Henderson v. Henderson

• Decision Date: 27 March 1973
• Citation: 224 Pa.Super. 182,303 A.2d 843
• Parties: Barbara Ann HENDERSON v. Theodore H. HENDERSON, Appellant.
• Court: Pennsylvania Superior Court

Page 843

303 A.2d 843

224 Pa.Super. 182

Barbara Ann HENDERSON v. Theodore H. HENDERSON, Appellant.

Superior Court of Pennsylvania.

March 27, 1973.

Petition for Allowance of Appeal Granted July 3, 1973.

Peter C. Paul, Philadelphia, for appellant.

No appearance for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.

PER CURIAM.

The six Judges who heard this appeal being equally divided, the order is affirmed.

SPAULDING, J., files a dissenting opinion in which HOFFMAN and CERCONE, JJ., join.

SPAULDING, Judge (dissenting).

I respectfully dissent. Barbara Ann Henderson filed a complaint from an order of the Court of Common Pleas of Philadelphia, Family Division, directing him to deposit security for payment of costs in this divorce action.

The facts are undisputed. ¹ Appellee Varbara Ann Henderson Filed a complaint in divorce to which appellant filed an answer. Appellee petitioned for alimony pendente lite, counsel fees, and costs. By agreement, the rule for counsel fees was made absolute in the sum of $200, the balance of the rule being continued until further notice. The master appointed by the court conducted two master's meetings and then filed a rule upon the parties to show cause why a reasonable sum should not be deposited as security for additional master's fees. ² A similar petition was filed by the stenographer. The court directed both parties to submit statements of income and assets and, subsequent to their being filed, ³ entered an order directing appellant to deposit $500 as security for additional master's fees and $100 as security for additional stenographer's charges.

Appellant's principal contention is that § 46 of The Divorce Law, Act of May 2, 1929, P.L. 1237, § 46, as amended, 23 P.S. § 46, violates the Equality of Rights Amendment to the Pennsylvania Constitution, by providing that wives, But not husbands, may be allowed reasonable alimony pendente lite, counsel fees and expenses. ⁴ The Act states:

'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. If at any time, either before or after a final decree has been entered divorcing the parties, the husband is in arrears . . ., the wife . . . may, by affidavit of default, upon praecipe of the prothonotary, obtain a judgment for such arrearages.' Act of May 2, 1929, P.L. 1237, § 46, as amended.

The award of costs under § 46, which the present appeal challenges, is different from an award of costs pursuant to § 56 of the Act. This distinction is elucidated by the Commentary to The Pennsylvania Divorce Law ⁵, 23 P.S. pp. 343, 356, as follows:

'The court may award costs to the party (wife Or husband) in whose behalf the sentence or decree passes . . .. It will be noted that the court is authorized to award costs only to the successful party or direct that each party pay their own. . . . The distinction between awarding costs in a decree and the awarding of counsel fees and expenses under Section 46 of the Divorce Law must be considered in this regard. The provision as to counsel fees and expenses relates to payments or orders pendente lite whereas provisions under Section 56 refer to the final decree. Further, Section 46 refers to and inures to the benefit of the wife alone whereas the provisions under Section 56 refer to the final decree. Further, Section 46 refers to and inures to the benefit of the wife alone whereas the provisions under Section 56 inures to the benefit of either. The purpose of awarding counsel fees and expenses to a wife, whether plaintiff or defendant, is to make certain that financial ability will not prevent her from making a defense or, in a proper case, from bringing her action.' ⁶

The precise distinction between the two sections points out the basis of appellant's position. He argues that the benefit to wives Alone effected by § 46 makes the statute constitutionally infirm in that the only basis for this distinction is sex. If the purpose of the Act as stated in the above comment is to insure that lack of financial ability willl not prevent an action or defense by a wife in a divorce case, then this intent may only be implemented by legislation which would also preserve a husband's similar rights to bring or defend a divorce action where he lacked the financial ability and his wife had sufficient ability to pay. Since § 46 affords the right to receive costs pendente lite exclusively to females, the rights of males are abridged solely because of their sex. The statute therefore must fall in light of the Equality of Rights Amendment to the Pennsylvania Constitution, Pa.Const., Article One, § 27 (Adopted May 18, 1971) P.S., which provides that: 'Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.' ⁷

'At this time when equal rights, regardless of sex, are constantly being asserted, . . . we have repeatedly stated that the financial positions of the parties, their respective earning capacities, their separate estates, together with their needs are fundamental questions in determination of an award, . . .' Hamond v. Hamond, 207 Pa.Super. 333, 336, 217 A.2d 855, 857 (1966), appeal after remand, 210 Pa.Super. 386, 233 A.2d 628 (1967). In applying this policy, we have consistently held that the 'proper cases' for a pendente lite award to a wife pursuant to § 46 are those in which she has shown both her need and her husband's ability to pay. Wolfe v. Wolfe, 202 Pa.Super. 70, 195 A.2d 272 (1963); Chambers v. Chambers, 188 Pa.Super. 506, 149 A.2d 532 (1959); Rothman v. Rothman, 180 Pa.Super. 421, 119 A.2d 584 (1956). However, the Equality of Rights Amendment mandates a further extension of this policy of equality by repudiating the sex of the individual as a permissible criteria for determining legal rights in Pennsylvania.

The court below interpreted the equal rights amendment in its opinion:

'The thrust of the equal rights amendment is to insure full equality of political rights, . . ., full equality of educational opportunities at all levels, and full economic equality in the area of jobs and wages, as well as all types of benefits provided for workers. It was not intended to establish as basic law the demands of the extremist wing of the so-called Women's Liberation Movement.' (R. 17a)

While it is true that the Amendment does not adopt the extremist views referred to by the court below, its application is not limited to the areas enumerated above. Such a restrictive interpretation does not comport with either the plain meaning of the Amendment's words or its meaning as understood by the electorate which adopted it.

'Where in the Constitution 'the words are plain . . . (they) must be given their common or popular meaning, for in that sense the voters are assumed to have understood them when they adopted the constitution. Busser v. Snyder, 282 Pa. 440, 449, 128 A. 80:' Lighton v. Abington Township, 336 Pa. 345, 354--355, 9 A.2d 609.' Breslow v. Baldwin Twp. School Dist., 408 Pa. 121, 125, 182 A.2d 501, 504 (1962); cited with approval in Walsh v. Tate, 444 Pa. 229, 282 A.2d 284 (1971). In the instant case, the Amendment specifically states that 'equality of rights under the law shall not be denied . . . because of . . . sex'. No exception is made for rights in the area of domestic relations.

Common pleas courts of two counties have recently applied the Equality of Rights Amendment to sections of our divorce and support laws. While the results in these cases differ, the reasoning in both is in accord with what I feel is the proper holding in the instant case. In Corso v. Corso, 120 P.L.J. 183 (Allegheny Cnty. 1972), and the companion case of Kehl v. Kehl, (Allegheny Cnty. 1972), the Court of Common Pleas of Allegheny County, Family Division, held §§ 11 (divorce from bed and board) and 46 of The Divorce Laws, respectively, to be unconstitutional. President Judge Brosky's opinion in Corso quotes and paraphrases pertinent portions of an excellent commentary ⁸ supporting a federal equal rights amendment, as applicable to Pennsylvania's Amendment:

'The basic principle of the Pennsylvania Equal Rights Amendment is that sex is not a permissible factor in determining the legal rights of women, or of men. This means that the treatment of any person by the law may not be based upon the circumstance that such person is of one sex or the other. The law does, of course, impose different benefits or different burdens upon different members of the society. That differentiation in treatment may rest upon particular traits of the persons affected, such as strength, intelligence, and the like. But under the Pennsylvania Equal Rights Amendment the existence of such a characteristic . . . to a greater degree in one sex does not justify classification by sex rather than by the particular characteristic or trait. . . . This basic principle of the Pennsylvania Equal Rights Amendment derives from two fundamental judgments inherent in the decision to eliminate discrimination against women from our legal system. Equality of rights is not a factor. (and) . . . (t)he Equal Rights Amendment, furnishes a viable structure for achieving equality of rights for women.' ⁹

'Unquestionably, the trend in marriage and divorce law is in the direction of treating the spouses equally or on the basis of their individual capacities.' ¹⁰ Undoubtedly, this was one of the intentions of the Pennsylvania electorate in adopting the 'equality of rights under the law' wording of the Amendment, which makes sex a prohibited classification. In light of the Amendment, § 46 must fall.

In Commonwealth ex. rel. Lukens v. Lukens, May Term, 1972, No. F--19149, Legal Intelligencer, Oct. 19, 1972 (Delaware Cnty.), the Court of Common Pleas of Delaware County rejected the...