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SHIRLEY A. PROZZOLY v. ANTHONY P. PROZZOLY (TWO CASES) (04/27/84)

filed: April 27, 1984.

SHIRLEY A. PROZZOLY, APPELLANT,
v.
ANTHONY P. PROZZOLY (TWO CASES)



No. 106 Pittsburgh, 1981, Appeal from the Order of January 21, 1981 of the Court of Common Pleas of Allegheny County, as of No. 1019, July Term, 1980, Civil Division. No. 383 Pittsburgh, 1981, Appeal from the Decree of March 3, 1981 of the Court of Common Pleas of Allegheny County No. 1019 July Term, 1980, Civil Division.

COUNSEL

J. Kerrington Lewis, Pittsburgh, for appellant.

Shelley W. Elovitz, Pittsburgh, for appellee.

Hester, McEwen and Johnson, JJ.

Author: Mcewen

[ 327 Pa. Super. Page 328]

This is a consolidated appeal taken from two orders entered by the Court of Common Pleas of Allegheny County in a divorce proceeding instituted by appellant under Section 201(d) of the Divorce Code.*fn1 The first order denied the request of appellant for alimony pendente lite and awarded appellant counsel fees in the sum of $200.00. While this appeal from that order was pending, the trial court entered a final decree in divorce, which has become the subject of the second appeal by appellant. Appellant contends that the prior appeal from the order concerning alimony pendente lite and counsel fees had operated to divest the lower court of jurisdiction. We are constrained (1) to vacate the order denying appellant alimony pendente lite and awarding appellant counsel fees in the amount of $200.00 and (2) to vacate the final decree in divorce. We do so as a result of our conclusion that the appeal from the

[ 327 Pa. Super. Page 329]

    order denying alimony pendente lite operated to divest the trial court of jurisdiction to proceed further in the matter.

Appellant, Shirley Prozzoly, filed a complaint in divorce on June 2, 1980, pursuant to the Divorce Law of 1929*fn2 alleging that her husband, appellee Anthony Prozzoly, had committed indignities to her person. Appellant subsequently petitioned the court for permission to proceed under the newly enacted Divorce Code*fn3 and, on August 5, 1981, filed with leave of court an amended complaint under Section 201(d) of the new Divorce Code, alleging that the parties had lived separate and apart for three years and that the marriage was irretrievably broken. Appellant also requested in her amended complaint alimony pendente lite, counsel fees, alimony and equitable distribution of marital property. The answer of appellee admitted the allegations set forth in the complaint concerning the status of the marriage. The Master, appointed by the trial court pursuant to Pa.R.C.P. 1920.51 to take testimony concerning appellant's petition for alimony pendente lite and counsel fees, conducted such a hearing on November 19, 1980. While both parties agree that the Master, on November 24, 1980, submitted the report and recommendation required by Pa.R.C.P. 1920.54, the docket does not reflect that these documents were filed and the record on appeal does not contain the report of the Master. The record, however, suggests that the Report of the Master recommended that appellant receive alimony pendente lite in the amount of $100.00 per month as well as counsel fees in the amount of $300.00.*fn4 Both parties filed exceptions to the Report and recommendation of the Master as required by Pa.R.C.P. 1920.55. The trial court dismissed the exceptions filed by appellant, granted the exceptions

[ 327 Pa. Super. Page 330]

    filed by appellee, and entered an order denying appellant alimony pendente lite and awarding appellant counsel fees in the amount of $200.00. Appellant filed a timely notice of appeal from this order of January 22, 1981, both as to the meager amount of the counsel fees awarded as well as the denial of alimony pendente lite. Twenty days thereafter appellant filed a petition for a stay of the divorce proceedings, alleging, inter alia, that the appeal from the order denying alimony pendente lite had operated to divest the trial court of jurisdiction to proceed further in the matter. The trial court entered a final decree in divorce on March 3, 1981, without acting upon the petition for a stay. Appellant filed a timely notice of appeal from the final decree in divorce.

Appellee initially contends that the appeal from the order denying alimony pendente lite and awarding counsel fees to appellant is interlocutory and must be quashed. This Court, sitting en banc, has, however, recently held that an order denying alimony pendente lite is a final, appealable order. See Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984). The order denying alimony pendente lite and awarding counsel fees is, therefore, a final, appealable order properly before us for review.

Our review of the merits of the order of the trial court concerning alimony pendente lite and counsel fees is hindered by the paucity of the available record. The record includes the transcript of the hearing before the Master on November 19, 1980, but not the budgets which the parties introduced into evidence at the hearing; nor, as we earlier noted, is the formal report and recommendation of the Master available; and, while the opinion of the trial court provides a one sentence explanation for its refusal to allow appellant alimony pendente lite, it does not discuss the reason for what appellant asserts is an inadequate award for counsel fees. The opinion of the trial court states that ...


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