Fitzpatrick v. Fitzpatrick

• Decision Date: 09 September 1988
• Citation: 547 A.2d 362,377 Pa.Super. 268
• Parties: Jessie B. FITZPATRICK, Appellee, v. Barclay W. FITZPATRICK, Appellant. Barclay W. FITZPATRICK, Appellant, v. Jessie B. FITZPATRICK, Appellee.
• Court: Pennsylvania Superior Court

Page 362

547 A.2d 362

377 Pa.Super. 268

Jessie B. FITZPATRICK, Appellee, v. Barclay W. FITZPATRICK, Appellant.

Barclay W. FITZPATRICK, Appellant, v. Jessie B. FITZPATRICK, Appellee.

Superior Court of Pennsylvania.

Argued March 8, 1988.

Filed July 19, 1988.

Reargument Denied Sept. 9, 1988.

Jean B. Green, Norristown, for appellant.

Lyn B. Schoenfeld, Media, for appellee.

Before ROWLEY, WIEAND and MONTEMURO, JJ.

MONTEMURO, Judge:

This is a consolidated appeal from a decree of equitable distribution in a complex, and seemingly endless, bifurcated divorce action. The groundwork for the current procedural morass was laid innocuously enough in 1978 when, after four years of marriage, appellee filed a petition for spousal support.

The trial court denied the application on the grounds that appellee had committed adultery which appellant had neither connived at nor condoned, and that appellee had departed the marital residence without adequate reason at law, all of which served to vitiate any claim of entitlement to financial contribution from appellant. No appeal was taken from this order. In March 1979 appellant filed for divorce on grounds of adultery. In April of the same year appellee filed applications for alimony pendente lite, counsel fees and costs, and a discovery petition in the divorce suit, and, in addition, commenced an equity action. The discovery request was denied in October, 1979, and the request for alimony pendente lite, and attendant costs was denied in March of 1980. An appeal followed to this court which dismissed in July 1980 on the basis that the Order appealed from was interlocutory. One week after the dismissal, appellee filed first a petition to proceed under the Divorce Code of 1980, 23 Pa.S.A. § 101, et seq., and a month thereafter a complaint in divorce pursuant to the Code. In 1981 all outstanding matters were consolidated, and, in May of 1982, the equity action was tried, resulting in an adjudication from which both parties appealed to this court. ¹ In December of 1983 the divorce action was bifurcated and a decree in divorce entered. Economic issues were heard by the master, whose findings were reviewed in the trial court, and the Order issued from which the instant appeals are taken.

Appellant has presented us with eight claims which we will address seriatim. ²

Appellant argues that the trial court acted improperly in proceeding under the Divorce Code of 1980, 23 Pa.S.A. § 101 et seq. To understand the import of this claim a brief examination of its particular procedural context is necessary. Appellant filed for divorce under the 1929 Divorce Law, 23 Pa.S.A. § 1 et seq. (repealed April 2, 1980). In July of 1980, after the effective date of the new Code, appellee unsuccessfully petitioned the court for permission to proceed thereunder. The trial court took no action on a timely request for reconsideration in letter form. Three months later the case was reassigned to another judge, who upon receiving a communication from appellee's counsel to the effect that the reconsideration matter remained open, invited the submission of a formal reconsideration petition. The petition was granted, and the matter proceeded to hearing before the master who granted appellant's request for bifurcation.

Appellant bases his objections to proceeding under the 1980 Divorce Code on several grounds. However, he principally relies on the argument that because the petition for reconsideration was not granted within thirty days, the trial court thereafter lacked jurisdiction to enter the Order, leaving appellee with the sole option of taking an appeal to this court. ³ The necessary corollary is that judges of the same court may not overrule each other.

In support of his argument, appellant cites 42 Pa.C.S.A. § 5505 which states that:

Except as otherwise provided or prescribed by law, a court may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

While the principle is correct as stated, we find that it is inapplicable here. In Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986), an en banc panel of this court found that a trial court's attempt to open a judgement subsequent to the thirty day appeal period, even though no appeal had been taken, was error where no fraud or extraordinary circumstance justifying its action had been shown. See also Loomis Lake Association by Hughes v. Smith, 366 Pa.Super. 612, 531 A.2d 1152 (1987) (judgement becomes final after thirty day appeal period although no appeal is taken).

Herein the trial court premised its action in overturning the prior order upon its obligation to fulfill the objectives of the new Code, ⁴ and relied for its authority to correct perceived error upon Great American Credit Corp. v. Thomas MiniMarkets, Inc., 230 Pa.Super. 210, 326 A.2d 517 (1974). In that case a trial judge vacated its own order more than thirty days subsequent to entry after discovering that a crucial document had been misplaced in transmission through the court system. An en banc panel of this court found that equity would allow correction of the error under the facts of that case. However, a determination of the propriety of the former order in this instance was not for the trial court. First, there were no extenuating circumstances such as occurred in Great American.

Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgements is very limited. Generally, judgements cannot be opened or vacated after they have become final unless there has been fraud or some other circumstance 'so grave or compelling as to constitute "extraordinary cause" justifying intervention by the court.'

Simpson, supra, 350 Pa. at 245, 504 A.2d 337 (citations omitted). A final appealable order had already been entered, Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff'd. 498 Pa. 570, 449 A.2d 1378 (1982), and an application for reconsideration had been tacitly denied. Therefore, contrary to appellee's assertion, the matter was not unresolved at the time it was transferred. Rather the failure of the original judge to rescind its own order, or indeed to act at all, was itself a response, and as such was referable to this court for the determination of whether error had occurred. ⁵ Further, it is settled law that a trial judge may not overrule an interlocutory order by another judge, Reed v. Reed, 354 Pa.Super. 284, 511 A.2d 874 (1986), nor clearly, under the same circumstances may a co-equal judge overrule a fellow judge's final order, however mistaken he believes it to be. Therefore appellee's failure to approach this court for examination of her claim was an error compounded by the trial court's assumption of that responsibility sua sponte.

Appellant is therefore accurate in his assertion that the trial court was without competence to proceed further with the reconsideration matter. However, despite the trial court's misjudgment we find that the Code is applicable. In 1983 appellant motioned for bifurcation of the Divorce action then in train, albeit against his wishes, under the 1980 Code. At that time appellant also filed an amended complaint which specifically included a count under 23 Pa.S.A. § 201(d), which requires an averment that the marriage is irretrievably broken, and that the parties have lived separate and apart for three years. In so doing, that is in presenting the court with a new cause of action under the Code, as authorized by Pa.R.C.P. 1033, appellant circumvented the jurisdictional defect created by the granting of appellee's reconsideration petition beyond the thirty day time period. In effect, appellant placed himself squarely within the trial court's cognizance where its power of inquiry was unquestionable. 23 Pa.S.A. § 301(a). ⁶ Having done so, he will not now be heard to complain.

Appellant's remaining claims concern specific items of property. In reviewing the trial court's method of allocation, we utilize an abuse of discretion standard, Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987), that is, we will not usurp the trial court's authority as finder of facts, nor adopt guidelines and presumptions beyond those supplied by the legislature. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

It is first argued that the trial court erred in pronouncing a certain automobile, as well as its immediate predecessors, to be marital property subject to distribution. The vehicle in question, a 1978 Oldsmobile station wagon, was registered to a corporation solely owned by appellant. On appeal to this court after trial on appellee's equity action, the vehicle was found not to have been a gift to appellee because the common law elements of such a transaction were not all present. On remand the master determined, echoed by the trial court, that despite its nominal ownership, the automobile was used 99% of the time for family and personal rather than business purposes. As a result, the car was accounted marital property subject to distribution. Appellant now contends that because the title to the automobile was held by this court to be in the corporation, appellee is collaterally estopped to assert any interest in it except insofar as she may have an interest in the corporation as a whole. We disagree.

As appellant correctly advises, collateral estoppel operates to prohibit relitigation of a fact previously decided in a court of competent jurisdiction. Lebeau v. Lebeau, 258 Pa.Super. 519, 393 A.2d 480 (1978). While we did conclude in Fitzpatrick v. Fitzpatrick, supra, that the car was titled in the corporation, we declined specifically to decide whether it was, nevertheless, marital property. Since that question was not previously decided, appellee is not estopped...