Shuman v. Shuman

170 A.2d 597, 195 Pa. Super. 145, 89 A.L.R. 2d 370, 1961 Pa. Super. LEXIS 595

Opinions

Opinion by

Wright, J.,

In this divorce- proceeding the lower court ordered the plaintiff-husband to pay a Master’s fee in total amount of $10,000.00. The plaintiff was credited with the sum of $1,900.00, representing allowances to the Master which had already been paid, and judgment was entered in favor of the Master and against the plaintiff in the sum of $8,100.00. The plaintiff has appealed.

The complaint in divorce a.v.m. on the ground of indignities to the. person was filed on April 18, 1958. There were twenty-one hearings before the Master, fifteen full-day and six part-day. . The notes of testimony covered 2,011 pages. The Master testified that he had. spent 405 hours on the case. His report, recommending that a decree in divorce be granted, covered 198 typewritten pages. On J.une 20, 1960, the court below dismissed the wife’s exceptions and approved the Master’s report. However, the entry of a final decree awaits the disposition of this appeal, as well as a companion appeal relating to counsel fee for the wife’s attorney.

The Master’s fee is concededly an essential item in the conduct of an ordinary divorce proceeding, whether or not it be considered a part of the expenses. See York v. York, 107 Pa. Superior Ct. 522, 164 A. 87. The Divorce Law¹ does not prescribe the compensation of Masters. Section 66 of the.statute (23 P.S. 66) provides that the. “several courts of . common pleas are hereby authorized. ... to regulate proceedings before masters, and to fix.their fees”. It is well settled by our cases that the amount of an allowance for the Master is largely within the discretion of the court below. However, the exercise of such discretion is- not absolute and the .court’s action is subject to review on appeal:. Cox v. Cox, 187 Pa. Superior Ct. 177, 144 A. 2d 458. Contrary to the. statement of the Master in his brief before the lower coiirt that “ability to pay is not a factor in this case”, o.ur decisions have firmly established the principle that the financial position of the parties is a fundamental consideration in the determination of the amount of the award: Orsuto v. Orsuto, 171 Pa. Superior Ct. 532, 91 A. 2d 284.

Appellant is an osteopathic physician, 51 years of age. He maintains an office at 1728 Pine Street, in the City of Philadelphia. Appellant and his wife have four children, David, aged 20, Frederick, aged 18, Stephen, aged 17, and Carla, aged 16. David and Stephen presently live with appellant in a third floor walk-up apartment consisting of two rooms, kitchen and bath, for which appellant pays $65.00 per month rent. Frederick and Carla live with their mother in a residence owned by the entireties at 34 East Washington Lane. By an order of the Municipal Court, appellant was required to pay $85.00 per week for the support of his wife and the two children living with her. This order was subsequently reduced to $70.00 per week. Appellant and his wife also own, as tenants by the entireties, a bungalow in the Poconos. Appellant’s only additional assets, other than a small checking account, are an investment in the Juniata Park Medical Center in amount of $2,000.00, and an automobile for which he paid $1,650.00. He has borrowed to the full extent on his life insurance, the face value of which is $10,000.00. His savings have been exhausted and he must depend almost entirely on current earnings. His total gross income for the four years prior to the hearing, as shown by his federal income tax returns, was as follows: 1956 — $9,205.00, 1957 — $12,470.00, 1958 — $11,775.00, and 1959^-$15,143.00. His net income for those years was as follows: 1956 — $5,599.00, 1957 — $7,755.00, 1958 —$6,445.00, and 1959 — $9,647.00. The internal revenue service made an audit which failed to disclose any discrepancies. See Commonwealth ex rel. Baylinson v. Baylinson, 191 Pa. Superior Ct. 51, 155 A. 2d 203.

An examination of the opinion of the hearing judge discloses that it is principally concerned with the extent of the Master’s services, the time he spent on the case, his reputation and standing as a member of the bar, the payments made to the court stenographer who transcribed the testimony,² and the minimum fee schedule of the local bar association. The important issue of appellant’s ability to pay is given little if any consideration. Ascribing bad faith to appellant, the hearing judge states: “If plaintiff were unable to finance a divorce action he should not have started one”. However, it was certainly not intended that our courts should be closed to worthy litigants simply because they may not be able to pay unreasonable fees.

Appellant and appellee have each cited cases in support of their respective contentions. No useful purpose would be served by reviewing these cases seriatim. Every decision of this nature must rest on its own factual situation. We agree that the Master is an able and experienced member of the bar, and that he must maintain an office and support his family. We have no reason to doubt his testimony as to the amount of time spent in hearings and in the determination of the issues. However, we are unanimously of the opinion that the Master’s fee, as fixed by the court below, is excessive and must be substantially reduced. It is the view of a majority of us that the total amount should be $3,000.00, of which, as hereinbefore noted, the sum of $1,900.00 has already been paid.

Judgment reversed, and the record is remanded to the court below for the entry of an order in the amount of $1,100.00.

1 Act of May 2, 1929, P. L. 1237, 23 P.S. 1 et seq.

2 Appellant paid $2622.80 to the court stenographer. The hearing judge calculated that an additional $666.00 should be.considered as a proportionate allocation of the court stenographer’s salary.