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filed: May 11, 1989.


Appeal from the Order Entered January 21, 1988 in the Court of Common Pleas of Cumberland County, No. 420 Civil 1982.


Charles D. Vance, Jr., Mechanicsburg, for appellant.

Samuel L. Andes, Lemoyne, for appellee.

Cirillo, President Judge, and Wieand and Del Sole, JJ. Cirillo, President Judge, delivers the opinion of the court affirming the divorce decree, the award of alimony and the equitable distribution order, in which Wieand, J., joins. Del Sole, J., files a concurring and dissenting opinion. Wieand, J., files a separate opinion, in which he delivers the majority view on the issue of counsel fees, reversing that part of the trial court's order awarding out of state counsel fees, in which Del Sole, J., joins. Cirillo, President Judge, files a dissenting opinion.

Author: Cirillo; Wieand

[ 384 Pa. Super. Page 478]

This is an appeal challenging various rulings on exceptions to an order of the Court of Common Pleas of Cumberland County granting a divorce, equitably distributing marital property, and awarding alimony and counsel fees. We vacate only that portion of the order directing payment of counsel fees to Mrs. Mantell's Texas counsel.

The parties were married in Mrs. Mantell's native country, Japan, in 1964. In 1982, Mr. Mantell, appellant here, instituted a Section 201(d) divorce action in Pennsylvania, where both parties resided. Appellee, Mrs. Mantell, responded, denying that the marriage was irretrievably broken or that the parties had been separated for three years. She also raised claims for economic relief, including counsel fees. Mr. Mantell later moved to Texas where, in 1983, he filed another divorce action. That action initially proceeded to a default judgment of divorce but was eventually dismissed by the Texas court in 1986 for lack of subject matter jurisdiction.

In 1985 Mrs. Mantell, who remained in Pennsylvania, successfully filed for the appointment of a master. A hearing, not attended by Mr. Mantell or his counsel, was held several months later. The master's report, recommending the granting of the divorce and the distribution of the property, was filed in October of 1985. Exceptions by both parties followed.

The trial court heard argument on these exceptions in July of 1986 and remanded the matter to the master for consideration of Mrs. Mantell's claims for alimony and alimony pendente lite, issues on which the master's report had been silent. Both parties subsequently requested that the court discharge the master and hear the remaining issues.

Following a hearing in August of 1987, the court issued its October 28, 1987 order and opinion which contained

[ 384 Pa. Super. Page 479]

    findings of fact and which granted the divorce, distributed the property and awarded alimony and fees. Both parties filed for post-trial relief and, except for correcting the weekly net income attributed to Mr. Mantell (the court had erroneously picked up a bi-weekly figure), its October 28th order was reconfirmed as the final order in the case. This appeal followed.

Appellant raises five issues for our review:

1. Did the court err in failing to lower alimony after correcting Mr. Mantell's weekly net income, thereby reducing it by half?

2. Did the court err in including as marital property subject to equitable distribution realty in Costilla County, Colorado?

3. Did the court err in not designating a percentage of Mr. Mantell's pension to which Mrs. Mantell is entitled?

4. Did the court err in awarding fees for Mrs. Mantell's out-of-state counsel, such an award being unsupported on the record?

5. Did the court err in not addressing or discussing Mr. Mantell's argument #4 above when disposing of Mr. Mantell's exceptions to the October 28, 1987 order?

With respect to the first four of these issues, appellant asks that we "correct the error and modify" the trial court's order; he asks that we reverse and remand for explanation as to issue number five.

Mr. Mantell first argues that it was an abuse of discretion not to reduce the alimony award when the court realized its error in finding Mr. Mantell's net weekly income. He concedes that the evidence supports an award of alimony, but asserts that the court abused its discretion in setting the amount. He reads the court's order and opinion of October 28th as relying most heavily on the disparity of income between the parties as the basis for its alimony award and finds unsatisfactory its statement, made on consideration of his exception, referring to the other relevant factors at ยงยง 102(a)(6) and 501 of the Divorce Code in

[ 384 Pa. Super. Page 480]

    support of its decision to leave the alimony as originally awarded.

Mrs. Mantell points out that the court's original finding of fact regarding Mr. Mantell's annual income used the correct figure and that the trial court's discussion in its opinion uses the correct figures for the parties' incomes. Additionally, she notes, as did the trial court, that this was only one of at least fourteen factors considered in making the award. She also observes that the trial court was correct in using annual income figures, consideration of a net weekly figure not being reflective of Mr. Mantell's true ability to pay alimony since the tax impact of paying alimony is not reflected in it. She therefore suggests that the one error in stating weekly income was more typographical than ...

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