Peterson v. Peterson

629 A.2d 1017, 427 Pa. Super. 572, 1993 Pa. Super. LEXIS 2623

• Court: Superior Court of Pennsylvania
• Decided: August 16, 1993
• Docket: No. 642
• Status: Published

Opinions

POPOVICH, Judge.

We are asked to review the order of the Court of Common Pleas of Dauphin County directing the payment of alimony to the plaintiff/appellee, Mollie T. Peterson, by the defendantyappellant, Theodie L. Peterson. We affirm.

This case was appealed initially to this Court, which affirmed the order equitably distributing the marital assets, but reversed and remanded that portion of the order awarding alimony because “the trial court improperly included child support in determining ... the duration of the alimony award.” Peterson v. Peterson, (J. A48015/92, No. 00274 Harrisburg, 1991, filed January 31, 1992).

On remand, a hearing was conducted wherein the parties stipulated that the court could consider the previously recorded testimony before the Master Adler. Additional testimony was elicited as well from the plaintiff an,d the defendant to update their employment status: Defendant was still employed as an associate professor of law at Widner College earning $60,000 to $65,000 per year, whereas the plaintiff had secured new employment with the Social Administration earning the same salary as before, i.e., $21,000.

Further, each party discussed their liabilities and assets: Plaintiff stated that she was “3 to 400” dollars short each month in meeting her needs given her financial picture, N.T. 6. The defendant testified that he had “incurred substantial credit card obligation” — $14,000 to $15,000 — in support of himself and paying alimony since his separation.¹ N.T. 24.

The trial court, after reviewing the entire record, considered a number of factors in deciding the duration and quantity of alimony, e.g., the relative earnings and earning capacities of the parties, educational levels of the parties, employment history, the ages and health of the litigants, the distribution of property, financial obligations and expenses of the primary custodian of the two children, the plaintiff.

In light of the aforementioned factors, the trial court engaged in a weighing process leading to an award of alimony to the plaintiff amounting to $50 per week for a period of ten years. This appeal followed and challenges the entry of the alimony on grounds that the plaintiff was gainfully employed and received a “substantial” distribution of property.²

Before addressing the merits of the appellant’s complaints, we need to decide whether the claims are preserved for appellate review.

Pursuant to Pa.R.Civ.P. 1920.52(a), with regard to claims involving alimony, the practice and procedure following the trial court’s entry of a decision “shall be in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive.” In particular, Rule 227.1(b)(1) & (2) requires that the grounds for post-trial relief must have been raised at trial and may not be proffered for the first time in post-trial motions. No post-trial motions were filed at bar by the appellant, and the Rules of Civil Procedure create no exceptions to the mandate of filing such a motion to preserve any issue(s) for appellate review. Id.

We have found no case law, nor has counsel for the appellant cited any to us, which excepts the appellant from filing post-trial motions on a remand from Superior Court presided over by a jurist. In the absence of any such authority, we find the issues raised by the appellant to be waived. Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987).

Order affirmed.

CIRILLO, J., files a concurring opinion.

1 . The defendant owns a 1983 Mercedes and 1985 Cadillac, whereas the plaintiff drives a 1985 Dodge Caravan.

2 . The Plaintiff received 55% of the marital property while the defendant was the recipient of 45% of the marital estate.