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JAMES F. REMICK v. AUDREY A. REMICK. JAMES F. REMICK (01/28/83)

filed: January 28, 1983.

JAMES F. REMICK, APPELLANT,
v.
AUDREY A. REMICK. JAMES F. REMICK, V. AUDREY A. REMICK, APPELLANT



No. 2215 Philadelphia, 1981, No. 2216 Philadelphia, 1981, Appeal from the Order of July 20, 1981 in the Court of Common Pleas of Clinton County, Civil Action, Law No. 471 June Term, 1968.

COUNSEL

J. Michael Williamson, Lock Haven, for James F. Remick.

Morton Fromm, Lock Haven, for Audrey A. Remick.

Cercone, President Judge and Hester, Brosky, Rowley, McEwen, Johnson and Popovich, JJ.

Author: Cercone

[ 310 Pa. Super. Page 26]

These cross appeals arise from a decree of the Clinton County Court of Common Pleas granting the appellee-husband a divorce and ordering him to pay permanent alimony in the amount of $80.00 per week as well as seventy-five percent of the appellant-wife's counsel fees, but denying the wife's petition for alimony pendente lite. We now affirm as to the awards of permanent alimony and counsel fees, but reverse and remand as to the denial of the wife's petition for alimony pendente lite.

[ 310 Pa. Super. Page 27]

James and Audrey were married in 1950. James left the marital home in 1968 and filed the instant divorce action. Although an appearance was entered on Audrey's behalf shortly thereafter the case remained dormant until 1980. In a related though independent matter, James was later ordered to pay $30.00 per week in spousal support. In 1980, James requested permission to amend his original divorce complaint in order to proceed under the new Divorce Code, which permission was granted. James then filed an amended complaint alleging that the marriage was irretrievably broken and averring that the parties had lived separate and apart for more than three years. Audrey thereupon responded with an answer and a counterclaim seeking alimony pendente lite, counsel fees, and permanent alimony. A hearing on the complaint and counter-claim was held before a Master, who recommended that the divorce be granted, that Audrey be awarded alimony pendente lite in the amount of $94.00 per week until the granting of the divorce and permanent alimony in the same amount after the granting of the divorce, as well as that James pay seventy-five percent of Audrey's counsel fees. Both parties filed exceptions to the Master's recommendations. The lower court then entered a decree in divorce, and further, disallowed the recommendation for alimony pendente lite and lowered the amount of permanent alimony to $80.00 a week, but it awarded the counsel fees as the Master had recommended. These timely cross appeals followed. The appeals were originally argued before a panel of this Court. However, due to the significance of the matters raised on appeal the case was subsequently ordered reargued before the Court en banc.

I.

James first argues several alleged errors in the award of alimony to Audrey. Audrey contends in her appeal that the amount of the alimony awarded is insufficient.

Under Section 501 of the Divorce Code*fn1 alimony may be awarded if the party seeking the alimony

[ 310 Pa. Super. Page 28]

(1) lacks sufficient property . . . to provide for his or her reasonable needs; and

(2) is unable to support himself or herself through appropriate employment

23 P.S. ยง 501(a).

James now contends that the lower court improperly considered the length of the parties' marriage, the parties' standard of living during the marriage, and James's "marital misconduct" in determining the amount of the alimony awarded. He also argues that there was no evidence of his income before the lower court because Audrey did not formally move the admission into evidence of James's Income and Expense Statement, which was filed in accordance with Pa.R.C.P. 1920.31(a). More fundamentally, James argues that Audrey does not lack sufficient property to provide for her needs, and that she failed to establish by competent evidence that she is unable to support herself through appropriate employment.

Initially we are faced with determining the scope of our review of orders awarding alimony pendente lite, counsel fees or permanent alimony under the new Divorce Code. No Pennsylvania case has yet delineated by what standard under the new act we are to judge such awards, because the Act is silent on this point. We must look then instead to case law under the prior Divorce Act as well as to current, analogous cases.

Under the Divorce Law of 1929,*fn2 an appellate court would reverse an award of alimony pendente lite and counsel fees only for an abuse of discretion by the lower court. See, e.g. Oswald v. Oswald, 263 Pa. Superior Ct. 85, 397 A.2d 7 (1979); Jack v. Jack, 253 Pa. Superior Ct. 538, 385 A.2d 469 (1978). Likewise, spousal (or ...


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