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

SUPERIOR COURT OF PENNSYLVANIA


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 after February 26, 1980,

[ 353 Pa. Super. Page 425]

    when the record was lodged in the Superior Court, are null and void for lack of jurisdiction in the lower court to proceed with this matter after that date.

Prozzoly v. Prozzoly, 327 Pa. Super. 326, 332, 475 A.2d 820, 824 (1984) treated an appeal from the denial of alimony pendente lite and an award of counsel fees. This Court wrote:

"that an appeal from an order granting or denying alimony pendente lite and counsel fees operates to divest the trial court of jurisdiction to proceed further with the action in divorce . . . ."

In Sutliff v. Sutliff, 326 Pa. Super. 496, 502, 474 A.2d 599, 601-02 (1984), this Court held that interlocutory awards are appealable in a divorce proceeding. Of interest for our purposes is the statement: "In so holding, we recognize that some delay in the principal litigation may result because the general rule is that an appeal removes jurisdiction from the lower court, see Pa.R.A.P. 1701 . . . ."

Wilson, Prozzoly and Sutliff are unanimous in holding that the pendency of an appeal divests the trial court of jurisdiction. In some instances this Court, upon petition, has granted a trial court permission to proceed in matters not related to issues under appeal. Pa.R.A.P. 1701(c). The Court of Common Pleas was, while the case was on appeal, without the power to proceed further in the case. Orders imposed in the absence of jurisdiction are, as Wilson held, null and void. Accordingly, the final divorce decree of February 16, 1983, as amended March 16, 1983, is vacated.

Contempt

Appellant contends that because the trial court was without jurisdiction to enter the divorce decree when it did, it could not hold appellant in contempt of court for failing to obey that decree. Again, we agree.

"The basis for contempt is to provide punishment for contemptuous disregard of a court's authority." Commonwealth ex rel. Roviello v. Roviello, 229 Pa. Super. 428, 438, 323 A.2d 766, 772 (1974). Thus, in order to justify contempt,

[ 353 Pa. Super. Page 426]

    a court must, in that situation, have authority. It must at least have had jurisdiction to issue the order which was violated and on which the contempt was based. "In those instances where a court enters an order without authority or legal right to make such an order it is powerless to attempt its enforcement." Roviello, supra, 229 Pa. Superior Ct. at 439, 323 A.2d at 772. Lack of jurisdiction over the matter in which any order is entered is a defense in any subsequent contempt proceeding for violation of that order. Leveto v. National Fuel Gas Distributing Corp., 243 Pa. Super. 510, 366 A.2d 270 (1976). "The disregarding of an order in excess of the court's authority does not give rise to contemptuous conduct by the parties involved." Roviello, supra, 229 Pa. Super. at 439, 323 A.2d at 772. See Commonwealth v. Miller, 306 Pa. Super. 468, 452 A.2d 820 (1982); Dover v. Philadelphia Housing Authority, 318 Pa. Super. 460, 465 A.2d 644 (1983).

Accordingly, appellant should not have been held in contempt for failing to obey an order which was issued by a court which lacked jurisdiction to enter that order.

The contempt order, along with the divorce decree, is vacated. Any fines paid under the contempt order are to be remitted.


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