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MERLIN v. MERLIN. (03/17/64)

March 17, 1964

MERLIN, APPELLANT,
v.
MERLIN.



Appeal, No. 247, Oct. T., 1963, from orders of Court of Common Pleas No. 1 of Philadelphia County, March T., 1961, No. 77, in case of Irvin Merlin v. Tina S. Margulies Merlin. Orders affirmed.

COUNSEL

I. Raymond Kremer, for appellant.

Joseph G. Feldman, with him Stephen M. Feldman, and Feldman & Feldman, for appellee.

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

Author: Watkins

[ 203 Pa. Super. Page 17]

OPINION BY WATKINS, J.

These appeals are from two separate orders of the Court of Common Pleas No. 1 of Philadelphia County directing the payment of $2400 additional counsel fees and $2000 additional master's fee, respectively. The orders grew out of a divorce action between Irvin Merlin, the plaintiff-appellant and Tina S. Margulies Merlin, the defendant-appellee. The plaintiff's exceptions to the master's report recommending the dismissal of the divorce action were denied and the complaint in divorce dismissed. No appeal has been taken from this action. Judge GRIFFITHS wrote the opinion in both cases.

Although they are separate orders and involve fees for a master and for counsel, and although separate opinions have been written by Judge GRIFFITHS, they were argued together and we are disposing of them in one opinion.

[ 203 Pa. Super. Page 18]

As to the request for additional counsel fees and costs in the amount of Ten Thousand Dollars, the appellee claimed that counsel spent 107 3/4 hours in preparing and presenting her defense, which was supported by a schedule in the record. This was exclusive of the time spent by him arguing the exceptions. The court below believed that such time was reasonably spent and that the sum of $2400 was a reasonable additional fee.

The review of an award of counsel fees on an appeal is limited to the examination of the question of the exercise of judicial discretion by the court below. The order may be reversed only if it appears that there has been a manifest abuse of discretion. Cox v. Cox, 187 Pa. Superior Ct. 177, 144 A.2d 458 (1958).

There are no fixed rules as to the amount to be allowed as counsel fees in a divorce proceeding. It is not 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. Brong v. Brong, 129 Pa. Superior Ct. 224, 195 A. 439 (1937); Karmany v. Karmany, 71 Pa. Superior Ct. 308 (1919). "The rule is that 'in determining the amount to be allowed the wife for counsel fees, consideration must be given not only to the value of counsel's services and the wife's necessities but also to the husband's ability to pay and the character, situation and surroundings of the parties.'" Seery v. Seery, 183 Pa. Superior Ct. 322, 330, 131 A.2d 845 (1957); Rothman v. Rothman, 180 Pa. Superior Ct. 421, 119 A.2d 584 (1956).

The court below had this to say concerning the time spent by counsel: "In support of her supplemental petition for additional counsel fees and costs in which ...


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