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WILLIAM R. GORDON v. ROSEMARIE A. FEENEY GORDON (04/23/81)

argued: April 23, 1981.

WILLIAM R. GORDON
v.
ROSEMARIE A. FEENEY GORDON, APPELLANT



Nos. 1902 and 2150 Philadelphia, 1980, Appeal from Orders of the Court of Common Pleas, Civil Division of Delaware County, at 79 - 188

COUNSEL

William A. George, Media, for appellant.

Stanley M. Shingles, Philadelphia, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham, Brosky, DiSalle, Johnson, Montemuro, Popovich, Shertz and Wieand, JJ. Montemuro, J., files a concurring opinion. Popovich, J., files a concurring opinion. Shertz, J., files a concurring and dissenting opinion in which Hester, J., joins. Wieand, J., files a dissenting opinion.

Author: Spaeth

[ 293 Pa. Super. Page 496]

This is a divorce action. The action was commenced under the Divorce Law of 1929,*fn1 and was pending on July 1, 1980, when the Divorce Code of 1980*fn2 became effective. Section 103 of the Divorce Code provides that "upon application granted," a pending action shall proceed under the Divorce Code instead of under the Divorce Law. Appellant, as the wife-defendant, filed an application that this action proceed under the Divorce Code. The reason she filed the application was to take advantage of provisions of the Divorce Code that direct equitable distribution of marital property and, in certain circumstances, payment of alimony after divorce. The Divorce Law has no such provisions, so that if the action were to proceed under it, and appellant were divorced from her husband, she would be entitled only to her share of property that had been held by the entireties and would not be entitled in any circumstances to alimony. The lower court denied the application, and the principal issue on this appeal is whether that was error. We hold that when the application was presented, the lower court should have asked whether granting it would further "the policy of the Commonwealth" as declared by the legislature when it enacted the Divorce Code. 23 P.S. § 102. As applied to the facts of

[ 293 Pa. Super. Page 497]

    this case, that means that the lower court should have asked whether granting the application would "deal[ ] with the realities of matrimonial experience," 23 P.S. § 102(a)(1), "[m]itigate the harm to the spouses," 23 P.S. § 102(a)(4), and "[e]ffectuate economic justice," 23 P.S. § 102(a)(6). It is clear that granting the application would further these objectives. Accordingly, in denying the application the lower court committed error. We therefore reverse and remand with instructions that the action proceed under the Divorce Code.

I

Before we may reach the principal issue, as we have just defined it, we must clear away a good deal of procedural underbrush.

Appellee, the husband-plaintiff below, commenced this action by filing a complaint in divorce a.v.m. on January 2, 1979, charging appellant, his wife, with indignities. Appellant contested the action, and nine hearings were held before a master. On April 2, 1980, the master filed his report, recommending that appellee be granted a divorce. Meanwhile, on March 25, 1980, the legislature had enacted the Divorce Code. On April 2, 1980, the Governor signed the Divorce Code, to become effective on July 1, 1980. On July 7, 1980, appellant filed an application that the action proceed under the Divorce Code. On July 29, 1980, the lower court entered an order denying the application. Appellant appealed to this court at Number 1902 Philadelphia 1980. On September 4, 1980, the lower court entered a decree granting appellee a divorce on the ground of indignities. Appellant appealed to this court at Number 2150 Philadelphia 1980. On February 6, 1981, the two appeals were consolidated. Meanwhile, on September 3, 1980, appellee had filed a motion to quash Appeal Number 1902, from the order denying appellant's application, claiming that the order was an unappealable interlocutory order. On February 20, 1981, we denied the motion to quash, without prejudice, however, to the parties' rights to brief and argue the question whether the order was immediately appealable.

[ 293 Pa. Super. Page 498]

A

It will be convenient to consider first the status of Appeal Number 2150, from the decree granting appellee a divorce. As just stated, when the lower court entered the decree, appellant had already filed Appeal Number 1902, from the lower court's earlier order denying her application that the action proceed under the Divorce Code. This being so, the lower court had no jurisdiction to proceed further with the case. Pa.R.A.P. 1701. The court was therefore without power to enter the decree granting appellee a divorce. It is true that the court believed that its order denying appellant's application was an interlocutory order from which no appeal could be taken, and had filed an opinion to that effect. Even if correct, however, and as we shall see, it was not, this belief was irrelevant. This court has held that "[t]he fact that the appellate court ultimately quashes an appeal because it was improperly taken from an interlocutory order does not add strength or validity to an order entered while said appeal is pending. It is for the appellate court to determine the merits of the appeal, and not the lower court." Weise v. Goldman, 229 Pa. Superior Ct. 187, 323 A.2d 31 (1974). We must therefore vacate the decree granting appellee a divorce, and dismiss Appeal Number 2150 as moot.

B

We may now consider the status of Appeal Number 1902, from the lower court's order denying appellant's application that the action proceed under the Divorce Code. While the answer to the question whether that order was immediately appealable is not self-evident, it is plain enough.

"Whether an order is final and appealable cannot necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications." [ Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975)]. We have also said that

[ 293 Pa. Super. Page 499]

    if the practical consequence of the order by the trial court is effectively to put an appellant "out of court" the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). Similarly, an order is "final" if it precludes a party from presenting the merits of his claim to the lower court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

Pugar v. Greco, 483 Pa. 68, 74, 394 A.2d 542, 545 (1978).

Stated generally, the policy underlying the principle that an order is not appealable unless it puts the appellant "out of court" is that piecemeal litigation should be avoided; the appellate courts will use their resources more economically if they review a case only once, rather than deciding one issue on one appeal, and another issue on a later appeal. Thus where the trial court on preliminary objections has dismissed one or more counts of a multi-count complaint, but has not dismissed the entire complaint, we have held that the court's order was interlocutory and not appealable. E.g., Bagshaw v. Vickers, 286 Pa. Superior Ct. 246, 428 A.2d 664 (1981); Giannini v. Foy, 279 Pa. Superior Ct. 553, 421 A.2d 338 (1980).

However, the phrase "out of court" must not be interpreted literally; it is not synonymous with "final." In Commonwealth v. Orsatti, 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972), the Supreme Court in refusing to quash an appeal, said: "[W]e do not mean to suggest that a final judgment on the original issue raised by the complaint could not have been awaited by the defendants or that, upon appealing from such final judgment, the action of the court below, . . . . could not then have been assigned for error. But, obviously, such a course would not have afforded expeditious procedure for the ultimate disposition of the entire controversy," quoting Broido v. Kinneman, 375 Pa. 568, 569, 101 A.2d 647, 648 (1954). See also, Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966); Pellegrine v. Home Ins. Co., 200 Pa. Superior Ct. 48, 186 A.2d 662 (1962). It is therefore plain that in deciding whether an order is "final," one must do more than ask only whether the

[ 293 Pa. Super. Page 500]

    appellant is "out of court;" one must also ask whether, even if the appellant is still in court, the order is in its "practical aspects," Bell v. Beneficial Consumer Discount, supra, sufficiently final to make it appealable. These considerations explain the rule that "an order is 'final' if it precludes a party from presenting the merits of his claim to the lower court." Pugar v. Greco, supra 483 Pa. at 74, 394 A.2d at 545.

A helpful illustration of this rule may be found in T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). There the appeal was from an order dismissing the appellant's complaint. The Supreme Court acknowledged that in a literal sense, the appellant was not "out of court," for the appellees had filed a counterclaim that remained to be tried. The Court nevertheless held that the lower court's order was appealable, for its "practical ramification . . . [was] to completely deprive the litigant of his day in court so far as his claim is concerned." 472 Pa. at 337, 372 A.2d at 724.

In the present case, appellant is in essentially the same position as were the appellants in T.C.R. Realty, Inc. v. Cox, supra; Commonwealth v. Orsatti, supra, and Broido v. Kinneman, supra. If the action is to proceed under the Divorce Law, as appellee asserts it should, appellant is limited to defending on the merits; she may claim that appellee has not proved that she was at fault and that he is an innocent and injured spouse. 23 P.S. § 10. If, however, the action is to proceed under the Divorce Code, appellant may assert claims of her own, specifically, to an equitable distribution of marital property, 23 P.S. § 401(d), and to alimony after divorce, 23 P.S. § 501. Appellant's right to an equitable distribution of marital property would be absolute, that is, unaffected by a finding on the merits that she was at fault and that appellee is innocent and injured and therefore entitled to a divorce. 23 P.S. § 401(d). With regard to appellant's right of alimony, any marital misconduct on her part would be only one of fourteen factors to be considered by the court. 23 P.S. § 501(b). The lower court's order denying appellant's application that the action proceed under the Divorce Code did not put appellant completely

[ 293 Pa. Super. Page 501]

    out of court, for she remains in court to defend appellee's claim to a divorce under the Divorce Law. However, so far as appellant's own claims under the Divorce Code are concerned, the order did put appellant completely out of court, for it "completely deprive[d] [her] or [her] day in court" on those claims. T.C.R. Realty, Inc. v. Cox, supra, 472 Pa. at 337, 372 A.2d at 724. We therefore hold that the lower court's order denying appellant's application that the action proceed under the Divorce Code was appealable.

We may add that the correctness of this conclusion is confirmed by a consideration of the practical aspects of the order. It would of course be possible to say that decision on the correctness of an order denying an application that an action proceed under the Divorce Code should await decision on the merits of the divorce decree; if it were decided that the decree should be affirmed, but that the application should have been granted, the case could be remanded for the limited purpose of awarding equitable distribution of marital property and, depending on the circumstances, alimony. As a practical matter, however, such delayed relief might do irreparable harm. Divorce litigation is notably bitter, and many an appellant would find, upon remand, that the marital property had been dissipated, with the result that her rights on remand (or his) were of little value. As we have seen, for an order to be appealable the possibility of irreparable harm need not be shown, so long as the order "completely deprives" the appellant of the ability to present his claim. T.C.R. Realty, Inc. v. Cox, supra. However, when to such deprivation the possibility of irreparable harm is added, the conclusion that the order is appealable is particularly compelling.

II

Having held it appealable, we may now consider the correctness of the lower court's order denying appellant's application that the action proceed under the Divorce Code

[ 293 Pa. Super. Page 502]

    of 1980, instead of the Divorce Law of 1929. Stated generally, the question we must answer is, How should a court decide whether to grant such an application? It has been suggested that the legislature has prescribed no standards, and that because of that failure, the answer to this question is obscure. To the contrary, however, as we shall see, the legislature has prescribed standards, which are stated in the most vigorous and forthright manner. In a rare case, perhaps, a court may experience some difficulty in deciding whether to grant an application. In most cases, the decision should be easy.

A

Section 103 -- the section of the Divorce Code in question -- provides as follows:

The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.

The record of the legislative debate that preceded adoption of the Divorce Code includes no discussion of the phrase "upon application granted." This is not surprising, for section 103 was taken almost verbatim from section 104 of the Proposed Divorce Code drafted by the Joint State

[ 293 Pa. Super. Page 503]

Government Commission in 1961 and published by the Commission at that time.*fn3 Section 104 of the Proposed Divorce Code of 1961 was in turn taken almost verbatim from section 67 of the Divorce Law of 1929.*fn4

[ 293 Pa. Super. Page 504]

Section 67 provided that pending actions "shall and may be proceeded with and concluded under the [prior] law[ ] . . . or may be proceeded with and concluded under the provisions of this act." The Divorce Law of 1929 was intended primarily as a restatement and codification of existing law. Teitelbaum, "The Pennsylvania Divorce Law," 23 P.S. at 343, 346. Generally speaking, therefore, it was unimportant under which law a pending action proceeded.

The Proposed Divorce Code of 1961 contemplated significant changes in the divorce law, although not as significant as those ultimately made by the Divorce Code of 1980. In particular, the Proposed Divorce Code of 1961 provided for divorce after "[l]iving apart for a continuous period of two years because of estrangement due to marital difficulties," § 301(1)(c), and for alimony, § 504. Given changes of this significance, it was necessary to make clear whether the old law or the new law would apply to a pending action. Thus, while the official comment to section 104 of the Proposed Divorce Code of 1961 explained that section 104 was "based on Section 67 of the 1929 Act (23 P.S. § 67)," section 104 was altered to provide that a pending action would proceed under the old law unless, "upon application granted," the new law was made applicable.

Section 102 of the Proposed Divorce Code of 1961 contained a declaration of "the policy of the Commonwealth of Pennsylvania." The declaration described the objectives sought to be achieved by the Code, and concluded with the provision that these objectives "shall be considered in construing any provisions of this act and shall be regarded as expressing the legislative intent." The official comment to section 102 of the Proposed Divorce Code of 1961 reads: "The provisions of this section are new and are intended to apply to the entire code, including provisions of Section 104 relating to 'Pending Proceedings.'" (Emphasis added.) It is therefore plain beyond misunderstanding that under the Proposed Divorce Code of 1961, the decision whether an "application [should be] granted" was to be made by reference to the objectives described in section 102 of the Code.

[ 293 Pa. Super. Page 505]

If granting the application would further those objectives, the court should grant the application; if granting the application would be inconsistent with those objectives, the court should deny the application.

Exactly the same statutory structure is repeated in the Code of 1980. Section 102 of the Divorce Code of 1980 contains a declaration of "the policy of the Commonwealth of Pennsylvania." The declaration describes the objectives sought to be achieved by the Code. These objectives are closely modeled on those described in section 102 of the Proposed Divorce Code of 1961; indeed, many of the same phrases are repeated.*fn5 Finally, section 102 of the Divorce

[ 293 Pa. Super. Page 506]

Code of 1980 concludes with a provision, copied almost verbatim from section 102 of the Proposed Divorce Code of 1961, that the objectives described in the declaration of policy "shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent." It is therefore just as plain under the Divorce Code of 1980 as it was under the Proposed Divorce Code of 1961 that the decision whether an "application [should be] granted" is to be made by reference to the objectives described in section 102 of the Code. If granting the application will further those objectives, the court should grant the application; if granting the application will be inconsistent with those objectives, the court should deny the application.

B

Reference to the objectives described in section 102 of the Divorce Code will in most cases make it easy for a court to decide whether to grant an application that a pending action proceed under the Code.*fn6 The point to bear in mind is

[ 293 Pa. Super. Page 507]

    that the Divorce Code of 1980 represents a drastic, and dramatic, repudiation by the legislature of the philosophy of the Divorce Law of 1929.

With only very minor exceptions, the Divorce Law permitted a decree of divorce to be entered only upon proof of fault. Divorce was thus regarded as a punishment, and consistent with this attitude, the Divorce Law contained no provisions for alimony after divorce or distribution of separately titled property. A prevailing plaintiff, having won an adversary litigation, had no duty to provide economically for the defendant who had just been found to have been at fault. Hooks v. Hooks, 123 Pa. Superior Ct. 507, 513, 187 A. 245, 247 (1936).

The consequences of this legislative scheme were most regrettable. For example: A couple might want a divorce because their marriage had irretrievably failed. They would be unable to get a divorce, however, either because neither could prove that the other was at fault in any of the senses that fault was defined under the Divorce Law, or because neither was an "injured and innocent" spouse. If they could afford it, they would resort to another jurisdiction. More likely, they would resort to a court in Pennsylvania, obtaining a divorce on the basis of perjured testimony. Another example: A husband wanted a divorce, to marry another woman, but could not get it because he could not prove that his wife was at fault. Knowing that if he got a divorce he would not have to support her, and that he was not entitled to a divorce, his wife would not agree to a divorce until he made a property settlement, which she required be as large as possible ("If you want a divorce, you're going to have to pay for it"). The settlement made, she would stop contesting the divorce action, and a divorce would be obtained

[ 293 Pa. Super. Page 508]

    either in another jurisdiction or in Pennsylvania on the basis of perjured testimony. Another example: A wife was economically dependent on her husband. Whatever employable skills she once had were lost or obsolete because she had spent her time taking care of her husband and the household and having and raising children. Her husband demanded a divorce. If he obtained a divorce, she would be economically helpless; she would be entitled to no share of the property he had accumulated during their marriage and put in his name only. She therefore contested his action, in every possible way, and without reference to the merits of the case -- as "merits" were defined under the Divorce Law -- or the state of the marriage.

Examples could be multiplied but need not be. It is enough to observe that under the Divorce Law of 1929, dishonesty, greed, and cruelty were characteristic of divorce litigation, and great and unnecessary misery was inflicted, not simply on the parties, but often, on their children, who were drawn into the bitter and protracted struggles.

In enacting the Divorce Code of 1980, the legislature responded to these conditions in the most vigorous and forthright manner. In section 102 of the Divorce Code the legislature declared as the policy of the Commonwealth a philosophy and set of objectives diametrically opposed to the punitive philosophy of the Divorce Law of 1929. Thus the legislature expressed its intent that the new Code should "deal[ ] with the realities of matrimonial experience." 23 P.S. § 102(a)(1). It stated that "reconciliation and settlement" should be "[e]ncourage[d] and effect[ed]," "especially where children are involved." 23 P.S. § 102(a)(2). It explicitly repudiated the philosophy that the basis of the law should be "the vindication of private rights or the punishment of matrimonial wrongs," stating that instead, "primary consideration" was to be given to "the welfare of the family." 23 P.S. § 102(a)(3). It expressed the desire that "the harm to the spouses and their children" should be "[m]itigate[d]," 23 P.S. § 102(a)(4), and that "causes rather than symptoms of family disintegration" should be sought,

[ 293 Pa. Super. Page 50923]

P.S. § 102(a)(5). And finally, it emphasized its intent to "[e]ffectuate economic justice between parties who are divorced or separated." 23 P.S. § 102(a)(6). The legislature implemented this declaration of policy by enacting changes of the most fundamental nature. In particular, while retaining fault -- based grounds for divorce, 23 P.S. § 201(a), the legislature provided: that a divorce could be obtained by consent of the parties, if they alleged that "the marriage is irretrievably broken and 90 days have lapsed from the date of filing the complaint," 23 P.S. § 201(c); that a divorce could be obtained "where . . . the parties have lived separate and apart for a period of at least three years, and . . . the marriage is irretrievably broken," 23 P.S. § 201(d); that "the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct," 23 P.S. § 401(d); and that "[t]he court may allow alimony [after divorce], as it deems reasonable," 23 P.S. § 501(a), as determined in the light of fourteen factors, only one of which is marital misconduct, 23 P.S. § 501(b).

Accordingly, when a court asks whether granting an application that an action proceed under the Divorce Code will further, or be inconsistent with, the objectives the legislature intended to achieve by enacting the Code, in most cases the answer should be easy; for the legislature has stated its objectives, and the philosophy underlying them, with clarity.

C

It may be useful at this point to indicate the extent to which we differ with the views expressed by our colleagues Judge SHERTZ and Judge POPOVICH, and to explain why we find ourselves unable to agree with them.

The requirement that the decision whether an "application [should be] granted" is to be made by reference to the objectives described in section 102 of the Divorce Code necessarily implies that the court must exercise some discretion. To this extent we are in agreement with Judge SHERTZ's dissent. In our view, however, the range of

[ 293 Pa. Super. Page 510]

    discretion is extremely narrow, being limited to a consideration of whether granting the application will be consistent with the objectives described in section 102 of the Divorce Code. For a court to exercise the broad discretion called for by Judge SHERTZ would be to violate the legislative mandate expressed in section 102(b). To say, as Judge SHERTZ does, that in every case the court must consider factors other than the objectives described in section 102(a) is to say that even if granting the application would in every respect be consistent with every one of the objectives described in section 102, still, the court could properly deny the application on the ground that to do so would serve objectives that the court, in its discretion, considered more compelling than those expressed by the legislature. The result would be great inequity throughout the Commonwealth, with different lower courts denying or granting applications by standards more or less idiosyncratic. Indeed, as we shall see, that is precisely what happened in the present case, where the lower court denied the application with no reference to the objectives the legislature sought to accomplish when it enacted the Divorce Code.

Judge SHERTZ argues that the section 102 cannot provide the exclusive guide for the exercise of discretion in ruling on an application for transfer because of the possibility that in a given case some of the objectives might point toward granting the application while others pointed toward denial. Although this argument when stated in the abstract has a certain logical appeal, it does not acknowledge the way in which the six subsections of § 102(a) all express different aspects of a single, consistent philosophy on marriage and the family, which may be summarized as follows: The family is the basic unit in society and should be preserved and protected. However, when a marriage cannot be preserved, which is to say, when one or more of the grounds for divorce contained in § 201 exist, the dissolution should be accomplished in a manner that recognizes the prior existence of the family as both an economic and a social unit, and that emphasizes the future welfare of each member of the family,

[ 293 Pa. Super. Page 511]

    instead of in a manner that identifies and punishes guilty parties. Given this consistency of philosophy, we have difficulty imagining a case in which as a practical matter the objectives described in section 102(a) would point in different directions.

Judge SHERTZ suggests that we are guilty of overstatement when we say that the Divorce Code of 1980 represents a repudiation by the legislature of the philosophy of the Divorce Law of 1929. In support of this suggestion he points to the fact that the Divorce Code retains the faultbased grounds for divorce, and does not require that an action pending under the Divorce Law be transferred to proceed under the Divorce Code. Dissenting opinion at 707. In our opinion, however, the retention in the Divorce Code of fault-based grounds for divorce is no more than the sort of legislative accommodation that typically accompanies the enactment of a major reform. The central fact is that under the Divorce Code the legislature provided for divorce by consent, alimony after divorce, and equitable distribution of marital property. To suggest that the provision of these in a state that had previously lacked all three does not represent a repudiation of prior law is, we submit, unrealistic.

Judge POPOVICH expresses the view that the Divorce Code calls for transfer pro forma upon application of either party. Certainly, if adopted this view would do no great injustice -- perhaps none at all -- for it is difficult to imagine a case in which granting an application would be inconsistent with the objectives described by the legislature when it enacted the Divorce Code. Most applications, it may be assumed, and perhaps all, will be filed in order to take advantage of the provisions of the Divorce Code that direct equitable distribution of marital property and, in certain circumstances, payment of alimony after divorce. Granting such applications will in most, if not all, cases be consistent with the objectives described by the legislature. Nevertheless, the phrase "upon application granted" implies that the application may be denied, in other words, that the court to

[ 293 Pa. Super. Page 512]

    which the application is presented must decide whether to grant or deny the application. In Judge POPOVICH's view, the court would not have to make any decision, but would grant the application " pro forma." We believe this view does unnecessary violence to the legislative choice of language. In construing the statute, we should read its language in the light of common usage, and if possible "give effect to all its provisions." 1 Pa.C.S.A. § 1921(a); Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). We therefore conclude that the legislature contemplated the possibility that an application would be presented that would be inconsistent with the objectives of the Divorce Code, and that it intended that such an application should be denied. The fact that we find it difficult to describe the features of such an application does not persuade us to Judge POPOVICH's view. Litigation may take a quite unanticipated shape, and we think it wiser to leave open the possibility evidently contemplated by the legislature.

D

We may now examine the opinion of the lower court. In explaining its order denying appellant's application that the action proceed under the Divorce Code, the lower court wrote: "There are no equitable considerations in favor of allowing [appellant] to proceed under the new code." Slip op. at 3. The court's opinion contains no acknowledgment of the fact that appellant could hardly be a better example of the kind of person the Code was enacted to protect. Appellant is in her middle forties, has been married for over twenty years, and has worked outside the home since her marriage only intermittently and in relatively low-skilled jobs. During her marriage she has made a home for her financially successful husband and their two children. The only property she would have any claim to under the Divorce Law of 1929 would be her share of the jointly owned residence; in her application she alleges that as her husband, appellee has accumulated during their marriage a substantial amount of property that is held in his name alone. In

[ 293 Pa. Super. Page 513]

    these circumstances for the lower court to find no equitable considerations in appellant's favor was to ignore the standards prescribed in section 102 of the Divorce Code. Plainly, granting the application would further the objectives of the legislature to "deal[ ] with the realities of matrimonial experience," 23 P.S. § 102(a)(1), "[m]itigate the harm to the spouses and their children," 23 P.S. § 102(a)(4), and "[e]ffectuate economic justice," 23 P.S. § 102(a)(6).*fn7

The lower court's failure to understand and further the objectives of the Divorce Code is revealed by other parts of its opinion as well. The court noted that appellant would

[ 293 Pa. Super. Page 514]

    have a right of partition without regard to marital fault. This ignores the legislative judgment that partition has proved to be a totally inadequate means of effectuating economic justice because it applies only to property owned by the entireties -- typically, only the family residence. The court noted that appellant had lost on her claim for alimony pendente lite. This observation is not only irrelevant to the question whether appellant should be entitled to the post-divorce benefits provided by the Divorce Code, but it also ignores the fact that the court's order of August 17, 1979, denying alimony pendente lite, was without prejudice, and the additional fact that appellee's answer to appellant's petition for alimony pendente lite stated that the parties were still living together in the marital residence and that he was already supporting her. The court noted that appellant had lost in the divorce action; evidently this was a reference to the fact that after appellant's application had been filed but before the court's opinion in support of its order denying the application, another judge of the lower court had dismissed appellant's exceptions to the master's report, which recommended granting appellee a divorce. In thus pointing to appellant's loss on the merits of a fault -- based divorce action, the court ignored the legislature's mandate that under the Divorce Code, marital fault plays no part in the equitable distribution of marital property, 23 P.S. §§ 102(a)(3), 102(a)(6), 401(d), and that marital fault is only one of fourteen factors to be considered with regard to alimony, 23 P.S. § 501(b). Finally, the court suggested that appellant was merely trying to "rehash" claims that she had already lost. This ignores that fact that under the Divorce Law, appellant had no right to equitable distribution of marital property or alimony after divorce; she only has those rights under the Divorce Code. Thus, by filing her application that the action proceed under the Divorce Code appellant was not "rehashing" anything; she was for the first time claiming rights she otherwise could not claim.

It is evident that in denying appellant's application, the lower court consistently ignored the ...


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