Appeal of Powers ( 1888 )

Opinion,

Mu. Justice Paxson :

This decree must be reversed. The libellant alleges as his grounds for divorce (a) desertion, and (5) indignities to his person, etc. It is sufficient to say, briefly, that the desertion was not proved; nor was there even an attempt to prove it. The respondent did not leave her home ; on the contrary, she has continued to reside in it with her children down to the present time. If there was any desertion, it was on the part of the libellant.

The other ground for divorce is, that the wife offered such indignities to the person of the husband as to render his condition intolerable and life burdensome. The act of assembly does not authorize a divorce for this cause at the suit of the husband. It must be on the application of the injured wife.

A motion was made at bar for leave to amend the libel by inserting an averment of cruel and barbarous treatment by the wife. We declined to allow the amendment for the reason that it made a change in the cause of action, requiring for its support a different line of proof. The libellant could have amended below, when, if the respondent was of opinion that additional evidence was required to meet the new charge, she would have had an opportunity to introduce it. It would be unjust to allow the amendment at this stage of the proceedings.

The most remarkable feature of the case was the refusal of the court below to allow the respondent either alimony pendente lite, or counsel fees and expenses. The rule of May 25, 1887, for counsel fees and temporary alimony was discharged. The permanent alimony was fixed at one dollar per annum.

In Breinig v. Breinig, 26 Pa. 161, it was said by Black, J.: “ It has been the uniform practice to allow a wife destitute of a separate estate, who is either suing or defending a cause of divorce, such reasonable sum as will enable her to carry it on.” The libellant here is the husband. He is the owner of lands, farms, mills, and houses, and is engaged in business. He forced this litigation upon his wife, and she is compelled to employ counsel and incur large expenses in defending herself. The printing of her paper-book alone cost $129.75. To deny her the means to défend herself is to deny her justice. The refusal of the court below to make any allowance for her counsel fees and expenses, was such a palpable abuse of discretion that we will correct it here.

The decree is reversed and the libel dismissed at the costs of the libellant; the rule of May 25, 1887, for counsel fees is made absolute; and it is now ordered that the libellant pay to the respondent the sum of five hundred dollars as the proper allowance for counsel fees and expenses in this litigation. It will be the duty of the court below to enforce this decree.