Rosen v. Rosen

549 A.2d 561, 520 Pa. 19, 1988 Pa. LEXIS 256
CourtSupreme Court of Pennsylvania
DecidedOctober 20, 1988
Docket86 E.D. Appeal Dkt. 1987
StatusPublished
Cited by21 cases

This text of 549 A.2d 561 (Rosen v. Rosen) 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
Rosen v. Rosen, 549 A.2d 561, 520 Pa. 19, 1988 Pa. LEXIS 256 (Pa. 1988).

Opinions

OPINION

NIX, Chief Justice.

The instant appeal raises interesting questions relating to subject matter jurisdiction and issue preclusion. The questions arise in the setting of a protracted divorce proceeding which has been before the courts for over seven years. The ruling of the Superior Court vacating the divorce decree entered by the trial court would have the effect of continuing this controversy in our courts and perpetuating the uncertainty of the status of the parties involved.1 Because of the likelihood for the instant questions to recur and the desirability for a prompt resolution of these traumatic, bitterly disputed lawsuits, we granted review.

The specific question that we are called upon to review is the Superior Court’s determination that the trial court was without subject matter jurisdiction to issue the decree of divorce because of an appeal that had been taken and was then pending in the Superior Court relating to the trial court’s prior order concerning interim counsel fees and costs. For the reasons that follow, we conclude that the Superior Court erred in its judgment and that the trial court did in fact have the right to proceed in its disposition of the merits of the divorce action.

[21]*21The parties to this matter under review were married on August 16,1968 and are parents of three children. On June 25, 1980, appellant filed a complaint in divorce in the Court of Common Pleas, Montgomery County. His wife, Sandra, filed a counterclaim on October 31, 1980, in which she advanced, inter alia, a claim for interim counsel fees and costs. Her motion was granted, and on December 29,1981, the trial court ordered appellant to remit $1,655 in costs and $7,500 in interim counsel fees. Mr. Rosen filed an appeal in the Superior Court challenging the propriety of the trial court’s award. The Superior Court did not reach the merits in that appeal, finding that appellant’s failure to file exceptions to the order constituted a waiver of the issues he sought to raise. Rosen v. Rosen, 328 Pa.Super. 93, 476 A.2d 470 (1984) (“Rosen I”). The decision in Rosen I was filed by the Superior Court on June 1, 1984.

During the pendency of that appeal, the trial court entered a decree nisi on the issues of child custody, equitable distribution, child support, alimony, divorce and legal fees. On February 16, 1983, a final order was issued. No direct appeal was taken by Mrs. Rosen. She instead, relying upon section 602 of the Divorce Code, 23 P.S. § 602, filed a motion to vacate the decree, asserting that the trial court lacked subject matter jurisdiction. This motion was filed on May 3, 1984, over a year after the entry of the final order.2 In response to the motion to vacate, Mr. Rosen filed preliminary objections and in the alternative a motion to strike. The motion to vacate the decree was denied, and Mrs. Rosen followed with an appeal to the Superior Court. As previously stated, the Superior Court, in an opinion filed on April 28,1986, held that the trial court was without jurisdiction to enter the decree in divorce because of the pending appeal from the award of counsel fees and costs. Rosen v. Rosen, [22]*22353 Pa.Super. 421, 510 A.2d 732 (1986) (“Rosen II”).3 For the reasons that follow we conclude: (a) that the trial court properly ruled that under the Divorce Code of 1980, its jurisdiction was not divested as a result of the appeal of its interim order for counsel fees and costs; (b) that the Superior Court’s reliance upon Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984) in Rosen II was misplaced; (c) that this Court’s decision in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), which expressly repudiated Sutliff v. Sutliff, supra, was controlling; and, (d) that appellant is not estopped from asserting the jurisdiction of the trial court to enter the final decree of divorce.

In its decision reversing the trial court, on the issue of jurisdiction, the Superior Court, although recognizing in a footnote our holding in Fried and Pennsylvania Rule of Appellate Procedure 1701(b)(6), concluded that it was “clear that, as the law stood at that time” (referring to the time of the entry of the final decree), “the taking of an appeal acted to divest the trial court of jurisdiction over the case.” 353 Pa.Super. at 424, 510 A.2d at 733.

The suggestion that Fried represented a change in the law, and therefore justified the Superior Court in ignoring the mandate of Fried in reaching its decision in Rosen II, was erroneous. To the extent Fried ruled that under the Divorce Code of 1980 orders upon interim counsel fees and costs were to be considered interlocutory and not immediately reviewable, that aspect of the Fried holding could properly be characterized as a change in the law. If the issue in Rosen II had been whether or not the appeal from the orders was entitled to immediate appellate review, then [23]*23the question of the applicability of that portion of the Fried holding would have been legitimately before the court.4

Here the issue is whether the interim appeal divested the trial court of jurisdiction over the remaining matters during the pendency of the appeal. For this question, which is presently before us, the pertinent part of the Fried holding is the determination that rulings upon the granting of interim counsel fees and costs are ancillary to the basic cause of action. The recognition in Fried that these orders were ancillary to the basic cause of action was merely a reaffirmance of the existing law. In Fried we stated:

[W]e agree with the majority in Sutliff, supra, that an order relating to alimony pendente lite, counsel fees and expenses is separable from and collateral to the main cause of the divorce action. Id., 326 Pa.Superior Ct. at 500, 474 A.2d at 600, citing In re Estate of Georgiana, 312 Pa.Super. 339, 458 A.2d 989 (1983); Malenfant v. Ruland, 274 Pa.Super. 506, 418 A.2d 521 (1980).
509 Pa. at 94-95, 501 A.2d at 214.

It is therefore clear that the part of the Fried holding reaffirming the ancillary character of such orders should have been recognized by the Superior Court as controlling at the time of its decision in Rosen II. It is this pronouncement in Fried that goes to the heart of the issue raised here.

The jurisdictional question was raised because of the pendency of the appeal as to the collateral order. As a general proposition, a trial court is precluded from proceeding with a matter once an appeal to a higher court has been [24]*24taken. Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1965). This principle is reflected in Rule 1701(a) of our Rules of Appellate Procedure. Rule 1701(a) provides in pertinent part:

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Rosen v. Rosen
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Bluebook (online)
549 A.2d 561, 520 Pa. 19, 1988 Pa. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosen-v-rosen-pa-1988.