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

May 10, 1961

SHUMAN, APPELLANT,
v.
SHUMAN.



Appeal, No. 372, Oct T., 1960, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1958, No. 1965, in case of David Shuman v. Myrtly Kuehn Shuman. Judgment reversed and record remanded.

COUNSEL

Ralph B. Umsted, for appellant.

James McGirr Kelly, for appellee.

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

Author: Wright

[ 195 Pa. Super. Page 146]

Opinion by WRIGHT, J.

In this divorce proceeding the lower court ordered the plaintiff-husband to pay a Master's fee in total amount of $10,000.00. The plaintiff was credited with

[ 195 Pa. Super. Page 147]

    the sum of $1,900.00, representing allowances to the Master which had already been paid, and judgment was entered in favor of the Master and against the plaintiff in the sum of $8,100.00. The plaintiff has appealed.

The complaint in divorce a.v.m. on the ground of indignities to the person was filed on April 18, 1958. There were twenty-one hearings before the Master, fifteen full-day and six part-day. The notes of testimony covered 2,011 pages. The Master testified that he had spent 405 hours on the case. His report, recommending that a decree in divorce be granted, covered 198 typewritten pages. On June 20, 1960, the court below dismissed the wife's exceptions and approved the Master's report. However, the entry of a final decree awaits the disposition of this appeal, as well as a companion appeal relating to counsel fee for the wife's attorney.

The Master's fee is concededly an essential item in the conduct of an ordinary divorce proceeding, whether or not it be considered a part of the expenses. See York v. York, 107 Pa. Superior Ct. 522, 164 A. 87. The Divorce Law*fn1 does not prescribe the compensation of Masters. Section 66 of the statute (23 P.S. 66) provides that the "several courts of common pleas are hereby authorized ... to regulate proceedings before masters, and to fix their fees". It is well settled by our cases that the amount of an allowance for the Master is largely within the discretion of the court below. However, the exercise of such discretion is not absolute and the court's action is subject to review on appeal: Cox v. Cox, 187 Pa. Superior Ct. 177, 144 A.2d 458. Contrary to the statement of the Master in his brief before the lower court that "ability to pay is not a factor in this case", our decisions have firmly established the principle that the financial position of the parties

[ 195 Pa. Super. Page 148]

    is a fundamental consideration in the determination of the amount of the award: Orsuto v. Orsuto, 171 Pa. Superior Ct. 532, 91 A.2d 284.

Appellant is an osteopathic physician, 51 years of age. He maintains an office at 1728 Pine Street, in the City of Philadelphia. Appellant and his wife have four children, David, aged 20, Frederick, aged 18, Stephen, aged 17, and Carla, aged 16. David and Stephen presently live with appellant in a third floor walk-up apartment consisting of two rooms, kitchen and bath, for which appellant pays $65.00 per month rent. Frederick and Carla live with their mother in a residence owned by the entireties at 34 East Washington Lane. By an order of the Municipal Court, appellant was required to pay $85.00 per week for the support of his wife and the two children living with her. This order was subsequently reduced to $70.00 per week. Appellant and his wife also own, as tenants by the entireties, a bungalow in the Poconos. Appellant's only additional assets, other than a small checking account, are an investment in the Juniata Park Medical Center in amount of $2,000.00, and an automobile for which he paid $1,650.00. He has borrowed to the full extent on his life insurance, the face value of which is $10,000.00. His savings have been exhausted and he must depend almost entirely on current earnings. His total gross income for the four years prior to the hearing, as shown by his federal income tax returns, was as follows: 1956 - $9,205.00, 1957 - ...


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