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GREGORY SUTLIFF v. CARLENE SUTLIFF (03/16/84)

filed: March 16, 1984.

GREGORY SUTLIFF
v.
CARLENE SUTLIFF, APPELLANT



No. 3397 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, Cumberland County at No. 333, 1982

COUNSEL

Ronald Katzman, Harrisburg, for appellant.

Bonnie D. Menaker, Harrisburg, for appellee.

Spaeth, President Judge, and Cavanaugh, McEwen, Beck, Montemuro, Montgomery and Cercone, JJ. Beck, J., files a dissenting opinion.

Author: Cavanaugh

[ 326 Pa. Super. Page 498]

This appeal is from an order of the lower court in a divorce proceeding, denying the request of appellant-wife (hereinafter "Wife") for alimony pendente lite, interim counsel fees and expenses from appellee-husband (hereinafter "Husband"). Wife contends (1) that an order denying such interim relief is final and appealable; and (2) that the lower court erred in various ways in its denial. We agree with Wife's first contention but must affirm the order of the lower court since she has failed to preserve other issues for appeal.

We are first presented with the threshold question, whether an order denying alimony pendente lite, counsel fees and expenses is appealable. It is settled law that an order granting such interim relief is final and appealable, insofar as the money to be paid under the order is involved, since once paid the money is likely unrecoverable. Rutherford v. Rutherford, 152 Pa. Super. 517, 32 A.2d 921 (1943); Lynn v. Lynn, 68 Pa. Super. 324 (1917). On the other hand, an order such as we have here, denying this interim relief has been held interlocutory and unappealable. Paul v. Paul, 281 Pa. Super. 202, 421 A.2d 1219 (1980). Hanson v. Hanson, 177 Pa. Super. 384, 110 A.2d 750 (1955); Boerio v. Boerio, 134 Pa. Super. 501, 4 A.2d 614 (1939). Although recognizing this distinction, Wife asks us to change the rule and hold both grants and denials final and appealable orders.*fn1

[ 326 Pa. Super. Page 499]

We begin our inquiry by recognizing the basic principle that with limited exceptions not relevant here, only an order which is final is appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Gasper v. Gasper, 288 Pa. Super. 478, 432 A.2d 613 (1981). See also Boyd's Estate, 299 Pa. 291, 149 A. 319 (1930); Pa.R.A.P. 341(a). Our Supreme Court has recently stated:

A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 544-45.

Turning now to the order in the instant appeal, we find that the first requirement, that the order must be separate from and collateral to the main cause of action, is clearly satisfied. The right to alimony pendente lite, counsel fees or expenses is in no way an ingredient of the merits of the main cause of action, that being the divorce and property

[ 326 Pa. Super. Page 500]

    settlement. See In re Estate of Georgiana, 312 Pa. Super. 339, 458 A.2d 989 (1983); Malenfant v. Ruland, 274 Pa. Super. 506, 418 A.2d 521 (1980).

With regard to the second requirement, that the right involved must be too important to be denied review, we first look to the traditional reasons underlying alimony pendente lite, counsel fees and expenses. The purpose of such relief is to promote the fair and impartial administration of justice by enabling the dependent spouse to maintain or defend the principal action in divorce without being placed at a financial disadvantage. Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983); Jack v. Jack, 253 Pa. Super. 538, 385 A.2d 469 (1978); Moore v. Moore, 198 Pa. Super. 349, 181 A.2d 714 (1962). The simple fact that one spouse earns more than the other does not automatically entitle him or her to alimony pendente lite, counsel fees or expenses. Rather, there must be a showing that the spouse earning less needs the relief sought in order to adequately defend his or her rights in the principal litigation. Hoover v. Hoover, 288 Pa. Super. 159, 431 A.2d 337 (1981).

The statutory authority for alimony pendente lite, counsel fees and expenses which existed for many years under the Divorce Law, Act of May 29, 1929, P.L. 1237, § 46, 23 P.S. § 46, was recently continued under the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 502, 23 P.S. § 502 (Supp. 1983). However, the 1980 enactment of the Divorce Code has greatly complicated divorce litigation by drawing a multitude of difficult economic questions into the arena.*fn2 The fair treatment of these economic questions by the courts is of utmost importance, not only to the parties, but also to society as a whole. Indeed, the declared policy of the Commonwealth is to "[e]ffectuate economic justice ...


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