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COX v. COX. (09/11/58)

September 11, 1958

COX, APPELLANT,
v.
COX.



Appeals, No. 190, April T., 1956, and No. 221, April T., 1958, from orders of Court of Common Pleas of Allegheny County, Jan. T., 1954, No. 1263, in case of Ralph Cox, Jr. v. M. Lorraine Cox. Orders reversed to extent indicated.

COUNSEL

James Lenahan Brown, with him Lee Paul Heid, for appellant.

Irving I. Erdheim, Ralph S. Sapp, James E. McLaughlin, and James P. McArdle, for appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Hirt

[ 187 Pa. Super. Page 178]

OPINION BY HIRT, J.

This is an appeal from the order of the lower court entered on June 13, 1956 awarding $110,600 to the defendant for counsel fees in this divorce case, "said award [in the language of the order] being based upon the following determination as to reasonable compensation due to each of defendant's counsel: Irving I. Erdheim, $55,600; Ralph S. Sapp, $35,000; and James P. McArdle, $20,000." In the order the master was also awarded a fee of $3,500. The master had previously received allowances of $500 and $1,000 which by stipulation of record were to apply to his final fee, in addition to the nominal amount deposited with the prothonotary by plaintiff on filing his complaint. When the above order was made the divorce case was still pending and undisposed of in the lower court. At the time of argument before us on December 28, 1956, we indicated that we would not dispose of this appeal until after final order in the divorce case. And from the bench we gave notice of our intention to consolidate for argument the present appeal with appeals from further orders for fees and expenses,

[ 187 Pa. Super. Page 179]

    if any, and to continue the argument until after final disposition of the divorce case. The master filed his report on February 18, 1957; in it he recommended was denied by the court, but not until 11 months was denied by the court, but not until 11 months later, on January 28, 1958. The lower court, after final order in the case, directed plaintiff to pay an additional fee of $15,000 to the master; the master had asked for $35,000. Plaintiff's appeal from that order has been consolidated, by agreement, for disposition with the present appeal.

Plaintiff had been a practicing dentist in Pittsburgh prior to his association with United States Overseas Airlines, Inc. At the time of his marriage with the defendant on May 16, 1951, he was president and majority stockholder of the corporation. Following the marriage (a second venture for the defendant) the parties maintained an apartment in the City of New York for something less than 15 months. Defendant said that Dr. Cox then deserted her and their seven-months-old daughter. Plaintiff's testimony is that she excluded him from the apartment by locking him out. A series of actions in various courts began on August 7, 1952 (one year and three months after the marriage) when the defendant brought a suit in the City of New York for a legal separation from her husband (essentially the equivalent of our divorce a mensa et thoro) alleging abandonment and nonsupport. On October 20, 1952 a judge of the New York Supreme Court in the proceeding directed Dr. Cox to pay his wife $150 per week, temporary alimony, and in the proceeding, granted her the custody of their infant child; in addition that court directed him to pay her $1,500 as fees for her counsel, Irving I. Erdheim of the bar of the City of New York (in reality an appellee here). Further additional counsel fees were awarded after trial

[ 187 Pa. Super. Page 180]

    of that proceeding and the alimony was increased in amount to $200 per week.

The question of the custody of Maureen, the child of the parties, was a continuing source of conflict. On August 27, 1952, while the separation proceeding was pending in New Yor, Dr. Cox took the child from his wife's apartment to the home of his parents in Pittsburgh. And when he refused to return the child the New York Court adjudged him guilty of contempt. The defendant, Mrs. Cox, then brought habeas corpus in the Allegheny County Courts. On June 4, 1953, Judge WEISS, in that proceeding, without taking testimony, awarded custody of Maureen to Mrs. Cox on the basis of the New York Court order. Subsequently a petition was filed by Dr. Cox's parents seeking vacation of the order. The defendant as relatrix in the proceeding did not appear at the hearing on the application held on June 26, 1953. In the opinion filed by Judge WEISS, in disposing of the petition, it is said: "Very damaging testimony was presented against Mrs. Cox, relatrix, regarding her fitness to care for said child. Among the witnesses was Doctor Harold W. Lovell, an outstanding neuro-psychiatrist of the State of New York, who testified in substance: That Mrs. Lorraine Cox was a 'psychopathic personality' with paranoid trends and a 'confirmed alcoholic' and was a dangerous person and might do personal harm to her child to spite her husband's wishes." In reliance on this testimony the court on July 1, 1953 vacated the order of June 4, 1953. And by an order on August 3, 1953 the Pennsylvania court, by Judge WEISS, awarded "permanent custody of said minor, Maureen Cox" to her father, Ralph Cox, Jr.

On February 6, 1953 Mrs. Cox had brought a second proceeding in New York State in which she, alleging that Dr. Cox was a ...


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