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BONNIE L. MARKS v. HAROLD J. MARKS (06/04/82)

filed: June 4, 1982.

BONNIE L. MARKS, APPELLANT,
v.
HAROLD J. MARKS



No. 2976 Philadelphia, 1980, Appeal from the Order of December 15, 1980, in the Court of Common Pleas of Schuykill County, Civil Action, Law No. S-1330 of 1979.

COUNSEL

Lynn Erickson Ober, Reading, for appellant.

Frank Robert Cori, Orwigsburg, for appellee.

Spaeth, Rowley and Cirillo, JJ.

Author: Spaeth

[ 300 Pa. Super. Page 289]

This appeal is from an order denying appellant's application that her divorce action proceed under the provisions of the Divorce Code.*fn1

Appellant is the plaintiff in the divorce action. The action was filed October 3, 1979, under the Divorce Law,*fn2 and was still pending on July 1, 1980, the effective date of the Code. At the time appellant filed her application that the action proceed under the Code, a master's report recommending that the divorce be granted had already been filed, and although appellee had filed exceptions to the report, they had been withdrawn. In the opinion that accompanied its order denying appellant's application the lower court said,

[ 300 Pa. Super. Page 290]

"Except for the pending petition [application], the case is ready for entry of a final decree." Appellant argues, in effect, that the lower court thus indicated that it had decided to accept the master's report and grant the divorce, and that from that it follows that the order denying her application is a final order for it disposed of the only remaining issues -- her right to equitable distribution.

We can understand why appellant takes this position. In its opinion the lower court states that there is no marital property subject to equitable distribution. We note that the court does not discuss appellant's testimony at the hearing on her application that the real property that appellee owned prior to the marriage had been improved during the marriage by construction of a house, and that she had both contributed funds for building the house and had joined in the mortgage obtained in connection with building the house. We also note that the court does not discuss appellant's testimony that a purported division of marital personal property was made under duress. Even so, from the face of the opinion it might appear that the issues of whether there was marital property, and if so, whether there should be equitable distribution, had been decided.

It is clear nevertheless that the lower court did not, and could not, decide the issues of marital property and equitable distribution. As an appellate court we are limited to reviewing the order entered by the lower court. Here that order simply, and only, denied appellant's application that her divorce action proceed under the Divorce Code. Since the lower court denied the application, the action could not proceed under the Divorce Code, which is to say, the action remained an action under the Divorce Law. Under the Divorce Law the lower court had no power to make any decisions regarding marital property and equitable distribution. The court's statements in its opinion regarding those matters are therefore of no effect.

It follows that the only issue before us is whether the lower court acted properly in denying appellant's application that her divorce ...


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