Klein v. Klein

20 Pa. D. & C.3d 482, 1980 Pa. Dist. & Cnty. Dec. LEXIS 64
Pennsylvania Court of Common Pleas, Alleghany County·Decided December 10, 1980·No. no. 31 of 1980·Published

Opinion

WETTICK, A.J.,

The parties were married on June 14, 1941 and they have lived separate and apart since October 8, 1976. As of September 14, 1978, there has been an outstanding support order requiring plaintiff (husband) to pay to defendant (wife) $650 per month plus real estate taxes and landscaping expenses.

On July 7, 1980, the husband filed a complaint in divorce against his wife pursuant to section 201(d) of the Divorce Code of April 2, 1980, P.L. 63, 23 P.S. §201(d), which provides that a divorce may be granted where the parties have lived separate and apart for three years and the marriage is irretrievably broken. The wife filed an answer and new matter in which she admits these allegations and seeks alimony pendente lite, alimony, and equitable distribution of property.

On September 14, 1980, this court entered a divorce decree. At the time the decree was entered, [483]*483this court had not considered the wife’s claims for alimony pendente lite, alimony, and equitable distribution of property, so the divorce decree specifically provided that this court would retain jurisdiction of the claims raised by the parties to this action for which a final order had not yet been entered.

The issue raised in this case is whether the divorce decree terminates the September 14, 1978 support order or whether this support order remains in effect until this court considers the wife’s claims for alimony and equitable distribution. The issue arises because the wife opposed the granting of the divorce decree until her alimony and equitable distribution of propety claims were resolved because she feared that the divorce decree may terminate her husband’s duty to pay support or alimony pendente lite. However, this court ruled that the issuance of a divorce decree would not affect the wife’s right to support while her alimony and equitable distribution of property claims were pending and therefore issued the divorce decree. This opinion is filed in support of this ruling.

The Divorce Code of 1980 permits all matters arising out of the dissolution of the marital relationship to be disposed of in the same litigation, section 301(a). Alimony and marital propety claims require the parties and the courts to consider a large number of complicated factors, see sections 401(d) and 501(b) of the Divorce Code of 1980. Consequently, resolution of these claims will frequently involve lengthy litigation. Also these claims will usually be tried together because they are so closely intertwined. Divorce, on the other hand, is simplified by the new act. Most divorces will be based on section 201(c) which pemits the courts to grant a divorce where the parties file affidavits stating that they consent to the divorce and section [484]*484201(d) which permits a court to grant a divorce whenever the parties have been living separate and apart for three years and the marriage is irretrievably broken.

Because divorce claims can be so easily resolved, upon the request of either party it is the practice of this court to grant the divorce before the property claims are disposed of in order to permit the parties to restructure their lives more promptly. It is this practice that raises the issue of whether support and alimony pendente lite orders will survive a divorce decree if claims for alimony and equitable distribution of property are pending.

Under prior law, the following principles of law governed the issue of the effect of a divorce decree on a court order to support a spouse. During the pendency of a marriage, a husband had a duty to contribute to his wife’s support which could be enforced at any time during the marriage through the entry of a support order: Com. v. Turner, 258 Pa. Supeior Ct. 388, 392 A. 2d 848 (1978); Com. ex rel. Roviello v. Roviello, 229 Pa. Superior Ct. 428, 323 A. 2d 766 (1974). Also during the pendency of a divorce proceeding, this duty could be enforced through an award of alimony pendente lite: Freedman, Law of Marriage and Divorce in Pennsylvania §442; Heilbron v. Heilbron, 158 Pa. 297, 27 Atl. 967 (1893). The purpose of both support and alimony pendente lite was to assure that dependent spouse would receive a reasonable living allowance consistent with the other spouse’s ability to pay: Com. ex rel Bishop v. Bishop, 234 Pa. Supeior Ct. 600, 606, 341 A. 2d 153, 156 (1975); Koehler v. Koehler, 73 Pa. Superior Ct. 41 (1919).

The obligation to provide support was imposed by law as an incident of the marital status: Com. ex rel. Roviello v. Roviello, supra; Com. ex rel. [485]*485Lebowitz v. Lebowitz, 227 Pa. Superior Ct. 593 307 A. 2d 442 (1973). Consequently if the marital relationship was dissolved through a valid decree, in the absence of statutory authorization a court had no basis for awarding any alimony or other support. By the Act of April 4, 1925, P.L. 124, the legislature repealed prior legislation providing for alimony under ordinary circumstances and from 1925 until the enactment of the Divorce Code of 1980 the legislature provided for alimony only in cases of mental illness: Act of May 2, 1929, P.L. 1237, §45, 23 P.S. §45, (repealed). Thus under the previous law which empowered a court to grant a divorce only on fault grounds, an innocent dependent spouse was entitled to support throughout the other spouse’s life provided that he or she chose not to obtain a divorce. But if he or she chose to obtain a divorce, the divorce decree dissolved the marital relationship and thus terminated any right to support: Stambaugh v. Stambaugh, 458 Pa. 147, 329 A. 2d 483 (1974); Com. ex rel. Bortin v. Bortin, 210 Pa. Superior Ct. 355, 234 A. 2d 55 (1967).

Under the Divorce Code of 1980, any spouse who chooses to live separate and apart for three years can dissolve the marital relationship provided that a court finds that the marriage is irretrievably broken. But because the act provides for alimony and equitable distribution of property, the dissolution of the marital relationship no longer terminates the duty to provide support to dependent spouse.

Alimony, however, involves a consideration of different factors from those considered in awarding support and alimony pendente lite to dependent spouse. Thus it may be argued that only an alimony award survives the divorce decree and that any duty to provide support and alimony pendente lite [486]*486terminates upon the issuance of the decree. But such a result would be inconsistent with the purposes of the Divorce Code of 1980. By providing for support, alimony pendente lite, alimony and equitable distribution of property, the legislature intended to provide support for dependent spouse throughout the pendency of the divorce litigation and thereafter.

At the same time, the legislature did not intend to compel the courts to force parties to remain legally bound to one another until all property disputes were resolved. In the case of Casey v. Casey, 129 Pitts. L. J. 42 (1980) (Strassburger, J.), a party to a marriage contended that this court erred in granting a divorce prior to disposing of property issues raised in the litigation. The court persuasively rejected that argument on the ground that it would defeat the legislative objectives of the Divorce Code to refuse to grant a divorce if other issues in the divorce litigation were pending:

“. . . Any other result would fail to comply with the legislative objectives set forth in § 102(a)(1),(3), and (4) of the Code which provides: ‘(a) The family is the basic unit in society and the protection and preservation of the family is paramount public concern.

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Klein v. Klein, 20 Pa. D. & C.3d 482, 1980 Pa. Dist. & Cnty. Dec. LEXIS 64 (Pa. Super. Ct. 1980).

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Related

Stambaugh v. Stambaugh
329 A.2d 483 (Supreme Court of Pennsylvania, 1974)
Commonwealth Ex Rel. Bishop v. Bishop
341 A.2d 153 (Superior Court of Pennsylvania, 1975)
Commonwealth Ex Rel. Roviello v. Roviello
323 A.2d 766 (Superior Court of Pennsylvania, 1974)
Commonwealth v. Turner
392 A.2d 848 (Superior Court of Pennsylvania, 1978)
Gillan v. Gillan
345 A.2d 742 (Superior Court of Pennsylvania, 1975)
Heilbron v. Heilbron
27 A. 967 (Supreme Court of Pennsylvania, 1893)
Koehler v. Koehler
73 Pa. Super. 41 (Superior Court of Pennsylvania, 1919)
Commonwealth ex rel. Bortin v. Bortin
234 A.2d 55 (Superior Court of Pennsylvania, 1967)
Commonwealth ex rel. Lebowitz v. Lebowitz
307 A.2d 442 (Superior Court of Pennsylvania, 1973)