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BARBARA A. SCHIMMEL CHENG v. THOMAS C. CHENG (11/15/85)

filed: November 15, 1985.

BARBARA A. SCHIMMEL CHENG, APPELLANT,
v.
THOMAS C. CHENG



Appeal from the order entered October 22, 1984 in the Court of Common Pleas of Northampton County, Civil No. 1981-C-7546.

COUNSEL

Allan C. Perry, Philadelphia, for appellant.

Glenn D. McGogney, Allentown, for appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Cirillo

[ 347 Pa. Super. Page 516]

This is an appeal from an order dismissing appellant Barbara Cheng's complaint for divorce and economic relief

[ 347 Pa. Super. Page 517]

    for lack of subject-matter jurisdiction. We reverse and remand.

Barbara and appellee Thomas Cheng were married on May 31, 1957, in Phoenixville, Pennsylvania. They moved from Pennsylvania but returned in 1969. They separated on July 8, 1978, and Thomas relocated in South Carolina, establishing residency there in July, 1980.

On June 23, 1981, Thomas filed a complaint in divorce in South Carolina. Unable to perfect personal service on Barbara, the defendant in that action, Thomas notified her through publication. Barbara answered Thomas's South Carolina complaint and counterclaimed for equitable distribution, counsel fees and costs, and alimony. She had filed a complaint in divorce in the Northampton County Court of Common Pleas in Pennsylvania on August 19, 1981, seeking a divorce, equitable distribution, alimony, costs and expenses, and support for the parties' remaining minor child; Northampton County is where Barbara and the child reside and the former marital home is located. A master was appointed on November 18, 1981, to preside over the Pennsylvania action.

Thomas appeared through counsel in Barbara's Pennsylvania action on December 29, 1981, and filed preliminary objections, raising his prior, pending action in South Carolina as a defense. Upon Barbara's motion, Thomas's objections were stricken as having been untimely filed. Thomas then answered Barbara's complaint, denying her averment that there was no prior pending action and alleging the pendency of his own South Carolina action.

On March 19, 1982, Thomas and counsel for Barbara appeared in the South Carolina action. Barbara's counsel initially challenged Thomas's motion to sever the divorce claim therein from the economic claims raised in Barbara's counterclaim. However, counsel for both parties finally stipulated that Barbara would not oppose the motion to sever if Thomas signed and recorded, in the Northampton County court, a stipulation which would ensure that court's jurisdiction over the other collateral, economic matters.

[ 347 Pa. Super. Page 518]

The parties also agreed to stay the South Carolina proceedings on Barbara's counterclaim, with the South Carolina court's jurisdiction preserved, pending resolution of the economic issues in the Pennsylvania court. The South Carolina court issued a decree in divorce a.v.m. on April 20, 1982.

The master in Barbara's Pennsylvania action held a hearing on the economic claims on April 13, 1983. Barbara, her counsel, and counsel for Thomas attended. The master found that Barbara's claim for post-divorce alimony was both well-founded and viable under Pennsylvania law. However, the master recommended that alimony be denied because Pennsylvania lacked subject-matter jurisdiction over Barbara's divorce action. The Northampton County court agreed, denying Barbara's exceptions to the master's report and dismissing her complaint.

Appellant Barbara now claims:

1) that the trial court erred in holding that it lacked jurisdiction to grant post-divorce alimony in the instant case because of the decision in Sohmer v. Sohmer, 318 Pa. Super. 500, 465 A.2d 665 (1983);

2) that the trial court erred in questioning whether appellee Thomas's prior pending action vitiated Pennsylvania's jurisdiction over the subject matter when, in fact, that specific issue had been raised in Thomas's preliminary objections, which were dismissed as untimely;

3) that the trial court erred in concluding that, although the case at bar is factually distinguishable from Sohmer v. Sohmer, supra, those distinctions are not material; and

4) that the holding of Sohmer v. Sohmer directly conflicts with the legislative findings and intent expressed in the Divorce Code of 1980 and with the Commonwealth's long-standing public policy on the sanctity of marriage.

We find appellant's second contention to be of no consequence. The court shall dismiss an action whenever it appears by suggestion of the parties or otherwise that the court lacks ...


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