Lawrence N. Paper, Berger & Kapetan, Pittsburgh, for appellant.
Robert P. Kane, Atty. Gen., Kathleen Herzog Larkin, Deputy Atty. Gen., Harrisburg, Robert Paul Vincler, Deputy Atty. Gen., Pittsburgh, for the Commonwealth.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., dissent.
[ 242 Pa. Super. Page 172]
The instant case is on remand from our Supreme Court, Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975), for consideration of issues originally raised but not decided in our Court. See Wiegand v. Wiegand, 226 Pa. Super. 278, 310 A.2d 426 (1973). Appellant, defendant in his wife's action for divorce a.m.e.t., contends that the lower court erred in limiting cross-examination of appellee concerning the disposition of her estate.*fn1
The facts were succinctly summarized in Wiegand I: 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 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
[ 242 Pa. Super. Page 173]
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, 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." 22 Pa. Super. at 279-80, 310 A.2d at 427. (footnotes omitted).
A majority of this Court held that ". . . in light of the adoption of the Equality of Rights Amendment to the Pennsylvania Constitution, §§ 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 obtain divorces from bed and board and be allowed reasonable alimony pendente lite, counsel fees, and costs in a divorce action, . . . [cannot] pass constitutional muster." The Supreme Court, however, granted allocatur, see 227 Pa. Super. xxix, and remanded to this Court "for consideration of the issues raised at trial and properly preserved for appellate review." Wiegand v. Wiegand, supra at 485, 337 A.2d at 258. The appellant raised two issues below: (1) whether "the trial court had erred by refusing to permit him to cross-examine Mrs. Wiegand during the hearings about the disposition of her own estate and (2) [whether] the award of $5,000 attorney's fees was an abuse of the trial court's discretion." Id. at 484, 337 A.2d at 257.
Both appellant and appellee testified that during the pendency of the court proceedings, from August, 1967, to March, 1972, appellant had given appellee substantial sums of money, between $150,000 and $167,500. During a September 8, 1971 hearing on her petition for alimony pendente lite and counsel fees, she claimed that she was
[ 242 Pa. Super. Page 174]
without funds. She testified that she had only about $60.00, and that she had recently gone into debt to support herself. Appellant's counsel then attempted to cross-examine her on how she had spent the sizeable amounts of money which she had received previously:
"Q. [by counsel for appellant] On March 16, 1971, when were were in this Court, you acknowledged that you received above and beyond this $875.00 per month certain sums of money, is that correct?
"Q. Do you recall what that total came to?
"I object. We have gone through that at a previous hearing. It is ...