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CAROL J. MOSIER v. ROBERT E. MOSIER (01/21/86)

submitted: January 21, 1986.

CAROL J. MOSIER, APPELLANT,
v.
ROBERT E. MOSIER



Appeal from the Decree in the Court of Common Pleas of Crawford County, Civil Division, No. A.D. 1981-895.

COUNSEL

Joan D. Mason, Meadville, for appellant.

John F. Spataro, Assistant District Attorney, Meadville, for appellee.

Rowley, McEwen and Tamilia, JJ. Rowley, J., files a concurring and dissenting opinion.

Author: Tamilia

[ 359 Pa. Super. Page 189]

On October 11, 1984, after a hearing, an Order was entered granting bifurcation in the divorce action between the present parties. On November 2, 1984, upon praecipe of appellee, Robert Mosier, a divorce decree was entered. The decree reserved, for further order, all issues relating to alimony, alimony pendente lite, equitable distribution, counsel fees and costs.

Appellant, Carol Mosier, filed separate appeals challenging the bifurcation Order and the divorce decree. Subsequently, a Master's report was filed dealing with the economic issues and both parties filed exceptions to that report.

[ 359 Pa. Super. Page 190]

The lower court, on July 8, 1985, entered an Order indicating that under Pa.R.A.P. 1701, it no longer had jurisdiction to take further action until this Court relinquished jurisdiction, citing Hall v. Hall, 333 Pa. Super. 483, 482 A.2d 974 (1984) (Memorandum, Walker, J. filed July 17, 1985).

A review of the briefs and the record in this case reveals a number of procedural problems which we will discuss.

Initially, we must address the appealability of the Order granting the petition for bifurcation. In Mandia v. Mandia, 341 Pa. Super. 116, 491 A.2d 177 (1985), this Court determined that such an Order is not final and appealable.

An order which grants a bifurcation has no bearing on the parties status nor does it realistically affect them in any way. It is only upon entry of the actual decree of divorce when ramifications of the order became apparent and tangible. A party who opposes the grant of a petition for bifurcation is not necessarily acting in opposition to the divorce per se but is opposing the timing of the divorce vis a vis the parties economic claims.

Id., 341 Pa. Superior Ct. at 118, 491 A.2d at 178.

If this were the only Order appealed from, we would quash the appeal on that basis. However, an appeal has also been taken from the divorce decree. It is appropriate to raise the issue of bifurcation on such an appeal. Thill v. Larner, 321 Pa. Super. 62, 467 A.2d 894 (1983); Mandia, supra.

Appellant contends the trial court was not authorized to consider the request for bifurcation prior to the filing of the Master's report and a determination that the ancillary issues would not be disposed of within 30 days of the filing of the report. In support of this argument, appellant relies on 23 P.S. ยง 401(b) which provides in pertinent part:

Section 401. Decree of Court

(b) Any Decree granting a divorce or an annulment, shall include after a full hearing, where these matters are

[ 359 Pa. Super. Page 191]

    raised in the complaint, the answer or other petition, an order or orders determining or disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master's report has been filed, it may enter a decree of divorce or annulment . . . .

We do not agree that section 401(b) should be read so as to exclude from consideration for bifurcation, divorce proceedings which do not fall within its parameters. The section authorizes the court, after a Master's report has been filed, to make an evaluation of whether it would be appropriate to enter a divorce decree prior to a final determination of the ancillary matters. This does not, however, restrict the court from making a ...


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