DocketNumber： 3717
Judges： McEwen, Sole, Beck, Tamilia, Kelly, Popovich, Johnson, Hudock, Schiller
Filed Date： 10/28/1996
Status： Precedential
Modified Date： 10/19/2024
Presented for our consideration is the question of whether an award of spousal support entered in response to a complaint for support which is filed separately from a pending divorce action, is immediately appealable. Because we conclude that this situation is indistinguishable from one where an order for spousal support is entered in connection with a divorce action, we find the instant support order to be unap
The parties to this action were married approximately ten years, and had no children when Appellant-Husband instituted an action for divorce. A short time later Appellee-Wife filed a petition for spousal support, but later withdrew it when the parties agreed on the' terms of a Property Settlement Agreement. The Agreement was later declared to be null and void by court order and Wife filed a new claim for spousal support. The matter was presented before a Domestic Relations Hearing Officer and an order of spousal support in favor of Wife, recommended by the Hearing Officer, was entered. Husband then requested a de novo hearing before the court. The court heard testimony presented by the parties and permitted counsel to submit written points of authority. Thereafter, the court entered a final order of support, affirming the earlier order.
Although the appealability of the support order is not addressed by the parties in this case, we, nevertheless, will examine this question since the appealability of an order goes to the jurisdiction of the court and may properly be raised by the court sua sponte. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). It is necessary in making this ruling to define precisely the situation which causes us to question the appealability of the support order before us. The order was entered following a request which was made independent of a pending divorce action. We are not concerned with a spousal support order entered where no divorce complaint has been filed and, therefore, no divorce action is pending, or an order entered in a divorce action which has not been initiated by an independent complaint during the pendency of a divorce action. See Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986). Further, we do not address a situation in which a single unallocated order of child and spousal support has been entered,
This court has held that we are without jurisdiction to entertain an interlocutory appeal from a spousal support order which is set in a divorce action. Id. The spousal support order in Ritter was made following the filing of a divorce action by the husband, and the wife’s request in her Answer for alimony pendente lite or spousal support. An appeal from the court’s order of support was found to be premature, and was quashed. In support of its ruling, the Ritter court relied on our supreme court’s decision in Fried, supra, which held that an interim order of alimony pendente lite was interlocutory and not reviewable until the final disposition of the case. The Ritter court, in concluding that spousal support and alimony pendente lite are “indistinguishable in the context of a divorce action,” Ritter at 16, 518 A.2d at 321, quoted to that portion of the Fried opinion which reasoned that the logic which once permitted these types of appeals no longer applies under the Divorce Code of 1980:
[I]t was previously held that the payor spouse was entitled to immediate appeal because the amounts paid under such order would be irretrievable. This reasoning, however, fails under the Divorce Code of 1980. As stated in Judge Beck’s dissent, “... the new provisions of the Divorce Code authorizing equitable distribution of marital property and permanent alimony have taken away any reason to fear that funds once paid out pursuant to an interim award are unrecoverable.” Sutliff [v. Sutliff], supra, 326 Pa.Super. [496] at 504, 474 A.2d [599] at 603 [ (1984) ] (Beck, J., dissenting.) In the event that an initial award of interim relief is granted in error, the court has the power to make adjustments in the final settlement via the equitable division of marital property, permanent alimony, and/or the final award of attorney’s fees and costs. Thus,*580 under the new Code the conclusion that a grant of interim financial relief may result in the irreparable loss of a claimed right cannot be supported.
Ritter, 359 Pa.Super. at 15-16, 518 A.2d at 321, (quoting Fried, 509 Pa. at 96, 501 A.2d at 215).
The rationale provided in Fried was found to be equally applicable to spousal support orders, and that portion of the appeal in Ritter which concerned spousal support, was quashed. In a footnote, not pertinent to its holding, the court remarked that its decision was not to be applied to cases where an independent complaint in support is filed in a divorce action. Rather in such a case, the footnote states, “the integrity of the support complaint is maintained and is appeal-able within thirty (30) days.” Ritter, 359 Pa.Super. at 16, n. 2, 518 A.2d at 321 n. 2. Without discussion, the language of this footnote was later relied upon by this court in Myers v. Myers, 405 Pa.Super. 290, 592 A.2d 339 (1991), to permit review of an appeal from a spousal support order entered in a support proceeding instituted by complaint filed separately from the divorce action.
The validity of the footnote’s language in Ritter and this court’s ruling in Myers, was later called into question by a panel decision in Calibeo v. Calibeo, 443 Pa.Super. 694, 663 A.2d 184 (1995). The court in Calibeo, sought to examine the distinction, if any, between a spousal order entered in connection with a divorce action, and one entered in a proceeding initiated by a separately filed complaint, such as the instant case. Citing to modifications of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S.A., the court in Calibeo concluded that there is no longer any reason to distinguish a spousal support order, regardless of how it was initiated, from an alimony pendente lite order. As such, the court in Calibeo opined, the spousal support order should not be appealable until all claims connected with the divorce are resolved.
In reaching its decision, the court in Calibeo noted the ruling of Ritter, supra, which held that a spousal support order set in a divorce action is indistinguishable from an
Upon review of the developing law in this area, we conclude that the decision in Calibeo is sound and in keeping -with the guidance offered by our Supreme Court in Fried. Fried, supra. The lines which may have once distinguished spousal support actions initiated by a separately filed complaint from those which are part of a divorce action, have been erased.
We have already held that spousal support and alimony pendente lite are “indistinguishable in the context of a divorce action,” Ritter v. Ritter, 359 Pa.Super. at 16, 518 A.2d at 321, and the recent amendments strengthen this ruling. The Explanatory Comment to Rule 1920.31 notes that with the recent changes “there is little difference between the two.” Pa.R.C.P. 1920.31, 42 Pa.C.S.A., Explanatory Comment 1994. While acknowledging that the entitlement defense continues to be available, the Comment reiterates that the amended rule permits automatic conversion of spousal support to alimony pendente lite upon entry of the decree. Id. Because the amount of alimony pendente lite is to be determined by the
The result we reach today will in no way impair the ability of either spouse to seek to correct any inequities of a spousal support award. As pointed out by our supreme court in Fried, supra, any errors made in the award can be corrected in the final settlement when formulating equitable division of the marital property, permanent alimony, and/or the final award of attorney’s fees and costs. Thus, until all economic matters involved in a divorce are resolved, any support order can be reviewed and corrected when the court finalizes the equitable division of the property, and, if necessary, on appeal from that final order. In the rare case where a. question arises in a spousal support award which a party believes is of sufficient significance to warrant an immediate appeal under the criteria set forth in Chapter 13 of the Rules of Appellate Procedure, (interlocutory appeals by permission) then that party may make a request for immediate review. Pa.R.A.P., Rule 1301 et seq., 42 Pa.C.S.A. Accordingly, our ruling today will not infringe on the rights of a party to contest a spousal support ruling. In fact, as noted by the court in Fried, supra, the elimination of appeals during the pendency of a divorce action until final resolution of all economic matters favors the indigent party by removing from the party with the greater resources the ability to engage in dilatory and costly litigation. Fried v. Fried, 509 Pa. at 97, 501 A.2d at 215.
In conclusion we hold that a spousal support order entered during the pendency of a companion divorce action is not appealable until all claims connected with the divorce action
Appeal quashed.
. The trial court has indicated that its proceedings were conducted in the Northampton County Domestic Relations Section by authority of Pennsylvania Rules of Civil Procedure, 1910.10 and 1910.11, 42 Pa. C.S.A.