Paul v. Paul

• Decision Date: 19 September 1980
• Citation: 281 Pa.Super. 202,421 A.2d 1219
• Parties: Norina D. PAUL v. Theodore R. PAUL. Appeal of Theodore R. PAUL at No. 10. Appeal of Norina D. PAUL at No. 53.
• Court: Pennsylvania Superior Court

421 A.2d 1219

281 Pa.Super. 202

Norina D. PAUL v. Theodore R. PAUL.

Appeal of Theodore R. PAUL at No. 10. Appeal of Norina D. PAUL at No. 53.

Superior Court of Pennsylvania.

September 19, 1980

Argued April 14, 1980.

Harry J. Gruener, Pittsburgh, for Theodore R Paul, appellant at No. 10 and appellee at No. 53.

Joseph M. Wymard, Pittsburgh, for Norina D. Paul, appellant at No 53 and appellee at No. 10.

Before SPAETH, WICKERSHAM and LIPEZ, JJ.

SPAETH Judge:

The parties in this domestic relations case have filed cross-appeals. For the reasons stated below, we quash both appeals.

In the fall of 1974, Norina Paul filed three lawsuits in the lower court against her husband, Ted Paul-one in divorce, one in equity, ^[1] and one for support. ^[2] In connection with her divorce action, Norina also filed a petition for alimony pendente lite and counsel fees and expenses. From December 1974 until August 1976, however, none of Norina's actions was prosecuted, as she and Ted had apparently reconciled their differences and were living together. In September 1976, Norina petitioned the lower court for a hearing on her petition requesting alimony pendente lite and counsel fees and expenses. A hearing was set for November 18, 1976. On November 9, 1976, the lower court ordered Ted and his accountant to appear for depositions on December 16, 1976, and to bring Ted's financial records with them. On November 17, 1976, however the court stayed its November 9 order and ordered that the

affirmative defenses (asserted by Ted to Norina's support action) shall be heard before the issue of the amount of support, if any, will be considered by the Court and said hearings shall be scheduled so that there will be a hiatus following the initial hearing relating to the matter of any affirmative defenses so allow (sic ) for a decision thereon to be rendered and, if said asserted defenses are not found to be valid, there also will be time for depositions to be taken relating to the financial discovery necessary for preparation by (Norina) for the subsequent support hearing.

Pursuant to this order, hearings on Ted's defenses were held on March 31, April 1, and June 6, 7, 8, and 9, 1977. On June 24, 1977, the lower court ordered Ted to pay Norina $7,500 for "temporary counsel fees," $2,500 for suit expenses, and $1,250 per month "as temporary support and/or alimony pendente lite" for herself and the parties' daughter, Samantha. The court later modified this order by orders dated July 25 and September 12, 1977, to require Ted to provide Norina and Samantha with housing, to "pay all utility bills, except telephone, and all the real estate taxes," "to pay for his daughter Samantha's private schooling and all the expenses attendant thereto, including tuition, books, transportation, special clothing, lunch money, etc.," and to "pay all the medical and dental expenses of (Norina) and his daughter Samantha through his medical insurance program or by supplemental funds required to pay for all of said expenses." Ted filed notices of appeal to this court from the June 24 and July 25 orders, but later withdrew his appeals. He also filed several motions requesting the lower court to reconsider its orders, to open judgment, and to stay execution. Ted also applied to the lower court and this court for a stay pending his appeals. All these requests were denied. On December 29, 1977, the lower court formally closed the taking of evidence on Ted's defenses to Norina's action for support, found that Norina and Samantha were entitled to support, and ordered Ted "to make full disclosure of his income and assets to determine the proper amount of support for (Norina) and their child at a hearing...." Ted also filed a notice of appeal from this order, and again later withdrew his appeal. Discovery of Ted's financial assets was had, and on October 30, 1978, after a hearing, the lower court ordered Ted to pay $2,200 per month for Norina's support and $400 per month for Samantha's support, and to continue to carry Norina and Samantha on his medical insurance program. The court also filed an opinion stating that it had "been asked to decide whether or not counsel fees should be awarded to (Norina's) attorney for expenses and time spent in preparing (her) case." The court held "that an award for counsel fees and expenses is not warranted at this time," and entered an order accordingly. On November 9, 1978, Norina filed in the lower court a document entitled "EXCEPTIONS AND MOTION TO RECONSIDER," asking that additional counsel fees and expenses be awarded, that the support order be made retroactive to September 1976, and that the support order include an unpaid medical bill. On November 13, 1978, Ted filed a petition for clarification of the court's October 30 opinion and order, asking the court to order the return to him "of so much of the $10,000 paid (to Norina for counsel fees and expenses) as the court finds was not expended in defending the divorce action." Argument was heard on December 4, 1978, and on December 21, 1978, the lower court entered the following order:

AND NOW, to wit, this 19th day of December, 1978, after argument in open court, it is hereby

ORDERED, ADJUDGED and DECREED that plaintiff's motion for travel expenses is denied.

It is further ORDERED that defendant's motion for the return of counsel fees and expenses is denied. ^[3]

It is from this order that the present appeals are taken. ^[4] On her appeal, Norina renews her claim that the lower court erred in refusing to award her additional counsel fees and expenses. She concedes that the court was powerless to award fees and expenses in connection with her support action, see Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964); Linsenberg v. Fairman, 205 Pa.Super. 136, 208 A.2d 6 (1965), and her action in equity, see Harrison v. Harrison, 183 Pa.Super. 562, 133 A.2d 870 (1957). As the court stated in Drummond, 414 Pa. at 553, 200 A.2d at 889, "It is the general rule in Pennsylvania that a court is powerless to grant counsel fees in the absence of statutory authorization to the contrary or contractual obligation." No statutory authorization existed at the time of the proceedings in the lower court for an award of fees and expenses in Norina's support and equity actions. ^[5] Such authorization did exist, however, with respect to Norina's divorce action. See 23 P.S. § 46 (1979-80 Supp.), repealed by the Divorce Code, Act of April 2, 1980, P.L. ___, No. 26, § 801 (eff. June 30, 1980), ^[6] and Norina contends that although the proceedings below were nominally for support, Ted is nevertheless liable for the majority of the fees and expenses she incurred because "(t)he difficulty of issue identity required (her) to defend her rights upon and through a divorce within a myriad of other actions and defenses in other actions asserted by Ted." Norina's Brief at 5. More precisely, Norina asserts that Ted is liable for the fees and expenses because he resisted her support action by alleging that she had committed acts giving him grounds for divorce, thereby requiring her to try in the support action issues that were relevant and could arise in her divorce action. ^[7]

For our present purposes we may assume that Norina is correct in asserting that the lower court had power to award her additional fees and expenses because of the identity of issues in her divorce and support actions. ^[8] Nevertheless, we are prevented from reaching the merits of Norina's claim that the lower court abused its discretion in not awarding additional fees and expenses by the established rule that an order refusing additional fees and expenses is interlocutory, from which an appeal does not lie Rutherford v. Rutherford, 152 Pa.Super. 517, 32 A.2d 921 (1943); Boerio v. Boerio, 134 Pa.Super. 501, 4 A.2d 614 (1938); Murray v. Murray, 78 Pa.Super. 443 (1922). As stated in 2 Freeman, Law of Marriage & Divorce in Pennsylvania § 468 at 989 (1957):

In such cases (where counsel fees and expenses are denied) an exception to the order should be noted and it should be raised as error in the appeal from the final decree in the divorce proceedings when it will be considered together with the appeal on the merits.

It is true that Freedman criticizes this rule, maintaining that

(t)he inability of the wife to appeal from an order denying her an award or awarding her an inadequate allowance results in great injustice. For it is conceded that to deny the wife the means of defending her suit is to deny her justice. Yet the lower court, by improperly refusing alimony or awarding it in an inadequate amount, may postpone its actual or full payment until after final decree in the divorce proceeding. But it is during the period of litigation, while the suit is pending in the lower court, that the need for alimony, counsel fees and expenses is greatest and, indeed, vital. It is a belated remedy to award her a lump sum in case of reversal on appeal of the order denying her alimony or awarding her an inadequate amount. Then the record in the divorce suit has been made in the Common Pleas with all the damage to her case which the temporary denial of alimony, counsel fees and expenses may have caused.

Id. at 990 (footnotes omitted).

This court however, has consistently held that such an order is interlocutory, and we believe that the present case is not an appropriate occasion to reexamine this rule. In particular, we note that on December 23, 1976, during the pendency of the proceedings in the lower court, Norina filed a second divorce action in Wyoming. We are informed by the parties that she has since secured a divorce in that jurisdiction. We also note that Norina has not responded to the assertion in Ted's brief that she failed to proceed with her...