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MCCORMICK v. MCCORMICK (12/12/63)

December 12, 1963

MCCORMICK
v.
MCCORMICK, APPELLANT.



Appeal, No. 253, April T., 1963, from order of Court of Common Pleas of Fayette Cunty, Sept. T., 1962, No. 61, in case of Polly Alberta McCormick v. George Raymond McCormick. Order affirmed.

COUNSEL

William E. Duffield, for appellant.

Thomas P. Ruane, Jr., for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 202 Pa. Super. Page 251]

OPINION BY WOODSIDE, J.

This is an appeal by a husband from an order allowing his wife counsel fees and expenses in a divorce case. When the wife filed an action in divorce against her husband, she also petitioned for alimony pendente lite, counsel fees and expenses. The husband answered both the petition and the complaint in divorce.

After a hearing the court below refused the request for alimony pendente lite, but awarded $200 for counsel fees and $100 for expenses. The husband appealed. The making of such allowances is not mandatory. Hanson v. Hanson, 177 Pa. Superior Ct. 384, 386, 110 A.2d 750 (1955). Under the circumstances of this case, the court below properly refused alimony.

The evidence shows that the parties were both employed, that the wife was residing in a trailer owned

[ 202 Pa. Super. Page 252]

    jointly with her husband and that there were no children born to the marriage. Both own automobiles. The wife's gross earnings are approximately $77 per week and the husband's gross earnings are approximately $92 per week.*fn1

The Act of May 2, 1929, P.L. 1237, § 46, as amended, 23 P.S. § 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."*fn2

Whether counsel fees and expenses are to be allowed in divorce cases and the amount thereof is within the discretion of the court below. Appellate courts do not interfere in the absence of a clear showing of an abuse of discretion. ...


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