Groner v. Groner

476 A.2d 957, 328 Pa. Super. 191, 1984 Pa. Super. LEXIS 4810
CourtSupreme Court of Pennsylvania
DecidedMay 11, 1984
Docket173 and 174
StatusPublished
Cited by9 cases

This text of 476 A.2d 957 (Groner v. Groner) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Groner v. Groner, 476 A.2d 957, 328 Pa. Super. 191, 1984 Pa. Super. LEXIS 4810 (Pa. 1984).

Opinions

BROSKY, Judge:

This is a consolidated appeal from orders setting the amount of child support, alimony pendente lite and counsel fees and costs to be paid by appellant. Five issues are raised for our review: first, that the order regarding alimony pendente lite, counsel fees and costs is appealable; second, that the alimony pendente lite award should not have been made retroactive; third and fourth, that the court below erred in imputing an excessive amount of appellant’s corporate assets as personal earning capacity and in not considering appellee’s assets vis-a-vis the alimo[193]*193ny pendente lite (including counsel fees and costs) and child support orders respectively; and fifth, that the court below should have held a de novo hearing as requested on the child support issue.

We find that the award of alimony pendente lite is appealable at this time. The retroactive effect given the alimony pendente lite award is waived. We find no abuse of discretion in the amount of the award of the alimony pendente lite; but do not reach the propriety of the support award as we remand for a hearing on that claim.

The result, then, is that the award is affirmed in part — as to the alimony pendente lite order and as to the award of counsel fees and costs — and remanded in part — as tó child support order for a de novo hearing.

I.

The first issue, regarding the appealability of the grant of an award of alimony pendente lite, may be quickly disposed of. It has long been the rule in this Commonwealth that such an order is interlocutorily appealable. Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943). This has recently been held to be the practice under the Divorce Code. Lowenschuss v. Lowenschuss, 327 Pa.Super. 120, 475 A.2d 127.

II.

The second issue, dealing with the retroactivity of the alimony pendente lite award, has been waived through its absence below. Overs v. Overs, 294 Pa.Super. 191, 439 A.2d 815 (1982).

III.

The third and fourth issues deal with alleged court errors in imputing an excessive amount of appellant’s corporate assets as personal earning capacity and in not considering appellee’s assets vis-a-vis the alimony pendente lite and child support orders, respectively. In Shuman v. Shuman, [194]*194195 Pa.Super. 155 at 157-8, 170 A.2d 602 at 602-3 (1961) this Court stated the standard for appellate review in these cases.

How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion... •
This court will not reverse an order of the court below “except for plain abuse of discretion” ... Brong v. Brong, 129 Pa.Super. 224, 195 A. 439.

A review of the opinion of the Court of Common Pleas and of the record reveals no such abuse of discretion and, accordingly, we reject appellant’s claims as to the amount of the alimony pendente lite award. However, since we are remanding for a hearing on the child support matter, we do not reach the merits of appellant’s arguments vis-a-vis the support award.

IV.

Appellant also contends that the court below erred in failing to hold a requested de novo hearing on the child support matter. We agree.

It is not disputed that appellant requested a de novo hearing before the trial court after the determination made by the court’s domestic relations office; nor that such a hearing did not take place. Two matters remain: does appellant have a right to a de novo hearing and, if so, were any circumstances present which would prevent appellant asserting that right?

The answer to the first enquiry is in the affirmative. The applicable rule reads:

(i) If the court does not enter an order under subdivision (d) or (f) within five days of the conference, or if an order is entered and a demand for a hearing before the court is filed, there shall be a hearing de novo before the court. The domestic relations section shall schedule the hearing and give notice to the parties.

[195]*195Pa.R.Civ.P. 1910.11(i). The circumstances which the rule requires for its activation were met here. The language of the rule is clear — appellant has a right to a de novo hearing.

Considering the second enquiry, we find that no events occurred which defeated that right. The opinion of the court below offers two theories in support of the absence of a hearing. First, the court states that appellant requested a general continuance and then failed to act to bring the case before the court.1 This assertion is not supported by the record. As facts appearing in the opinion of the court below do not become of record by virtue of their inclusion in the opinion, we cannot affirm on those grounds. Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983). Second, the court stated that a hearing was unnecessary as it had based its determination upon the record into which appellant should already have inserted all relevant material. In response, appellant argues that it was not harmless error to deprive him of a hearing in that he needed to rebut the allegedly inaccurate computations made by the domestic relations office. Even more persuasively he contends that the rule doesn’t contemplate such a reliance upon the record as a substitute for the de novo hearing. Indeed it does not. The rule is directive, not elective, and appellant has an enforceable right to his day in court.

The child support matter is remanded for a de novo hearing and we relinquish jurisdiction.2

V.

While not before us on appeal at this time, we choose to address another order entered in this case. After the instant appeal was taken, the court below entered a super-sedeas of the payment of child support conditioned upon the [196]*196posting of security equal to the amount that would otherwise be paid over an 18 month period.

That pertinent rule reads:

Rule 1731. Automatic Supersedeas of Orders for the Payment of Money.
An appeal from an order involving solely the payment of money shall, unless otherwise ordered pursuant to this chapter, operate as a supersedeas upon the filing with the clerk of the lower court of appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid. Where the amount is payable over a period of time, the amount found due for the purposes of this rule shall be the aggregate amount payable within 18 months after entry of the order.

Pa.R.A.P. 1731.

In 1979, an explanatory note was added to this rule.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burda, S. v. Korenman, A.
Superior Court of Pennsylvania, 2023
Parkinson v. Lowe
760 A.2d 65 (Superior Court of Pennsylvania, 2000)
Lozoskie v. Lozoskie
43 Pa. D. & C.4th 326 (Lehigh County Court of Common Pleas, 1998)
Warner v. Pollock
644 A.2d 747 (Superior Court of Pennsylvania, 1994)
DeMasi v. DeMasi
530 A.2d 871 (Supreme Court of Pennsylvania, 1987)
Nebistinsky v. Nebistinsky
42 Pa. D. & C.3d 569 (Schuylkill County Court of Common Pleas, 1986)
Madden v. Madden
511 A.2d 882 (Superior Court of Pennsylvania, 1986)
Groner v. Groner
476 A.2d 957 (Supreme Court of Pennsylvania, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
476 A.2d 957, 328 Pa. Super. 191, 1984 Pa. Super. LEXIS 4810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/groner-v-groner-pa-1984.