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KAREN LEE SELLERS v. GILBERT RAY SELLERS (12/18/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: December 18, 1981.

KAREN LEE SELLERS, APPELLANT,
v.
GILBERT RAY SELLERS

No. 132 Pittsburgh, 1980, Appeal from the Order dated November 21, 1979, of the Court of Common Pleas of Beaver County, Civil Division - Beaver County, at No. 2230 of 1979, In Divorce.

COUNSEL

Richard L. Jacobs, Beaver Falls, for appellant.

Gilbert Ray Sellers, in pro. per.

Cercone, President Judge, and Shertz and Wieand, JJ.

Author: Shertz

[ 293 Pa. Super. Page 267]

Appellant, Karen Lee Sellers, filed a petition with the lower court in which she sought to be relieved of the costs of an action in divorce pursuant to Rule 1137, Pa.R.Civ.P.*fn1 The lower court issued an Order, granting in part and denying in part, the request to proceed in forma pauperis.*fn2 From that Order Appellant took the instant appeal in which she asserts the lower court abused its discretion in its failure to relieve her fully of the divorce costs. We agree with this assertion.

[ 293 Pa. Super. Page 268]

The facts of this case may be briefly summarized.*fn3 Appellant, who is the mother of two minor children for whom she receives no support from her husband, has income in the amount of $294 per month from public assistance. Her petition set forth monthly expenses amounting to $288.50.*fn4 In addition, the petition avers that she owns no real property, no personal property of significant value, no stocks, bonds, or savings accounts.

At the time of the hearing held in this matter, Appellant had been separated from her husband for approximately three months. She testified to the fact that she had relatives living nearby but that her husband had moved to Ohio. Finally, she stated she could not afford the costs of a divorce.

The lower court has considerable discretion in examining a petition to determine indigency, Moskol v. Moskol, 247 Pa. Super.Ct. 181, 371 A.2d 1387 (1977), and this Court will not reverse absent an abuse of same. Id., 247 Pa. Super. at 183, 371 A.2d at 1389. Moreover, the mere filing of a petition

     does not automatically establish the petitioner's right to proceed in forma pauperis. "Rule 1137 provides that the court must satisfy itself of the truth of the averment of inability to pay made in the petition before ordering that the petitioner may proceed by paying reduced costs or no costs."

Nicholson v. Nicholson, 247 Pa. Super.Ct. 172, 175, 371 A.2d 1383, 1384 (1977) (citations omitted). One who seeks to be relieved of costs under Rule 1137 has the burden of satisfying

[ 293 Pa. Super. Page 269]

    the lower court as to inability to pay. Moskol, 247 Pa. Super.Ct. at 183, 371 A.2d at 1389.

In making a determination that one is able to pay, in part, the costs of a divorce, the trial court is, however, limited in the factors upon which it may rely. In this instance the trial court has not indicated, nor does the record disclose, significant flaws in the reliability of Appellant's figures. Compare, Tomashefski v. Tomashefski, 246 Pa. Super.Ct. 118, 369 A.2d 839 (1976). Appellant presented uncontradicted and unquestioned testimony that her sole source of income was $294 per month from public assistance and that she possessed no assets of significant worth. "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." Howell v. Howell, 245 Pa. Super.Ct. 483, 485, 369 A.2d 731, 732 (1977) (citations omitted). Appellant's expenses amounted to at least $288.50 per month. Thus, although, as the trial court states, she may have "a little money" left at the end of each month, Trial Ct. Slip.Op. at 2, it still would be eleven months before she could afford the costs assessed. Although the trial court may consider ability to pay in the near future, a period of eleven months cannot be so deemed. See, e.g., Schoepple v. Schoepple, 239 Pa. Super.Ct. 557, 561, 361 A.2d 665, 668 (1976); Howell, 245 Pa. Super.Ct. at 485-87, 369 A.2d at 732-33.

The trial court further places reliance upon the fact that Appellant sought a divorce "only three months after (this) separation . . . had immediate family in Beaver County . . . did not file a (C)omplaint in (S)upport against (him) until she was required to do so by the Department of Public Assistance."*fn5 Trial Ct. Slip Op. at 2. As has often been stated by this Court, "the question upon which we must focus, as it is posed by the rule, is the party's 'inability to

[ 293 Pa. Super. Page 270]

    pay all or part of the costs of the action.'"*fn6 Tomashefski, 246 Pa. Super.Ct. at 123, 369 A.2d at 842 (citation omitted). See also Howell, supra; Smith v. Smith, 245 Pa. Super.Ct. 479, 369 A.2d 729 (1977). Focusing upon that question in this instance, we find that Appellant is unable to afford the costs of divorce levied by the lower court.

Therefore, that portion of the Order of the lower court requiring Appellant to pay initial filing and service costs is reversed and the case is remanded for further proceedings. Jurisdiction is not retained.


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