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MARY PATRICIA CARANGELO v. WILLIAM R. CARANGELO (11/18/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 18, 1983.

MARY PATRICIA CARANGELO, APPELLANT,
v.
WILLIAM R. CARANGELO

No. 634 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Susquehanna County at Nos. 1979-1719.

COUNSEL

Raymond C. Davis, Montrose, for appellant.

Charles J. Aliano, Montrose, for appellee.

Spaeth, President Judge, and Cavanaugh, McEwen, Beck, Montemuro, Montgomery and Cercone, JJ. McEwen, J., concurs in result.

Author: Cavanaugh

[ 321 Pa. Super. Page 221]

Does the failure to file exceptions in the trial court to a final order which denies alimony pendente lite and counsel fees after the entry of a divorce decree constitute waiver so as to require that we affirm the order of court? We hold that exceptions are required and therefore we affirm.

This is an appeal from an order entered by the Honorable Donald O'Malley in the Court of Common Pleas of Susquehanna County. A divorce action was instituted by Mary Patricia Carangelo against William R. Carangelo in December 1979. In July of 1980 Mrs. Carangelo petitioned for alimony pendente lite, counsel fees and expenses, and to make an equitable distribution of marital property and an award of alimony should the divorce decree be granted. The rule on the petition was made returnable on August 18 and on that day Judge O'Malley, after hearing, entered an order which provided in part:

In April of 1981, Mrs. Carangelo filed an affidavit of consent, agreeing that the marriage was irretrievably broken and consenting to the entry of a final decree of divorce.

[ 321 Pa. Super. Page 222]

She had amended her complaint to plead that the marriage was irretrievably broken in December 1980, apparently to conform to the Divorce Code of 1980 ยง 201(c). On April 9, 1981 and June 1, 1981 hearings were conducted before Judge O'Malley which included extensive inquiry into the economic status and resources of the parties. Thereafter Mr. Carangelo answered a set of eighty-eight interrogatories dealing with his financial condition. He also filed an affidavit of consent to the entry of a final decree of divorce.

Judge O'Malley entered a decree of divorce on December 29, 1981. On that date he had heard more evidence from Mrs. Carangelo concerning her financial condition. Following the hearing her counsel, after moving for the grant of a divorce, requested that the court reserve jurisdiction over the matters of alimony, counsel fees and equitable distribution.

We have repeated the history of this case since otherwise an order of the court of January 29, 1982 might be open to some question.*fn1 The order is as follows:

NOW TO WIT, 29 January, 1982, a divorce was granted on the 29th day of December, 1981 on the grounds that that marriage was irretrievably broken.

The petitioner had in addition sought alimony and attorneys [sic] fees in these proceedings. A careful review of the testimony in this case shows that the defendant is presently caring for the children of the union. [sic] providing a common home for them and is so deeply in debt he has no available assets. The Court is satisfied that the defendant has no available assets which can be diverted to the plaintiff without jeopardizing other obligations which the defendant has assumed and is presently carrying out.

The defendant is to pay the costs of these proceedings.

In his order Judge O'Malley referred specifically to only "alimony and attorney's fees" but a review of the history and the contents of the order makes it clear that the

[ 321 Pa. Super. Page 223]

    order disposed of and denied all four economic requests that were jointly sought in Mrs. Carangelo's Petition of July 1980, and which after hearing were deferred for disposition by the Court until further investigation of the parties' financial affairs. As noted above there was further extensive evidence by hearing and interrogatories as to the parties' financial affairs; the order in question ensued only after the entry of the decree in divorce; and, the Court in its order concluded that Mr. Carangelo had "no available assets" which could properly be diverted to Mrs. Carangelo. Further, it is clear that it was so understood by Mrs. Carangelo since she did not seek a clarification of the order but rather pursued a direct appeal to this Court of the January 29 order.

This order was entered one month after the entry of the decree in divorce and we, therefore, conclude the present appeal is a direct appeal from a final order which denied Mrs. Carangelo's request for alimony pendente lite, counsel fees and costs, alimony and equitable distribution.

Unfortunately we cannot reach the merits of this appeal. It is clear that exceptions must be filed in claims involving marital property and alimony under provisions of Pa.R.C.P. 1920.52(a)*fn2 which provides that the post decision

[ 321 Pa. Super. Page 224]

    practice and procedures for filing exceptions in accordance with Pa.R.C.P. 1038(d)*fn3 and (e)*fn4 must be followed. With respect to claims for alimony pendente lite and counsel fees the same procedure must be followed. In Commonwealth ex rel. DeWalt v. DeWalt, 309 Pa. Super. 275, 455 A.2d 156 (1983) it was decided:

Therefore, to recapitulate: "Temporary alimony" is a form of "alimony pendente lite." A claim involving alimony pendente lite is within Pa.R.C.P. 1920.52(b). Although Pa.R.C.P. 1920.52(b) does not specify whether exceptions must be filed to preserve objections to an order awarding alimony pendente lite, Pa.R.C.P. 1920.1(b) provides that the rules relating to an action in assumpsit apply. One of these rules, Pa.R.C.P. 1038 provides that to preserve objections to the decision in an assumpsit action, exceptions must be filed. Accordingly, appellant was required to file exceptions to the lower court's order awarding temporary alimony. Since he did not file exceptions, he has preserved no objection to the order.*fn5

We follow the reasoning of DeWalt even though the direction to follow the exceptions procedure of Pa.R.C.P. 1038(d) and (e) follows disposition of subsection (a) claims in 1920.52 and not subsection (b) claims, including alimony pendente lite and counsel fees and costs. Subsections (a)

[ 321 Pa. Super. Page 225]

    and (b) appear, however, to have been separated only for the purposes of requiring a statement of reasons for decisions under (a) and allowing only general findings for decisions under (b).

The same reasoning would apply to a claim for counsel fees and costs. Pa.R.C.P. 1920.52(b)(3).*fn6 Accordingly we find the issues to have been waived and affirm the order of the trial court.

Order affirmed.


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