THE COURTS
Title 231--RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1910]
Amendments to the Rules of Civil Procedure Relating to Domestic Relations Matters
[32 Pa.B. 2753]
Recommendation 60 The Domestic Relations Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule of Civil Procedure 1910.16. Following the text of the proposed amendments is an explanatory Report which highlights the Committee's considerations in formulating this recommendation. The Report should not be confused with explanatory comments or notes to the rules. The Report, notes and explanatory comments will not constitute part of the rules and will not officially be adopted or promulgated by the Supreme Court.
The Committee solicits comments and suggestions from all interested persons prior to submission of this proposal to the Supreme Court of Pennsylvania. Written comments relating to the proposed rules must be received no later than Friday, August 16, 2002. Please direct comments to:
Patricia A. Miles, Esquire
Counsel, Domestic Relations Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
Fax (717) 795-2116
e-mail patricia.miles@supreme.court.state.pa.us
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1910. ACTIONS FOR SUPPORT Rule 1910.16. Support Order. Allocation.
* * * * * (b) An allocated or unallocated order in favor of [the] a spouse and/or one or more children shall be a final order as to all claims covered in the order. No motion for post-trial relief may be filed to the final order.
* * * * *
Explanatory Comment 2002 The amendments to subdivision (b) of this rule are intended to allow immediate appeal of an alimony pendente lite order or a spousal support order entered during the pendency of a divorce matter, overruling Fried v. Fried, 501 A.2d 211 (Pa. 1985), and its progeny. See Pa.R.A.P. 1731(b) regarding supersedeas on appeal of certain domestic relations orders.
RECOMMENDATION 60
COMMITTEE REPORT
Proposed Amendments to Pa.R.C.P. 1910.16 Relating
to the Appeal of Spousal Support and
Alimony Pendente Lite OrdersMembers of the family law bar asked the Domestic Relations Procedural Rules Committee to address the long-standing problems created by the inability to appeal certain spousal support or alimony pendente lite orders. The proposed amendments to Rule 1910.16(b) are intended to overrule Fried v. Fried, 501 A.2d 211 (Pa. 1985), and its progeny.
In Fried, the Pennsylvania Supreme Court held that interim orders in divorce cases, including orders granting or denying alimony pendente lite, are interlocutory and thus cannot be reviewed until final disposition of the divorce action. The Fried court reasoned that ''[i]n the event that an initial award of interim relief is granted in error, the court has the power to make adjustments in the final settlement via the equitable distribution of marital property, permanent alimony, and/or the final award of attorney's fees and costs.'' The Superior Court has applied the same logic since the mid-1980s to hold that an award or denial of spousal support entered during the pendency of a divorce action cannot be appealed until all claims connected with the divorce action are resolved. See, e.g., Shellhamer v. Shellhamer, 688 A.2d 1219 (Pa. Super. 1997); Ritter v. Ritter, 518 A.2d 319 (Pa. Super. 1986). In Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996), the court held that even if the support action is filed separately from the divorce action, a spousal support award cannot be appealed until final disposition of the divorce action.
When Fried was decided, the Divorce Code of 1980 had been in effect only five years. In Fried, the Supreme Court noted that under the prior divorce law, ''Pennsylvania courts held that an award of alimony pendente lite and counsel fees made during the pendency of a divorce action was a final and appealable order based upon the theory that the money paid pursuant to the order was unrecoverable, i.e. irreparably lost.'' 501 A.2d at 214 (citations omitted). In deciding to reexamine the issue under the new divorce law, the Supreme Court also referenced the Superior Court's reasoning in Sutliff v. Sutliff, 474 A.2d 599 (1984), decided only one year earlier, ''that both grants and denials of such interim relief are final, appealable orders because the relief is not part of the merits of the main cause of action; the matter is too important to be denied review; and, if postponed, the claimed right would be irreparably lost.'' Id. at 213 (citation omitted). However, because the Divorce Code of 1980, unlike prior law, provided for equitable distribution of marital property, permanent alimony and a final award of counsel fees and costs, the Fried court determined that a court could make adjustments in the final award such that the inability to immediately appeal an interim financial award would not result in the irreparable loss of claimed rights.
Over the years since Fried was decided, it became clear to the matrimonial bar that trial courts were not, in general, reviewing interim spousal support or alimony pendente lite awards or making adjustments in equitable distribution or post-divorce alimony orders at the final disposition in the divorce action. Moreover, in some cases it would never be possible to remedy the damage done when a spouse's claim for spousal support or alimony pendente lite is wrongly denied early in the case. That spouse may forfeit rights simply because he or she is financially unable to proceed.
In practice, the result of Fried is consistent with the predictions in now-Chief Justice Zappala's dissenting opinion in that case. In his dissent, he asserted that the court-created presumptions upon which the majority based its opinion were flawed and inconsistent with the economic realities of most divorces. Those presumptions are that a spouse who was improperly denied interim relief under the Divorce Code would be entitled to permanent alimony, and that there would be sufficient marital property from which a spouse could recoup his or her loss. He also asserted that the majority ignored the divergent purposes behind the various types of interim economic relief. Further, he correctly predicted that the practical effect of the majority's decision was that a spouse wrongfully denied interim economic relief would be unable to maintain or defend the divorce action, thereby thwarting the purpose of the relief.
The Fried court stated that its decision reflected the policy against piecemeal litigation. However, Fried has had the opposite effect in cases in which orders are allocated between a child and a spouse. Pa.R.C.P. 1910.16(b) currently provides that an unallocated order in favor of a spouse and one or more children is a final order as to all claims covered in the order. Unallocated orders are appealable because the child support portion is indistinguishable. The spousal support portion of an allocated order is not. Ritter, supra. An allocated order is almost always the result of a single proceeding with a single record and based upon identical facts as to the incomes and financial circumstances of the parties. The child support portion of the order is final and appealable, while the spousal support or alimony pendente lite portion may not be appealable until months or years later when the divorce action is concluded. Requiring two separate appeals is costly for the litigants and contrary to the goal of judicial economy.
The Committee believes that the rationale for permitting appeals of orders awarding or denying spousal support and alimony pendente lite under prior divorce law is equally applicable now. Therefore, the Committee intends to recommend to the Pennsylvania Supreme Court that it amend Rule 1910.16 to provide that such orders are final and thus appealable.
[Pa.B. Doc. No. 02-976. Filed for public inspection June 7, 2002, 9:00 a.m.]
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