No. 1118 Pittsburgh, 1980, Appeal from the Order of Oct. 10, 1980 in the Court of Common Pleas of Butler County, Family Div. No. F.C. 80 - 013.
Mark A. Criss, Zelienople, for appellant.
Norman D. Jaffe, Butler, for appellee.
Spaeth, Johnson and Hoffman, JJ.
[ 309 Pa. Super. Page 18]
This is an appeal from two orders issued incident to a divorce action. The first order was issued on October 10,
[ 309 Pa. Super. Page 191980]
. It enjoins appellant from disposing of a fund representing the remaining balance of the proceeds of a tort claim settlement obtained by the parties, and directs partition of a portion of that fund. The second order was issued on October 20, 1980. It dismisses preliminary objections that appellant had filed in response to appellee's petition for an injunction.*fn1 We have concluded that in directing partition, the lower court erred. So much of the order of October 10 as directs partition will therefore be vacated, and the case will be remanded for further proceedings.
The parties were married in 1969. While they were married, appellant was hurt in an accident, and as a result, the parties filed a trespass action, appellant claiming damages for her personal injuries and appellee making a consortium claim. The action was settled, and the proceeds of the settlement were deposited in the parties' joint savings accounts, and also, apparently, in various certificates in their joint names.
[ 309 Pa. Super. Page 20]
On July 1, 1980, appellant brought this divorce action against appellee. Thereafter, appellee petitioned the lower court to enjoin appellant from disposing of the settlement proceeds. Appellant filed preliminary objections to the petition, alleging that "by reason of their origin," the settlement proceeds were her "sole property" and that the lower court therefore "lack[ed] subject matter jurisdiction over said funds in the context of a divorce action." R. 13-14.
The matter came on for hearing on October 10, 1980. At the outset of the hearing, the lower court stated that appellant's preliminary objections were overruled. R. 21.*fn2 Appellee's counsel represented to the court, and appellant's counsel agreed, that appellant had withdrawn the funds arising from the settlement of the trespass action, and had them in her possession. R. 23. Appellant's counsel stated that "[m]uch of the money" had been spent -- on various matters as to which he said he was prepared to present testimony -- and that "the cash on hand as of this moment" was $53,807.29. Id.
At the end of the hearing, the lower court entered an order that "each party is entitled to the sum of Ten Thousand Dollars" from the money in appellant's possession,*fn3 and that "[t]he balance . . . is to be frozen until further order of the Court." R. 38. The ...