpretations is more apparent than real.
When an appeal is taken from a divorce decree, the appeal suspends the effect of the decree. Commonwealth ex rel. Brown v. Brown, 254 Pa. Super. 410, 386 A.2d 15 (1978). Some cases suggest that this means the parties are still married. E. g., Ponthus v. Ponthus, 70 Pa. Super. 39 (1918). However, the issue in Ponthus, as in Commonwealth ex rel. Brown v. Brown, supra, and numerous other cases holding that an appeal suspends the effect of a divorce decree, was not whether the parties were still married but whether the dependent party was entitled to support during the pendency of the appeal. See also, e. g., Oswald v. Oswald, 263 Pa. Super. 85, 397 A.2d 7 (1979); Jack v. Jack, 253 Pa. Super. 538, 385 A.2d 469 (1978). Considerations of public policy require that the dependent party be entitled to support, in the form of alimony pendente lite and the award of counsel fees, before entry of the lower court's decree, lest an unjust action go undefended. Since there is an absolute right of appeal from the lower court's decree, these same considerations require that the dependent party be entitled to support during the pendency of the appeal. It is therefore evident that the suggestion that the parties are still married during the pendency of an appeal cannot be understood as defining their relationship except financially. In other words, we should not say that because the parties are "still married" pending an appeal, the decree divorcing them is not "rendered" until we affirm it.
Some further understanding of the nature of the parties' relationship pending on appeal may be gained from an examination of the cases where during the pendency of the appeal, one of the parties has died. In Matuszek v. ...