Appeal from the Orders of November 15, 1984, November 19, 1984 and December 28, 1984, in the Court of Common Pleas of Erie County, Pennsylvania, Civil Division No. 206-A-1983.
Donald W. Grieshober, Erie, for appellant.
Kevin J. Kingston, Erie, for appellee.
Watkins, Hoffman and Hester, JJ.
[ 357 Pa. Super. Page 386]
Appellee, Jennie Marie Teribery, filed a complaint in divorce against appellant, George Wilbert Teribery, on January 12, 1983. Appellee's complaint included claims for support, alimony, equitable distribution of marital property, alimony pendente lite, counsel fees and expenses.
[ 357 Pa. Super. Page 387]
Following a hearing on May 3, 1983, a master filed a report recommending that appellant pay $188.00 weekly as alimony pendente lite to appellee. Appellant filed exceptions from the master's report; the trial court deferred disposition until a final master's report was filed on remaining claims.
A subsequent master's hearing was conducted on alimony and distribution of marital property. The master recommended that appellee be awarded the marital house, household goods, certificate of deposit in the amount of $10,000.00, silver coins, joint checking account and riding lawn mower. Appellant was to be awarded his pension plan, automobile, guns and cabinet, bow and 1982 income tax refund. Appellee was also awarded alimony in the amount of twenty five percent (25%) of appellant's net income. Both parties filed exceptions from this master's report.
By order dated November 15, 1984, the trial court dismissed appellant's exceptions to the alimony and equitable distribution report. Appellee's exceptions were granted to the extent that 1) alimony was increased to fifty percent (50%) of appellant's net income subject to reduction by appellee's income, and 2) appellee was awarded fifty percent (50%) of the value of appellant's pension plan accruing from the date of marriage to the date of separation.
Shortly thereafter, appellant's exceptions from the master's report on alimony pendente lite were dismissed by order dated November 19, 1984. Appellant filed a timely appeal at 1611 Pittsburgh 1984 from the orders of November 15, 1984, and November 19, 1984.
Following appellant's appeal, appellee filed a petition with the trial court for enforcement of alimony pendente lite. The petition was granted on December 28, 1984, and appellant was ordered to continue paying alimony pendente lite of $188.00 per week while the appeal was pending. Appellant filed an appeal from this order at 124 Pittsburgh 1985.
Thus, two appeals concerning three trial court orders have been consolidated for review. After both appeals
[ 357 Pa. Super. Page 388]
were filed, appellant filed a petition in trial court and this court to revoke his affidavit of consent to the divorce. We remanded this petition to the trial court for complete disposition. The petition was denied by the trial court, and appellant's exceptions were also denied by order of December 11, 1985. No appeal was filed from that order.
Appellant raises the following arguments: 1) he has the unconditional right to revoke his affidavit of consent, and such revocation would render moot all orders regarding alimony, counsel fees, expenses and equitable distribution of marital property; 2) the distribution of marital property was inequitable; 3) the trial court erred in awarding alimony to appellee at the rate of fifty percent (50%) of appellant's net income; 4) the order for alimony pendente lite was confiscatory; and 5) the trial court had no authority to rule on alimony, counsel fees, court costs and equitable distribution of marital property when appellant had withdrawn his affidavit of consent.
Appellant cites Hoffman v. Hoffman, 350 Pa. Super. 280, 504 A.2d 356 (1986), as support for his contention that he has the absolute right to withdraw his affidavit of consent. The Hoffman panel noted in dictum that a plaintiff cannot withhold her consent to the divorce while maintaining a claim for alimony pendente lite. Hoffman further held that a trial court cannot dismiss a divorce complaint due to the plaintiff's refusal to file an affidavit of consent unless the court first notifies the plaintiff of the consequences of not filing a written consent.
Hoffman does not support appellant's contention that he can negate prior orders for alimony and equitable distribution by withdrawing his affidavit of consent. The plaintiff in Hoffman refused to file an affidavit, and no orders on ancillary claims had been entered. Here, however, appellant had filed his affidavit, a divorce decree issued and then alimony and equitable distribution were determined. Appellant is dissatisfied with the alimony and equitable distribution orders, and has attempted to void them and remove the jurisdiction of this court by withdrawing
[ 357 Pa. Super. Page 389]
his affidavit. There is no precedence for ...