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SHUMAN v. SHUMAN. (05/10/61)

May 10, 1961

SHUMAN, APPELLANT,
v.
SHUMAN.



Appeal, No. 373, Oct. T., 1960, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1958, No. 1965, in case of David Shuman v. Myrtle Kuehn Shuman. Order reversed and record remanded.

COUNSEL

Ralph B. Umsted, for appellant.

Irving I. Solit, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 195 Pa. Super. Page 156]

OPINION BY WRIGHT, J.

We are here concerned with another phase of the same divorce proceeding as that involved in Shuman v. Shuman, 195 Pa. Superior Ct. 145, 170 A.2d 597. The pertinent portions of our opinion in the companion case are incorporated herein by reference. The lower court directed that the plaintiff-husband pay a counsel fee for the wife's attorney in total amount of $5,000.00. The plaintiff was credited with the sum of $600.00, representing

[ 195 Pa. Super. Page 157]

    payments already made, so that the order from which the instant appeal is taken called for payment of an additional counsel fee of $4,400.00.

The Divorce Law*fn1 expressly authorizes the award of counsel fees to the wife in a divorce proceeding. Section 46 of the statute (23 P.S. 46) provides as follows: "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". No standard is fixed for determination of the amount of counsel fee other than the requirement that it must be reasonable. Consideration must be given to the husband's ability to pay, to the wife's necessity, and to the extent of her separate estate. See Freedman, Law of Marriage and Divorce, Second Edition, Section 465.

"How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion ... This court will not reverse an order of the court below 'except for plain abuse of discretion' ... There are no fixed rules as to the amount to be allowed. It is not to be measured solely by the value of counsel's services or by the wife's necessities. 'The husband's ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties are all to be considered in determining a fair and just amount which the husband should pay' ... To deny a destitute wife the means to pay for process and professional aid is to deny her justice ... and likewise to deny an innocent and injured husband a divorce unless he pay counsel fees beyond his ability to pay is to close the doors of the courts to many worthy suitors. The statute contemplates the payment of a reasonable counsel fee, limited by the necessities

[ 195 Pa. Super. Page 158]

    appearing from the evidence, such as will as nearly as possible promote the administration of fair and impartial justice by placing the parties on a par in defending their rights": Brong v. Brong, 129 Pa. Superior Ct. 224, 195 A. 439. See ...


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