Murphy v. Murphy

Full title: Murphy v. Murphy, Appellant

Court: Superior Court of Pennsylvania

Date published: Apr 12, 1973

303 A.2d 838 (Pa. Super. Ct. 1973)

303 A.2d 838

Opinion

June 13, 1973.

April 12, 1973.

Divorce — Alimony pendente lite — Counsel fees and costs — Allowance to wife but not to husband — Act of May 2, 1929, P.L. 1237, § 46, as amended — Constitutionality — Equal Rights Amendment.

Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.

Appeal, No. 40, Oct. T., 1972, from order of Court of Common Pleas of Montgomery County, Sept. T., 1970, No. 70-12247, in case of Barbara S. Murphy v. Robert J. Murphy. Order affirmed.

Proceedings upon petition by plaintiff, wife, for alimony pendente lite, counsel fees and costs.

Order entered allowing counsel fees in amount of $600.00, opinion by VOGEL, J. Defendant, husband, appealed.

Joseph J. Murphy, for appellant.

Arthur R. Littleton, with him Frances Woerner, and Morgan, Lewis Bockius, for appellee.

SPAULDING, J., filed a dissenting opinion, in which HOFFMAN, J., joined.

Argued June 13, 1972.

OPINION PER CURIAM, April 12, 1973:

Order affirmed.

DISSENTING OPINION BY SPAULDING, J.:

I respectfully dissent.

Appellant challenges the constitutionality of the Act of May 2, 1929, P.L. 1237, § 46, as amended, 23 P. S. § 46, which allows for the payment of alimony pendente lite, counsel fees and costs to wives, but not to husbands. I believe the statute to be unconstitutional for the reasons stated in the dissenting opinion in Henderson v. Henderson, 224 Pa. Super. 182, 303 A.2d 843 (1973). I would therefore reverse the order of the court below.

HOFFMAN, J., joins in this dissenting opinion.