Fernald v. Fernald

5 Pa. Super. 629, 1897 Pa. Super. LEXIS 294

• Court: Superior Court of Pennsylvania
• Decided: November 8, 1897
• Docket: Appeal, No. 88
• Status: Published

Opinion

Opinion by

Rice, P. J.,

This is an appeal from an order directing the libellant to pay to the libellee her traveling expenses incurred in coming from her home in a distant state to be present at the trial of the issue before a jury. When the case came on to be tried the libellant moved for a continuance, but this was refused, and he then suffered a voluntary nonsuit. In answer to the suggestion of his counsel that she was not entitled to the allowance because she voluntarily chose to take up her residence in Florida, im stead of in Philadelphia with her husband, it seems sufficient to say that the merits of their contention are not before us.. They .would have been determined by the proper tribunal if he had seen fit to go to trial. She alleged in her answer, however, that he first deserted her. If that be true (and this was one of the questions to be tried) it cannot be said that her conduct in going to her father’s home in Florida was extraordinary. In choosing that as her home, she was exercising her undoubted right, if her answer be true, and the expenses of coming from her home to be present at the trial were necessarily incurred in defending the suit. We have no doubt that it is within the discretionary power of the court, in a proper case, to direct the libellant to pay such expenses.

An application for an order of this nature is addressed to the sound discretion of the court having jurisdiction of the cause, and in the exercise of this discretion regard is to be had to the husband’s ability and the wife’s necessity. No question is raised as to his ability; and as he was called as a witness and did not deny it, and as he is able to pay annually $600 each for the support of his two children it may fairly be taken for granted. But it is said that there is no sufficient proof of her destitution. The testimony shows that slie has an income of about $500 a year from her separate property; and her husband, while not admitting that she has no other property, admits that he does not know of her having any other. This, then, may fairly be taken as the sum which she had for her support. Surely it cannot be said, under the circumstances, that there was an abuse of discretion in not compelling her to take one fourth of it to pay the expenses of unsuccessful litigation that her husband forced upon her. “It is undoubtedly the duty of the court to make a proper allowance to the wife, if she be not herself of sufficient ability, to enable her to maintain or defend her suit, having regard to the ability of her husband; and it never fails to do so:” Waldron v. Waldron, 55 Pa. 231. Want of sufficient ability to pay the expenses does not imply absolute destitution, and dependence upon the charity of others for support.

There are several good reasons why the second and third assignments of error cannot be sustained. First, the law does not require a party to be present at the taking of depositions in his behalf, in order that he maybe cross-examined by the other party. Second, it would have been unreasonable in the present-case to compel the libellee to come on from Florida for that purpose’at an additional expense equal to the first. Third, if the libellant desired to take her testimony, the ordinary methods of obtaining it were open to him. Fourth, the record does not show that the court was asked to compel her attendance; the demand written out in the libellee’s depositions was not addressed to the court, and is no part of the record.

We have not found it necessary to express an opinion upon the question of our power to revietv the action of the court in such a case upon its merits. This much is clear, that the appellate court will not reverse except for plain abuse of discretion, and nothing approaching thaf appears in this case.

Order affirmed and appeal dismissed at the costs of the appellant.