Lowers v. Lowers

911 A.2d 553, 2006 Pa. Super. 316, 2006 Pa. Super. LEXIS 3758
CourtSuperior Court of Pennsylvania
DecidedNovember 8, 2006
StatusPublished
Cited by2 cases

This text of 911 A.2d 553 (Lowers v. Lowers) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowers v. Lowers, 911 A.2d 553, 2006 Pa. Super. 316, 2006 Pa. Super. LEXIS 3758 (Pa. Ct. App. 2006).

Opinion

OPINION BY

ORIE MELVIN, J.:

¶ 1 Appellant, Mary Jane Lowers (Wife), appeals from the order of the trial court entered October 26, 2005, which denied her petition opposing appointment of a master. Wife claims that Appellee, Jerry Lowers (Husband), waived any economic claims in the parties’ divorce proceedings. Upon review, we affirm.

¶ 2 The trial court aptly summarized the facts and procedural history as follows.

The parties were married on May 23, 1990. On or about April 3, 2003, [Husband] commenced the within action by filing a Complaint for Divorce. On June 10, 2004, [Husband] filed an inventory of property. On June 24, 2004, [Wife] served a Request for Production of Documents on [Husband]. On January 19, 2005, [Wife] executed an Affidavit of Consent. On January 24, 2005, [Wife] [555]*555filed an Inventory and Appraisement. On January 81, 2005, [Husband] executed an Affidavit of Consent. On January 31, 2005, [Husband] filed a Praecipe to Transmit Record. In Section 4 — Related claims pending, [Husband] filled in “[distribution of property, counsel fees, costs and expenses.[”]. On or about February 2, 2005, pursuant to [Husband’s] Motion, [the trial court] issued a final Decree in Divorce[.]
On or about February 17, 2005, [Husband] filed a Motion for Appointment of a Master. On March 1, 2005, [the trial court appointed a] Master to hear claims of distribution of property, counsel fees, costs and expenses.

Trial Court Opinion, 6/23/06, at 1-2. Wife filed a response opposing the appointment of a master on March 8, 2005. The trial court concluded, however, that the parties evidenced an intent to present their economic claims to a master and denied Wife’s petition. Wife’s petition for reconsideration was denied, and this timely appeal followed.1

¶ 3 Wife presents two issues for our review.

1. Did Appellee/Husband fail to preserve his economic claims?
2. Did Appellant/Wife use deception or fraud to induce Husband to waive his economic claims?

Appellant’s brief at vi.

¶4 Wife’s first argument is that Husband’s failure to assert any economic claims in his complaint or file a petition to open or vacate the divorce decree pre-eludes any consideration of those issues. She cites to various sections of the Divorce Code as well as Justice v. Justice, 417 Pa.Super. 581, 612 A.2d 1354 (1992), appeal denied, 533 Pa. 635, 621 A.2d 581 (1993), and Fenstermaker v. Fenstevmaker, 348 Pa.Super. 237, 502 A.2d 185 (1985), in support of her contentions.

¶ 5 We begin by observing that “[a] major premise of the Divorce Code is to effectuate economic justice between the parties.” Wang v. Feng, 888 A.2d 882, 892 (Pa.Super.2005)(quoting Wagoner v. Wagoner, 538 Pa. 265, 269, 648 A.2d 299, 301 (1994)). Additionally, case law instructs that the equitable purposes which underlie the Divorce Code allow for liberal interpretation of its provisions. Id. (citing Wagoner, supra). The Divorce Code has long authorized the severance of economic issues from the divorce itself. See, e.g., Prall v. Prall, 698 A.2d 1338, 1340 (Pa.Super,1997)(explaining that bifurcation is permitted within the discretion of the trial court based on a thorough review of the record). Significantly, the legislature very recently amended the Divorce Code to allow for bifurcation based merely on consent of both parties. 23 Pa.C.S.A. § 3323(c.l).2 See Bonawits v. Bonawits, 2006 PA Super 238, ¶7, 907 A.2d 611 (observing that this subsection statutorily providing for bifurcation with the consent of both parties changed the standard for granting bifurcation).

¶ 6 In the instant matter, Husband filed a praecipe to transmit the record on January 31, 2005 and specifically stated that [556]*556there were related claims pending for “distribution of property, counsel fees, costs and expenses.” C.R. at 12. The trial court entered a divorce decree on February 2, 2005, which included express language “retaining] jurisdiction of any claims raised by the parties to this action for which a final order ha[d] not yet been entered.” Id. at 13. Within 15 days of entry of the divorce decree on February 17, 2005, Husband moved for the appointment of a master, and the trial court made the appointment on March 1, 2005. Id. at 16.3

¶ 7 Husband’s complaint in divorce is a two-page preprinted form, one of which is the notice to defend. Id. at 1. Although the complaint itself did not specifically claim economic issues, the record reveals that both Husband and Wife filed an Inventory and Appraisement and engaged in discovery after the complaint in divorce was filed and served. Id. at 3-6. Correspondence between counsel indicates that the parties were actively negotiating a settlement of all economic issues prior to the entry of the divorce decree. Id. at 19. In fact, counsel and the parties apparently discussed appointment of a master should they not be able to amicably resolve the matter. Id.

¶ 8 Wife argues that despite the foregoing, Husband did not preserve any economic issues. However, we find that the cases on which she relies to support this contention are distinguishable from the case at bar. In Fenstermaker, supra, the parties obtained a divorce decree in February 1981. More than two years later, in July 1983, the wife filed a petition to amend the decree in order to resolve economic issues. The trial court granted her request, treating her request as a petition to open. The record showed that the parties had engaged in negotiations to resolve marital property issues before the decree was entered yet no agreement had ever been reached. After the trial court ultimately resolved the economic claims, the husband appealed. This Court recognized the equitable authority of trial courts over divorced persons in order to achieve economic justice between the parties. 502 A.2d at 187. However, we also observed that there is a time limitation on the trial court’s authority to open or vacate a divorce decree. 23 Pa.C.S.A. § 602 (repealed; see now 23 Pa.C.S.A. § 3332). Because the wife had not sought relief within 30 days of entry of the divorce decree and because the wife’s attack on the decree asserted extrinsic fraud, we affirmed but modified the trial court’s order to grant a petition to vacate rather than open. We further found that since no order of bifurcation had been entered, and, since the goals of bifurcation could not have been met two years after the divorce decree, the trial court properly exercised its powers to effectuate economic justice.

¶ 9 The case at bar differs from Fenster-maker in two important respects. First, certain of the goals of bifurcation may still be met at this juncture, including “speedy resolution of the divorce issue ... and encouragement of settlement of property issues.” 501 A.2d at 251.

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Cite This Page — Counsel Stack

Bluebook (online)
911 A.2d 553, 2006 Pa. Super. 316, 2006 Pa. Super. LEXIS 3758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowers-v-lowers-pasuperct-2006.