Cheng v. Cheng

• Decision Date: 15 November 1985
• Parties: Barbara A. Schimmel CHENG, Appellant, v. Thomas C. CHENG. 03115 Phila. 1984
• Court: Pennsylvania Superior Court

Page 1175

500 A.2d 1175

347 Pa.Super. 515

Barbara A. Schimmel CHENG, Appellant, v. Thomas C. CHENG.

03115 Phila. 1984

Superior Court of Pennsylvania.

Argued May 23, 1985.

Filed Nov. 15, 1985.

Allan C. Perry, Philadelphia, for appellant.

Glenn D. McGogney, Allentown, for appellee.

Before CAVANAUGH, CIRILLO and HESTER, JJ.

CIRILLO, Judge:

This is an appeal from an order dismissing appellant Barbara Cheng's complaint for divorce and economic relief for lack of subject-matter jurisdiction. We reverse and remand.

Barbara and appellee Thomas Cheng were married on May 31, 1957, in Phoenixville, Pennsylvania. They moved from Pennsylvania but returned in 1969. They separated on July 8, 1978, and Thomas relocated in South Carolina, establishing residency there in July, 1980.

On June 23, 1981, Thomas filed a complaint in divorce in South Carolina. Unable to perfect personal service on Barbara, the defendant in that action, Thomas notified her through publication. Barbara answered Thomas's South Carolina complaint and counterclaimed for equitable distribution, counsel fees and costs, and alimony. She had filed a complaint in divorce in the Northampton County Court of Common Pleas in Pennsylvania on August 19, 1981, seeking a divorce, equitable distribution, alimony, costs and expenses, and support for the parties' remaining minor child; Northampton County is where Barbara and the child reside and the former marital home is located. A master was appointed on November 18, 1981, to preside over the Pennsylvania action.

Thomas appeared through counsel in Barbara's Pennsylvania action on December 29, 1981, and filed preliminary objections, raising his prior, pending action in South Carolina as a defense. Upon Barbara's motion, Thomas's objections were stricken as having been untimely filed. Thomas then answered Barbara's complaint, denying her averment that there was no prior pending action and alleging the pendency of his own South Carolina action.

On March 19, 1982, Thomas and counsel for Barbara appeared in the South Carolina action. Barbara's counsel initially challenged Thomas's motion to sever the divorce claim therein from the economic claims raised in Barbara's counterclaim. However, counsel for both parties finally stipulated that Barbara would not oppose the motion to sever if Thomas signed and recorded, in the Northampton County court, a stipulation which would ensure that court's jurisdiction over the other collateral, economic matters. The parties also agreed to stay the South Carolina proceedings on Barbara's counterclaim, with the South Carolina court's jurisdiction preserved, pending resolution of the economic issues in the Pennsylvania court. The South Carolina court issued a decree in divorce a.v.m. on April 20, 1982.

The master in Barbara's Pennsylvania action held a hearing on the economic claims on April 13, 1983. Barbara, her counsel, and counsel for Thomas attended. The master found that Barbara's claim for post-divorce alimony was both well-founded and viable under Pennsylvania law. However, the master recommended that alimony be denied because Pennsylvania lacked subject-matter jurisdiction over Barbara's divorce action. The Northampton County court agreed, denying Barbara's exceptions to the master's report and dismissing her complaint.

Appellant Barbara now claims:

1) that the trial court erred in holding that it lacked jurisdiction to grant post-divorce alimony in the instant case because of the decision in Sohmer v. Sohmer, 318 Pa.Super. 500, 465 A.2d 665 (1983);

2) that the trial court erred in questioning whether appellee Thomas's prior pending action vitiated Pennsylvania's jurisdiction over the subject matter when, in fact, that specific issue had been raised in Thomas's preliminary objections, which were dismissed as untimely;

3) that the trial court erred in concluding that, although the case at bar is factually distinguishable from Sohmer v. Sohmer, supra, those distinctions are not material; and

4) that the holding of Sohmer v. Sohmer directly conflicts with the legislative findings and intent expressed in the Divorce Code of 1980 and with the Commonwealth's long-standing public policy on the sanctity of marriage.

We find appellant's second contention to be of no consequence. The court shall dismiss an action whenever it appears by suggestion of the parties or otherwise that the court lacks subject-matter jurisdiction. Pa.R.Civ.P. 1032(2). That appellee's objection to appellant's complaint on this basis was dismissed as untimely is irrelevant. Likewise, as will be discussed below, we do not find our previous decision in Sohmer v. Sohmer to be contrary to the intent of the Divorce Code or the policy of this Commonwealth. However, we agree with appellant's first and third contentions, and therefore reverse the instant order and remand.

Both parties, as did the trial court, frame the key issue herein as one of jurisdiction. The test of subject-matter jurisdiction is simply whether the court is competent or has the power to hear and determine controversies of the general class at issue, not whether the court might ultimately decide that it cannot grant relief in the particular case before it. In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980); McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222 (1962); Witney v. City of Lebanon, 369 Pa. 308, 85 A.2d 106 (1952); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa.Super. 293, 464 A.2d 1349 (1983); Nagle v. American Casualty Co., 317 Pa.Super. 164, 463 A.2d 1136 (1983); Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982). Parties to an action cannot, by stipulation, for example, confer jurisdiction upon a court for which jurisdiction would otherwise be lacking. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Maxton v. Philadelphia Housing Authority, 308 Pa.Super. 444, 454 A.2d 618 (1982); see also Foote v. Maryland Casualty Co., 409 Pa. 307, 186 A.2d 255 (1962); Foley Brothers, Inc. v. Commonwealth, Department of Highways, 400 Pa. 584, 163 A.2d 80 (1960); Stinner v. Stinner, 300 Pa.Super. 351, 446 A.2d 651 (1982); Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981); Kardibin v. Associated Hardware, 284 Pa.Super. 586, 426 A.2d 649 (1981); Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979); Chamberlin of Pittsburgh, Inc. v. Fort Pitt Chemical Co., 237 Pa.Super. 528, 352 A.2d 176 (1975) (allocatur denied). For reasons which we will elaborate upon later, we find that the Northampton County court had jurisdiction over the instant action. Thus, the basic question presented may be analogized to one of choosing the court of the more appropriate or convenient venue: here, Pennsylvania or South Carolina. Phrased in this manner, Pennsylvania is the proper forum for the instant litigation.

The Divorce Code of 1980, 23 P.S. §§ 101-801 (1980 Code), was enacted to modernize Pennsylvania's domestic relations law and to harmonize it with the laws of other states. Chaney v. Chaney, 343 Pa.Super. 77, ---, 493 A.2d 1382, 1386 (1985) (Opinion by Cirillo, J.). One of the policies of the 1980 Code is to:

(a) ...

....

(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.

(b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.

23 P.S. § 102(a)(6), (b) (emphasis supplied). Clearly, the 1980 Code permits post-divorce alimony in appropriate situations. Chaney, supra at ---, 493 A.2d at 1386.

To apply this policy, the 1980 Code grants the courts of this Commonwealth broad jurisdiction.

(a) The courts of this Commonwealth ... shall have original jurisdiction in cases of divorce ... and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:

(1) ... the order of any alimony....

23 P.S. § 301(a)(1). Specifically, the Code provides:

In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require....

23 P.S. § 401(c) (emphasis supplied).

The Pennsylvania Legislature has also spoken on the availability of alimony after an ex parte divorce:

§ 505. Alimony where a foreign ex parte divorce or annulment

Whenever a person who was a resident of this Commonwealth at the time such person was a defendant or respondent in a foreign ex parte action for annulment or divorce petitions a court of this Commonwealth for alimony and establishes the need therefor, such court, if it has jurisdiction over the person or property of the other party, may order that such alimony be paid in the same manner and under the same conditions and limitations which pertain when alimony is sought as provided in this chapter. In the event that the other party from whom such alimony is sought cannot be located within this Commonwealth, the court may attach such of the tangible or intangible property of said party as is within the jurisdiction of the court in the manner provided by the Rules of Civil Procedure, except that no exemption shall apply. Such property shall thereupon be subject to the payment of alimony in the same manner as provided by law in actions for nonsupport.

23 P.S. § 505 (emphasis supplied).

"[I]ndividual provisions in a comprehensive legislative scheme ... should not be read abstractly, but rather with a view to their place in the entire...