author: DEL SOLE, Judge:

text:
    582 A.2d 662
    COMMONWEALTH of Pennsylvania, Appellant, v. Bradley Donald RISHEL, Jr., Appellee.
    Superior Court of Pennsylvania.
    Submitted June 11, 1990.
    Filed Oct. 25, 1990.

      Harold E. Ciampoli, Jr., Asst. Dist. Atty., Montoursville, for Com.
    David D. Noon, Sunbury, for appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

The Commonwealth of Pennsylvania appeals from an order granting, in part, Bradley D. Rishel, Jr.’s Motion to Suppress Evidence. We reverse.

While investigating the cause of an automobile accident, the investigating officer determined that the Appellee, a driver of a vehicle involved in the accident may have been under the influence of alcohol. After failing a sobriety test, the Appellee was placed under arrest and taken to the Williamsport Hospital for a blood alcohol test. Mr. Rishel refused the test and was then taken to the Williamsport police station for processing. Prior to this time he had not been given Miranda warnings.

At the station, processing of the Appellee was videotaped. The audio portion of the video tape can be divided into three sections. In section one the officer asked biographical questions such as the Appellee’s address and employment information. In section two, the Appellee was informed of his Miranda rights and stated that he wished to have counsel. In section three, the Appellee was fingerprinted and photographed and during this phase of processing the Appellee continued to make comments to the police officer. While the officer sometimes answered Appellee’s questions, the officer did not at any time after Appellee invoked his right to counsel ask Appellee any questions or elicit any information. Further, the investigating officer continued to inform Mr. Rishel that the officer could not talk to him unless he waived his right to an attorney.

A motion to suppress a portion of the audio portion of the video tape was filed contending a violation of rights under the Fifth and Sixth Amendments to the Constitution of the United States. The trial court denied the motion with respect to section one of the video tape but suppressed sections two and three of the tape. The Commonwealth has appealed from this order but does not challenge the trial court suppressing that portion of the video tape wherein the Appellee is advised of his rights under Miranda, and exercises those rights. The only question before this court is whether the trial court erred in suppressing the third section of the audio portion of the video tape.

The United States Supreme Court recently decided Pennsylvania v. Muniz, — U.S.-, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) which involved the videotaping of a person suspected of driving under the influence of alcohol. Inocencio Muniz was arrested for driving under the influence of alcohol. He was taken to a Booking Center where his actions were videotaped. At this time he had not received his Miranda warnings. Muniz first answered general biographical questions such as his name, address and birthday. He was then asked if he knew the date of his sixth birthday to which he responded that he did not know. Muniz’s comments and behavior before the video camera did indicate that he was intoxicated. After refusing a breathalyzer and making statements about his inebriation, the officer Mirandized him. At his trial, the tape was admitted into evidence and he was convicted.

This court reversed the conviction, finding that no Miranda warnings were required when Muniz was asked to perform field sobriety tests in front of the video camera since such tests elicit physical and not testimonial evidence. However, we further held that when the physical nature of the test begins to produce testimonial and communitive statements, the protection afforded by Miranda are invoked. We reasoned that Muniz’ response to a question asked about the date of his sixth birthday and comments made while performing the sobriety test were the kind of testimonial evidence that is protected because they reveal a person’s thought process. We further reasoned that Muniz’ responses were not spontaneous, voluntary verbalizations, but were compelled and, since the responses were elicited before Miranda warnings were given, the evidence should be excluded. Thus, we ruled that the audio portion of the tape should have been completely excluded and reversed this conviction, remanding for a new trial. Commonwealth v. Muniz, 377 Pa.Super. 382, 547 A.2d 419 (1988).

The Supreme Court of the United States granted certiorari in order to determine whether “various incriminating utterances of a drunk-driving suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogations for purposes of the Self-Incrimination Clause of the Fifth Amendment.” Pennsylvania v. Muniz, supra, — U.S. at-, 110 S.Ct. at 2641. The court went on to hold that the defendant’s answers were not rendered inadmissible because his slurred speech was incriminating, “the physical inability to articulate words in a clear manner due to ‘the lack of muscular coordination of his tongue and mouth,’ Brief for Petitioner at 16, is not itself a testimonial component of Muniz’ responses to Officer Hosterman’s introductory questions.” Id., — U.S. at-, 110 S.Ct. at 2644. The court held that poor physical control and slurred speech are non-testimonial aspects of the defendant’s responses and are similar to permissibly allowing a defendant to make known the physical manner of speech. This does not compel the speaker to give a testimonial response for purposes of the privilege against self incrimination.

The next issue was whether Muniz’s answer to the question regarding his sixth birthday was incriminating because the trier of fact could infer from his response that he was in a state of confusion. Justice Brennan framed the issue in terms of whether the incriminating inference of mental confusion was drawn from a testimonial act or from physical evidence. The Supreme Court determined that the sixth birthday question required a testimonial response. It stated that “Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, the suspect confronts the ‘trilemma’ of truth, falsity or silence and hence the response (whether based on truth or falsity) contains a testimonial component.” Id., — U.S. at-, 110 S.Ct. at 2648 quoting, Doe v. United States, 487 U.S. 201, at 213, 108 S.Ct. 2341, at 2349, 101 L.Ed.2d 184 (1988). The court reasoned that Muniz did not have the option to remain silent due to the inherently coercive environment of custodial interrogation. He was then left to choose between incriminating himself by admitting that he did not know the date of his sixth birthday or giving a date that he did not believe was correct which would have been incriminating as well. The court concluded Muniz’s response would allow the trier of fact to infer that he was mentally impaired because the response was different from what a clear thinking person would have said. His response was incriminating because he slurred his words and the nature of the question was testimonial; therefore, the response should have been suppressed.

With this analysis in mind we now turn to the claims of the Commonwealth. First, the Commonwealth claims that the trial court erred in suppressing the audio portion of the video tape which we have referred to as section three. The Commonwealth argues that the Appellee’s Fifth Amendment rights had not been violated because Mr. Rishel’s verbalizations were an exhibition of physical characteristics, i.e., slurred speech, rather than testimonial in nature, and were voluntary statements not the product of police interrogation. With this we agree. After the Appellee invoked his right to counsel following the recitation of the Miranda warnings, all interrogation of the Appellee by the police officer ceased. The statements made by Appellee in the third section of the video tape were voluntarily made and were not in response to any statement by the police officer designed to elicit responses by Mr. Rishel. Since the incriminating nature of the statements were an exhibition of the physical characteristics and not testimonial in nature, and, since they were not a product of police interrogation, we conclude that the trial court erred in suppressing section three of the audio portion of the video tape on the basis of a violation of the Appellee’s Fifth Amendment right against compelled self incrimination. See also, Commonwealth v. Ramin, 390 Pa.Super. 591, 568 A.2d 1329 (1990) (In driving under the influence case, admission of defendant’s statements that he “had a few” drinks but was not drunk did not violate defendant’s privilege against self incrimination even though he had previously stated he did not want to answer police questions without an attorney present, where the remark was spontaneous and voluntary).

The second issue that the Commonwealth raises in challenging the trial court’s suppression of the audio portion of the third section of the video tape is that the trial court erred in suppressing the tape because Appellant’s Sixth Amendment rights were violated. An accused is guaranteed the right to counsel when an attempt is made by the government to deliberately elicit information after adversarial proceedings are commenced. Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985). In Pennsylvania, a defendant’s right to Sixth Amendment protection attaches at the time of arrest. Commonwealth v. Waggoner, 373 Pa.Super. 23, 540 A.2d 280 (1988). Since Rishel had already been arrested, his Sixth Amendment right to counsel applied during the videotaping at the police station. However, it must be determined whether the videotaping was a critical stage of adversarial proceeding against Appellant. Attempting to elicit information is a critical stage at which counsel must be present. Id. citing Michigan v. Jackson 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631, 638 (1986).

As previously discussed, the only information deliberately elicited by the police was Rishel’s biographical information. Appellant’s statements following the invocation of his right to counsel, were not in response to an interrogation by the government. Consequently, counsel was not needed at the videotaping stage of the proceedings since the officer did not attempt to elicit incriminating statements from Appellant.

After carefully reviewing the videotape in this case, we conclude that Appellant did not make incriminating statements in response to a police interrogation, and the trial court erred by suppressing the audio on the third portion of the videotape.

We reverse and remand for proceedings consistent with this opinion. Jurisdiction relinquished.

      . The Commonwealth avers that the suppression order "substantially handicaps” the prosecution of appellee. The appeal, therefore, is properly before us. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (Commonwealth has an absolute right of appeal to the Superior Court to test the validity of a pretrial suppression order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution.)

      . The Appellee, in his brief, seems to challenge the trial court's refusal to suppress the biological information questions. However, such a challenge will not be considered by this court for two reasons. First, the Appellee has not appealed the refusal of the trial court to suppress and, second, the denial of a motion to suppress is not a final, appealable order which would vest jurisdiction of that issue in this court. Commonwealth v. Slaton, 383 Pa.Super. 301, 556 A.2d 1343 (1989), allocatur granted, 524 Pa. 596, 568 A.2d 1246 (1989).


source: Caselaw Access Project

author: CERCONE, Judge: TAMILIA, Judge,

license: Public Domain

text:
    582 A.2d 666
    James A. DeMATTEIS v. Joyce DeMATTEIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1990.
    Filed Nov. 15, 1990.

      Susan M. Sund, Erie, for appellant.
    Stanley G. Berlin, Erie, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Erie County in response to appellee’s petition for special relief. The parties were divorced, in a bifurcated proceeding, on May 7, 1986. On January 23, 1987, they executed a marriage separation agreement. Article VIII of this agreement provided for the division of the parties’ marital property, including the marital residence. Pursuant to the agreement, appellant/wife was to retain title to the residence subject to two mortgages, with the appellee/husband executing a quitclaim deed in favor of appellant on the date of the signing of the agreement. The parties also agreed to apply for and obtain refinancing on the property in the form of a joint mortgage. Appellant was then to obtain refinancing of the joint mortgage in her name alone within forty (40) months of the agreement. Furthermore, appellee was to pay appellant a monthly alimony payment and a monthly mortgage payment which appellant was to apply directly to the joint mortgage obligation. Within thirty (30) days of the agreement, appellant was to execute a limited power of attorney which would give appellee the authority to sell the real estate in the event of appellant’s default on the mortgage payments. This power of attorney was to expire when appellant obtained refinancing of the joint mortgage.

On May 10,1989, appellee filed a petition for special relief in which he alleged that appellant was in default of both mortgages and that the mortgagees in both cases had filed complaints in mortgage foreclosure against him and appellant. Appellee requested that the court order appellant to execute a deed to the property in his favor. After proceedings on May 12 and May 19, 1989, the lower court entered an order requiring appellant to execute a quitclaim deed to the property to appellee, and to vacate the residence. The court also ordered that appellee receive full credit for all payments which he made on the mortgages. Furthermore, appellee was to list the property for sale with a bona fide real estate agency. This order was docketed in the lower court on June 1, 1989 and on June 30, 1989, appellant filed the instant timely appeal.

Appellant raises the following issues on appeal:

I. Whether Joyce DeMatteis stipulated to the entry of the order appealed from?
II. Whether it is relevant whether or not Joyce DeMatteis stipulated to the entry of the order appealed from?
III. Whether this is an interlocutory appeal?
IV. Whether this appeal is timely?
V. Whether the February 12, 1988 Divorce Code amendments should be applied retroactively?
VI. Whether the lower court lacked subject matter jurisdiction to enforce a pre-1988 property settlement agreement which was not merged in the final decree of divorce?
VII. Whether the lower court lacked subject matter jurisdiction to modify a property settlement agreement which was not merged in the final divorce decree?
VIII. Whether the lower court’s enforcement and modification of a property settlement agreement without holding a hearing constituted a denial of due process of law?

We have already determined that appellant’s appeal is timely. We will next consider whether the appeal is an interlocutory one. The jurisdiction of this court is limited to appeals from final orders of the courts of common pleas. 42 Pa.C.S.A. § 742 (Purdon 1981). Generally, an order is not a “final order” unless it serves to put the litigant out of court either by ending the litigation or disposing of the case entirely. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974). The rationale for prohibiting appeals from interlocutory orders is to prevent piecemeal determinations and the resulting protraction of litigation. Fox v. Gabler, 377 Pa.Super. 341, 547 A.2d 399 (1988).

The instant action between the parties commenced as a petition for special relief in which appellee requested an order of court requiring appellant to execute to him a deed to the former marital residence so that his (appellee’s) assets would not be further wasted on mortgage foreclosure proceedings on this property. In response, after two scheduled hearings and negotiations, the court issued the above-described order, essentially granting appellee the relief he sought. We believe the lower court’s order ends the litigation and disposes of the case entirely with regard to the petition for special relief. To our knowledge, there are no other outstanding claims relative to the parties’ divorce and therefore the order of June 1, 1989 does not constitute a piecemeal determination which will result in protraction of litigation. Appellee’s contention is that the order is interlocutory because if the appellant believes the marriage separation agreement has been breached, then she may file an action in contract to enforce her rights under the agreement. Thus, appellee contends, the June 1, 1989 order cannot be said to have terminated appellant’s opportunities for litigation.

We cannot agree with appellee’s contention. While appellant may indeed have a right of action under the contract, with regard to the instant litigation culminating in an order of court, appellant’s rights have been finally determined. The instant case does not involve an interim order, a partial order, or any of the other types of orders ordinarily considered interlocutory. See, e.g., Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985) (interim orders in divorce actions are not immediately appealable). It is, in fact, simply a final order of court terminating the litigation, and the appeal therefrom has been properly taken.

We will next address appellant’s contention that the lower court lacked subject matter jurisdiction to enter its June 1, 1989 order. Although appellant did not raise the issue of the lower court’s jurisdiction to hear the subject matter of this case prior to this appeal, it is well established that objections to the subject matter jurisdiction of the court may be raised at any stage of the proceedings. Goodman v. Goodman, 383 Pa.Super. 374, 556 A.2d 1379 (1989). The test of whether a court has jurisdiction over a particular controversy depends upon the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs, i.e., whether the court has power to enter upon the inquiry, not whether it might ultimately decide that it is unable to grant the relief sought in the particular case. Commonwealth, Department of Public Welfare v. Court of Common Pleas of Philadelphia County, 506 Pa. 410, 485 A.2d 755 (1984); Coleman v. Coleman, 361 Pa.Super. 446, 522 A.2d 1115 (1987). In the instant case, appellant alleges that the lower court lacked subject matter jurisdiction of this case because the parties’ marriage separation agreement was executed prior to the effective date of the 1988 Divorce Code amendments and that sections 401(k) and 401.1(a) of those amendments cannot be applied retroactively to enforce or modify the agreement.

In examining appellant’s contention, we first note that the instant action was brought as a petition for special relief. Such an action is provided for in Rule 1920.43 of the Pennsylvania Rules of Civil Procedure relating to divorce or annulment. Under the rule, a party to a divorce action may, at any time after the filing of the complaint, file a petition setting forth the facts under which such relief is sought. Pa.R.C.P., Rule 1920.43, 42 Pa.C.S.A. The court may then, “upon such terms and conditions as it deems just,”

(1) issue preliminary or special injunctions necessary to prevent the removal, disposition, alienation or encumbering of real or personal property in accordance with Rule 1531(a), (c), (d) and (e); or
(2) order the seizure or attachment of real or personal property; or
(3) grant other appropriate relief.

Id. The granting of relief under Rule 1920.43 is within the sound discretion of the trial court and is an exercise of the court’s equitable powers. Jawork v. Jawork, 378 Pa.Super. 89, 548 A.2d 290 (1988). Absent an abuse of discretion, the appellate court will not disturb the lower court’s decision. Id.

In Jawork, supra, this court addressed the issue of the jurisdiction of the trial court to consider a petition for special relief. The parties in Jawork were divorced in December, 1981. Subsequently, pursuant to a settlement agreement later negotiated between the parties, the husband agreed to transfer to the wife certain jointly owned real estate. Next, the trial court, on July 23, 1986, entered an order awarding the marital residence to wife in full and final settlement of all economic claims presented by her in the divorce action. The court marked the divorce action on the docket “settled, discontinued and ended.” At the settlement of the sale of the property which was the subject of the prior negotiations between the parties, the wife discovered that a lien in favor of her ex-husband’s attorneys had been filed against the title in 1985. The amount of the lien was escrowed and the wife then petitioned the court, citing section 403(d) of the Divorce Code, to have the lien declared null and void. The lower court refused to grant the requested relief. Jawork v. Jawork, supra, 378 Pa.Super. at 92, 548 A.2d at 291.

On appeal, a panel of this court disagreed with the lower court’s disposition of the petition and remanded the case for further proceedings. The panel did not, however, disagree with the lower court’s decision to address the petition for special relief. This court found irrelevant to the lower court’s assumption of jurisdiction of the petition the fact that the divorce action had been finally settled, reasoning that “after the final disposition of all matters in the divorce action, a party may need the assistance of the court in enforcing some portion of its order.” Jawork v. Jawork, supra, 378 Pa.Super. at 94 n. 6, 548 A.2d at 292 n. 6.

The Jawork court also reasoned that since the terms and substance of the court’s July 23, 1986 order disposing of the economic claims between the parties were drawn from the agreement reached between them, that any further matter having to do with the property which they had negotiated in the agreement was properly before the court on a petition for special relief. Id. The Jawork court relied on sections 401(b) and 401(c) of the Divorce Code in reaching its determination that the lower court possessed jurisdiction to hear the petition. Id. Section 401(b) of the Divorce Code provides:

Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in any pleadings, an order or orders determining and disposing of existing property rights and interests between the parties, custody, partial custody and visitation rights, child support, alimony, reasonable attorney fees, costs and expenses and any other related matters including the enforcement of agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages.

23 P.S. § 401(b) (emphasis added). Section 401(c) provides:

In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third .person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

Id. § 401(c). Both sections, with the exception of some minor changes in section 401(b), were in effect at the time the parties in the instant case entered into their marital separation agreement.

The above-cited sections of the Divorce Code, as well as the Jawork case and Rule 1920.43, provide the necessary authority for the lower court’s exercise of jurisdiction in the instant case. The court’s enforcement of the marital separation agreement in the instant case is even more appropriate than in Jawork, supra, because the instant case does not have the difficulty which was present in Jawork of a docketed final settlement of the economic claims of the parties prior to the petition for special relief.

In addition, section 301 of the Divorce Code, relating specifically to the jurisdiction of the courts in divorce matters, provides authority for the lower court’s action. Section 301 provides in pertinent part:

(a) The courts of this Commonwealth ... shall have original jurisdiction in cases of divorce and for the annulment of void and voidable marriages and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the pleadings and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial, or separation agreement and including the partition of property held as tenants by the entireties or otherwise and any accounting between them, and the order of any spousal support, alimony, alimony pendente lite, counsel fees, or costs authorized by law.
(5) Any other matters pertaining to such marriage and divorce or annulment authorized by law and which fairly and expeditiously may be determined and disposed of in such action.

23 P.S. § 301(a) (emphasis added). The Divorce Code amendments of 1988 effected only minor changes in Section 301(a).

All of the above authority, which was in effect even at the time of the parties’ entry into their marital separation agreement, supports the lower court’s assumption of jurisdiction in the instant case. Since we find that the lower court had jurisdiction to hear the petition under the above-cited authority, we need not address appellant’s contention concerning the retroactivity of sections 401(k) and 401.1(a) of the 1988 amendments.

By holding that the lower court possessed jurisdiction to enforce the parties’ agreement under a petition for special relief, we do not hold that the agreement now has the force of a court order which is subject to modification. A divorce agreement is not incorporated into the parties’ divorce decree so as to permit revision of a provision in the agreement if the parties did not intend such effect in their agreement. Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990) (en banc) (plurality opinion). This is so despite a statement in the agreement that it was to be incorporated into the divorce decree. Id. Under such circumstances, the agreement remains an enforceable contract not subject to unilateral modification as a court order. Id. See also D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) (en banc) (property settlement agreement did not merge into divorce decree and remained enforceable contract where agreement stated clearly that it would remain in full force and effect and would survive divorce); Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc) (since parties intended that their property settlement agreement would remain an enforceable contract after their divorce, trial court properly refused to reduce the amount of child support provided for in the agreement).

In-the instant case, the intent of the parties was clearly set forth in Articles XIV and XV of their separation agreement. Article XIV provided for incorporation into, but not merger with the divorce decree and continuance of the agreement “in full force and effect thereafter.” Article XV of the agreement further provided that the agreement “shall not be modified or changed except by a written instrument signed by both parties.” Clearly, the parties in this case did not intend for their agreement to be modified by court order. Therefore, their agreement remains an enforceable contract. D’Huy v. D’Huy, supra; Sonder v. Sonder, supra. See Lipschutz v. Lipschutz, 391 Pa.Super. 537, 571 A.2d 1046 (1990) (order of support entered subsequent to parties’ divorce and to parties’ execution of property settlement agreement containing support provisions did not supercede agreement; both order and agreement were intact and enforceable); Dechter v. Kaskey, 379 Pa.Super. 45, 549 A.2d 588 (1988) (en banc) (although double recovery is not allowed, both court orders and agreements can be given independent effect).

Appellant also contends that the lower court lacked subject matter jurisdiction to modify the agreement. She asserts that paragraph four of the lower court’s order of June 1, 1989 constituted a modification of the parties’ agreement as set forth in Article VIII. On review of the agreement and the court’s order, we agree that a modification has been made. As the appellant points out, the agreement permits appellee to receive a credit for any amounts he expends towards payment of the mortgages against any amount which he owes appellant under Article VIII, sections 1(d) and (e), i.e., monthly equitable distribution payments and alimony payments. Under paragraph four of the court order, appellee is to receive credit for any amount paid toward the mortgages against any amount owed appellant under Article VIII. This is a clear departure from the terms of the agreement. In addition, the court order grants appellee credit for expenditures other than those enumerated in Article VIII of the parties’ agreement. Thus, we agree with appellant that paragraph four of the lower court’s order goes beyond enforcement of the agreement and constitutes a modification.

As we have previously indicated, the parties’ agreement in this case retains its character as an enforceable contract. Bell v. Bell, supra; D’Huy v. D’Huy, supra; Sonder v. Sonder, supra. In addition, the Divorce Code amendments of 1988 prohibit modification of the parties’ agreement. Section 401.1(c), provides:

(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

23 P.S. § 401.1(c). In the instant case, the parties’ separation agreement does not contain a provision for modification of the agreement by court order. In fact, the agreement provides for modification only by written instrument executed by both parties.

We have no difficulty applying this statute to the instant case. While the presumption against retroactive application of statutes is well established in the law of this Commonwealth, 1 Pa.C.S.A. § 1926, we do not construe section 401.1 to be a retroactive law. A law is given retroactive effect when it is used to impose new legal burdens on a past transaction or occurrence. Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corporation, 54 Pa.C. 376, 421 A.2d 521 (1980). Where no vested right or contractual obligation is involved, an act or regulation is not impermissibly construed retroactively when applied to a condition existing on its effective date, even though the condition results from events which occurred prior to that date. Creighan v. City of Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957). Amendatory statutes are not to be construed as retroactive unless such a construction is so clear as to preclude all question as to the intention of the legislature, and such rule of statutory construction is particularly applicable when the legislation in question interferes with existing contractual obligations or antecedent rights. Rupert v. Policemen’s Relief and Pension Fund, 387 Pa. 627, 129 A.2d 487 (1957).

We do not view section 401.1(c) as interfering with existing contractual obligations or antecedent rights. The statute, which prohibits modification of the voluntary agreements of parties to a divorce action, actually acts to protect such pre-existing rights and obligations. The statute is therefore not retroactive and we may apply the provisions of section 401.1(c) to the parties’ agreement, which was a condition existing on the effective date of the 1988 Divorce Code amendments. See Creighan v. City of Pittsburgh, supra. See also Kludo v. Kludo, 390 Pa.Super. 604, 569 A.2d 357 (1990) (applying section 501(c) of the Divorce Code amendments of 1988 to alimony award made after the effective date of the amendments but where divorce was granted and all other claims were disposed of prior thereto). The petition for special relief was filed on May 9, 1989, after the effective date of section 401.1(c). Applying section 401.1(c) to the facts of the instant case, we find that the lower court was without authority to make modifications to the parties’ agreement as it did in paragraph four of its order.

Next, we will address appellant’s contention that she did not stipulate to the lower court’s entry of the June 1, 1989 order. This inquiry is not relevant to paragraph four of the lower court’s order, which we have held was entered by the lower court without the necessary subject matter jurisdiction. Our review of the record of proceedings on May 12 and May 19, 1989 reveals that appellant did not stipulate on the record to the lower court’s order. We can only speculate as to whether appellant did or did not stipulate to the proposal at the in-chambers conference with Judge Juliante and counsel for appellee on May 19, 1989. Judge Juliante indicated on the record only that the parties had engaged in a “heated discussion.” Nonetheless, while there is no explicit on-the-record evidence that appellant stipulated to the lower court’s order, we can say this: appellant did not object to the proposed order at any point during the on-the-record proceedings of May 19, 1989. Therefore, we must conclude that she waived all objections thereto except with regard to those related to subject matter jurisdiction, which we have already discussed. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) (issues presented on appeal must be properly preserved by timely objection in the trial court). Accord Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974). Our finding of waiver also applies to appellant’s contention that she was deprived of due process of law by the failure of the lower court to conduct a full hearing on the petition, since appellant failed to raise this contention in the lower court. The apparent reasons for the lack of a full hearing in this case were that the parties decided on May 12, 1989 to attempt to negotiate a settlement to the issues raised in the petition for review, and on May 19, 1989, the court held an in-chambers discussion with the parties and counsel and then the court presented the results of that discussion on the record. However, even constitutional issues such as failure to afford the parties due process of law may be waived where not raised in the lower court, but are presented for the first time on appeal. Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 516 A.2d 354 (1986), allocatur denied 515 Pa. 580, 527 A.2d 541 (1987).

Order of June 1, 1989 affirmed except as to paragraph four. Paragraph four of the order of June 1, 1989 is vacated and the case is remanded to the lower court for further proceedings consistent with this memorandum. Jurisdiction relinquished.

TAMILIA, J. files a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting:

I concur in the Opinion by the majority to the point where it would hold that the trial court had the authority to exercise jurisdiction in enforcing the agreement in this case which was entered into prior to the amendment to the Divorce Code, 23 P.S. § 401.1(c). Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), en banc, as acknowledged by the majority, required that this agreement be enforced as a contract but it then goes on to conclude, unnecessarily, for the purpose of the result, that section 401.1 may be retroactively applied to an agreement entered into prior to the amendments of 1988. The agreement provided that it could not be unilaterally modified and since it retained its identity as a contract, it could not be modified as a court Order by the court. The discussion by the majority concerning the retroactivity of section 401.1(c) is, therefore, irrelevant. In addition, it is erroneous since an amendment to the Divorce Code which follows the effective date of an agreement may not apply to that agreement. Contracts have been held inviolate by the federal and state constitutions and may not be altered by legislative provisions which would, in effect, deprive the parties of property rights without due process of law. In Nessa v. Nessa, 399 Pa.Super. 59, 581 A.2d 674 (1990), we applied Sonder, supra, to hold that a contract such as this was not to be subject to alteration by Order of court. There, we also held:

[T]his agreement is not affected by amendment to the Divorce Code § 401.1(c), added in 1988, ... as the agreement predated the amendment. The Divorce Code at 23 P.S. § 103 Construction, provides:
This act shall not affect any marital agreement executed prior to the divorce agreement executed prior to the effective date of this act or any amendment or modification thereto.

Id. 399 Pa.Super. at 65, n. 2, 581 A.2d at 676, n. 2. While the result of the majority is correct, the discussion regarding section 401.1(c) is in error, unnecessary for the result, and in direct conflict with Sonder. I, therefore, dissent to the discussion and analysis concerning the retroactive effect of section 401.1(c).

      . Section 401.1 of the 1988 amendments relates to the effect of agreements between parties "regarding matters within the jurisdiction of the court under this act____” 23 P.S. § 401.1(a). See id. § 301, supra (relating to jurisdiction of the courts in cases of divorce and annulment).


author: BROSKY, Judge.

text:
    582 A.2d 674
    William C. DOWNEY v. Elsie L. DOWNEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1990.
    Filed Nov. 15, 1990.

      Elsie L. Downey, pro se.
    Philip K. Core, Pittsburgh, for appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from an equitable distribution order entered by the trial court.

Appellant presents the following issues for review: (1) whether the trial court erred in awarding appellee 60% of the marital real property without considering: the length of separation of the parties, the length of time involved in court proceedings, the premarital assets that were used to acquire the marital real property, and appellant’s contributions towards preserving and maintaining the marital property; (2) whether the trial court erred in failing to consider the effect of its equitable distribution award upon appellant; (3) whether the trial court erred in concluding that appellant has income which cannot be substantiated; (4) whether the trial court erred in concluding that the certificates of deposit were marital property, where appellee transferred the certificates to his children and made no claim to the funds for a lengthy period of time; (5) whether the trial court’s order violated the Equal Rights Amendment to the Pennsylvania Constitution; and (6) whether the trial court erred in disallowing testimony regarding appellant’s claim for counsel fees, and if so, whether the trial court erred in failing to appoint a master to hear this testimony. For the reasons set forth below, we affirm in part and reverse in part the order of the trial court and remand for further hearing.

Before addressing the issues raised by appellant, it is necessary to recount the relevant facts of this case. Appellant, Elsie Downey (wife) and appellee, William Downey (husband) were married in Hawaii on October 7, 1945. Following their marriage, the parties returned to Pittsburgh, Pennsylvania, where they acquired the marital property which is the subject of this dispute. Specifically, the property consisted of a parcel of land located in the Sewickley area of Pittsburgh. At the time of purchase, a house existed on the land. The parties paid a total of $7,000.00 for the property; $4,000.00 of this amount was borrowed from appellant’s mother with the remainder of the purchase price supplied by the parties from their earnings and/or savings. Later in their marriage, appellee constructed a second dwelling on the property with the assistance of his brother-in-law and general contractors who were hired to complete the remaining work. This residence cost approximately $11,000.00 to construct. The first house was thereafter used as a rental property.

Due to marital disharmony, the parties separated on July 4, 1969, and this litigation ensued. Following the parties’ separation, appellee moved out of the marital residence. After he left the marital home, appellee paid some of the utility bills and taxes on the property, however, he did not significantly contribute to the preservation or maintenance of the marital property except to provide support for the parties’ children. Appellant, however, continued to reside in the marital home with the children, and continued to rent the other dwelling. During this time, appellant paid all the taxes on the property and maintained the property and the dwellings.

During the parties’ marriage and period of separation, appellant was employed in various jobs at Dixmont Hospital, the Allegheny County Health Department and the Sewickley Public School System. Appellee was also continuously employed throughout the marriage and separation period, primarily at Jones & Laughlin Steel Co. (now LTV Steel Co.). Since the commencement of the divorce action, both parties have retired and receive pension and/or social security benefits.

Neither party initiated divorce proceedings until 1982 when appellee filed a divorce complaint. Throughout the next seven years, the parties engaged in discovery proceedings relating to the equitable distribution of the parties’ marital property. Also during this time period, the parties engaged in litigation relating to the distribution of appellee’s pension and the bifurcation of the divorce action from the equitable distribution matters. Hearings on the equitable distribution matters were finally held before the trial court in June and July, 1989. On July 12, 1989, the trial court issued its order and memorandum in support thereof, in which appellant was awarded the marital residence. However, the trial court directed appellant to pay appellee 60% of the value of the real property plus 10% simple interest. In addition, the trial court denied the parties’ requests for alimony, counsel fees and equitable distribution. The parties were thereafter divorced by decree entered on July 24, 1989.

Appellee filed exceptions to the trial court’s equitable distribution order on July 31, 1989. Appellant contested the timeliness of the exceptions and filed a motion to strike appellee’s request for post-trial relief. The trial court denied the motion on September 22, 1989, and subsequently found appellee’s exceptions to have been timely filed. See Memorandum and Order of Trial Court, dated 1/29/90. Following the trial court’s denial of appellant’s motion to strike, appellant was given permission to file exceptions within ten days of the trial court’s September 22, 1989 order. See Order, dated August 8, 1989. Appellant filed her motions for post-trial relief on October 10, 1989. Appellee challenged the timeliness of appellant’s post-trial motions and filed a motion to strike appellant’s motion for post-trial relief; appellee’s motion was denied by the trial court. On November 30, 1989, the trial court entered an order which denied both parties’ post-trial motions and made final its order of July 12, 1989. Appellant thereafter filed this timely pro se appeal on December 29, 1989. Although appellant petitioned the trial court to stay the effect of its order, appellant’s request was denied on February 20, 1990.

On appeal to this court, appellee filed a motion to dismiss the appeal because of appellant’s failure to include the hearing transcript in the reproduced record and failure to file the designated reproduced record on appellee. Although appellee’s motion was denied, he was given leave to present this issue to the panel.

Before proceeding to the merits of this appeal, we must first determine whether appellant’s post-trial motions were timely filed, and if not, whether this appeal should be quashed. With respect to this issue, the Pennsylvania Supreme Court has mandated that where a trial court ignores a party’s failure to file a timely request for post-trial relief and addresses the merits of the motions, an appellate court is not free to quash the appeal. See Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989). In this case, the trial court denied appellee’s objection to appellant’s untimely post-trial motions, and reviewed the merits of appellant’s post-trial motions. See Trial Court Supplemental Memorandum, dated February 9, 1990. Therefore, as directed by our Supreme Court, we are precluded from quashing the appeal on this basis.

The next preliminary matter which we must address involves appellee’s motion to dismiss the appeal because of appellant’s failure to comply with Rules 2154 and 2188 of the Pennsylvania Rules of Appellate Procedure. Appellee argues that the appeal should be dismissed because appellant failed to include a copy of the entire hearing transcript in the reproduced record. Further, appellee alleges that appellant’s failure to serve him with a copy of the designated reproduced record prevented him from designating other parts of the record for review by this court, and did not put him on notice as to the parts of the record upon which appellant relied. We find these arguments to be without merit.

Pa.R.A.P. 2156 expressly permits an appellee to file his own supplemental reproduced record with the court where the parties are unable to cooperate on the preparation of the reproduced record. Once it became apparent to appellee that the entire transcript was not contained in the reproduced record, appellee could have supplemented the record by the addition of the transcript or any other material which he deemed to be relevant. In addition, a copy of the hearing transcript is contained in the certified record; thus, appellant’s failure to include this document in its entirety in the reproduced record does not preclude us from engaging in meaningful review of the issues raised by appellant. See e.g., O’Neill v. Checker Motors, Corp., 389 Pa.Super. 430, 433, 567 A.2d 680, 681-682 (1989) (appellate court will decline to quash an appeal where effective appellate review is not precluded by the deficiencies of appellant’s brief.). Accordingly, we deny appellee's motion to dismiss the appeal, and will proceed to address the issues raised by appellant.

In evaluating the propriety of an equitable distribution order entered by the trial court,

our standard of review is whether the trial court, by misapplication of law, or failure to follow proper legal procedure, abused its discretion____ Moreover, ‘an abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.’ ... Specifically, we measure the circumstances of the case, and the conclusions drawn by the trial court therefrom[,] against the ■provisions of 23 P.S. § 401(d), and the avowed objectives of the Divorce Code, that is, to ‘effectuate economic justice between [the] parties ... and insure a fair and just determination of their property rights.’ 23 P.S. § 102(a)(6).

Zollars v. Zollars, 397 Pa.Super. 204, 207-208, 579 A.2d 1328, 1330 (1990) (internal citations omitted) (opinion by Kelly, J.), citing Hutnik v. Hutnik, 369 Pa.Super. 263, 266-267, 535 A.2d 151, 152 (1987) and Liciardello v. Liciardello, 391 Pa.Super. 219, 222-223, 570 A.2d 1062, 1063 (1990). We shall evaluate appellant’s arguments with this standard in mind.

Appellant first argues that the trial court erred in awarding 60% of the marital property to the husband because the trial court failed to consider the following factors: the length of time the parties were separated; the fact that appellant’s nonmarital funds were used to acquire the marital real estate; the fact that appellant was solely responsible for maintaining and repairing the real estate during the parties’ separation; and the trial court’s adoption of the fair market value suggested by appellee’s appraiser. In addition, appellant challenges the trial court’s use of the current fair market value of the house rather than the value of the house at the time of the parties’ separation.

The Divorce Code sets forth the factors which the trial court must consider in dividing marital property between the parties. These factors are as follows:

(1) The length of the marriage;
(2) Any prior marriage of either party;
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
(11) Whether the party will be serving as the custodian of any dependent minor children.

23 P.S. § 401(d)(l)-(ll). However, in applying these factors, the trial court must not lose sight of the overriding objective of the Divorce Code, which is to “[ejffectuate economic justice between the parties ... and insure a fair and just determination and settlement of their property-rights.” 23 P.S. § 102(a)(6).

In awarding appellee 60% of the marital property, the trial court stated that it considered:

the parties’ ages, the amount and sources of income, their needs, their assets, their sources of income, the contribution and dissipation of each party in the acquisition, preservation, and appreciation of the marital property, the wife’s contribution as a homemaker and the economic circumstances of the parties.

Trial Court Opinion, dated July 12, 1989, at p. 6. In addition, the trial court took into account:

the wife’s control [of] over more than $30,000 of the parties’ funds, the husband’s receipt of the life insurance, the wife’s greater income, the wife’s living in the marital residence that was not subject to a mortgage without paying rent, the wife’s receipt of the rental income from the second residence, and the wife’s failure to maintain the second residence.

See Trial Court Opinion, dated July 13, 1989, at pp. 6-7.

In evaluating the trial court’s findings in view of the testimony presented at the hearing, it is evident that although the trial court stated that it considered the parties’ contributions in maintaining the marital real estate, in fact, the trial court only paid cursory attention to appellant’s contributions. Both parties attempted to present evidence at the hearing as to the payment of property taxes and the amounts expended on the maintenance of the property, however, the trial court would not permit this evidence to be introduced. See e.g., Hearing Transcript, 6/8/89, at pp. 163-164, and Hearing Transcript, 7/6/89, at p. 38. Since the trial court found it significant that appellant resided in the marital residence without paying rent, it should at least have permitted her to present evidence relating to the amount of money she spent towards the payment of property taxes, maintenance and repairs. In addition, the trial court made no specific finding as to whether the $3,000.00 used to initially purchase the property was supplied by appellant. We find this to be relevant, because property which is acquired prior to marriage and which is later exchanged for marital property is to be excluded from consideration by the trial court. See 23 P.S. § 401(e)(1). See also, Lowry v. Lowry, 375 Pa.Super. 382, 390, 544 A.2d 972, 976 (1988). Because we find that the trial court erred in failing to consider all the relevant evidence with respect to appellant’s contributions towards the acquisition, maintenance and preservation of the marital estate, it is necessary to remand this matter for further hearing.

We next address appellant’s contentions relating to the length of the parties’ separation and the date used to value the property. Appellant believes that because appellee left the marital residence in 1969, it would have been more appropriate to value the property as of that date, rather than using 1989 property values. Essentially, appellant argues that the doctrine of laches bars appellee from sharing in the post-1969 increase in value of the property.

This court recently addressed a similar issue in Doppler v. Doppler, 393 Pa.Super. 600, 574 A.2d 1101 (1990), where we observed that “[ljaches will bar a claim when it appears that, under the circumstances, the plaintiff is chargeable with a lack of due diligence in failing to assert his rights which works to the prejudice of the another.” Doppler, 393 Pa.Super. at 609, 574 A.2d at 1106. Thus, in order for laches to apply, the party seeking to assert this defense must prove “not only a passage of time, but also a resultant prejudice.... ” In re: Estate of Doerr, 388 Pa.Super. 474, 478, 565 A.2d 1207, 1209 (1989). We do not believe that appellant has sustained her burden with respect to the element of prejudice in this case.

First, we note that appellee was not obligated to proceed with the divorce action and have the property distributed, nor was appellee required to file a partition action to have the property divided. In addition, if appellant wanted to procure an immediate division of the marital property, she could have initiated her own divorce or partition action independently of appellee. As a result, appellee’s conduct cannot be deemed prejudicial to appellant, since she, just as easily as appellee, could have initiated the divorce proceedings in order to secure a division of the property and protect her interests. Cf Doppler, supra. Further, using a 1989 rather than a 1969 value does not prejudice appellant, because the trial court must consider her contributions towards the maintenance of the property. Thus, appellant’s expenditures can be taken into account when the property is divided.

Contrary to appellant’s arguments, the appellate courts have long recognized that marital property must be evaluated as closely as practicable to the date of distribution. See Gioia v. Gioia, 382 Pa.Super. 538, 542-543, 555 A.2d 1330, 1333 (1989), citing Sutliff v. Sutliff, 518 Pa. 378, 383, 543 A.2d 534, 537 (1988). In view of these authorities, we find no error in the trial court’s use of current fair market appraisals, rather than the 1969 value, in assessing the value of the marital property.

Appellant also contends that the trial court erred in adopting the fair market value of the property proposed by appellee’s expert. In support of her position, appellant suggests that her expert was more reliable than appellee’s expert because of his familiarity with the area and because appellee’s expert erroneously compared the marital residence with properties located in other neighborhoods which were not in close proximity to the marital real property.

With respect to these arguments, the record indicates that appellant’s appraiser valued the rental property at $18,000.00 and the marital residence at $35,000.00. See Hearing Transcript, 6/8/89, at p. 12. In combining these amounts, the value of the real estate would then total $53,000.00. Appellee’s appraiser, however, valued the marital residence at $55,000.00 and the rental property at $15,-000.00. See id., at pp. 59 and 66-67. Thus, appellee’s appraiser estimated the total value of the real property to be $70,000.00. In comparing the expert testimony, the evaluations of the rental property were very close in amount, whereas their assessment of the marital residence varied by $22,000.00.

To account for these variations, the appraisers explained that they had used different methods of attributing the real property in their appraisals. See Hearing Transcript, 6/8/89, at pp. 13-16 (testimony of appellant’s expert in which he attributed the greater portion of the land to appellant’s residence and less land to the rental property) and p. 58 (testimony of appellee’s expert in which he divided the property between the two residences). In addition, the experts compared the marital residence with other comparable residences in the area.

In reviewing the hearing testimony, we are unable to conclude that the trial court’s adoption of the fair market value suggested by appellee’s expert was erroneous. Each expert explained the reasons for his valuation of the property and was subjected to vigorous cross-examination by counsel. Because the trial court was in a superior position to observe the experts and assess their credibility, we are unable to conclude that the trial court abused its discretion in finding the valuation by appellee’s expert more reliable than that suggested by appellant’s expert. Accordingly, we affirm the trial court’s finding with regard to the valuation of the residence.

In sum, we affirm the trial court’s use of the 1989 value in assessing the value of the marital property. Further, we affirm the trial court’s finding as to the 1989 fair market value of the residence. However, because the trial court held the wife accountable for living in the property without paying rent and prohibited her from presenting evidence as to her contributions in acquiring, preserving and maintaining the property, we find it necessary to remand this matter to the trial court for further hearing.

Appellant’s second assertion of error is that the trial court failed to consider the effect of its equitable distribution order on appellant. To support her argument, appellant sets forth calculations of both her income and appellee’s income in her brief. See Appellant’s Brief at p. 23. However, appellant’s calculations fail to take into account the fact that she receives $381.00 in income regarding the loan repayment owed by her son. Although appellant testified that she intends to forgive the loan, appellant must still be credited with the receipt of this income, as she cannot be permitted to voluntarily reduce her income merely to deprive appellee of his share of the marital property.

In addition, appellant failed to take into account her receipt of income from the rental property, which the trial court found to be $350.00. Testimony was taken at the hearing that the property was rented at this rate. See Hearing Transcript, 7/6/89, at p. 29. However, appellant alleges that it will be difficult for her to find a tenant because of the condition of the rental property. Further, appellant states that she tried to borrow money to repair the property, but was unable to do so because of appellee’s refusal to cooperate. Now that the parties are divorced and appellant has been awarded the real property, appellee’s cooperation is no longer necessary and appellant should be able to acquire the necessary funds to repair the property. Assuming that the property is repaired, appellant will then be able to rent the property and receive income. However, even if the property is not repaired, there was evidence that appellant was successful in finding a tenant who was willing to rent the property at the $350.00 rate. Thus, we find her arguments on this subject to be without merit.

Appellant also erred in considering only $91.00 of the income received from appellee’s pension. During the hearing, appellant admitted that this amount was $240.00, however. See Hearing Transcript, 6/8/89, at pp. 171-172. As discussed below, appellant offers no information as to how she has arrived at this result. Consequently, $240.00 rather than $91.00 must be used in calculating appellant’s income.

Finally, appellant has omitted her investment income of $1,500.00 from her calculation. At the hearing, she testified that she received this amount, see Hearing Transcript, 6/8/89, at p. 172. Although appellant argues in her brief that this sum has been exhausted, such information was not presented to the trial court. Therefore, this sum must also be included in appellant’s calculations.

In considering all of the above sums which appellant has omitted from her calculations, the disparity between appellant’s and appellee’s incomes is not as substantial as appellant suggests. Further, when the omitted income is added to appellant’s calculations, we find that appellant would have sufficient ability to pay appellee the amount ordered by the trial court. Accordingly, we find that the trial court did not err in failing to consider the effects of its order on appellant.

The third issue raised by appellant concerns the trial court’s findings as to appellant’s income. Specifically, appellant disputes the trial court’s attribution of the $381.00 loan repayment from her son, the $350.00 rental income from the rental property, the $240.00 income from appellee’s pension and $1,500.00 in investment income to appellant. We discussed the $381.00 loan repayment and $350.00 rental income above. As to the income received by appellant from her husband’s pension, appellant alleges that her share of the pension will only amount to $91.00, rather than $240.00 as found by the trial court. Appellant offers no suggestion as to how she . arrives at this figure. However, appellant testified at the hearing that the $240.00 was the amount she received before taxes were removed. See Hearing Transcript, 6/8/89, at p. 172. Based on appellant’s testimony, and in the absence of further explanation by appellant, we find no error in the trial court’s attribution of this income to appellant.

With regard to the investment income of $1,500.00, we note that appellant testified that she received this income. See Hearing Transcript, 6/8/89, at p. 172. If this income had been exhausted as appellant now claims, then it was incumbent upon her to bring this to the attention of the trial court. Consequently, we find no error in the trial court’s attribution of this income to appellant.

The next issue raised by appellant concerns the trial court’s findings with respect to the $30,000.00 placed in certificates of deposit. Appellant believes that the doctrine of laches should preclude appellee from claiming an interest to these funds. We agree.

At the hearing, appellee testified that a certificate of deposit in the amount of $10,000.00 was placed in the name of each of the parties’ children as well as the names of the parties. See Hearing Transcript, 7/6/89, at pp. 6-7. Appellee averred that this was done for tax purposes and that the funds were supplied through his and appellant’s earnings and/or savings. See id,., at pp. 6-7. Appellee further stated that when the parties’ eldest child attained the age of majority, the certificate in his name was transferred into the remaining certificates. See id., at p. 7. As a result, the younger children’s certificates were increased by the sum of $5,000.00 each, bringing the value of the certificates to $15,000.00 apiece.

In 1968, appellant requested that appellee sign a bank card for the alleged purpose of adding their son, William, to the accounts. See id., at p. 8. By signing the bank card, however, appellee caused his name to be removed from the accounts. See id., at p. 8. Several months later, appellant informed appellee as to the true effect of his signature, and further told appellee that neither he nor appellant could exercise any control over the accounts. See id., at pp. 8-9. The record indicates that the funds were withdrawn by the parties’ sons during the years 1970 through 1973. Although appellee subsequently learned that the funds had been withdrawn, appellee admitted that he never made a claim to these funds. See id., at p. 52.

As discussed above, laches will bar a claim where a plaintiff’s failure to pursue his rights with due diligence works to the prejudice of another. See Doppler, supra. In this case, appellee admitted that in 1968, his wife informed him of the true consequences of his signing the bank card. However, appellee never attempted to have the transfer of the funds rescinded, nor did appellee make any type of claim to the funds until his inventory and appraisement was filed in 1986. Thus, appellee has permitted an extraordinarily long time to pass before asserting his interest in the funds. In addition, the checks contained in the record indicate that the funds were withdrawn by appellee’s sons, Gary and William, over thirteen years before appellee made any claim to the funds. To now hold appellant accountable for funds which the parties’ children received and utilized after such a long period of time would be prejudicial to appellant. Accordingly, we find that the doctrine of laches prevents appellee from claiming the certificates of deposit to be marital property.

Appellant’s penultimate issue raises a question as to whether the trial court violated appellant’s rights under the Equal Rights Amendment to the Pennsylvania Constitution, Article I, § 28. After thoroughly reviewing the hearing transcripts, we find that the record is devoid of any evidence as to the trial court’s bias in favor of appellee and against appellant. We therefore conclude that appellant’s claims of discrimination on the basis of gender are specious.

The final issue raised by appellant concerns appellant’s claim to counsel fees. During the hearing, the trial court requested the parties to enter into a stipulation concerning the amount of time counsel spent on matters which appellant’s counsel believed to have been unnecessary. See Hearing Transcript, 6/8/89, at pp. 220-221. Appellant’s counsel then informed the court that a hearing would be necessary because of the conduct of appellee’s counsel during the discovery phase of the proceedings. See id., at p. 221. The trial court then stated that it would appoint a master to conduct a hearing on appellant’s claim for counsel fees. See id. In reliance upon the trial court’s decision, appellant’s counsel declined to present further testimony on. the subject. In its opinion, however, the trial court apparently forgot its discussion with counsel and concluded that the parties should pay their own counsel fees. We believe the trial court’s finding was erroneous, in view of the discussion at the hearing concerning appellee’s conduct, which if proven, could possibly support an award of counsel fees. In view of the fact that this matter must be remanded to the trial court for a redetermination of appellee’s share of the marital property, we direct the trial court to take additional testimony on this matter, and determine whether an award of counsel fees to appellant is appropriate.

In conclusion, we hold that there was insufficient evidence to support appellant’s claim that her rights under the Equal Rights Amendment to the Pennsylvania Constitution were violated by the trial court. Further, we affirm the trial court’s findings with respect to appellant’s sources of income from appellee’s pension, the loan repayment by her son, the rental income, and the investment income. We also find no error in the trial court’s consideration of the effect of its order on appellant. As a result, we affirm the order with respect to these matters. Finally, we affirm the trial court’s use of the 1989 valuation date and findings as to the fair market value of the property.

In view of our finding that appellee’s claim to the certificates of deposit is precluded by the doctrine of laches, we find it necessary to reverse the trial court’s award of 60% of the marital property to appellee because the trial court improperly considered appellant’s control of these funds in awarding appellee his share. In addition, we find that the trial court erred in finding that appellant lived in the marital property rent-free, without taking into account the specific contributions made by appellant in acquiring and maintaining the property. Finally, because the trial court assured counsel that further testimony would be heard with regard to appellant’s claims for counsel fees, we hold that it was error for the trial court not to conduct such a hearing, since there was some evidence which could support such an award, if sufficiently proven by appellant. Accordingly, we reverse that part of the trial court’s order which awards 60% of the marital property to appellee and which denies appellant’s claim for counsel fees.

Order affirmed in part and reversed in part. Remanded for further proceedings which are consistent with the above discussion. Jurisdiction relinquished.

      . Although appellant discusses this issue in her brief, we note that it does not appear in appellant’s statement of questions as required by Pa.R.A.P. 2116(a). Despite appellant’s failure to comply with this rule, we shall overlook this defect as it does not preclude us from engaging in a meaningful review of this issue. Accordingly, we shall discuss the merits of this question in addition to the other matters raised by appellant.

      . The parties repaid $2,000.00 of this loan; the remaining $2,000.00 was forgiven by appellant’s mother.

      . We note that there was some disagreement as to the source of the funds used to purchase the property. Appellant testified at trial that the remainder of the purchase price was supplied by her personal earnings and savings, see Hearing Transcript, 6/8/89, at p. 131, whereas appellee stated that the balance of the purchase price came from both his and appellant’s earnings and savings. See Hearing Transcript, 7/6/89, at p. 17.

      . Three children were born during the marriage. At the time of the parties’ separation, one child had already reached the age of majority, and the other two children were minors. Shortly after appellee left the marital residence, appellant initiated support proceedings against appellee. The record indicates that the parties each filed numerous petitions to have support increased or decreased from the time that the parties separated until 1975, when the parties’ youngest child no longer needed support.

      . After hearing extensive testimony as to the value of the real property and the dwellings constructed thereon, the trial court found that the property would have had a fair market value of $70,000.00, if the rental property had been adequately maintained. However, because of damage to this dwelling, the trial court found the fair market value of the property to be $60,000.00. Accordingly, appellant was required to pay appellee 60% of this sum or $36,000.00.

      . According to the docketing statement, this motion appears to have been filed with the court on January 29, 1990, however, the trial court denied the motion on November 6, 1989. Therefore, the trial court must have been presented with the motion prior to the entry of its order on November 6, 1989, even though the record does not so indicate.

      . In Doppler, the parties were divorced in 1964. Following the entry of the divorce decree, Mr. Doppler filed a partition action to divide the parties’ marital property. The parties then agreed that Mrs. Doppler would receive title to the marital residence in exchange for her payment of one-half of the equity value of the home to Mr. Doppler. Although Mrs. Doppler satisfied the other provisions of the settlement agreement and was willing to pay Mr. Doppler his share of the equity value, Mr. Doppler failed to appear at the settlement hearing. During the next twenty years, Mrs. Doppler paid off the mortgage on the home and assumed complete responsibility for maintaining the property. Subsequently, Mr. Doppler instituted a second partition action in 1984 in which he sought to recover one-half of the value of the former marital residence, which had substantially appreciated in value. On appeal, we held that the doctrine of laches applied to preclude Mr. Doppler from proceeding with the second partition action. In reaching this result, we found that Mr. Doppler had failed to perform his part of the settlement agreement and had failed to protect his interest by diligently pursuing the first partition action. Further, we held that Mrs. Doppler would be prejudiced if she were required to pay Mr. Doppler one-half of the appreciated value of the home when she had paid the mortgage on the property and had maintained the home without any contribution from her former husband.
      The case before us presents a different situation than Doppler. In Doppler, a partition proceeding was filed with- the court and the parties had agreed upon a settlement. In this case, however, no proceeding was ever initiated with the court. More importantly, we are unable to discover any authority which requires married parties to file divorce or partition proceedings where they prefer to live separate and apart but continue to hold their property as husband and wife. For these reasons, we believe the doctrine of laches should not be applied so as to preclude appellee from receiving the post-separation share of the marital property.

      . Although Elsie Downey’s signature appears on the bank checks, the checks were not made payable to her nor were the certificates of deposit in her name. Thus, her signature was unnecessary since the designated payees were the parties’ children and the children endorsed the checks.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    582 A.2d 684
    George J. BELAN, III, Appellant, v. Sylvia Mae BELAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Filed Nov. 19, 1990.
    Ernest P. DeHass, Uniontown, for appellant.
    Harry J. Cancelmi, Jr., Waynesburg, for appellee.

      Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Greene County temporarily transferring physical custody of a five year old child from her mother to her father pursuant to the terms of a separation agreement entered into by the parties. For the reasons set forth in this Opinion, we affirm the decision of the trial court.

The instant case involves a custody dispute over Tiffany Marie Belan, the parties’ five-year-old child. Specifically at issue is whether the trial court correctly interpreted one of the provisions of the parties’ separation agreement, dated December 5, 1987 and incorporated into the final decree of divorce. The paragraph in dispute is 9(f); however, for the sake of context and clarity we will reproduce the provision in its entirety, as it fully addresses the parties’ agreement regarding custody and visitation. Paragraph nine reads:

9. Custody and Visitation of Minor Child.

(a) Husband and Wife hereby agree to share physical and legal custody of the child as more particularly described herein.
(b) As the parties contemplate that Wife will be leaving Pennsylvania and will be going to live in Illinois within 7 days of the date of this agreement, the parties make this agreement recognizing that Wife will be residing in Illinois and Husband will be residing in Pennsylvania. The child will remain with Husband until December 29, 1987, when Husband will take the child to Wife in Illinois along with some of her personal items. Thereafter, the child will remain with Wife for the months of January and February, 1988, with Husband during the months of March and April, 1988, and the parties shall alternate two month periods thereafter. This alternative visitation schedule shall continue until the child begins school; provided, however, that if the parties mutually agree that such alternate visitation periods are not in the best interest of the child, they will adjust such visitation accordingly. In such event, the parties presently contemplate that the child would spend more time with Wife than with Husband, but the time spent with Husband would not be less than five months in any calendar year and would not be less than one month at a time. During said period, prior to the child’s starting school, the child’s birthday, Thanksgiving and Christmas will be alternated between the parties.
(c) When the child begins school, the parties presently contemplate that she will reside with Wife and that Husband will have partial custody of the child during her vacations from school during the Easter and Christmas vacations and during the entire summer vacation.
(d) At any time that the child is with one party, the other party will have the right of reasonable visitation within the state that other party is located with prior notice and subject to the convenience of the parties and the child.
(e) While the child is in Illinois, Husband will assume the responsibility of transportation to and from Illinois for visits, and will honor the schedule described herein except in the case of an emergency or inclement weather.
(f) In the event that the child is residing with Wife and Wife cannot provide a home environment which is in the best interest of the child, then the visitation schedule described herein will be reversed and Husband would have the responsibility to pick up the child in Pennsylvania and bring the child back to Pennsylvania to enjoy her visitation.
(g) Each, at all times, except in an emergency, shall be consulted by the other with respect to the health, education, religious training and general welfare of said child.
(h) It is expressly understood by both parties that neither shall do anything directly or indirectly to alienate the child’s affection for the other or color the child’s attitude toward the other. The parents agree to consult and cooperate, and shall consult and cooperate with respect to the child so as, in a maximum degree, to advance her health, emotional and physical well-being and to give and afford her the affection of both parents and a sense of security. Both parties shall conduct themselves in a manner that shall be best for the interest, welfare and happiness of the child, and neither party shall do anything that shall affect the morals, health and welfare of the child to her detriment. The parents shall endeavor to guide the child so as to promote the affectionate relationship between the child and her father, and the child and her mother.

Separation Agreement, December 5, 1987.

In April, 1989, Mr. Belan filed a petition to modify the custody arrangement. He based his action upon learning that his ex-wife (formerly “Mrs. Belan”; hereinafter “Mrs. Husted”) had changed her residence several times in less than two years and feeling that she was not providing a proper home environment for Tiffany commensurate with their agreement. See Appellant’s brief, at 4.

Following a hearing, the trial court found that Tiffany’s best interests were not being served. Consequently, in accordance with paragraph 9(f) of the parties’ separation agreement, the trial court temporarily modified the custody arrangements, awarding primary physical custody to Mr. Belan. It is the insertion of the word “temporarily” that has caused dissension.

Both parties appealed the trial court’s determination. Mrs. Husted discontinued her appeal. Thereafter, she filed a petition to modify the trial court’s instant order.

Our function is to determine whether the trial court abused its discretion. Our standard of review is always the same: what is the best interest of the child? In Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), this Court aptly stated:

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the trial court’s inferences drawn from the facts. However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination. Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody.

Id., 380 Pa.Superior Ct. at 21, 550 A.2d at 1343 (citations omitted); see also Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

In the instant case, Mr. Belan contends that the trial court erred in treating the change in custody as only temporary in nature. He argues that the separation agreement contemplated a determination as to which parent would be afforded primary physical custody of Tiffany when she began school. The agreement allowed the mother custody unless she was unable to provide a suitable environment for Tiffany, in which case custody would switch to the father. Mr. Belan stresses that neither party intended either arrangement to be temporary. See Appellant’s brief, at 8.

Conversely, Mrs. Husted argues that the trial court’s order was proper and was entered as a result of her transient living situation. She states:

Appellee respectfully suggests that the record clearly reveals that the only fact that the court considered in altering the arrangements that were in place under the shared custody agreement was the temporary re-location of the mother in terms of her physical residence. Otherwise, all concerns and facts being equal, the court would not have changed the custody arrangement as of October, 1989.

Appellee’s brief, at 11-12.

While we appreciate that the parties are confused about the trial court’s word choice in its order, we nevertheless feel that the issue is one of semantics. Mr. Belan, in particular, strongly contests the use of the word “temporarily.” He posits that the word implies “that if [Mrs. Husted] merely moved to a home more suitable than the one in which she was living at the time of the hearing, the separation agreement provided that the custodial arrangement would automatically be reversed again.” Appellant’s brief, at 9. He argues further:

Despite the fact that the separation agreement does not contemplate another change in that arrangement if Mother subsequently bettered her home environment, the lower court deemed the switch in the arrangement to be temporary because of the requirements of the separation agreement____ Even though there was no such provision in the separation agreement, the lower court implied that the new arrangement would automatically end when the Mother obtained adequate housing.

Appellant’s brief, at 11.

Mr. Belan’s argument is, at first glance, persuasive of the possibility that the trial court contemplated an automatic change in the custody arrangement contingent upon Mrs. Husted’s re-location to more suitable living conditions for Tiffany. However, as this Court recently stated in Artzt v. Artzt, 383 Pa.Super. 23, 556 A.2d 409 (1989), “[i]t is axiomatic that child custody orders are temporary in nature and subject to change if new circumstances affect the welfare of the child.” Id., 383 Pa.Superior Ct. at 28, 556 A.2d at 412; see also Parker v. MacDonald, 344 Pa.Super. 552, 558, 496 A.2d 1244, 1247 (1985) (“custody orders are unique and never final”).

Of equal importance, the law in this area indicates that a trial court may not (automatically) revise a custody order until it fully considers the totality of the circumstances and discerns the best interest of the child at present. See Moore v. Moore, 393 Pa.Super. 256, 574 A.2d 105 (1990); Martin v. Martin, 386 Pa.Super. 328, 332, 562 A.2d 1389, 1391 (1989) (court hearing petition for modification of custody order must consider best interests of child); Murphey v. Hatala, 350 Pa.Super. 433, 438-39, 504 A.2d 917, 920 (1986). In the instant case, irrespective of whether the trial court used “ambiguous terminology” in its order, Mr. Belan maintains primary physical custody of Tiffany and will continue to do so unless and until the trial court determines otherwise.

In Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), this Court stated:

The trial court was not bound by the parties’ agreement with respect to Bo’s custody. A contract pertaining to the custody of a minor child is always subject to being set aside in the best interest of the child. [Citations omitted]. To set aside a private agreement regarding the custody of a child, it is not necessary that a court find a change of circumstances. Such an agreement, although entitled to be considered, must always give way where the best interests of the child suggest an alternate custody arrangement.

Id., 380 Pa.Superior Ct. at 22, 550 A.2d at 1343; Dolan v. Dolan, 378 Pa.Super. 321, 548 A.2d 632 (1988) (when structuring a custody order, court may modify a marriage settlement agreement to protect the best interest of the child); Hattoum v. Hattoum, 295 Pa.Super. 169, 178, 441 A.2d 403, 407 (1982) (the child’s best interest determines custody, not the parental agreement). See also Chapman v. Goodman, 366 Pa.Super. 130, 530 A.2d 926 (1987) (“[t]he cardinal concern in all custody proceedings is the best interest and permanent welfare of the child.”); Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 323, 421 A.2d 157, 158 (1980) (accord).

Here, the trial court may reinstate the original custody arrangement if, after full consideration of Mrs. Husted’s petition, it determines that Tiffany’s best interests will be served with her mother. See Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988) (a party seeking modification of a custody order is not required to demonstrate substantial change in circumstances before the court will entertain the petition); Hutchinson v. Hutchinson, 379 Pa.Super. 247, 251, 549 A.2d 999, 1001 (1988) (court will consider petitions for custody modification even absent a showing of changed circumstances because the concept of “changed circumstances” is “incorporated into the review of best interest instead of being a prerequisite for undertaking that review”); Jaindl v. Myers, 520 Pa. 147, 553 A.2d 407 (1989), Per Curiam; Dissenting Opinion by Nix, C.J. (extends Karis to petitions for modifications of primary custody orders); Martin v. Martin, 386 Pa.Super. 328, 332, 562 A.2d 1389, 1391 (1989) (states that “Jaindl is a directive that petitions for modification of custody orders may be filed at any time, and in all such cases the court hearing the petition must consider the best interests of the child or children”).

Here, the trial court clearly stated that it was limiting its order to an invocation of provision 9(f) of the parties’ separation agreement. N.T., October 27, 1989, at 258-59. See also id. at 138-39. It did not engage in a determination of whether Mr. Belan was a better parent than Mrs. Husted; conversely, the issue of parental fitness was not even raised during the proceedings. The trial court simply held that Tiffany’s best interest would be served if she lived with Mr. Belan at the time of the hearing. N.T., October 27, 1989, at 258-59. If the trial court deems that custody should revert back to Mrs. Husted after a decision on her petition, then the trial court should set forth its findings and enter an Order accordingly. On the other hand, if the trial court finds that Tiffany’s best interest will be served if she remains in the primary physical custody of her father, then the “temporary” order will be accorded a more lasting effect. See Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 108-09, 296 A.2d 625, 627 (1972) (paramount interest in a custody dispute is the child’s “physical, intellectual, spiritual and emotional well-being” and all other interests are subordinate); Davidyan v. Davidyan, 230 Pa.Super. 599, 327 A.2d 145 (1974) (child’s welfare is primary factor to consider in awarding custody).

We find no abuse of discretion with the trial court’s order as it now stands. Therefore, we affirm. See Burke v. Pope, 374 Pa.Super. 467, 543 A.2d 566 (1988) (temporary custody order was entered); Chapman v. Goodman, 366 Pa.Super. 130, 530 A.2d 926 (1987) (same).

Order affirmed.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I agree wholeheartedly with the majority that the trial court did not abuse its discretion in awarding temporary custody to George J. Belan, III, the party bringing this appeal. In my view, however, Belan (hereinafter “Father”) is not an “aggrieved party.” I must therefore question whether this appeal should properly be entertained, once Sylvia Mae Belan, (hereinafter “Mother”), the losing party in the trial court, has withdrawn her appeal. Moreover, I cannot agree with the dictum found in several footnotes of the majority opinion suggesting that the trial court may entertain a petition for modification of custody only after the disposition of a pending appeal. Accordingly, I respectfully dissent.

At the conclusion of a hearing held over two days (September 25, 1989 and October 27, 1989) the Honorable H. Terry Grimes, President Judge, reached the following finding of fact and entered the following order, on the record:

BY THE COURT: The question before the Court today is whether or not the wife, and that is how it was referred to in the agreement, Mrs. Belan, is able to provide a home environment that’s in the best interest of the child. Based upon the testimony and exhibits presented, the Court finds that a home environment in the best interest of Tiffany is not being provided at this time; therefore, the Court will make this temporary order:
AND NOW, this 27th day of October, 1989, the Court confirms the contract between the parties dated December 5, 1987 and the amendment thereto dated August 16, 1988 and will deem this proceeding to be litigation over the provisions of paragraph 9(f) in the Agreement and therefore, ORDERS the alternative provisions set forth in the Agreement temporarily be in force and effect.

Proceedings, 9/25/89 and 10/27/89, pages 258-59.

My colleagues in the majority acknowledge that Father is the winning party in the trial court, with primary physical custody of the child having been awarded to Father. Majority page 686. They do not explain why this appeal should be entertained.

Only an aggrieved party can appeal from an order entered by the trial court. Pa.R.A.P. 501. To be aggrieved, a party must have been adversely affected by the decision from which the appeal is to be taken. Generally, a prevailing party is not “aggrieved,” and therefore, does not have standing to appeal an order which has been entered in her or his favor. Green by Green v. SEPTA, 380 Pa.Super. 268, 551 A.2d 578 (1988) (citing cases). When one issue in a case is decided against a party, but the party prevails on the other issues and wins the case in chief, the party cannot claim to have been adversely affected and hence “aggrieved” by the decision; he therefore lacks standing to appeal the single issue decided against him. Burchanowski v. County of Lycoming, 32 Pa.Commw. 207, 210, 378 A.2d 1025, 1027 (1977).

In this case, the order of October 27, 1989 removed primary physical custody during the school term from Mother and vested such custody in Father. The only complaint advanced by Father is that the order awarding him custody included the word “temporary.” Father urges that the use of that word by the trial court raises an implication as to future action by the trial court. Father cites no authority for the proposition that this court must review anything more than what a trial court, in fact, orders, as opposed to what any particular appellant believes might be implied by the trial court. I would reject this invitation to speculate upon possible future court conduct.

Where, as here, Father has been the prevailing party below and physical custody has been awarded to him, I would conclude that Father lacks any standing to appeal, not being an “aggrieved party” under Pa.R.A.P. 501. Therefore, I would dismiss the appeal. Green by Green v. SEPTA, supra; Burchanowski v. County of Lycoming, supra.

I must also dissent from so much of the opinion of the majority that suggests, by way of dictum, that a trial court is precluded from entertaining a petition for modification of a custody order while an appeal is pending. First, the issue is not before us. In footnote three the majority correctly states that Wife untimely filed a motion to modify/reconsider the order of October 27, 1989; she filed her motion on December 22, 1989. Of course, because her motion was not timely, the trial court could not and did not consider it. I would refrain from any assertions concerning what procedural rights might be available to the parties were they to seek to proceed in the trial court on issues concerning the best interests of the child, where there are no facts before us on this appeal to warrant such conjecture.

The majority goes further and suggests that, even had the motion been timely filed, the trial court could not consider it. The law is otherwise. Pa.R.A.P. 1701(b)(3), 42 Pa.C.S., specifically allows a court to entertain a motion for reconsideration after the appeal is lodged, if timely filed. The majority relies upon Bartle v. Bartle, 304 Pa.Super. 348, 450 A.2d 715 (1982), a custody case, for the proposition that Mother must wait until after the appeal is decided before she may present her petition. What Bartle actually holds is that “Although Pa.Rules Appellate Pro. 1701(b)(3) sets forth an exception to the general rule [that the trial court loses jurisdiction once an appeal is taken], it also sets forth certain, specific procedural mandates with regard to such exceptions none of which were followed in this case.” Bartle, 304 Pa.Super. at 351, 450 A.2d at 716.

I agree that Judge Grimes did not abuse his discretion in entering the trial court order awarding temporary physical custody in Father, who seeks to bring this appeal. However, I would dismiss the appeal as being brought by a party who is not aggrieved by Judge Grimes’ order.

Accordingly, I dissent.

      . The trial court held:
      The basis of the modification Order was the factual determination that the mother was living in the family room in the basement of a home of a family member, wherein the mother, her paramour, and Tiffany were sleeping. Paragraph 9(f) of the September [sic] 5, 1987 agreement provides that the custody and visitation schedule in the agreement would be reverse [sic] in the event the mother "cannot provide a home environment which is in the best interest of the child”. It is a matter of fact that it is not in the best interest of a five year old child to spend her nights in the family room situate [sic] in the basement of an aunt and uncle, sleeping on a love seat while the mother and her paramour sleep on the sofa in the same room. For that reason, the Court temporarily invoked the provisions of paragraph 9(f) of the separation agreement dated December 5, 1987.
      Trial Court memorandum, at 1-2.

      . The trial court order reads
      AND NOW, this 27th day of October, 1989, the Court confirms the contract between the parties dated December 5, 1987 and the amendment thereto dated August 16, 1988 and will deem this proceeding to be litigation over the provisions of paragraph 9(f) in the Agreement and, therefore, ORDERS the alternative provisions set forth in the Agreement temporarily be in force and effect.

      . Mrs. Husted has filed a petition to modify the trial court’s order, alleging that she has remarried and has moved into a two story, four bedroom home suitable to Tiffany’s present needs. However, these facts are not part of the instant appeal. Therefore, neither this Court nor the trial court may consider them until such time as this appeal is resolved.
      Rather, the record indicates that the trial court’s order was entered on October 27, 1989. Notice of appeal was filed on November 27, 1989. Mrs. Husted’s petition to modify or to reconsider the child custody order was filed on December 22, 1989, almost two months after the trial court initially entered the order that is the subject of this appeal. Thus, the trial court is precluded from modifying or rescinding its order at this time. See 42 Pa.C.S. § 5505; Pa.R.A.P. 1701(b)(3). Mrs. Husted may present her petition to the trial court after the disposition of this appeal. See Bartle v. Bartle, 304 Pa.Super. 348, 450 A.2d 715 (1982).

      . We note that in this case, the trial court stated, “[o]nly by both parents deciding to enroll the child in preschool, for all intents and purposes, I think the Court is in a position of accepting the fact that the school life of Tiffany Belan has now started." N.T., October 27, 1989, at 258. Tiffany began kindergarten while residing with her father. Next year, she will enter the first grade. The trial court should consider this issue, among other factors, if and when it engages in a reevaluation of Tiffany’s best interest.

      . Again, we note that the trial court may only entertain Mrs. Husted’s petition for modification upon resolution of the instant appeal. We base our decision upon a finding that under the facts and circumstances of this case, the trial court presently has lost jurisdiction to entertain additional claims pertaining to this appeal. 42 Pa.C.S. § 5505; Pa.R.A.P. 1701(b)(3).

      . The trial court stressed that when the parties executed the separation agreement, they entered into a contract. The trial court held that “the parties are to live and abide by that contract." N.T., October 27, 1989, at 258; see id. at 257-59.