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WIEGAND v. WIEGAND (09/19/73)

decided: September 19, 1973.

WIEGAND
v.
WIEGAND, APPELLANT



Appeal from order of Court of Common Pleas, Family Division, of Allegheny County, Oct. T., 1967, No. 439, in case of Sara Wiegand v. Myron Paul Wiegand.

COUNSEL

George C. Diamantopulos, for appellant.

John W. Campbell, Jr., for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaulding, J. Dissenting Opinion by Watkins, J. Wright, P. J., and Jacobs, J., join in this dissenting opinion.

Author: Spaulding

[ 226 Pa. Super. Page 279]

Appellant Myron Paul Wiegand appeals from an order of the Court of Common Pleas of Allegheny County directing him to pay counsel fees, costs and expenses in this divorce action.

The facts are undisputed. Appellee Sara Wiegand filed a complaint in divorce a.m.e.t., a petition for alimony, and an initial petition for alimony pendente lite, counsel fees and expenses. On August 14, 1967, an order was entered requiring appellant to pay $875 per month alimony pendente lite and $250 preliminary counsel fees. Subsequently, appellee filed several other petitions for additional counsel fees and

[ 226 Pa. Super. Page 280]

    costs and for continued or increased alimony pendente lite. Appellant filed answers to these pleadings and a counterclaim seeking divorce a.v.m. on the grounds of adultery, indignities to the person, or desertion. After several hearings on the various petitions, the lower court entered an order on March 10, 1972, the subject of this appeal, which required appellant to pay $5,000 counsel fees and $82.20 costs.

There are no children resulting from this marriage. Appellee has received about $50,000 in alimony pendente lite from the date of the initial order to March 10, 1972. She also admits having received additional monies from appellant of approximately $100,000,*fn1 but contends in her brief that these payments were "either gifts or the result of business ventures entered into by the parties". Appellee testified that she has spent all of these funds and is now destitute.

The parties have confined their arguments to two related issues: whether the amount awarded for counsel fees is excessive under the circumstances, and whether the court below erred in refusing to allow cross-examination of appellee as to how she had disbursed the money appellant provided and as to whether she had other funds comprising her separate estate. Neither of these questions is discussed here as there is an additional issue which is controlling.

We are compelled to consider whether, in light of the adoption of the Equality of Rights Amendment to the Pennsylvania Constitution,*fn2 §§ 11 and 46 of The Divorce Law, Act of May 2, 1929, P. L. 1237, as amended, 23 P.S. §§ 11 and 46, providing respectively that wives, but not husbands, may ...


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