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CATHERINE SALEMO v. GEORGE SALEMO (02/27/89)

filed: February 27, 1989.

CATHERINE SALEMO, APPELLEE,
v.
GEORGE SALEMO, APPELLANT



Appeal from the Decree of the Court of Common Pleas, Civil Division, Lehigh County, at No. 82-C-1023.

COUNSEL

George Salemo, appellant, in propria persona.

Robert C. McFadden, Allentown, for appellee.

Tamilia, Watkins and Montgomery, JJ.

Author: Per Curiam

[ 381 Pa. Super. Page 633]

This is an appeal from the Decree of Divorce. Appellee initially filed a complaint in divorce under 23 P.S. § 201(c). Appellant filed an answer and counterclaim under 23 P.S. § 201(a)(2). Thereafter, appellee filed an amended complaint alleging that appellant had been sentenced to a term of imprisonment for a period of two or more years and thus, requesting a divorce pursuant to 23 P.S. § 201(a)(5). Appellant filed an answer to the amended complaint alleging that

[ 381 Pa. Super. Page 634]

    his sentence was not final as it was currently on appeal. In August, 1987, appellee filed a petition for bifurcation. A hearing on said petition was finally held on October 6, 1987. Appellant was not present for the hearing. We note that both parties to this divorce are unrepresented on appeal and, therefore, the issues raised are not well-defined.

Appellant first contends that a master should have been appointed in this matter. Our rules of procedure specifically provide, however, that the court may hear testimony or may appoint a master to hear the testimony in an action of divorce under Section 201(a). Pa.R.Civ.P. 1920.51(a)(2)(i), 42 Pa.C.S.A. Rule 1920.51. Additionally, we note that a master was, indeed, appointed in this matter in July, 1983, and that appellee had deposited with the court the sum of $300.00, but due to appellee's apparent inability to pay the master's fees, the court, upon petition, ordered that the master's fees be withdrawn and the case proceeded without a master.

Appellant also contends that the court erred in failing to consider any economic issues raised in this matter. We note that the decree entered in this action was final only as to the issue of divorce and that the court retained jurisdiction of any other issues raised by the parties. Thus, appellant is free to pursue, in accordance with the rules governing such actions, any other claims raised in this matter. 23 P.S. § 401(b); Pa.R.Civ.P. 1920.1 et seq.

Appellant further claims that the trial court erred in holding the hearing absent appellant's presence. Initially, we note that this court has held that where a defendant in a divorce action has filed a counterclaim seeking to secure a divorce in his or her favor but on separate and distinct grounds, he or she is entitled to present evidence in support of his or her claim prior to the court's ruling on the merits of the plaintiff's claim. Restifo v. Restifo, 339 Pa. Super. 352, 489 A.2d 196 (1985). After hearing all the evidence, the court will then determine upon which basis it will grant the divorce. Restifo v. Restifo, supra.

[ 381 Pa. Super. Page 635]

At the time of the hearing in the instant matter, appellant was incarcerated. In August, 1987, appellant filed a petition for writ of habeas corpus ad testificandum requesting that the court secure his presence at the hearing in this matter. Thereafter, the court entered an order continuing the hearing until October, 1987, but failed to address the above petition. Subsequently, the court, in its opinion filed in response to the present appeal, noted that while appellant had requested to be present at the hearing, the court believed that since this was a civil matter the court was not obligated to honor ...


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