Brong v. Brong
| Decision Date | 17 December 1937 |
| Docket Number | 223-1937 |
| Citation | 195 A. 439,129 Pa.Super. 224 |
| Parties | Brong, Appellant, v. Brong |
| Court | Pennsylvania Superior Court |
Argued October 7, 1937
Appeal from order of C. P. No. 4, Phila. Co., March T., 1931, No 63, in case of Earle O. Brong v. Edna Brong.
Divorce proceeding.
The facts are stated in the opinion of the Superior Court.
Order entered requiring libellant to pay respondent wife $ 500 for counsel fees and expenses, opinion by Heiligman, J. Libellant appealed.
Error assigned was action of lower court in making absolute respondent's rule for counsel fees and expenses.
Order modified.
Reuben Levi, with him Joseph L. Fox, for appellant.
Henry Panfil, of Moore, Gossling & Panfil, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.
This is an appeal by Earle O. Brong, libellant in a divorce action from an order of the court below requiring him to pay his wife, the respondent, $ 500 for counsel fees and expenses. The appellant complains of the amount of the order.
By the Act of May 2, 1929, P. L. 1237, § 46 (23 PS 46) codifying and revising the divorce laws of this Commonwealth, it is provided that "the court may, upon petition, in proper cases, allow a wife reasonable alimony pendente lite and reasonable counsel fees and expenses." How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion: Lynn v. Lynn, 76 Pa.Super. 440, 442. This court will not reverse an order of the court below "except for plain abuse of discretion": Doemling v. Doemling, 118 Pa.Super. 426, 431, 179 A. 813. There are no fixed rules as to the amount to be allowed. It is not to be measured solely by the value of counsel's services or by the wife's necessities. "The husband's ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties are all to be considered in determining a fair and just amount which the husband should pay": Karmany v. Karmany, 71 Pa.Super. 308, 310. To deny a destitute wife the means to pay for process and professional aid is to deny her justice (Hartje v. Hartje, 39 Pa.Super. 490), and likewise to deny an innocent and injured husband a divorce unless he pay counsel fees beyond his ability to pay is to close the doors of the courts to many worthy suitors. The statute contemplates the payment of a reasonable counsel fee, limited by the necessities appearing from the evidence, such as will as nearly as possible promote the administration of fair and impartial justice by placing the parties on a par in defending their rights.
The libellant has in the opinion of the court below sustained his charge that his wife was guilty of cruel and barbarous treatment and that court has held that he is entitled to a decree of divorce upon payment of counsel fees and expenses. The wife is in ill health, without means and unable to work. The action for a divorce was begun in January, 1934 and after lying dormant for about three years was then prosecuted until March 19, 1937 when exceptions to a master's report recommending a divorce were dismissed and the report was approved. The report of the master covered 761 pages of evidence, taken at fourteen hearings and twenty-five hours were consumed in taking the testimony.
When the unhappy differences between the parties arose, Earle O. Brong was a registered pharmacist, owner and operator of two stores and the owner of valuable real estate. His financial affairs then began to go badly and he charges his failure to his wife's interference with his business. The result was that he was compelled to close his stores and dispose of his merchandise. After the payment of the store bills, he had $ 150 of personal assets left. The evidence shows that about six months prior to the hearing on a rule to show cause why he should not be required to pay additional counsel fees, he was employed as a pharmacist at wages of $ 15 per week. About two months before the hearing his wages were reduced to $ 7.50 per week for which he was working three days a week. He was receiving the latter amount at the time of the hearing.
At the time of the hearing he was the owner of real estate encumbered by a mortgage, the principal debt being $ 15,000 and there was due for delinquent taxes and interest $ 3,200. In addition, he was indebted to others, in matters not connected with the real estate, in an amount from $ 2,500 to $ 3,000. The mortgagee had taken possession of the real estate and was...
To continue reading
Request your trial