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WILLIAM C. FENSTERMAKER v. ANNA LUE A. FENSTERMAKER (11/08/85)

filed: November 8, 1985.

WILLIAM C. FENSTERMAKER, APPELLANT,
v.
ANNA LUE A. FENSTERMAKER



APPEAL FROM THE ORDER ENTERED NOVEMBER 16, 1984 IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, CIVIL NO. 80-C-2554

COUNSEL

Marc S. Fisher, Easton, for appellant.

Michael P. Shay, Bethlehem, for appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Cirillo

[ 348 Pa. Super. Page 238]

On February 20, 1981, a divorce was granted to the parties to this action. On July 25, 1983, appellee filed a petition to amend the divorce decree. Appellee's petition was granted. On November 20, 1984, the trial court ordered that the petition be treated as a petition to open the divorce decree for purposes of amending the divorce decree. The court retained jurisdiction over the ancillary economic claims. Appellant asks this Court to find that the divorce

[ 348 Pa. Super. Page 239]

    decree should not be opened. He raises two claims for consideration in support of his position.

(1) The lower court erred in treating and granting appellee's petition to amend the divorce decree as a petition to open where no order of bifurcation was entered.

(2) The lower court erred in treating and granting appellee's petition to amend the divorce decree as a petition to open where the petition was filed two and one-half years after the entry of a decree in divorce in the absence of establishing fraud.

We find that the trial court erred, not in exercising its equitable power, pursuant to the power vested in it by the Divorce Code, 23 P.S. § 401(c), but in electing to treat the petition to amend the divorce decree as a petition to open, rather than as a petition to vacate the divorce decree. We therefore modify the trial court's order to correct this error and affirm. See 42 Pa.C.S. § 706.

In the instant case the parties were both represented by counsel at all stages of the proceedings. Counsel for the parties had attempted to resolve the marital property issues prior to the entry of the divorce decree. The record reveals that communication between the parties' respective attorneys continued during the period from August 12, 1980 until the entry of the divorce decree.

The intention of the appellant to continue negotiating a property settlement was clearly communicated to appellee on February 9, 1981, prior to the entry of the divorce decree. In response to a letter from appellee on December 23, 1980, counsel for appellant stated that he would make certain concessions. At the conclusion of the letter, appellant's counsel stated:

Very shortly we will be filing a motion asking the court to enter a Decree in Divorce under the provisions of Section 201(d) of the divorce code. Needless to say, that should not interfere with the other items prayed for in the divorce complaint, and if we cannot work it out, then, of course, a Master can be appointed for those purposes. However if we can work it all out, fine. I will send you a

[ 348 Pa. Super. Page 240]

    letter giving you five day's notice of the date that I will be presenting the motion for the granting of the divorce, which notice would be given pursuant to the rules of procedure in Lehigh County.

Relying on the pattern of continuous negotiation prior to the entry of the decree in divorce, appellee did not file exceptions nor take any appeal from the divorce decree.

A conference was held on March 27, 1981, at which time the parties were under the impression that an agreement had in fact been reached. However, a dispute subsequently arose and no agreement was reached. Appellant thereafter ceased negotiating with appellee.

On July 25, 1983 appellee filed a petition to amend the divorce decree, in order that the court could resolve the issues of equitable distribution, alimony, counsel fees and costs. The trial court resolved the economic issues, thereby rejecting appellant's argument that appellee had waived all claims pursuant to Pa.R.C.P. 1920.31(c)*fn1 and 23 P.S. § 401(j).*fn2

In the opinion of the Honorable James Knoll Gardner, the trial court opined:

At first blush husband's argument seems to have merit. However, a close reading of the act discloses that the

[ 348 Pa. Super. Page 241]

    equitable powers of the court survive the entry of the Divorce Decree. Section 401(c) grants the court power to issue orders "which are necessary . . . to effectuate the purposes of this act . . ." Section 102 of the Divorce Code provides:

(a) . . . it is hereby declared to be the policy of the Commonwealth of Pennsylvania to: . . .

(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

(b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent. (Emphasis added).

If the purposses of the act include effectuating economic justice concerning property rights and alimony between divorced parties, the equitable powers given to the court to effectuate ...


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