Appeal from the Order in the Court of Common Pleas of Luzerne County, Civil Division, No. 2235-C
Joseph P. Giovannini, Jr., Wilkes-Barre, for appellant.
Charles A. Shaffer, Wilkes-Barre, for appellee.
Cavanaugh, Beck and Tamilia, JJ. Beck, J., dissenting.
[ 344 Pa. Super. Page 156]
This case presents the novel, yet important, issue of whether section 401 of the Divorce Code*fn1 empowers our courts to enter an Order giving a wife (and child) the right to reside in the marital residence until equitable distribution is made, and further ordering the husband to vacate said premises. Since this is an issue of first impression in this Commonwealth, we have reviewed the law of two leading jurisdictions which have addressed this question and conclude that the Order of the lower court should be affirmed.
The appellee, Linda Claire Laczkowski, and the appellant, Edward Thomas Laczkowski, although currently separated, are husband and wife and were married on June 17, 1967. The parties have one child born of this marriage, a daughter, Melissa, age 7. The parties and their minor daughter resided together in the marital residence located at 123 Oak Street, Wilkes-Barre, Luzerne County, Pennsylvania, until May 3, 1982, when the appellee, together with Melissa, left the marital residence and went to reside at the appellee's
[ 344 Pa. Super. Page 157]
parents' home at 42 Dagobert Street, Wilkes-Barre. Appellee and Melissa resided there until May 16, 1983.
The marital residence is jointly owned by the parties, in the form of tenancy by the entirety, and is the only real estate owned by them and the single major asset of their marital estate. On June 24, 1982, the appellee filed a complaint in divorce against the appellant alleging the no-fault grounds of an irretrievably broken marriage as well as the fault grounds of indignities. The complaint further requested that the ancillary matters of permanent alimony, division of property, attorneys fees, temporary alimony, child support and court costs be determined in the divorce proceedings.
On September 15, 1982, an inventory and appraisement was filed by the appellee pursuant to the Rules of Civil Procedure. On November 19, 1982, the appellee filed a petition for special relief, requesting that she be placed in possession of the marital residence to the exclusion of the appellant on the basis that she had been subjected to harrassment and mental cruelty by the appellant and, in support thereof, cited section 401(h) of the Divorce Code and Pa.R.C.P. 1920.43(a). Along with the petition for special relief, the appellee filed a rule to show cause why the possession of the marital residence should not be granted to the appellee. Said petition and rule were duly served upon the appellant, who filed an answer to the petition on November 29, 1982. After a hearing on December 29, 1982, the lower court issued an Order directing the appellant to leave the marital residence and granting exclusive possession to the appellee. No exceptions were taken to this Order nor was an appeal perfected.
On January 27, 1983, appellant's former counsel withdrew his appearance and present counsel entered his appearance on appellant's behalf. On February 7, 1983, the appellant, by and through his new counsel, filed a motion and rule to show cause why the Order of December 29, 1982 should not be vacated for lack of jurisdiction.
[ 344 Pa. Super. Page 158]
On February 22, 1983, a rule to show cause and petition for citation for contempt was filed on behalf of the appellee due to the appellant's failure to relinquish possession of the marital residence. The rule returnable was set for March 7, 1983, the same day on which the appellant's rule was returnable on his motion to vacate the Order for lack of jurisdiction.
On March 11, 1983, the lower court, after a hearing, denied the appellant's motion to vacate the December 29th Order. The Order of March 11, 1983 was entered of record on March 16, 1983, whereupon the appellant immediately filed an appeal to this Court. The Order of March 11, 1983, reads as follows:
'AND NOW, this 11th day of MARCH, 1983, at 10:45 o'clock, A.M., upon consideration of the Defendant's Motion, and after Hearing, this Court finds that the issues raised by the Defendant in his Motion to Vacate, could have been raised by the Defendant at the time that the hearing was held on the Plaintiff's Petition for Special Relief, and that they were not raised at that time, and not having raised them previously, the Defendant is barred from raising them now.
FURTHER, even if this Court were to consider the issues now raised by the Defendant, the Court is of the opinion that the Order entered December 29, 1982, was proper under all of the circumstances; and it is hereby
Ordered that the Defendant's Motion to Vacate said Order is DENIED.
On March 10, 1983, appellant filed a petition for stay and supersedeas of the December 29, 1982 Order, pending the instant appeal. Said petition was denied and on March 11, 1983, after a hearing, the lower court found the appellant in contempt of the December 29, 1982 Order awarding appellee the right to live in the family home to the appellee. On May 12, 1983, after a hearing, the lower court entered a
[ 344 Pa. Super. Page 159]
further Order which directed the appellant to purge himself of his contempt of the December 29, 1982 Order by 9:00 a.m. on May 16, 1983. Additionally, the Order stated that upon failure of the appellant to purge himself of his contempt, as provided above, the Sheriff of Luzerne County, upon request by the appellee and without further hearing, would be directed to apprehend and incarcerate the appellant in the Luzerne County Prison, until such time as the appellant assured the court that he had purged himself of his contempt.
Appellant argues (1) that the lower court lacked jurisdiction under section 401 of the Divorce Code and Pa.R.C.P. 1920.43(a) to dispossess the appellant from the marital residence and grant exclusive possession to the appellee; and (2) that because the lower court lacked jurisdiction and authority to issue such an order, the appellant cannot be held in contempt of court for noncompliance with an invalid order.
At the outset, we note that appellant has phrased the above issues in the context of a jurisdictional attack when, in fact, no such question exists. This appeal stemmed from a divorce action which the lower court clearly had jurisdiction to hear. The question concerning whether the court could dispossess the appellant from the marital residence and grant exclusive possession to the appellee during the pendency of the divorce proceedings is not a jurisdictional matter; rather, it involves the judicial interpretation of section 401 of our Divorce Code. Rephrased, the issue before us is whether the lower court correctly applied section 401 of the Divorce Code. Consequently, we are not concerned with subject matter jurisdiction, which is limited to the question of whether a court has the power to determine controversies of the general class to which the case belongs. See Nagle v. American Casualty Co., 317 Pa. Super. 164, 463 A.2d 1136 (1983). Our review of the record leads us to conclude that appellant, through his new counsel, phrased the above issues in this context because an attack on the court's subject matter jurisdiction can be
[ 344 Pa. Super. Page 160]
raised at any time and cannot be waived. Encelewski v. Associated-East Mortgage Co., 262 Pa. Super. 205, 396 A.2d 717 (1978). Obviously, this was done in direct response to prior counsel's failure either to take exceptions to the December 29, 1982 Order or to perfect an appeal from that Order. While there is no Pennsylvania case on point regarding a temporary award of the possession of the marital residence, this Court has previously held that the failure to file exceptions to an award of alimony pendente lite or interim counsel fees constitutes a waiver. See, e.g., Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984); Carangelo v. Carangelo, 321 ...