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WILBUR B. GANTZ v. LILLIE I. HEISEY GANTZ (02/06/85)

filed: February 6, 1985.

WILBUR B. GANTZ
v.
LILLIE I. HEISEY GANTZ, APPELLANT



No. 2599 Philadelphia, 1983, Appeal from the Decree of September 26, 1983 in the Court of Common Pleas of Delaware County, Family Division, No. 81-04679

COUNSEL

Arthur L. Jenkins, Jr., Norristown, for appellant.

Joan B. Stuart, Norristown, for appellee.

Cavanaugh, Beck and Tamilia, JJ.

Author: Tamilia

[ 338 Pa. Super. Page 530]

This is an appeal from a final Decree in Divorce, entered September 26, 1983, in the Court of Common Pleas of Delaware County. We are here presented with an issue of first impression under the 1980 Divorce Code 23 P.S. § 101 et seq.

Appellant, Lillie Gantz, was the named defendant in a divorce action filed April 13, 1981 in Delaware County under § 201(c)*fn1 of the Divorce Code. No issues other than dissolution of the marriage were joined. Appellee filed his plaintiff's affidavit under § 201(d)*fn2 on August 18, 1983.

[ 338 Pa. Super. Page 531]

Appellant, without denying the averments of a three year separation or irretrievable breakdown, filed exceptions contending that the Delaware County Court was without jurisdiction to proceed to final judgment. The basis of this claim was that on February 28, 1983, approximately one year and seven months after the filing of the Delaware County action, appellant instituted another divorce action, as plaintiff, in the Court of Common Pleas of Montgomery County in which economic issues were included. The Montgomery County master recommended divorce after resolution of the economic issues. This proceeding, appellant claimed in her exceptions and now claims in appealing from the decree, deprived the Delaware County Court of the authority to grant a divorce. We disagree.

Appellant cites Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359 (1983) in advancing the proposition that the court of Delaware County erred in refusing to bifurcate the proceedings, thus rendering its decree invalid. However, the court had no economic issues before it on which to base bifurcation (none having been pleaded), and given appellant's failure to deny the averments of appellee's § 201(d) affidavit, was not only justified in addressing the dissolution issue alone, but deprived of discretion to do otherwise. Thill v. Larner, 321 Pa. Super. 62, 467 A.2d 894 (1983).

Although appellant attempted to protect her property rights, harmed it is claimed, by entry of the final decree, by filing a separate complaint in Montgomery County, we find this action violative of the spirit if not the letter of the joinder and counterclaim provisions of the 1980 Divorce Code. Section 301(a) reads in pertinent part:

[ 338 Pa. Super. Page ...


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