Appeal from the Order of the Court of Common Pleas, Delaware County, Civil Division, at No. 83-7763.
Jacqueline M. Roberts, Philadelphia, for appellant (at 2968) and for appellee (at 3020).
I.B. Sinclair, Media, for appellant (at 3020) and for appellee (at 2968).
Brosky, Watkins and Hoffman, JJ.
[ 347 Pa. Super. Page 58]
These are cross-appeals from an order awarding no alimony pendente lite*fn1 and awarding counsel fees.*fn2 We find no error in that portion of the order which declines to set an alimony pendente lite obligation. However, we vacate and remand for reconsideration of that portion of the order which awards counsel fees. This is deemed to be necessary because the Court of Common Pleas indicates in its opinion
[ 347 Pa. Super. Page 59]
that it considered, in making the award of counsel fees, an impermissible factor; namely, which of the two parties commenced the divorce action.
In its opinion, the court noted that the "wife earns approximately Eighteen Thousand ($18,000.00) Dollars per year while the . . . husband earns Ten Thousand to Eleven Thousand ($10,000-$11,000) Dollars per year." Part of the court's opinion supporting its award of counsel fees to the wife states: "She is the Defendant in the divorce action. It was the Respondent who chose to bring the divorce action, thus causing the Petitioner to defend herself." Therein lies the error.
The history of the allocation of counsel fees and costs in a divorce action shows changes in the law in this Commonwealth. These variations over time are certainly to be expected in this area of the law which, after all, reflects societal attitudes about the nature of marriage, the economic situation of women and the equality of the sexes. At no point in this 170 year span has the identity of the petitioner in the divorce action been a factor in determining which party is to pay costs and fees.
The first rule of law on this issue that is discoverable in our Commonwealth's legal history is contained in a statute enacted in 1815.
The Act of 1815, in its twelfth section enacts, that the court may award costs to the party in whose behalf the decree or sentence (that is of divorce) shall pass, or that each party shall pay his or her own costs, but the act does not authorize the imposition of all the costs upon the successful party.
Shoop's Appeal, 34 Pa. 233, 235-6 (1859). Thus, initially, costs could be imposed on the losing party in a divorce action ...