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J. A14010/02
2002 PA Super 270
ROSALIE A. DALESSIO,
:
IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
v.
::
SAMUEL J. DALESSIO,
::
v.
::
DOUGLAS DALESSIO,
::
Appellant
:
No. 1142 WDA 2001
Appeal from the Order entered on June 5, 2001
in the Court of Common Pleas of Indiana County,
Civil Division, No. 1428 CD 1988
BEFORE: MUSMANNO, ORIE MELVIN and TAMILIA, JJ.
OPINION BY MUSMANNO, J.:
Filed: August 22, 2002
¶1
This is an appeal from the Order entered denying the Petition for
special relief of Appellee Samuel L. Dalessio ("Husband"), and refusing to
dismiss Appellant/third party Douglas Dalessio ("Son") as a party to the
action. The trial court also granted an award of alimony pendente lite
("APL") to Appellee Rosalie A. Dalessio ("Wife"), until the final Order of
equitable distribution is executed. We reverse in part as to Son's obligation
to pay APL.
¶2
This matter is the later of two recent appeals in the prolonged
litigation between the parties. This Court has summarized the relevant facts
and procedural history of this case as follows:
[Husband and Wife] were married on February 12, 1967.
Wife filed a divorce complaint on August 30, 1988. [In counts
four and five of her divorce complaint, Wife raised separate
claims for alimony and APL.] On January 28, 1993, a divorce

J. A14010/02
was granted and the parties became embroiled in a lengthy
dispute over the equitable distribution of marital property. The
parties' son . . . was joined as an additional defendant in 1995.
On April 12, 1995, the master, who was appointed to hear
the economic claims, issued his opinion that recommended Wife
receive 60% of the marital property and Husband 40%. The
master also recommended the continuation of an existing award
of [APL] in the amount of $1,000 per month plus $500 per
month towards arrears pending Wife's receipt of her distributive
share of the marital property. Exceptions were filed by all of the
parties. On April 12, 1995, the trial court adopted the master's
recommendations in their entirety with the exception of the
[APL] award. The court reduced the award to $500 per month
due to Husband's "changed financial position." No appeal was
taken from the April 12, 1995 order.
[On April 24, 1995,the trial court entered an order, which
amended the April 12, 1995 order to include the following:
[] This Court does not consider this to be a final
order. A final order shall be issued after the report
of the certified business appraiser is received and all
matters relating thereto finalized.]
On July 12, 1996, the court ordered Husband and Son to
transfer to Wife various assets comprising her distributive share
as specified in the April 12, 1995 order. Wife filed an emergency
petition for contempt after 45 days had passed and nothing was
transferred. A hearing was set for September 17, 1996.
However, on that date, Husband and Son filed a petition under
Chapter 7 of the U.S. Bankruptcy Code and all proceedings were
stayed. On December 30, 1996, the petitions were dismissed by
the U.S. Bankruptcy Court.
On January 10, 1997, Wife filed an updated contempt
petition, and a hearing was set for February 6, 1997. On
January 31, 1997, Husband and Son, once again, filed petitions
under Chapter 7 of the U.S. Bankruptcy Code and all
proceedings were stayed. On April 3, 1997, the petitions were
dismissed by the U.S. Bankruptcy Court.
On April 9, 1997, Wife filed a petition for counsel fees and
reinstated her contempt petition. On June 6, 1997, the court set
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J. A14010/02
the value of Husband's businesses at $385,120 and confirmed a
lump sum award to Wife of 60%. Also, on June 6, 1997,
Husband's motion to modify [APL] was denied, and Husband was
found in contempt for having continued to dissipate marital
assets. Husband was ordered to pay $10,000, and he was
scheduled to be incarcerated. Husband avoided incarceration by
paying Wife $10,000. Wife's claim for counsel fees was denied.
On August 1, 1997, Wife filed another contempt petition
based on Husband's failure to comply with the June 6, 1997
order relative to Wife's ultimate award of 60% of the marital
assets. On August 7, 1997, the trial court denied Wife's petition
without prejudice to seek a judgment against Husband and Son.
Wife also filed a petition for contempt and a petition for
modification of support. A hearing was scheduled for December
8, 1998 on Wife's petitions. Judgment on the cash distributions
[of Wife's share of the marital estate] was entered on July 28,
1998.
On December 7, 1998, Husband and Son again filed
petitions for relief under the U.S. Bankruptcy Code. Both
petitions include Wife as a creditor among all of their outstanding
debt to be discharged in bankruptcy. All of the bankruptcy
proceedings were stayed until July 8, 1999 when relief from stay
was entered by the U.S. Bankruptcy Court.1
On October 5, 1999, this matter was re-listed and
continued by the trial court until November 24, 1999. On
November 23, 1999, Husband and Son advised the court that
they did not have any attorney, and the case was continued to
January 26, 2000. Counsel entered an appearance and an
additional continuance was granted. Another continuance was
granted at Wife's request.
This matter came to trial on April 6, 2000 and a second
day of trial took place on June 8, 2000. On August 10, 2000,
the trial court modified the [APL] award to $2,700 per month so
as to meet Wife's reasonable needs, and the court also provided
for an allocation of the recapture of arrears in the amount of
$77,000 to be paid at the rate of $500 per month. The court

1 Husband's bankruptcy case was dismissed on July 19, 2000.
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J. A14010/02
denied Wife's claims for modification of the equitable distribution
award.
Dalessio v. Dalessio et al., No. 1537 WDA 2000 (Pa. Super. 2002)
(unpublished memorandum).
¶3
Husband and Son appealed from the trial court's modification of the
APL award, which this Court affirmed. Id.
¶4
On January 11, 2001, the trial court found both Husband and Son in
contempt of the August 10, 2000 Order, and directed that they be
incarcerated, absent the payment of a purge condition. Husband and Son
sought reconsideration on January 30, 2001, which the trial court denied.
No appeal was taken from the January 11, 2001 contempt order. Husband
and Son met the required purge conditions on March 1, 2001, immediately
prior to their incarceration.
¶5
On April 6, 2001, Son filed a Petition for special relief sub judice. Son
requested that the trial court dismiss him as a party, revoke the APL order,
and enter a final appealable alimony order. In addition, Son requested
reimbursement of all monies paid to Wife and attorney's fees. On June 5,
2001, the trial court denied Son's Petition and converted the APL award to
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J. A14010/02
alimony sua sponte. This timely appeal followed.2
¶6
On appeal, Son raises the following issues:
1.
In a divorce proceeding, after the Plaintiff elects to enter a
money judgment against the third party defendant, who is
not a spouse and who allegedly received marital assets for
little or no consideration, whether that third party
defendant has a duty or legal obligation to provide spousal
support in the form of APL?
2.
Whether the trial court erred in ordering the third party
defendant to pay APL based solely upon the Master's
Findings, where the trial court failed to conduct a de novo
hearing to determine the rights and obligations of the third
party defendant?
Brief for Appellant at 5.
¶7
Our standard of review for awards of APL is well settled. If an order of
APL is bolstered by competent evidence, the order will not be reversed
absent an abuse of discretion by the trial court. Jayne v. Jayne, 663 A.2d
169, 176 (Pa. Super. 1995).

2 Pursuant to Pa.R.A.P. 341, an appeal may be taken as of right from any
order that ends the litigation as to all claims and as to all parties. In this
case, prior to the June 5, 2001 Order, the trial court entered several orders
with regard to equitable distribution of the marital assets and APL.
However, on June 5, 2001, the trial court entered a final order resolving
Wife's claim for alimony, the last pending economic issue between the
parties. Because the June 5, 2001 Order has been appealed after a divorce
decree has been entered, and all economic claims have been resolved, the
June 5, 2001 Order is appealable as a final order in this matter. Pa.R.A.P.
341(b)(1); Campbell v. Campbell, 516 A.2d 363 (1986) (holding that this
Court cannot review an order for alimony or equitable distribution of the
marital property until it has been rendered a final order by the entry of a
divorce decree).
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J. A14010/02
¶8
In addressing whether the trial court abused its discretion in obligating
Son to pay a portion of the APL award, we refer to the following relevant
sections of the Divorce Code. The Divorce Code provides that married
persons are liable for the support of each other according to their
respective abilities to provide support as provided by law. See 23 Pa.C.S.A.
§ 4321 (relating to liability for support). "APL" is defined as an order for
temporary support granted to a spouse during the pendency of a divorce or
annulment proceeding. See 23 Pa.C.S.A. § 7101(b) (relating to short title of
part and definitions).
¶9
Based on our review of the Divorce Code, we conclude that the trial
court abused its discretion by obligating Son to pay APL, as this obligation
rests solely upon married persons. We acknowledge that the trial court may
use its equitable powers "in a compassionate and reasonable manner to
effectuate the overriding goal of achieving economic justice between the
parties." Murphy v. Murphy, 599 A.2d 647, 651 (Pa. Super. 1991).
Nevertheless, we conclude, however reluctantly, that the trial court is
without authority to obligate Son to pay APL to Wife. Id. Accordingly,
Husband, rather than both Husband and Son, is solely responsible for the
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J. A14010/02
total sum of the monthly APL award and the arrearage.3
¶10 Order refusing to dismiss Son as a party to the action reversed.

3 We observe that the trial court determined the APL award based on
Wife's needs and her standard of living prior to the divorce action, rather
than the actual earnings of Husband and Son. Trial Court Opinion, 8/10/00,
at 7-8. At the support modification hearing, the trial court was not able to
assess the actual earnings of Husband and Son because the trial court found
Husband, Son, and Son's wife "to be totally lacking in credibility." Id. at 4-6.
Specifically, the trial court emphasized in its opinion that it "[had] not been
faced with a more dishonest and designing trio." Id. at 5. In addition, the
trial court indicated "that [a] portion of the marital estate awarded to [Wife]
has not been received and has been dissipated by [Husband] and [Son];"
thus, "any income that would be generated by these assets has been lost."
Id. at 7. Because the support guidelines' formula for calculating APL was
inapplicable as the trial court could not assess Husband's income and Son's
income, the trial court based its modification of APL on Wife's needs and her
prior standard of living. See Rule 1910.16-4, Part IV (setting forth a specific
formula for calculating a spousal support or APL obligation when the parties
are without dependent children).
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