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DONNA MARIE NICOLAIS v. JAMES NICOLAIS (07/02/81)

filed: July 2, 1981.

DONNA MARIE NICOLAIS
v.
JAMES NICOLAIS, APPELLANT



No. 2867 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Family Court Division-Domestic Relations, at No. 1765 of 1979.

COUNSEL

Robert J. Borthwick, Scranton, for appellant.

Lawrence A. Durkin, Scranton, for appellee.

Wickersham, Montemuro and Watkins, JJ.

Author: Watkins

[ 288 Pa. Super. Page 326]

This is an appeal by the respondent-husband from an order of the Court of Common Pleas of Lackawanna County in a support action directing the payment of $35.00 per week for the support of each of his three children and the sum of $65.00 per week for the support of the wife for a total support order of $170.00 per week.

Appellee initiated this action in the Family Court, Domestic Relations Section of the Court of Common Pleas of Lackawanna County seeking support of herself and the three children of her union with the respondent. A pretrial conference was held before a Domestic Relations Officer where both parties were interviewed and various information sought from each of them. No agreement was reached during the pre-trial conference and the Domestic Relations Office then sent the matter to the Court of Common Pleas for a hearing. The Domestic Relations Office also made a recommendation to the court as to the amount of the support order.

On October 17, 1980 the instant case was scheduled for hearing before the court below. The appellant appeared accompanied by his attorney, a Brian Cali. The appellee was also represented by counsel. Both appellant's and appellee's counsel entered the chambers of the court below while the parties remained outside. After the conference between the parties' attorneys and the court both appellant

[ 288 Pa. Super. Page 327]

    and appellee were informed by their respective attorneys that the support order would be $170.00 per week made retroactive to October 2, 1979, the date appellee initiated the support action.

Appellant now appeals the order of the court of October 17, 1980. He claims that he was denied his right to procedural due process because he was not afforded the right to cross-examination of witnesses or to be heard himself. Appellant is now represented by new counsel.

Appellee argues that the instant appeal should be quashed on the grounds of untimeliness and because appellant has appealed from an order of court of December 10, 1980 rather than from the October 17, 1980 order of Court. The record reveals that a proceeding was held before the court below on December 10, 1980. At said proceeding a transcript was made; the only stenographically recorded transcript contained in the record. It reveals that counsel for both parties attended the proceeding. The court then recounted the aforementioned history noting the fact that appellant now had new counsel. The court then related that appellant's new counsel had approached the court in chambers, informed the court that he had been retained to appeal the October 17, 1980 order of court, and suggested to the court that the said order be vacated so that a full hearing could be held on the support matter. The court below then vacated the October 17, 1980 order by a subsequent order of November 13, 1980 which was within the appropriate appeal period. Appellee's counsel, when informed of the November 13, 1980 order protested that he had not been given the opportunity to object to it. The court then vacated its November 13, 1980 order. This order was made on the record on December 10, 1980. Said transcript also reveals that the court and the parties agreed that appellant would have until December 15, 1980 to perfect his appeal to this court. He filed his Notice of Appeal on December 15, 1980.

Appellee asserts that the appeal should be quashed because appellant failed to appeal from the October 17, 1980 Support Order but ...


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