No. 2200 October Term, 1979, No. 1743 Philadelphia, 1980, No. 1744 Philadelphia, 1980, No. 1745 Philadelphia, 1980, No. 1746 Philadelphia, 1980, No. 169 Philadelphia, 1981, Appeal from the following Orders and Determinations of the Court of Common Pleas, Civil Action, Law - Delaware County, at No. 77-18913, No. 2200 - Order dated September 27, 1979, No. 1743 - Order dated July 18, 1980, No. 1744 - Order dated July 21, 1980, No. 1745 - Order dated June 27, 1980 and entered June 30, 1980, No. 1746 - Final Decree entered June 30, 1980, and No. 169 - Order dated January 9, 1981.
Walter T. ReDavid, Media, for appellant (at Nos. 169, 1743/1746) and for appellee (at No. 2200).
Timothy F. Sullivan, Media, for appellant (at No. 2200) and for appellee (at Nos. 169, 1743/1746).
Price, Watkins and Montgomery, JJ.
[ 297 Pa. Super. Page 15]
We have before us six appeals, all arising from a divorce proceeding filed under the Divorce Law of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (now repealed) by William B. Wilson (Husband) against Judith G. Wilson (Wife). They have been consolidated for disposition purposes.
Appeal No. 2200 October Term, 1979 was taken by the husband from orders of the lower court (Levy, J.) dated September 27, 1979, denying his petition to reduce an award to the wife of $1800.00 per month as alimony pendente lite which had previously been entered by stipulation of the parties, and another order of the same date allowing additional counsel fees and expenses to wife's counsel.
[ 297 Pa. Super. Page 16]
Appeal No. 1745 Philadelphia, 1980 was taken by the wife from an order of the lower court (Prescott, J.) dated June 27, 1980, and entered June 30, 1980, dismissing her exceptions to the report of the Master in Divorce.
Appeal No. 1746 Philadelphia, 1980 was taken by the wife from the final decree in divorce granted June 30, 1980, by the lower court (Prescott, J.).
Appeal No. 1743 Philadelphia, 1980 was taken by the wife from the order of the lower court (Prescott, J.) dated July 18, 1980, denying her Petition for Reconsideration, Vacation of Final Decree and Recusal of Judge Prescott.
Appeal No. 1744 Philadelphia, 1980 was taken by the wife from an order (DeFuria, J.) dated July 21, 1980, denying her Petition for Certification of the Action for Disposition under the New Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq., and for a stay of proceedings.
Appeal No. 169 Philadelphia, 1981 was taken by the wife from an order (Reed, J.) entered January 9, 1981, granting husband's Petition to Terminate the Alimony Pendente Lite payments and denying wife's Petition for Contempt.
The basic issue is, of course, the propriety of the decree in divorce A.V.M. granted to the husband on the grounds of indignities to his person. After reviewing over a thousand pages of testimony and numerous depositions, the Master had recommended such a decree. After hearing arguments and considering briefs on eighty-two exceptions filed by the wife to the report of the Master, a court en banc consisting of the Honorable Rita J. Prescott and the Honorable Clement J. McGovern heard arguments on the exceptions on December 22, 1979.
Due to the pendency of the husband's appeal from the order refusing to reduce his alimony pendente lite payments, and the order granting additional counsel fees and expenses, disposition of the exceptions was delayed from December 22, 1979, until June 27, 1980, when they were dismissed. A final decree in divorce was entered June 30, 1980, one day before the effective date of the new Divorce Code, P.L. 63, Act 26, approved April 2, 1980, 23 P.S. § 101 et seq.
[ 297 Pa. Super. Page 17]
In the opinion dismissing the exceptions authored by Judge Prescott for the court en banc, (the concurrence of Judge McGovern is not shown) it is stated "Because of an unrelated aspect of this case, the record papers of the case were forwarded to the Superior Court of Pennsylvania, thus delaying a disposition of the Defendant's Exceptions. On June 20, 1980, the record papers were returned to this court and this opinion is now written in disposition of the Defendant's Exceptions." As further enlightenment on this point, we note from the reproduced record (R. 1495a) the Judge Prescott advised counsel by letter dated June 4, 1980, that the Master's Report and the exceptions thereto were in the Superior Court, and the lower court was without authority to act on the exceptions without them. We also note that at the time this letter was sent, there was in effect an order signed by the Honorable Howard Reed, Jr., Judge, dated March 24, 1980, staying the entry of a final decree in divorce until the husband became current in his payments of alimony and counsel fees, etc.
How this record came into the hands of Judge Prescott after it had been filed in the Superior Court on February 26, 1980, is explained by Judge Prescott in the following manner (R. 1518a): "I told him (Mr. ReDavid, counsel for wife) that I had just talked with the clerk at the Superior Court and made arrangements to have the record transported to me. Actually, I didn't know until your petition was filed that Mr. Sullivan had brought the record. All I know is that when I came in the next morning, I saw a big box, which you say is a voluminous record, and that ...