Opinion
September 15, 1959.
November 11, 1959.
Divorce — Counsel fees — Amount to be allowed — Discretion of court below — Appellate review — Time of petition — Unsuccessful attempts to collect arrearages — Necessity of hearing.
1. The amount to be allowed as counsel fees is within the discretion of the court below, and the appellate court will not interfere in the absence of a clear showing of an abuse of that discretion.
2. Where it appeared that the husband filed a proceeding for divorce; that upon petition of the wife the court below directed the payment of alimony pendente lite and counsel fees; that a petition by plaintiff to discontinue the divorce action was refused about a year after the proceeding had been instituted, following which the husband took no further action in the divorce proceeding; that the wife made repeated efforts, eventually unsuccessful, to collect arrearages on the award of alimony pendente lite, that the legal questions involved in this litigation had been theretofore unsettled, and that the wife was not at fault in attempting to pursue all possible remedies; and that the instant petition for additional counsel fees was filed by the wife about eleven years after the commencement of the divorce proceeding; it was Held, in the circumstances, that the court below did not abuse its discretion in directing defendant to pay additional counsel fees.
3. Plaintiff's contention that the payment of additional counsel fees should not have been ordered merely upon petition and answer without a prior hearing was Held to be without merit, where it appeared that no objection was made to the amount actually awarded and that, in view of the lengthy litigation and all of its ramifications, the court below was familiar with the parties and the attendant circumstances.
Appeals — Cost — Printing — Order of court below directing payment — Brief not actually printed — Rules 30 and 38 of Superior Court — Motion to quash — Moot question.
4. Where it appeared that the order of the court below also directed payment of "the cost of printing her paper book in the pending appeal before the Superior Court", and that the brief submitted by defendant on the appeal was actually not printed, it was Held that the order of the court below should be modified by vacating the portion thereof which related to the cost of printing.
5. Where it appeared that defendant had filed a motion to quash the instant appeal because of plaintiff's failure to comply with Rules 30 and 38 of the Superior Court, it was Held that the matter had in effect become moot in view of the appellate court's determination on the merits.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ. (HIRT, J., absent).
Appeal, No. 316, Oct. T., 1959, from order of Court of Common Pleas of Schuylkill County, May T., 1949, No. 136, in case of Albert W. Wargo v. Lucille M. Wargo. Motion to quash dismissed; order, as modified, affirmed.
Proceeding upon petition of defendant wife for additional counsel fees and costs in pending action for divorce.
Order entered directing plaintiff to pay additional counsel fees and costs, opinion by STAUDENMEIER, J. Plaintiff appealed.
D.J. Boyle, with him John T. Pfeiffer, III, for appellant.
Rocco C. Falvello, with him John Skweir, for appellee.
Argued September 15, 1959.
This case comes before us for the third time. The present appeal is from an order of the court below directing appellant to pay the sum of $400.00 additional counsel fees. The parties were married on October 2, 1920, and separated on April 5, 1948. On March 21, 1949, the husband filed a complaint in divorce on the grounds of cruel and barbarous treatment and indignities to the person. On April 18, 1949, the wife petitioned for alimony pendente lite and counsel fees. Upon being ruled to do so, the husband, on May 13, 1949, filed a bill of particulars containing averments of misconduct "suggestive of adultery". On July 25, 1949, the court below directed the payment of $50.00 per month alimony pendente lite, and the sum of $75.00 counsel fees. On August 8, 1949, upon petition of the husband, a rule was granted to show cause why the divorce action should not be discontinued. On March 20, 1950, this rule was discharged on the ground that the averments of misconduct in the bill of particulars had not been retracted. The husband thereafter took no action in the divorce proceeding. However, as will appear from our former opinions, the wife made repeated efforts, eventually unsuccessful, to collect arrearages on the award of alimony pendente lite.
See Wargo v. Wargo, 184 Pa. Super. 587, 136 A.2d 163, and Wargo v. Wargo, 190 Pa. Super. 356, 154 A.2d 339.
See Wargo v. Wargo, 75 Pa. D. C. 330.
The particular proceeding leading to the instant appeal had its inception on March 9, 1959, when the wife, appellee here, filed a petition for additional counsel fees in the sum of $1,200.00, plus printing costs. The petition contained an averment that the husband was regularly employed by the Chevrolet Company in Tonawanda, New York, earning approximately $7,500.00 per year. To the rule granted on said petition the husband filed an answer containing only a general denial which, under Pa. R.C.P. 1029, had the effect of an admission. Cf. Foust v. Foust, 144 Pa. Super. 513, 19 A.2d 517.
Appellant's first two, and principal contentions, may be treated together. He argues that additional counsel fees may not be awarded (1) where the divorce action had been abandoned for a period of over ten years and (2) where the services of counsel consisted solely of fruitless attempts to collect arrearages of alimony pendente lite. We have repeatedly stated that the amount to be allowed as counsel fees is within the discretion of the court below, and that the appellate court will not interfere in the absence of a clear showing of an abuse of that discretion. While appellant attempted to abandon the action, this circumstance is not conclusive so far as the instant proceeding is concerned. Appellant was in fact denied permission to discontinue. See Goodrich-Amram, Section 229-8. The action remains open on the records of Schuylkill County, where it is now "spread over" some eighteen pages of the docket. Nor are we persuaded by appellant's contention that the services of counsel were fruitless. The legal questions involved in the prior appeals were theretofore unsettled, and appellee was not at fault in attempting to pursue all possible remedies. We are clearly of the opinion that appellant has not shown an abuse of discretion on the part of the court below.
See, inter alia, Morgan v. Morgan, 182 Pa. Super. 182, 126 A.2d 805; Albrecht v. Albrecht, 175 Pa. Super. 650, 107 A.2d 209; Bredbenner v. Bredbenner, 175 Pa. Super. 580, 107 A.2d 169; Brady v. Brady, 168 Pa. Super. 538, 79 A.2d 803; Scholl v. Scholl, 154 Pa. Super. 57, 35 A.2d 528; Bowen v. Bowen, 124 Pa. Super. 544, 189 A. 529; Lynn v. Lynn, 68 Pa. Super. 324; Hartje v. Hartje, 39 Pa. Super. 490.
Appellant also contends that the payment of additional counsel fees should not have been ordered merely upon petition and answer without a prior hearing. It should be here noted that no objection is made, nor could there well be, to the amount actually awarded. Under the circumstances of the instant case, the court below was entirely justified in taking the position that no hearing was necessary. In the words of Judge STAUDENMEIER "the litigation with all its ramifications has been before us since 1949 and hence we are familiar with the parties and the attendant circumstances".
Two incidental matters should be mentioned. (1) The order below also directed payment of "the cost of printing her paper book in the pending appeal before the Superior Court". The brief submitted by appellee on that appeal was actually not printed. The order below will therefore be modified by vacating the portion thereof which relates to the cost of printing. (2) Appellee filed a motion to quash the instant appeal because of appellant's alleged failure to comply with our Rules 30 and 38. This matter has in effect become moot in view of our determination of the merits.
The motion to quash is dismissed, and the order of the court below, as modified, is affirmed.