Givens v. Givens

Decision Date01 October 1982
PartiesAdam Lawrence GIVENS, Mark Patrick Givens, Suzanne R. Givens, Appellants v. Austin GIVENS.
CourtPennsylvania Superior Court

Page 1386

450 A.2d 1386
304 Pa.Super. 571
Adam Lawrence GIVENS, Mark Patrick Givens, Suzanne R.
Givens, Appellants
v.
Austin GIVENS.
Superior Court of Pennsylvania.
Argued Nov. 10, 1981.
Filed Oct. 1, 1982.

[304 Pa.Super. 572] Timothy G. Wojton, Pittsburgh, for appellants.

No appearance entered nor briefs submitted on behalf of appellees.

Before BECK, JOHNSON and POPOVICH, JJ.

BECK, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, Family Division, denying appellant Suzanne Russell Givens' Motion to Appoint Guardian Ad Litem for her co-plaintiff son Adam Lawrence Givens, age 16, in this support action. 1 The appellant mother made this motion pursuant to Pennsylvania Rule of Civil Procedure No. 2031, which governs the appointment of guardians ad litem for minor parties for actions in law or equity. 2 Because we hold that the order denying this appellant's Motion to Appoint Guardian Ad Litem was not a final, appealable order, we

Page 1387

quash this appeal. Although no parties have questioned the authority of this Court to review the lower court order, this Court may raise the issue of appealability sua sponte. Jones v. Crossgates, Inc., 220 Pa.Super. 427, 289 A.2d 491 (1972). 3

[304 Pa.Super. 573] On January 27, 1981, appellant Suzanne R. Givens filed pro se a Petition to Reduce [Support] Arrearages to Judgment" (hereafter "Support Arrearage Petition"). The Support Arrearage Petition was captioned, "Adam L. Givens, Mark P. Givens, Suzanne R. Givens, Plaintiffs v. Austin Givens, Defendant." 4 Contending that appellee had made no support payments to them since May 1979, petitioners sought to enforce an alleged support order requiring defendant to pay them $350.00 per month. On January 29, 1981, a hearing on the Support Arrearage Petition was held. The lower court did not reach the merits of the petitioners' Support Arrearage Petition because no existing support order could be found in the record. The guardian ad litem issue presently before this Court arose at that hearing. At that abortive hearing, Timothy G. Wojton, the attorney for the appellant mother Suzanne R. Givens, informed the Court that he was "representing ... [the mother] in the court order for her children." (N.T. 1/29/81, 68). It is not exactly clear why, but appellee's counsel objected, stating that no guardian ad litem had been appointed for the children in any Domestic Relations Division case involving the parties. (N.T. 1/29/81, 67). Next, Mr. Wojton asked the court to appoint him as guardian ad litem for Adam and Mark Givens. (N.T. 1/29/81, 69). The court refrained from considering this oral motion because "there ... [was] nothing before the [c]ourt yet on that subject," (N.T. 1/29/81, 72) and continued the proceedings until March 16, 1981, when the Support Arrearage Petition was to be heard on the merits.

[304 Pa.Super. 574] Into this already confused picture the appellant mother, acting pro se, on February 4, 1981, presented the Motion to Appoint Guardian Ad Litem to the trial judge. The Motion alleged that the appellant mother's son Adam, age 16, was "under decisive legal disability" and requested the court to grant a hearing on whether the attorney Mr. Wojton should be appointed his Guardian Ad Litem. The trial court denied this Motion to Appoint Guardian Ad Litem, without notice and hearing to the minor or to any other designated person. 5 Hence, this appeal.

In considering the instant case, we are mindful that in all proceedings in law or equity, the law aims to dispose of litigation by a single appeal, and preliminary orders

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are not generally appealable in advance of a final judgment. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). 6 It is well settled that an order is final when it determines the whole action, ends the litigation, and precludes appellant from further action in the court issuing the order. In the Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979); Alessandro v. State Farm Mut. Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979). By this standard, the lower court order denying the appellant mother's Motion to Appoint Guardian Ad Litem was clearly not final. Such order in no way prevents the mother from continuing to pursue the support action. 7 When a final [304 Pa.Super. 575] judgment has been rendered on that action in the lower court, she will then have the opportunity to raise on appeal the issue whether the lower court acted properly in denying her Motion to Appoint Guardian Ad Litem. 8

This appeal is accordingly quashed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge, dissenting:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, Family Division, denying appellant Suzanne Russell Givens' request for a hearing, selection and appointment of a guardian pursuant to Pa.R.Civ.P. 2031. 1

[304 Pa.Super. 576] I cannot agree with the Majority's view to eschew jurisdiction over the case at bar; therefore, I dissent.

The factual matrix surrounding the instant litigation began to unfold with the

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scheduling of a hearing on January 29, 1981, on appellant's "Petition to Reduce Arrearages to Judgment" (Petition). The hearing judge noted that: "[t]he issues to be heard shall be limited to questions relating to the duty of ... Austin L. Givens[ ] to make payment to ... Suzanne W. Russell[ ] for Support of the parties' sons. (Record No. 42)

At the January 29th hearing, the lower court discovered that the record was devoid of any evidence of a support order. (N.T. 1/29/81, at 71) Since neither party had possession of nor access to a copy of such document, the lower court declined to hear any testimony regarding appellant's Petition until it was satisfied that, in fact, "there was a support order[,]" and "where and at what number and term the original support order was filed ...." Id. at 23, 26-27. Toward this end, the court directed that all parties engage in whatever discovery was...

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