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MAURICE M. ROSEN v. SANDRA EBERSOLE ROSEN (04/28/86)

filed: April 28, 1986.

MAURICE M. ROSEN
v.
SANDRA EBERSOLE ROSEN, APPELLANT



Appeal from the Order of the Court of Common Pleas, Montgomery County, Civil Division, at No. 80-11017.

COUNSEL

Marvin M. Mitchelson, Los Angeles, Howard K. Goldstein, Philadelphia, for appellant.

Jack A. Rounick, Norristown, for appellee.

Brosky, McEwen and Hester, JJ.

Author: Brosky

[ 353 Pa. Super. Page 422]

This is a consolidated appeal from two orders: one denying a petition to vacate or strike a divorce decree and the other finding appellant in contempt for failing to adhere to the equitable distribution provisions of that decree. Appellant contends that the Court of Common Pleas was without jurisdiction to issue the divorce decree, as the case was then on appeal from an order awarding counsel fees. She also argues that since the Court of Common Pleas did not have jurisdiction to enter the divorce decree it also was without the power to enforce that decree via a contempt order. We agree and, accordingly, vacate both the divorce decree and the contempt order and remand for further proceedings.*fn1

[ 353 Pa. Super. Page 423]

    orders. Appellant was incarcerated from March 8th through 14th, 1985. Notice of appeal was timely taken and the propriety of the contempt order is the second issue before us now.

Jurisdiction

Appellant contends that the trial court erred in denying her petition to open or strike the divorce decree. That court was, she says, without jurisdiction to enter the divorce decree because an appeal in the case was before this Court. We agree.

First, as a factual matter, we note that the divorce decree was, indeed, entered while the counsel fees appeal was before this Court.*fn3 Second, it is clear that, as the law stood at that time, the taking of an appeal acted to divest the trial court of jurisdiction over the case.*fn4

In Wilson v. Wilson, 297 Pa. Super. 14, 23, 442 A.2d 1189, 1193-94 (1981), this Court held that the trial court was without jurisdiction to proceed after an appeal was taken from an alimony pendente lite order.

We are, therefore, led to the inevitable conclusion that all proceedings in the lower court ...


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