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KATHERINE JEAN QUINN LAXTON v. FRANK AUBREY LAXTON (09/13/85)

filed: September 13, 1985.

KATHERINE JEAN QUINN LAXTON, APPELLANT,
v.
FRANK AUBREY LAXTON, APPELLEE. KATHERINE JEAN QUINN LAXTON, APPELLEE, V. FRANK AUBREY LAXTON, APPELLANT



No. 480 Philadelphia, 1984, No. 1617 Philadelphia, 1984, Appeal from Orders of the Court of Common Pleas, Civil Division, of Delaware County, No. 77-11722.

COUNSEL

Joseph P. Caranci, Jr., Media, for appellant (at 480).

Robert M. DiOrio, Media, for appellant (at 1617).

Wieand, Watkins and Geisz,*fn* JJ.

Author: Wieand

[ 345 Pa. Super. Page 452]

Where a wife has commenced an action for divorce based on indignities to her person*fn1 and has obtained from the master a recommendation that she be divorced from her husband, may the court, acting on a petition by the husband, enter a decree of divorce despite the wife's opposition? This is the principal issue in this case.

On August 12, 1977, the wife commenced an action in divorce in which she alleged that her husband had been guilty of a course of conduct constituting indignities to her person. After a hearing before a Master on April 20, 1978, the Master found the wife to be an innocent and injured spouse and recommended in a report filed June 20, 1978 that a decree in divorce be entered. Thereafter, the action lay dormant until April 29, 1982, when the wife sought and was granted permission to proceed under the Divorce Code of 1980.*fn2 On May 6, 1982, she filed an amended complaint seeking equitable distribution, alimony, alimony pendente lite, attorney's fees, costs, and expenses. The husband filed a counterclaim seeking ancillary economic relief and requesting, inter alia, that the court grant him a divorce. On January 6, 1983, the court entered an order in the divorce action which directed the husband to pay $125.00 per week to the wife as alimony pendente lite.

On October 3, 1983, husband filed a complaint seeking a divorce under § 201(c) or § 201(d) of the Divorce Code of 1980. On February 7, 1984, the court entertained four petitions filed by the husband which requested: (1) an amendment of the caption; (2) a bifurcation of the divorce from the economic issues; (3) injunctive relief; and (4) special relief. Testimony was taken on the bifurcation

[ 345 Pa. Super. Page 453]

    request; and at the conclusion thereof, the court indicated that it would grant the petition. The court became aware also that a Master had previously recommended in the wife's earlier divorce action that a decree be entered. During a hearing the following day on the petitions for injunctive and special relief, the court stated, "I do mean that we will bifurcate and we will also direct here and now, as a follow of that, that the matter be referred to proceed to grant a final decree." (N.T. 2-8-84, at 2). Later that day, an order was entered which decreed a divorce. The decree was entered without a finding of fault on the part of husband or wife.*fn3 The wife appealed.

On May 17, 1984, the court found that the husband had failed to comply with the prior order directing him to pay alimony pendente lite. The arrearages, the court found, were in the amount of $1,125.00. The husband, therefore, was directed to remove $2,000.00 from an account at Iron Workers Federal and apply it on account of past and future payments of alimony pendente lite. The husband appealed from this order. Both appeals were consolidated for purposes of argument.

In an opinion filed July 24, 1984, the trial court stated its reasons for entering a decree in divorce. It recited the lengthy history of the divorce action and commented upon the ...


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