Sutliff v. Sutliff

• Decision Date: 29 May 1984
• Citation: 326 Pa.Super. 496,474 A.2d 599
• Parties: Gregory SUTLIFF v. Carlene SUTLIFF, Appellant.
• Court: Pennsylvania Superior Court

Page 599

474 A.2d 599

326 Pa.Super. 496

Gregory SUTLIFF v. Carlene SUTLIFF, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 19, 1983.

Filed March 16, 1984.

Reargument Denied May 29, 1984.

Ronald Katzman, Harrisburg, for appellant.

Bonnie D. Menaker, Harrisburg, for appellee.

Before SPAETH, President Judge, and CAVANAUGH, McEWEN, BECK, MONTEMURO, MONTGOMERY and CERCONE, JJ.

CAVANAUGH, Judge:

This appeal is from an order of the lower court in a divorce proceeding, denying the request of appellant-wife (hereinafter "Wife") for alimony pendente lite, interim counsel fees and expenses from appellee-husband (hereinafter "Husband"). Wife contends (1) that an order denying such interim relief is final and appealable; and (2) that the lower court erred in various ways in its denial. We agree with Wife's first contention but must affirm the order of the lower court since she has failed to preserve other issues for appeal.

We are first presented with the threshold question, whether an order denying alimony pendente lite, counsel fees and expenses is appealable. It is settled law that an order granting such interim relief is final and appealable, insofar as the money to be paid under the order is involved, since once paid the money is likely unrecoverable. Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943); Lynn v Lynn, 68 Pa.Super. 324 (1917). On the other hand, an order such as we have here, denying this interim relief has been held interlocutory and unappealable. Paul v. Paul, 281 Pa.Super. 202, 421 A.2d 1219 (1980). Hanson v. Hanson, 177 Pa.Super. 384, 110 A.2d 750 (1955); Boerio v. Boerio, 134 Pa.Super. 501, 4 A.2d 614 (1939). Although recognizing this distinction, Wife asks us to change the rule and hold both grants and denials final and appealable orders. ¹

We begin our inquiry by recognizing the basic principle that with limited exceptions not relevant here, only an order which is final is appealable. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Gasper v. Gasper, 288 Pa.Super. 478, 432 A.2d 613 (1981). See also Boyd's Estate, 299 Pa. 291, 149 A. 319 (1930); Pa.R.A.P. 341(a). Our Supreme Court has recently stated:

A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 544-45.

Turning now to the order in the instant appeal, we find that the first requirement, that the order must be separate from and collateral to the main cause of action, is clearly satisfied. The right to alimony pendente lite, counsel fees or expenses is in no way an ingredient of the merits of the main cause of action, that being the divorce and property settlement. See In re Estate of Georgiana, --- Pa.Super. ---, 458 A.2d 989 (1983); Malenfant v. Ruland, 274 Pa.Super. 506, 418 A.2d 521 (1980).

With regard to the second requirement, that the right involved must be too important to be denied review, we first look to the traditional reasons underlying alimony pendente lite, counsel fees and expenses. The purpose of such relief is to promote the fair and impartial administration of justice by enabling the dependent spouse to maintain or defend the principal action in divorce without being placed at a financial disadvantage. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983); Jack v. Jack, 253 Pa.Super. 538, 385 A.2d 469 (1978); Moore v. Moore, 198 Pa.Super. 349, 181 A.2d 714 (1962). The simple fact that one spouse earns more than the other does not automatically entitle him or her to alimony pendente lite, counsel fees or expenses. Rather, there must be a showing that the spouse earning less needs the relief sought in order to adequately defend his or her rights in the principal litigation. Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981).

The statutory authority for alimony pendente lite, counsel fees and expenses which existed for many years under the Divorce Law, Act of May 29, 1929, P.L. 1237, § 46, 23 P.S. § 46, was recently continued under the Divorce Code, Act of April 2, 1980, P.L. 63, No. 26, § 502, 23 P.S. § 502 (Supp.1983). However, the 1980 enactment of the Divorce Code has greatly complicated divorce litigation by drawing a multitude of difficult economic questions into the arena. ² The fair treatment of these economic questions by the courts is of utmost importance, not only to the parties, but also to society as a whole. Indeed, the declared policy of the Commonwealth is to "[e]ffectuate economic justice between the 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." The Divorce Code, supra, § 102, 23 P.S. § 102 (Supp.1983).

Thus, in light of the important functions traditionally played by alimony pendente lite, counsel fees and expenses in divorce litigation, magnified by the increased complexity occasioned by the 1980 Divorce Code, as well as the expressions of public policy articulated by the General Assembly, we find the second requirement also met.

The final requirement is that the question must be such that if review were postponed, the right claimed may be irreparably lost. In determining this, we look to the practical consequences of the order in question. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982). Although it may be said that the question of interim relief may be postponed until the final outcome of the divorce, as one commentator has cogently noted:

[T]he lower court, by improperly refusing alimony or awarding it in an inadequate amount, may postpone its actual or full payment until after final decree in the divorce proceeding. But it is during the period of litigation, while the suit is pending in the lower court that the need for alimony, counsel fees and expenses is greatest and, indeed, vital. It is a belated remedy to award [him or] her a lump sum in case of reversal on appeal of the order denying ... alimony or awarding ... an inadequate amount. Then the record in the divorce suit has been made in the Common Pleas with all the damage to [his or] her case which the temporary denial of alimony, counsel fees and expenses may have caused.

Freedman, Law of Marriage and Divorce in Pennsylvania, Vol. 2, § 469, Page 990. In our view, the improper denial of alimony pendente lite, counsel fees and expenses may result in a loss of the dependent spouse's rights no less permanent and no less valuable than the money which may be paid by an independent spouse under an order granting such relief.

In light of the foregoing, we hold that an order denying alimony pendente lite, counsel fees or expenses meets the three part test set forth in Pugar v. Greco, supra, and is thus a final and appealable order. For purposes of their appealability, we see no reason to distinguish between alimony pendente lite, counsel fees and expenses. The underlying purposes and factors considered in granting or denying these are the same, regardless of which form of interim relief is sought. Wiegand v. Wiegand, 242 Pa.Super. 170, 363 A.2d 1215 (1976).

In so holding, we recognize that some delay in the principal litigation may result because the general rule is that an appeal removes jurisdiction from the lower court, see Pa.R.A.P. 1701, but feel that that is necessary to insure the fair and impartial administration of justice, and protection of the rights of the dependent spouse. At the same time, we specifically recognize the special character of domestic relations cases, and our obligation to decide them as expeditiously as is reasonably possible.

Unfortunately, we cannot reach the merits of this appeal since Wife failed to file exceptions to the order of the lower court and, therefore, the issues raised with respect to the merits of this order have been waived. Carangelo v. Carangelo, --- Pa.Super. ---, 467 A.2d 1333 (1983); Dewalt v. Dewalt, 309 Pa.Super. 275, 455 A.2d 156 (1983). Accordingly we affirm the order of the lower court.

Order affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge, dissenting:

I respectfully dissent from the majority's holding on the appealability issue. I would quash this appeal. The appealability of orders granting or denying alimony pendente lite, counsel fees and costs needs to be reappraised in light of the Divorce Code of 1980. Such reappraisal leads me to conclude that except in rare circumstances, such orders are interlocutory and unappealable. I believe this position is most consistent with fairness and justice to both parties, judicial economy, and the goals and policies behind the Divorce Code of 1980. Since I would quash the appeal on jurisdictional grounds alone, I would not reach the issue of waiver due to failure to file exceptions.

The majority accurately states that Pennsylvania courts have in the...