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ELEANOR HILDA GOETTEL RESTIFO v. JOSEPH VINCENT RESTIFO (01/25/85)

filed: January 25, 1985.

ELEANOR HILDA GOETTEL RESTIFO, APPELLANT,
v.
JOSEPH VINCENT RESTIFO



No. 01592 PHL 83, Appeal from the Order of January 7, 1983 in the Court of Common Pleas of Montgomery County, Civil Division, at No. 80-20313.

COUNSEL

Albert C. Oehrle, Norristown, for appellant.

Joseph Restifo, in propria persona.

McEwen, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 339 Pa. Super. Page 353]

The issue on appeal is whether a defendant-spouse is entitled to a hearing on his counterclaim in divorce alleging fault grounds where the plaintiff-spouse alleged no-fault grounds in her complaint and withdrew her alimony claims. We hold that both parties were entitled to present evidence on their claims and, accordingly, affirm the order below.

The parties were married on April 8, 1956. On November 18, 1980, the wife filed a complaint in divorce under § 201(d) of the 1980 Divorce Code, alleging that the parties had been separated for at least three years and that the marriage was irretrievably broken. See 23 P.S. § 201(d)(1). She also sought equitable property distribution, alimony pendente lite and counsel fees and costs. She filed her § 201(d) affidavit the next day; no counter affidavit was filed by the husband. The husband subsequently filed an answer, new matter and a counterclaim seeking a divorce on the grounds of desertion, adultery and indignities.*fn1 The lower court appointed a Master in Divorce on February 17, 1981, and, at the Master's hearing on April 6, 1981, testimony was taken concerning the wife's "no-fault" grounds for divorce.

[ 339 Pa. Super. Page 354]

The husband then filed preliminary objections to the wife's equitable distribution claims asserting that it was unconstitutional to apply the Divorce Code retroactively. The lower court denied these preliminary objections on February 22, 1982, and directed the Master to proceed forthwith with disposing of all matters outstanding in the case. Upon the husband's appeal of the order, the Superior Court, in an August 20, 1982 per curiam order, quashed the appeal as interlocutory.

In a letter dated October 26, 1981, the wife's counsel requested the Master to file his report. Instead of filing the report, the Master held further hearings on the husband's counterclaim. On November 3, 1982, the wife filed a petition to compel the filing of a Master's Report on her no-fault claims alone and for a stay of proceedings. After the husband answered this petition, the lower court entered an order on November 12, 1983 which granted the stay and entered a rule against the husband to show cause why the wife's request should not be granted. Following a conference with the parties, the lower court entered the following order:

And now, January 7, 1983, after conference, Court enters following order.

1. Defendant has right to be heard on counterclaim.

2. Defendant has right to call plaintiff and any other witnesses on ...


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