Wiegand v. Wiegand

• Citation: 310 A.2d 426,226 Pa.Super. 278
• Parties: Sara WIEGAND, Appellee, v. Myron Paul WIEGAND, Appellant.
• Decision Date: 19 September 1973
• Court: Superior Court of Pennsylvania

310 A.2d 426

226 Pa.Super. 278

Sara WIEGAND, Appellee, v. Myron Paul WIEGAND, Appellant.

Superior Court of Pennsylvania.

September 19, 1973.

George C. Diamantopulos, Pittsburgh, for appellant.

John W. Campbell, Jr., Pittsburgh, for appellee.

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

SPAULDING Judge:

Appellant Myron Paul Wiegand appeals from an order of the Court of Common Pleas of Allegheny County directing him to pay counsel fees, costs and expenses in this divorce action.

The facts are undisputed. Appellee Sara Wiegand filed a complaint in divorce a.m.e.t., a petition for alimony, and an initial petition for alimony pendente lite, counsel fees and expenses. On August 14, 1967, an order was entered requiring appellant to pay $875 per month alimony pendente lite and $250 preliminary counsel fees. Subsequently, appellee filed several other petitions for additional counsel fees and costs and for continued or increased alimony pendente lite. Appellant filed answers to these pleadings and a counterclaim seeking divorce a.v.m. on the grounds of adultery, indignities to the person, or desertion. After several hearings on the various petions, the lower court entered an order on March 10, 1972, the subject of this appeal, which required appellant to pay $5,000 counsel fees and $82.20 costs.

There are no children resulting from this marriage. Appellee has received about $50,000 in alimony pendente lite from the date of the initial order to March 10, 1972. She also admits having received additional monies from appellant of approximately $100,000 ^[1] but contends in her brief that these payments were 'either gifts or the result of business ventures entered into by the parties'. Appellee testified that she has spent all of these funds and is now destitute.

The parties have confined their arguments to two related issues: whether the amount awarded for counsel fees is excessive under the circumstances, and whether the court below erred in refusing to allow cross-examination of appellee as to how she had disbursed the money appellant provided and as to whether she had other funds comprising her separate estate. Neither of these questions is discussed here as there is an additional issue which is controlling.

We are compelled to consider whether, in light of the adoption of the Equality of Rights Amendment to the Pennsylvania Constitution, ^[2] §§ 11 and 46 of the Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S §§ 11, and 46, providing respectively that wives But not husbands, may obtain divorces from bed and board and be allowed reasonable alimony pendente lite, counsel fees, and costs in a divorce action, ^[3] still pass constitutional muster. This question is one of a number of constitutional problems presented by the Amendment. ^[4] We have recently dealt with the same question, regarding only § 46 of the Divorce Law, in the case of Henderson v. Henderson, 224 Pa.Super. 182, 303 A.2d 843 (1973), where the constitutionality of that section was upheld by a divided six-man Court. The full Court is now properly presented with the issue, including the constitutionality of § 11, as well as § 46, of the Act.

The Amendment 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. ^[5] ' Since §§ 11 and 46 afford rights exlcusively to females, the rights of males in Pennsylvania are abridged by these sections solely because of their sex. The sections therefore fall in light of the Amendment.

We would not interfere with the legislature's judgment that a spouse who has been abandoned, turned out, treated cruelly by his or her spouse or subjected to an intolerable condition, or has had adultery committed against him or her, deserves a divorce, (compare with § 11) possibly with a permanent support order. Likewise, we deem it an appropriate legislative concern that counsel fees, alimony pendente lite, and costs be awarded to a needy spouse in a divorce proceeding, whether he or she is plaintiff or defendant, if the party can show both need and that the other party can afford to pay. (Compare with § 46). But these remedies and rights must be available to either spouse who meets the legislative requirements specified. Legislation providing for such reciprocal rights would clearly meet the constitutional test of the Amendment, despite the fact that, given the present socio-economic structure of our society, it may be expected that many more women would receive benefits from such legislation than men. However, absent such mutuality of rights to both sexes, the present statutes must fall.

The following reasoning in the dissenting opinion in Henderson,supra, passing on the constitutionality of § 46 is equally applicable to § 11:

"At this time when equal rights, regardless of sex, are constantly being asserted, . . . we have repeatedly stated that the financial postions 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 plitical 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 socalled 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.

"While we are fully aware of the strong presumption of Constititonality which attaches to every Act of the Legislature (Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835, and a myriad cases cited therein), we nevertheless are convinced that the Act . . . is devoid of reasonable grounds of differences, and is arbitrary, discriminatory and invalid . . .' ^[11] as violative of

the Equality of Rights Amendment. Section 46 cannot be read so as to operate equally between the sexes because it specifically states that the court may only allow 'a wife' a pendente lite award. The Statutory Construction Act, Act of May 28, 1937, P.S. 1010, art. I, §§ 1 et seq., 46 P.S. §§ 501 et seq.,at § 551 applies here: 'When the words of a law are clear and free from all ambiguity, the letter of it is not to be disregarded.' The statute must be given its plain and obvious meaning. Commonwealth ex rel. Cartwright v. Cartwright, 350 Pa. 638, 40 A.2d 30 (1944); cited with approval in Davis v. Sulcowe, 416 Pa. 138, 205 A.2d 89 (1964), and Pgh. Beer Corp. Liquor License Case, 216 Pa.Super. 71, 260 A.2d 493 (1969). We therefore cannot judically interpret the word 'wife' as meaning spouse, even to save the Act from falling as unconstitutional. To redraft § 46 in this manner 'would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation. See State Board of Chiropractic Examiners v. Life Fellowship of Pennsylvania, 441 Pa. 293, 300, 272 A.2d 478, 482 (1971); Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196 A.2d 664, 667 (1964).' Commonwealth v. Armao, 446 Pa. 325, 338, 286 A.2d 626, 632 (1972).' 224 Pa.Super. at 185--190, 303 A.2d at 846.

Based on this reasoning, §§ 11 and 46, must be viewed as violative of the Amendment. It is interesting to note that the dissent in Henderson, id., which reached this conclusion, too, also discussed decisions of two lower courts dealing with the Equality of Rights Amendment and our domestic relations statutes. Comm. ex rel. Lukens v. Lukens May Term, 1972, No. F--19149, Legal Intelligencer, Oct. 19, 1972 (Delaware Cnty.), affirmed (by this Court subsequent to Henderson), 224 Pa.Super. 227, 303 A.2d 522 (1973), held that the Pennsylvania support laws did not violate the Amendment because, while there may not be mathematically precise equality, the statutes do create reciprocal rights to support for both sexes. But this...