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SCHOEPPLE v. SCHOEPPLE (03/29/76)

decided: March 29, 1976.

SCHOEPPLE, APPELLANT,
v.
SCHOEPPLE



Appeal from order of Court of Common Pleas of Lehigh County, Jan. T., 1975, No. 416, in case of Margarete Wilhelmine Cramer Schoepple v. James Peter Schoepple.

COUNSEL

Gary Robert Fine, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Van der Voort, J., concurs in the result. Jacobs, J., dissents. Concurring Opinion by Cercone, J. Concurring Opinion by Price, J. Watkins, P.j., joins in this concurring opinion.

Author: Spaeth

[ 239 Pa. Super. Page 559]

This case involves the construction and application of Rule 1137 of the Pennsylvania Rules of Civil Procedure, which was promulgated in response to the United States Supreme Court's decision in Boddie v. Connecticut, 401 U.S. 371 (1971), that due process forbids a state to deny a person access to its divorce courts solely because of his indigency.*fn1 See Goodrich-Amram, Standard Pennsylvania Practice (Supp. 1975 to Binders 1 & 2) at 647, 726.

Appellant, Margarete Wilhelmine Cramer Schoepple, filed a petition pursuant to Rule 1137 on November 4, 1974, seeking leave to proceed in a divorce action without paying the costs of the action. After a hearing held on November 26, 1974, the court below found that appellant

[ 239 Pa. Super. Page 560]

    was not able to pay the Master's fee but was able to pay the fees of the Prothonotary, Sheriff, and court stenographer.*fn2 The court, therefore, by order of November 27, excused appellant from paying the Master's fee, and provided that when she had paid the other fees, a Master would be appointed. We have decided that the court erred in its construction of Rule 1137, and improperly considered certain factors in reaching its conclusions. We therefore reverse.

The parties were married on May 21, 1948, in Munich, Germany. Appellee left appellant at the end of September, 1960, while stationed in Germany with the United States Army, and appellant has not seen him since that time. Appellee's last known address is in the Federal Republic of Germany. Appellant last heard from appellee when he telephoned her in 1968, to say that "[h]e want[ed] to come home and die" (N.T. 13). The parties have two grown male children, who, appellant testified, are financially unable to assist her in obtaining a divorce (N.T. 10-12). Appellant testified that she wanted a divorce because "I don't need a man hanging on my shoulders, after he left us completely without a cent for fourteen years" (N.T. 13).

Appellant's petition under Rule 1137 showed a monthly income of $172.64, consisting of public assistance payments and minimal wages earned as a cleaning lady. She owns an automobile, apparently inherited from her father (N.T. 13), with an appraised value of $200.00. Appellant's monthly expenses are $158.31. These expenses include a monthly installment payment of $15.00 for a color television set that appellant had purchased two months before the hearing for $316.94. This purchase was the main reason for the lower court's refusal to excuse appellant from paying all of the fees incident to her divorce action (N.T. 4-5; Memorandum

[ 239 Pa. Super. Page 561]

Opinion, at 2). Appellant testified that she made the purchase to provide her with a diversion at home, stating that "I don't go anywhere. I don't go to no movies" (N.T. 4). The court, however, was unimpressed by this explanation, stating that it could "see no reason why she couldn't pick up $15.00 a month to pay a lawyer after she finishes paying [for] the colored T.V." If appellant did this, ...


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