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JOHN FREDERICK THILL AND LOUIS J. PRESENZA v. LEROY LARNER (11/10/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 10, 1983.

JOHN FREDERICK THILL AND LOUIS J. PRESENZA, EXECUTORS OF THE ESTATE OF CARMELITA G. THILL LARNER, DECEASED
v.
LEROY LARNER, APPELLANT

No. 2936 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Family Court Division, Philadelphia County, No. 3760 September Term, 1978.

COUNSEL

Lawrence J. Arem, Philadelphia, for appellant.

Abraham J. Golden, Philadelphia, for appellees.

Wickersham, Cirillo and Lipez, JJ.

Author: Lipez

[ 321 Pa. Super. Page 63]

The appellant was the defendant in this divorce action, which was brought in 1978 on grounds of indignities. After protracted hearings, the master filed a report on June 18, 1980, recommending that a divorce be granted. On the following day, appellant filed exceptions to the report. On August 18, 1980 appellant filed an election that all further proceedings be under the Divorce Code of 1980. On November 24, 1980 the court below entered an order permitting the election and ordering that the case "proceed under the Divorce Code, effective July 1, 1980 and the applicable Rules of Civil Procedure." On the same day, the court entered an order denying the exceptions, but also purporting to "retain jurisdiction of this matter pursuant to § 401(b) of the Divorce Code of 1980." The order denying

[ 321 Pa. Super. Page 64]

    the exceptions was entered as a final decree of divorce, and on December 17, 1980, this appeal was taken.*fn1

Appellant contends the court erred in bifurcating the case, i.e., in granting an immediate divorce while setting "other matters" aside to be decided later. If this were an ordinary case, we would be inclined to agree, because the court below did not make any findings based on the record concerning the effect on the parties of separating the divorce issue from the issues of the parties' other rights under section 401(b) of the Divorce Code. Ordinarily, we would have to remand in such a case so that the lower court could build a record and exercise its discretion as a basis for review. See Wolk v. Wolk, 318 Pa. Super.Ct. 311, 464 A.2d 1359 (1983).

The reason there is no need for remand here is that when the lower court entered the decree of divorce, there were no other matters to be decided under section 401(b). Section 401(b) provides:

Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation

[ 321 Pa. Super. Page 65]

    agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master's report has been filed, it may enter a decree of divorce or annulment. The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

Act of April 2, 1980, P.L. 63, No. 26, § 401(b), 23 P.S. § 401(b) (Supp. 1983-1984) (emphasis supplied). Appellant has never at any stage of the proceedings raised any matter provided for in section 401(b). Since there were no matters before the court other than whether or not to grant the divorce, it follows that there was no need for the court to exercise any discretion with respect to other matters, and the portion of the court's order retaining jurisdiction under section 401(b) is a nullity. Therefore we shall affirm the lower court's order insofar as it grants the divorce, and vacate it insofar as it retains jurisdiction.*fn2

Order affirmed insofar as it grants the divorce, but vacated insofar as it retains jurisdiction under section 401(b) of the Divorce Code of 1980.


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