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DANIEL JOHN HOWELL v. BONNIE LOU HOWELL (02/18/77)

decided: February 18, 1977.

DANIEL JOHN HOWELL, APPELLANT,
v.
BONNIE LOU HOWELL



Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Crawford County, Penna., dated March 11, 1975, Denying Petitioner's Motion to Proceed in forma pauperis, No. 87 May Term 1975. No. 454 April Term, 1975.

COUNSEL

Edith Benson, Meadville, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents.

Author: Spaeth

[ 245 Pa. Super. Page 485]

This is an appeal from the denial of a petition to proceed in forma pauperis in a divorce action. Pa.R.C.P. 1137.*fn1

When appellant filed his petition he was receiving $86 per week in unemployment benefits. Half of this he voluntarily gave to his estranged wife for her support. He paid $20 per month on a debt, and gave the rest to his parents, with whom he was living, to help them buy food for themselves and gas for their car. Appellant's personal property was of negligible value.*fn2

The lower court found that appellant "fell far short" of proving inability to pay costs:

He was not on public assistance and was receiving . . . Eighty-Six Dollars . . . per week . . . which in this area is as much or more as the take-home pay of many wage earners who support a family. He lived with his parents, had no dependents and was voluntarily giving his wife half of his unemployment check in spite of the fact that if he has valid grounds for divorce, . . . his wife would not be

[ 245 Pa. Super. Page 486]

    entitled to support. Commonwealth v. Deose, Appellant, 194 Pa. Super. 466, 168 A.2d 791 (1961) . . . . [H]e testified that he was leaving for the Marine Corps on March 26, 1975, which would be less than a month after the hearing. His service pay would certainly not qualify him as an indigent.

Slip Opinion at 1-2.

The fact that appellant was not on public assistance was not dispositive, as the lower court appears to have believed. The issue was appellant's "inability to pay all or part of the costs." Rule 1137. If a person is on public assistance, and his net worth is minimal, there will be a prima facie showing of inability to pay costs. Schoepple v. Schoepple, 239 Pa. Super. 557, 361 A.2d 665 (1976). If ...


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