Opinion
November 12, 1963.
December 12, 1963.
Husband and Wife — Divorce — Allowance to wife for counsel fees and expenses — Allowance not mandatory — Circumstances — Ordinary needs of petitioner — Judicial notice.
1. In divorce cases, the making of allowances to the wife for counsel fees and expenses is not mandatory.
2. Whether counsel fees and expenses are to be allowed in divorce cases and the amount thereof is within the discretion of the court below; appellate courts do not interfere in the absence of a clear showing of an abuse of discretion.
3. No rules can be applied with mathematical precision to determine when the court should allow counsel fees and expenses or how much they should be.
4. Counsel fees are not to be measured solely by the value of counsel's services or by the wife's necessities; the husband's ability to pay as determined by his estate, his income and his earning capacity, the need of his wife as determined by her income and her separate estate, and the character, situation and surroundings of the parties are all to be considered.
5. It is not necessary that the allowance for counsel fees and expenses be in full reimbursement for the expenditures which the wife may be required to make, but merely that it be sufficient in amount to prevent that denial of justice which is the main concern of the courts.
6. In considering an application for the allowance of counsel fees and expenses, the hearing judge can take judicial notice of the ordinary needs of the petitioner.
7. In determining whether or not an allowance for counsel fees and expenses should be made, or the amount of such allowance, situations requiring unusual expenditures are always relevant, but evidence of the expenditures made by petitioner for ordinary needs furnishes no base for an order.
8. In this case, in which it appeared that the wife filed an action in divorce and petitioned for $400 counsel fees and $150 expenses; that the court below refused the request for alimony pendente lite, but awarded $200 for counsel fees and $100 for expenses; that the parties had no children; that the wife resided in a trailer owned jointly with her husband, and both owned automobiles; and that both parties were employed, and the wife's gross earnings were approximately $77 per week, and the husband's gross earnings were approximately $92 per week; it was Held that the court below did not abuse its discretion in making the allowances for counsel fees and expenses.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 253, April T., 1963, from order of Court of Common Pleas of Fayette County, Sept. T., 1962, No. 61, in case of Polly Alberta McCormick v. George Raymond McCormick. Order affirmed.
Proceeding upon petition of plaintiff for alimony pendente lite, counsel fees and expenses in action of divorce.
Order entered directing payment of counsel fees and expenses; exceptions to order dismissed and final order entered, before BANE, P.J., MUNSON and FEIGUS, JJ., opinion by FEIGUS, J. Defendant appealed.
William E. Duffield, for appellant.
Thomas P. Ruane, Jr., for appellee.
Argued November 12, 1963.
This is an appeal by a husband from an order allowing his wife counsel fees and expenses in a divorce case. When the wife filed an action in divorce against her husband, she also petitioned for alimony pendente lite, counsel fees and expenses. The husband answered both the petition and the complaint in divorce.
After a hearing the court below refused the request for alimony pendente lite, but awarded $200 for counsel fees and $100 for expenses. The husband appealed. The making of such allowances is not mandatory. Hanson v. Hanson, 177 Pa. Super. 384, 386, 110 A.2d 750 (1955). Under the circumstances of this case, the court below properly refused alimony.
The evidence shows that the parties were both employed, that the wife was residing in a trailer owned jointly with her husband and that there were no children born to the marriage. Both own automobiles. The wife's gross earnings are approximately $77 per week and the husband's gross earnings are approximately $92 per week.
We use the gross earnings because they more accurately reflect the situation than net earnings. Deductions for savings, retirement, dues, insurance and for more or for less income tax than will ultimately be due, can materially vary the take-home pay, and failure to consider these deductions can cloud the true picture of a person's actual income. See Commonwealth ex rel. Borrow v. Borrow, 199 Pa. Super. 592, 595, 185 A.2d 605 (1962).
The Act of May 2, 1929, P.L. 1237, § 46, as amended, 23 P. S. § 46, provides: "In case of divorce from the bonds of matrimony or bed and board, the court may, upon petition, in proper cases, allow a wife reasonable alimony pendente lite and reasonable counsel fees and expenses."
Although this was the first statutory provision relating to counsel fees and expenses, the court's power to make such orders was recognized prior thereto as an incidental authority to the power given the court to decree a divorce. Freedman's Law of Marriage and Divorce in Pennsylvania, 2nd Edition, § 429.
Whether counsel fees and expenses are to be allowed in divorce cases and the amount thereof is within the discretion of the court below. Appellate courts do not interfere in the absence of a clear showing of an abuse of discretion. Wargo v. Wargo, 191 Pa. Super. 10, 13, 155 A.2d 423 (1959).
No rules can be applied with mathematical precision to determine when the court should allow counsel fees and expenses or how much they should be. Counsel fees are not to be measured solely by the value of counsel's services or by the wife's necessities. The husband's ability to pay as determined by his estate, his income and his earning capacity, the need of his wife as determined by her income and her separate estate, and "the character, situation and surroundings of the parties" are all to be considered. Shuman v. Shuman, 195 Pa. Super. 155, 157, 170 A.2d 602 (1961); Moore v. Moore, 198 Pa. Super. 349, 354, 181 A.2d 714 (1962); Rothman v. Rothman, 180 Pa. Super. 421, 425, 119 A.2d 584 (1956).
It is clear from the statute that the legislature did not intend to have the husband pay the wife's counsel fees in all divorce actions. A wife may be required to pay her counsel's fees and expenses in whole or in part. Seery v. Seery, 183 Pa. Super. 322, 330, 131 A.2d 845 (1957); Tumini v. Tumini, 150 Pa. Super. 363, 366, 28 A.2d 357 (1942); Hanson v. Hanson, supra, 177 Pa. Super. 384, 386, 110 A.2d 750 (1955).
In the case before us, the wife asked for $400 counsel fees and $150 expenses. The court below allowed only $200 for counsel fees and $100 for expenses. From the difference between the amount claimed and the amount allowed and also from the recorded colloquy of the judge and counsel, it appears that the court did not consider the allowance to be in full reimbursement for the expenditures which the wife may be required to make in the employment of counsel, but merely sufficient in amount to prevent that denial of justice which is the main concern of the courts. See Shuman v. Shuman, supra, 195 Pa. Super. 155, 158, 170 A.2d 602 (1961); and Carle v. Carle, 192 Pa. Super. 490, 498, 162 A.2d 38 (1960).
The appellant cites Freedman's Law of Marriage and Divorce in Pennsylvania, 2nd Edition, § 435, for the proposition that the right to "counsel fees and expenses arose from the common law principle which vested in the husband, immediately upon marriage, the title to all property of his wife, and left her without a separate estate." Counsel argues that since the status of women has changed, the rule should be changed and that a wife whose income or estate approximates that of her husband should be denied an order for alimony pendente lite, counsel fees and expenses. This contention is not entirely without merit, and it may be that the law is too slow in adjusting to changed conditions. We recognize that under certain circumstances, as where the wife's estate and income substantially exceed that of her husband, an order for counsel fees and expenses would be improper.
It is argued that the husband and wife here are on the same economic plane, having substantially the same income. But, the husband is earning more than his wife and has no order of support against him. Under all the circumstances, we are of the opinion that the court below did not abuse its discretion in ordering the husband to pay part of his wife's counsel fees and expenses. The question here is not what we would have done, but whether the court below abused its discretion.
The appellee argues that she has no money for counsel fees because she spends all her wages. There was testimony concerning the wife's expenditures for clothes, food, taxes, an operator's license, electricity, cosmetics and similar items. Detailed testimony of how a wife spends her money or what she "needs" is frequently a waste of the court's time. Necessary expenditures is a relative term depending primarily upon the money available to spend. The hearing judge can take judicial notice of the ordinary needs of the petitioner. Beyond that, a petitioner's "needs" are primarily a state of mind. Situations requiring unusual expenditures are always relevant, but evidence of the ordinary expenditures made by the petitioners for food, clothing, cosmetics, taxes and similar items gives no basis for an order. Here both parties are employed and the difference in their wages is not substantial.
The wife's counsel fees and expenses probably will be higher than the court has allowed, and it may well be that the burden of paying additional counsel fees for services hereafter rendered and expenses hereafter incurred should fall entirely upon the wife, but as this depends upon circumstances which may vary from those now before us, it must be dealt with by the court below.
Order affirmed.