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JOHN J. JACK v. AGNES JACK (04/13/78)

decided: April 13, 1978.

JOHN J. JACK, APPELLEE,
v.
AGNES JACK, APPELLANT



No. 430 April Term 1976, Appeal from the Order of Dec. 19, 1975 of the Court of Common Pleas of Butler County, Pa., Civil Div. at A.D. No. 193 June Term, 1969.

COUNSEL

James C. Evans, Pittsburgh, for appellant.

Joseph W. Conway, Pittsburgh, with him Conway & Stabile, Pittsburgh, and Leo M. Stepanian, Butler, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Cercone, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 253 Pa. Super. Page 542]

This is an appeal from an order directing payment of alimony pendente lite and additional counsel fees, and refusing to direct payment of expenses.

Appellee, John J. Jack, filed an action for divorce in May, 1969. In response to several petitions, appellant, Agnes Jack, was awarded $500 per month alimony pendente lite and counsel fees. On April 11, 1975, the lower court granted the divorce; on January 8, 1976, this court affirmed; and on March 27, 1976, allocatur was denied. In the meantime, on October 3, 1974, Mrs. Jack had filed a petition for additional counsel fees and expenses; and on August 29, 1975, that is, while her appeal to this court was pending, she had filed a petition asking that Mr. Jack be held in contempt for failing to pay alimony. On December 19, 1975, the lower court entered an order in response to these two petitions. This appeal is from that order. It will be convenient to consider first the petition for contempt and then the petition for counsel fees and expenses.

-1-

Mrs. Jack's petition asking that Mr. Jack be held in contempt alleged that in May, 1975, Mr. Jack had stopped paying the award of $500 per month alimony pendente lite. Following a hearing on September 29, 1975, the lower court ordered the payment of arrearages retroactive to September 1, 1975 (the date Mrs. Jack's petition was filed) and not to May 1, 1975, "because of the non-existence of a supersedeas." Lower court opinion at 2. Mrs. Jack correctly asserts that this was error.*fn1

The Divorce Law, Act of May 2, 1929, P.L. 1237, § 46, as amended, June 27, 1974, P.L. 403, No. 139, § 1; 23 P.S. § 46, provides in part:

[ 253 Pa. Super. Page 543]

In the case of divorce from the bonds of matrimony or bed and board, the court may, upon petition, in proper cases, allow a spouse reasonable alimony pendente lite and reasonable counsel fees and expenses.

The purpose of this provision is to ensure that a financially dependent spouse will be able to maintain, or defend against, a divorce action. Wiegand v. Wiegand, 242 Pa. Super. 170, 363 A.2d 1215 (1976); Kayaian v. Kayaian, 223 Pa. Super. 103, 297 A.2d 136 (1972); Belsky v. Belsky, 196 Pa. Super. 374, 175 A.2d 348 (1961). An award is not mandatory but lies within the court's discretion, Kayaian v. Kayaian, supra. McCormick v. McCormick, 202 ...


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