Appeal from the Order entered November 18, 1987 in the Court of Common Pleas of Montgomery County, Civil Division, at No. 84-9619.
Neil E. Jokelson, Philadelphia, for appellant.
Gerald Schorr, Philadelphia, for appellee.
Olszewski, Del Sole and Johnson, JJ. Olszewski, J., files a concurring opinion.
[ 382 Pa. Super. Page 553]
This is an appeal from an order entered in the Court of Common Pleas of Montgomery County in a divorce action.
On June 20, 1984, appellee Elaine Nika filed a complaint requesting, inter alia, a divorce from appellant Pandeli Nika, equitable distribution of their property, alimony, alimony pendente lite, and child support. Following protracted litigation, which involved among other proceedings a number of contempt hearings concerning Mr. Nika's noncompliance with court orders, the Honorable Samuel Salus entered a comprehensive order in equitable distribution on April 10, 1987. This order provided, in part, that Elaine Nika was to receive the following: sixty-five percent of the net proceeds remaining from the sale of the parties' residence after specified deductions were made for liabilities accumulated by the parties; permanent alimony in the amount of one hundred and twenty-five dollars per week; the parties' Lincoln Continental Town Car; and certain personal property, including china, crystal, and a fur coat. In addition, the order provided for Pandeli Nika to receive all the personal property currently in his possession, the fifteen hundred dollars remaining in the Fidelity account, his personal papers and Omega watch in Mrs. Nika's possession, the parties' Toyota Cressida, as well as thirty-five percent of the net proceeds from the sale of the parties' residence after the deductions noted above had been made.
Mr. Nika subsequently filed a motion for post-trial relief and exceptions to the equitable distribution order. Mrs. Nika responded to this motion and the exceptions by noting that Pa.R.C.P. 1920.55 precludes the filing of post-trial motions to a final decree in divorce actions. Argument was then heard on Mr. Nika's motion. On June 18, 1987, Judge Salus filed a final order and decree granting the parties' divorce and dismissing Mr. Nika's exceptions as being without merit and premature because no divorce decree had yet been entered. In this June 18 order, Judge Salus also
[ 382 Pa. Super. Page 554]
stated that his April 10, 1987, order in equitable distribution was reconfirmed in its entirety with the exception of certain paragraphs contained in the conclusions-of-law section for which he included amendments. Regarding the thirty-five percent of the proceeds from the sale of the parties' marital residence which the court had originally concluded Mr. Nika should receive, the court made the following amendment:
Paragraph 13. From the net proceeds left after deducting all of the foregoing from the joint account containing house proceeds and others, Elaine Nika is to receive 65% and Pandeli credited with 35%, to be held by his attorney to pay off the massive arrearages in support, medical and orthodenture bills, alimony, fees and fines and costs incurred during the pendency of this action, his attorneys' fees and all debts up to this point . . . . The 35% held by counsel in escrow and not turned over to a receiver is never to be disbursed directly to defendant because of his continued contempt of this Court and his failure to pay any arrearages or current obligations in accordance with Court order even though promising personally to do so. This Court strongly recognizes that defendant is an unreformed gambler who would squander away any proceeds from the house and it is using this fund as security and a source for the payment of defendant's obligations hereunder for the reason aforestated and others. Further, the Court reocgnizes [sic] that defendant has purposely made himself appear to be impecunious and caused his businesses to fail in order to defeat the divorce and equitable distribution and to discourage any claim from plaintiff, their children or counsel, and the Court is fully aware that defendant has marketable skills in the restaurant business that his earning capacity well dictates what is ordered for alimony, bills, support, counsel fees and expense obligations plus arrearages and the capacity and ability to pay is so found despite the surface appearance of inability to do so promoted by defendant.
[ 382 Pa. Super. Page 555]
Thereafter, the parties and their attorneys apparently met in conference with Judge Salus to clarify certain aspects of the distribution order. This conference, however, was not recorded.*fn1 After the hearing, on November 24, 1987, Judge Salus filed the order from which Mr. Nika appeals. ...