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JANE M. HANSON v. FRED J. HANSON (01/14/55)

January 14, 1955

JANE M. HANSON
v.
FRED J. HANSON, APPELLANT



Appeal, No. 164, April T., 1953, from order of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 1871, in case of Jane M. Hanson v. Fred J. Hanson. Order affirmed.

COUNSEL

Gilbert E. Morcroft, Pittsburgh, for appellant.

Wm. J. Graham, with him Clyde P. Bailey, Pittsburgh, for appellee.

Before Rhodes, P. J., Hirt, Ross, Wright, Woodside and Ervin, JJ. (gunther, J., absent).

Author: Wright

[ 177 Pa. Super. Page 385]

OPINION BY WRIGHT, J.,

This is an appeal from an order awarding alimony pendente lite*fn1 in an action for divorce a mensa et thoro. The wife instituted the divorce action on August 26, 1952, and therewith filed a petition for alimony pendente lite and counsel fees. The husband, as well as answering the divorce complaint, filed an answer to the petition, in which he denied that his wife had grounds for divorce, and averred that his income was less than had been alleged. Because of repeated continuances, a hearing did not take place until February 25, 1953. The Court's order, dated August 5, 1953, directed the husband to pay alimony pendente lite at the rate of Sixty-five ($65.00) per month from September

[ 177 Pa. Super. Page 3869]

, 1952.*fn2 Counsel fees were also awarded and are not here in dispute.

Appellant states that the questions involved in this appeal are as follows: "1. Did the Court below, in entering an Order for alimony pendente lite and counsel fees in favor of wife-plaintiff in an action of divorce, abuse its discretion in refusing to consider evidence of said wife's adultery in the reaching of its decision? 2. Where a petition for alimony and counsel fees was filed by a wife-plaintiff and was then not actively prosecuted by her for months thereafter, was it equitable and just, and not an abuse of discretion, under the circumstances of this case, for the Court below to order appellant to pay such alimony and counsel fees from the approximate date of the filing of the petition therefor?"

Section 46 of the Act of May 2, 1929, P. L. 1237, as amended, 23 PS § 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 (italics supplied)". The making of such allowances is not mandatory: Tumini v. Tumini, 150 Pa. Superior Ct. 363, 28 A.2d 357, and the matter is largely within the discretion of the trial court: Gangloff v. Gangloff, 163 Pa. Superior Ct. 570, 63 A.2d 115. The purpose of alimony pendente lite is to enable the wife to maintain or defend the principal action: Rutherford v. Rutherford, 152 Pa. Superior Ct. 517, 32 A.2d 921. Thus it differs somewhat in character from an order for support. See Dicken v. Dicken, 56 D. & C. 531. That a trial Judge may believe

[ 177 Pa. Super. Page 387]

    the suit will fail does not warrant refusal. Murray v. Murray, 80 Pa. Superior Ct. 573. The proceeding is collateral, and the merits of the principal action are not involved: Brady v. Brady, 168 Pa. Superior Ct. 538, 79 A.2d 803. In that case, speaking through Judge RENO, we said: "Patently, if the court below had refused appellee's petition it would have adjudicated in limine the validity of the divorce and also the merits of the substantive grounds for divorce alleged in the ...


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