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decided: November 22, 1976.


Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of Montour County at No. 43 September Term, 1974. No. 1302 October Term, 1975.


Robert B. Elion, Williamsport, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Hoffman, J., files a dissenting opinion.

Author: Jacobs

[ 246 Pa. Super. Page 120]

This appeal raises the question of when a petitioner can be considered unable to pay the costs of his divorce for purposes of proceeding in forma pauperis. Because we find the lower court did not abuse its discretion in determining that the petitioner-appellant in the present case was financially able to pay the costs of his divorce, we affirm.

Petitioner, Bernard Tomashefski, filed a petition with the lower court for leave to bring an action in divorce in forma pauperis, i. e. without payment of costs and fees. As is its policy in reviewing such petitions, the lower court held a hearing to determine the veracity of petitioner's allegations of indigency. The testimony at the first hearing was not transcribed due to petitioner's failure to request a transcription, and therefore a second hearing was held at petitioner's request and the testimony transcribed. At the conclusion of the second hearing, the lower court judge found Mr. Tomashefski able to pay $200 toward the cost of his divorce, to be paid at $25 a month beginning two months from the date of the hearing.*fn1 The order indicated that $200 was the maximum that Mr. Tomashefski would have to advance for his divorce and if the fees and costs were less than that amount the excess would be refunded to the petitioner. If the expenses were greater than that amount, petitioner would, of course, be relieved of any obligation to satisfy them.

In his petition, Mr. Tomashefski indicated that his wife had left him in November 1973, he did not know her whereabouts or financial condition, that he was regularly employed at a job he had always held and at the time of the petition he lived with three children aged six, four and three. He alleged that his total income for the past

[ 246 Pa. Super. Page 121]

    year was a net of $7,262.00 after taxes and other deductions were made, or about $605.00 a month.*fn2 According to the figures in the petition, his monthly expenses total between $483 and $508 including monthly installment payments of $98 on loans. Deducting his alleged expenses from his stated income, it seems that petitioner should be clearing $97 to $122 each month. In addition, the petition lists other loans which do not appear to be included in the installment payments totaling $520 for such things as a new refrigerator, new furniture and Christmas gifts.

At his hearing, the petitioner testified to a fluctuating income which we have computed to average $361.04 a month take home pay.*fn3 He also testified to receiving $96.00 every two weeks from welfare, which he asserts in his brief is not really a fortnightly payment but a semimonthly receipt totaling $192 a month. Assuming these figures are accurate, we reach a total of $553.04 income after taxes and deductions a month, or $6,636.48 a year. This income was apparently expected to increase shortly after the hearing as petitioner testified that he was soon to begin working five and one half days as opposed to simply five days a week. His expenses, including an anticipated increase in his rent, totaled $495 a month.*fn4 To these expenses we will add $32 for transportation

[ 246 Pa. Super. Page 122]

    monthly which is the amount claimed in the petition, as that expense was not testified to at the hearing. The result is $527 of expenses a month, leaving petitioner with at least an additional $26.04 a month unaccounted for. Petitioner also testified that his household consisted of not three but two children, aged three and four, and in discussing his loans did not mention the $520 alleged in the petition in addition to his $98 monthly installment payments. The failure to allege these additional loans could mean, and apparently was taken by the lower court to mean, that they were satisfied between the time of the petition and the hearing.

It is important to note at this point that petitioner's take-home income, whether it is closer to $7,262 as alleged in the petition, or $6,636.48 as alleged in the hearing, is not reduced by medical or legal expenses, or by costs of day care for his children which is provided free of charge by the Headstart program along with two free meals a day. Furthermore, the figures set out above represent a decision to favor the petitioner whenever a doubt arose. Thus, the income figure does not include a probable raise in pay when petitioner begins to work an extra half day, whereas the expense figure does include an anticipated increase in living costs while not reflecting a probable decrease when the second child enrolls in Headstart. Even adopting this approach in analyzing petitioner's finances, however, he still has a surplus at the end of ...

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