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filed: January 25, 1985.


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.


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 cross examination.

3. Master to proceed with hearing on defendants counterclaim.

4. All costs including Masters and further hearing costs to be paid by defendant.

Possible counter claim for Alimony Pendente Lite to be withdrawn.

On January 27, 1983, the wife filed a praecipe to withdraw her claim for alimony pendente lite and alimony. On February 2, she filed a petition for reconsideration of the January 7, 1983 order affirming the husband's right to a hearing on his counterclaim. On February 7, 1983, the lower court denied the petition for reconsideration but did certify the

[ 339 Pa. Super. Page 355]

    issue as involving a controlling question of law as to which there is a substantial ground for difference of opinion and one as to which an immediate appeal would materially advance the ultimate termination of the matter. See 42 Pa.C.S.A. § 702(b) (interlocutory appeals by permission). Upon the wife's filing a petition for permission to appeal on February 8, the Superior Court, in a June 21, 1983 per curiam order, granted the petition, and the notice of appeal was docketed the same day. On September 23, 1983, the lower court filed an opinion, dated September 20, in support of its January 7 and February 7, 1983 orders.

Appellant-wife contends that, because her supporting affidavit and testimony at the first hearing were uncontested by appellee-husband, the lower court erred in refusing to direct the Master to file a report recommending a divorce on her no-fault grounds alone. She asserts that, in this case, the legislative intent behind the 1980 Divorce Code would be contravened by holding further hearings on appellee's fault counterclaim and that marital misconduct may now only be considered in a petition for alimony and alimony pendente lite. See 23 P.S. § 501(b)(14).

The legislative intent behind the 1980 Divorce Code is expressly set forth in § 102 of the Code, and summarized as follows:

[T]he six subsections of § 102(a) [of the Pennsylvania Divorce Code] all express different aspects of a single consistent philosophy on marriage and the family, . . .: The family is the basic unit in society and should be preserved and protected. However, when a marriage cannot be preserved, which is to say, when one or more of the grounds for divorce contained in § 201 exist, the dissolution should be accomplished in a manner that recognizes the prior existence of the family as both an economic and a social unit, and that emphasizes the future welfare of each member of the family, instead of in a manner that identifies and punishes guilty parties.

Gordon v. Gordon, 293 Pa. Superior Ct. 491, 510-11, 439 A.2d 683, 692-93 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982). See also 23 P.S. § 102.

[ 339 Pa. Super. Page 356]

Therefore, the legislature clearly intended to retain the traditional fault grounds for divorce when it added the no-fault grounds in 1980 and arguably intended to retain them on an equal footing with the no-fault grounds. In the absence of a legislative pronouncement excluding consideration of fault grounds when no-fault grounds are also alleged, we decline to adopt appellant's argument.

Additionally, this Court has stated that "a party may now, in one action, not only defend against the grant of a divorce sought by his or her spouse, but also may accomplish affirmative action and secure a divorce[.]" Ford v. Ford, 291 Pa. Superior Ct. 381, 383, 435 A.2d 1278, 1279 (1981), citing Pa.R.Civ.P. 1130(b) (adopted 1947, amended 1961). Although Rule 1130(b) was rescinded in 1980, it was replaced by Rule 1920.15(a) which is substantially similar:

The defendant may set forth in an answer under the heading "Counterclaim" a cause of action for divorce or for annulment and, whether the defendant does so or not, may set forth any other matter which under the Divorce Code may be joined with an action for divorce.

Pa.R.Civ.P. 1920.15(a) (adopted June 27, 1980; effective July 1, 1980). Cf. Betz v. Betz, 103 Pa. Superior Ct. 306, 157 A. 359 (1931) (parties may file cross suits each seeking to secure divorce in his or her favor but on separate and

[ 339 Pa. Super. Page 358]

    distinct grounds). Thus, appellee-husband was entitled to seek a divorce on his own theory by filing a counterclaim to appellant's complaint. Having filed the counterclaim, then, we see no reason for not allowing him to present evidence on his counterclaim so that the court can determine the proper grounds for granting the divorce.

We find the reasoning of the New Jersey Supreme Court in Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478 (1974), persuasive. In that case, the wife's complaint in divorce alleged no-fault grounds (i.e. 18 consecutive months separation) and the husband counter-claimed on adultery grounds. The New Jersey Supreme Court, in upholding the grant of a divorce to the husband on his counterclaim and the dismissal of the wife's complaint, found that, although the wife had proved her case on separation grounds, the separation was the result of the wife's admittedly adulterous conduct. Id. at 190-91, 320 A.2d at 480-81. Similarly, here, appellee-husband asserts that the three years separation was the result of appellant-wife's desertion. (Brief for Appellee at 5). Under these circumstances, we hold that he was also entitled to present evidence in support of his fault claims so that the lower court would have within its discretion the option of granting the divorce to appellee on his counterclaim should it determine that the separation was caused by appellant's misconduct.*fn4

Accordingly, we find no error in the January 7 and February 7, 1983, orders of the court below.


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