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BEVERLY P. LOWENSCHUSS v. FRED LOWENSCHUSS (12/23/83)

filed: December 23, 1983.

BEVERLY P. LOWENSCHUSS,
v.
FRED LOWENSCHUSS, APPELLANT



No. 2068 PHILADELPHIA, 1983, Appeal from the Order of the Court of Common Pleas, Family Division, of Montgomery County, No. 81-17813.

COUNSEL

Jack M. Bernard, Philadelphia, for appellant.

Albert Momjian, Philadelphia, for appellee.

McEwen, Johnson and Hester, JJ.

Author: Hester

[ 323 Pa. Super. Page 384]

On September 28, 1981, appellee, Beverly P. Lowenschuss, filed a complaint in divorce in Montgomery County, Pennsylvania, requesting a divorce from appellant, Fred Lowenschuss, under § 201(a)(6), § 201(c) and § 201(d), alternatively, of the Pennsylvania Divorce Code. Additionally,

[ 323 Pa. Super. Page 385]

    appellee requested equitable distribution of the marital property, child support, child custody, alimony, alimony pendente lite, and counsel fees, costs and expenses.

Appellee's claims for child support and alimony pendente lite came before the Domestic Relations Office of Montgomery County on January 8, 1982. At that time the parties appeared before a hearing officer for a non-record conference. In his recommendation, the hearing officer noted appellant's refusal to disclose information concerning his assets and earnings. Appellee alleged monthly expenses of $7,037.00 per month for herself and three children and an earning capacity of $1,018.00 per month. In response to this information and appellant's representation that he had sufficient resources to pay any amount ordered, the hearing officer recommended to the court that alimony pendente lite in the amount of $1,650.00 per month and child support in the amount of $4,367.00 be ordered. The court did indeed enter an order upon the recommendation on the same day, January 8, 1982. Appellant promptly filed exceptions from that recommendation and requested a de novo hearing before a Montgomery County judge. The de novo hearing was scheduled for March 4, 1982.*fn1

Despite appellant's demand for a de novo hearing, the January 8, 1982 order was not stayed. Consequently, appellant's failure to pay support and alimony pendente lite in accordance with that order prompted appellee to exercise her rights pursuant to the local Montgomery County rules governing support actions. In doing so, appellee petitioned for an emergency hearing on alimony pendente lite and child support while the de novo hearing was pending. At the conclusion of this emergency hearing on February 4, 1982, a temporary child support order of $3,050.00 per month, or 75% of the hearing officer's recommendation, and a temporary alimony pendente lite order of $800.00 per month, or 50% of the recommendation, were entered. Appellant filed a notice of appeal from this order on February

[ 323 Pa. Super. Page 38619]

, 1982; however, said appeal was quashed by this Court on June 3, 1982. No supersedeas was placed on the temporary order of February 4, 1982; consequently, appellant was obligated to make payments pending the appeal.

On May 19, 1982, appellee filed a petition for civil contempt due to appellant's continuing failure to make payments in accordance with the temporary order of February 4, 1982. Appellant's petition to vacate the order was denied and he was directed to pay $6,000.00 on arrearages or undergo imprisonment for 30 days. On June 3, 1982, appellant was ordered to jail for failure to comply with the order to pay $6,000.00 on arrearages; however, on that same date, the contempt order for payment of $6,000.00 on arrearages or 30 days imprisonment was stayed by this Court upon appellant's payment of $2,500.00 to appellee. This Court also remanded for a hearing on appellant's ability to pay alimony pendente lite and child support.

On July 8, 1982, appellee filed a second petition for civil contempt as a result of appellant's persistence in refusing to pay alimony pendente lite and child support. Shortly thereafter, on July 28, 1982 and prior to the hearing on appellee's second petition for civil contempt, appellant was ordered to pay the sum of $10,000.00 in preliminary counsel fees and $2,500.00 for preliminary costs and expenses. In lieu of the hearing for contempt, the parties agreed on October 22, 1982 that appellant would pay, within 5 days from that agreement date, a sum of $7,500.00 on arrearages under the temporary order of February 4, 1982. In return for said payment, appellee agreed not to prosecute outstanding petitions for contempt. Additionally, and pursuant to this Court's order of June 3, 1982, the parties agreed to schedule a hearing on child support and alimony pendente lite before Judge Yohn of the Court of Common Pleas of ...


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