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COMMONWEALTH PENNSYLVANIA EX REL. JEAN MARIE DEWALT v. SCOTT W. DEWALT (01/21/83)

filed: January 21, 1983.

COMMONWEALTH OF PENNSYLVANIA EX REL. JEAN MARIE DEWALT
v.
SCOTT W. DEWALT, APPELLANT



No. 1743 Philadelphia, 1981, Appeal from the Order of June 10, 1981 in the Court of Common Pleas of Northampton County, Civil Action, Law, No. 5680.

COUNSEL

Ronold John Karasek, Bangor, for appellant.

Dennis A. DeEsch, Easton, for appellee.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Spaeth

[ 309 Pa. Super. Page 276]

This appeal is from an order awarding "temporary alimony" under Section 401(b) of the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. ยง 101 et seq. The order was entered by the lower court in the first instance; it was not on a master's recommendation. Appellant filed no exceptions. For procedural purposes, alimony awarded under section 401(b) of the Code is like alimony pendente lite. We have concluded that under Pa.R.C.P. 1920.1(b) and 1920.52, when a court in the first instance enters an order awarding alimony pendente lite, exceptions must be filed in order to preserve an issue for review. Since appellant filed no exceptions, he has preserved no issue for our review. We therefore affirm.

On April 1, 1981, the lower court entered a decree of divorce only; the court reserved the issues of alimony and equitable distribution for later decision. On April 27 appellee filed a petition seeking "temporary alimony." On June 10, after a hearing, the lower court granted the petition and awarded alimony of $45 a week. Appellant filed no exceptions to the order but instead appealed at once to this court.*fn1

The lower court entered its order pursuant to section 401(b) of the Divorce Code. Section 401(b) provides that "[a]ny decree granting a divorce . . . shall include . . ., where these matters are raised . . ., an order or orders

[ 309 Pa. Super. Page 277]

    determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters . . . ." The court is not, however, required to enter a single decree finally disposing of all of these matters at one time. It may instead enter a decree of divorce only, and "order alimony, reasonable counsel fees and expenses pending final disposition of the [other] matters" that have been raised and are still at issue, such as the parties' property rights. Id. That is what the court did here.

It is apparent that as used in section 401(b), "alimony" means two different things. In the first instance, referring to the court's duty to dispose of "existing property rights and interests between the parties, . . . alimony and any other related matters," "alimony" means the sort of alimony that the court may award pursuant to section 501(b) of the Code, which provides that "[t]he court may allow alimony . . . if it finds that the party seeking alimony . . . lacks sufficient property . . . to provide for his or her reasonable needs . . . and . . . is unable to support himself or herself through appropriate employment." This sort of alimony is awarded, if at all, as an incident of the final adjudication of all of the disputes between the parties, the award being made either as part of the decree of divorce or later. In the second instance, referring to the court's power to award "alimony . . . pending final disposition" of such matters as were not disposed of as part of the decree of divorce, "alimony" means what the lower court here, and also, appellee's petition, characterized as "temporary alimony."*fn2 This sort of alimony is awarded from the date of the entry of a decree of divorce only to the date of entry of other orders finally adjudicating the parties' other disputes.

This brings us to the question whether a party wishing to obtain appellate review of an order awarding "temporary alimony" ...


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