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filed: March 30, 1984.


NO. 2499 Philadelphia, 1982, Appeal from the Order of July 28, 1982, In the Court of Common Pleas of Montgomery County, Civil, No. 81-179813.


Jack M. Bernard, Philadelphia, for appellant.

Albert Momjian, Philadelphia, for appellee.

McEwen, Johnson and Hester, JJ.

Author: Mcewen

[ 327 Pa. Super. Page 121]

We here study an appeal from an order in a divorce proceeding which awarded to appellee the sums of $10,000 for interim counsel fees and $2,500 for the payment of

[ 327 Pa. Super. Page 122]

"costs".*fn1 Appellant argues that: (1) the Montgomery County Court of Common Pleas was without jurisdiction to award interim counsel fees and expenses to appellee as no valid marriage existed between the parties; (2) the court erred in awarding counsel fees to appellee as counsel for appellee did not attempt to amicably resolve the matter, reconcile the parties or "preserve the family unit"; (3) the amount awarded for interim counsel fees was excessive; (4) the court erred in awarding a sum for interim expenses not yet incurred; and (5) counsel for appellee failed to adequately document the charges in their bill. We find that the learned Judge Anita B. Brody properly awarded appellee the sums of $10,000 as interim counsel fees and $2,500.00 as interim expenses.

Appellee filed a complaint in divorce on September 28, 1981, pursuant to the Divorce Code of 1980*fn2 alleging that her husband, the appellant herein, offered such indignities to her as to render her condition intolerable and her life burdensome.*fn3 Appellee also sought a no-fault divorce pursuant to Sections 201(c)*fn4 and 201(d)*fn5 of the Divorce Code, reasonable child support, alimony, alimony pendente lite, counsel fees, equitable distribution of the marital property and payment of costs and expenses.

Thereafter, on February 16, 1982, appellee filed a petition for interim counsel fees, expenses and appraiser's fees. After a hearing on the petition, Judge Brody issued an order awarding $10,000.00 for interim counsel fees and $2,500.00 for interim expenses. Appellant undertook the present appeal after his exceptions were dismissed by the court.

[ 327 Pa. Super. Page 123]

Initially, we observe that the appeal from the order awarding interim counsel fees and expenses is properly before us for review. This Court, sitting en banc, has recently held that an order granting or denying interim counsel fees and expenses is a final, appealable order. See Sutliff v. Sutliff, 326 Pa. Super. 496, 474 A.2d 599 (1984). We are, therefore, possessed of jurisdiction to entertain the instant appeal.

Appellant initially argues that the hearing court had no authority to award interim counsel fees and expenses since, allegedly, no valid marriage ever existed between the parties. This Court, however, has recently held that jurisdiction over this divorce action properly lies in the Montgomery County Court of Common Pleas. See Lowenschuss v. Selnick, 324 Pa. Super. 193, 471 A.2d 529 (1984).*fn6 As such, the trial court was within its authority when it awarded interim counsel fees and expenses. See Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(b).

Appellant next argues that counsel for appellee should not have been awarded counsel fees since counsel instituted an action in divorce when, allegedly, no valid marriage existed. Appellant also argues that the court erred in making an interim award of counsel fees because counsel made no effort to "preserve the family unit". These arguments, however, are not relevant to the issue of the ability of appellant to pay counsel fees nor of appellee's need therefor. Moreover, counsel was under no obligation to attempt a reconciliation of the parties. We, therefore, reject these assertions as meritless.

[ 327 Pa. Super. Page 124]

In reviewing the allegation that the trial court abused its discretion in awarding as interim counsel fees the sum of $10,000, we are guided by the rule enunciated in Jack v. Jack, 253 Pa. Super. 538, 385 A.2d 469 (1978):

No standard is fixed for determination of the amount of counsel fee other than the requirement that it must be reasonable. Consideration must be given to the husband's ability to pay, the wife's necessity, and to the extent of her separate estate. [citation omitted].

'How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion . . . . This court will not reverse an order of the court below "except for plain abuse of discretion" . . . . . . . There are no fixed rules as to the amount to be allowed. It is not to be measured solely by the value of counsel's services or by the wife's necessities. "The husband's ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties are all to be considered in determining a fair and just amount which the husband should pay."'

Id. 253 Pa. Super. at 545, 385 A.2d at 473 quoting Shuman v. Shuman, 195 Pa. Super. 155, 157, 170 A.2d 602, 603 (1961). See also Fried v. Fried, 326 Pa. Super. 271, 473 A.2d 1087 (1984); Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983).

Appellee offered as evidence in support of her request for an interim award of counsel fees a bill from the law firm of Abraham & Loewenstein in the amount of $21,975.75 for professional services rendered in the divorce action and related proceedings during the period from September 15, 1981, to February 29, 1982.*fn7 Appellee also introduced evidence documenting approximately 200 hours of work performed by members of the law firm as well as

[ 327 Pa. Super. Page 125]

    evidence relating to the firm's fees schedules and billing system.*fn8 Appellee presented the testimony of an expert

[ 327 Pa. Super. Page 126]

    witness, who the trial court found to be credible, regarding the reasonableness of the fees charged. Appellee also introduced evidence establishing that she earns a gross salary of $18,000 a year and possesses assets in the amount of approximately $5,000, and is unable to pay for the legal

[ 327 Pa. Super. Page 127]

    services rendered on her behalf by the firm of Abrahams & Loewenstein. Appellant on the other hand, refused to submit any evidence of his earnings or assets but rather stipulated that he had the means to pay any order for counsel fees up to $30,000. Moreover, appellant produced no evidence suggesting that the evidence produced by appellee was inaccurate. After a careful review of the record in this case and the opinion of Judge Brody, we are satisfied that counsel for appellee adequately documented the charges contained in appellee's bill for services and that Judge Brody, who considered all of the factors relevant to such a decision, properly exercised her discretion in awarding appellee the sum of $10,000 for interim counsel fees.

Appellant's final assertion of error concerns the interim award of $2,500 to appellee for expenses. Section 401(b) of the Divorce Code provides in relevant part:

§ 401. Decree of Court.

(b) . . . . The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(b) (emphasis added). Thus, the trial court properly exercised its discretion in awarding the sum of $2,500 to appellee for interim expenses.

Order affirmed. Jurisdiction is relinquished.

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