Leister v. Leister

• Decision Date: 28 October 1996
• Citation: 684 A.2d 192,453 Pa.Super. 576
• Parties: Colleen LEISTER v. Raymond LEISTER, Appellant.
• Court: Pennsylvania Superior Court

Page 192

684 A.2d 192

453 Pa.Super. 576

Colleen LEISTER v. Raymond LEISTER, Appellant.

Superior Court of Pennsylvania.

Argued June 24, 1996.

Filed Oct. 28, 1996.

John J. Keller, Allentown, for appellant.

Michael C. Deschler, Bethlehem, for appellee.

Before McEWEN, President Judge, and DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH, JOHNSON, HUDOCK and SCHILLER, JJ.

DEL SOLE, Judge:

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 unappealable until final disposition of the divorce and related economic matters.

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. ¹

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, regardless of how it was initiated. See id. Although treatment of some of these unrelated matters by the courts of this Commonwealth has aided us in the resolution of the matter before us, we have before us the narrow question involving the appealability of a support order which was initiated independent of a pending divorce action.

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. at 504, 474 A.2d 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, 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 appealable 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 alimony pendente lite order and, such is, interlocutory and unreviewable on appeal. See Fried, supra. The court in Calibeo proceeded to refer to recent amendments to the Rules of Civil Procedure, specifically, Rules 1920.31(d) and 1920.76 which provide for the automatic conversion of spousal support to alimony pendente lite upon entry of a divorce decree, if any economic claims remain pending. Pa.R.C.P., Rules 1920.76 and 1920.31(d), 42 Pa.C.S.A. The court further cited to the amended Rule 1910.16-1(a), Pa.R.C.P., 42 Pa.C.S.A., which requires that alimony pendente lite be determined in accordance with the support guidelines. The court concluded that these changes highlight the fact that the "difference between alimony pendente lite and spousal support, no matter if it is part of the divorce action or filed separately, is negligible and now neither is appealable until all claims are resolved." Calibeo v. Calibeo, 443 Pa.Super. at 697-8, 663 A.2d at 185. See also Hrinkevich v. Hrinkevich, 450 Pa.Super. 405, 676 A.2d 237 (1996) (quashing spousal portion of allocated support award as interlocutory where economic matters in the divorce remain open.)

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 guidelines, as is an amount for spousal support, any distinctions that can be drawn are negligible, at best. Regardless of whether a spousal support award results from a separately filed complaint, if relief in the form of support is sought, the resulting spousal support order has identical qualities to an alimony pendente lite order. For the same reasons which justify the procedures concerning alimony pendente lite orders, any spousal support order entered while divorce and property settlement matters are pending should not be appealable until all the economic matters regarding the divorce have been resolved.

The result we reach today will in no way impair the...