Opinion
April 29, 1942.
July 23, 1942.
Appeals — Power of court below pending appeal — Divorce — Termination of alimony pendente lite — Counsel fees.
The court below has power while an appeal is pending to terminate payments of alimony pendente lite and to limit payment to respondent for costs of appeal and attorney fees upon its entering a decree granting an absolute divorce.
Appeal, No. 116, April T., 1942, from order of C.P. Allegheny Co., Oct. T., 1939, No. 3204, in case of Burl A. Davis v. Pauline Marion Davis.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, RHODES, HIRT and KENWORTHEY, JJ. Order affirmed.
Petition to terminate payments of alimony pendente lite.
The facts are stated in the opinion of the Superior Court.
Order entered terminating payments of alimony pendente lite and limiting payment to respondent for cost of appeal and attorney fees, opinion by GARDNER, J. Respondent appealed.
Error assigned was the order of the court below.
William J. Graham, with him Clyde P. Bailey, for appellant.
H.A. Robinson, of Dickie, Robinson McCamey, for appellee.
Argued April 29, 1942.
We have no doubt whatever that the lower court had power to terminate payments of alimony pendente lite and limit payment to respondent for costs of appeal and attorney fees upon its entering a decree granting an absolute divorce. As that is the only question before us it follows there is no merit to this appeal.
Shortly after the husband filed the libel in divorce the court ordered him to pay $125 counsel fees and expenses and alimony pendente lite in the sum of $15 per week. An additional sum of $50 for counsel fees was thereafter ordered. On March 4, 1941, the court entered an order terminating the alimony pendente lite effective as of May 14, 1940, the date the divorce was granted and directed the libellant to pay the respondent the sum of $200 for the prosecution of her appeal, and dismissed an attachment previously issued. The case came to us and we affirmed the decree of the court below. See Davis v. Davis, 145 Pa. Super. 473, 21 A.2d 419.
The lower court's authority to order the termination of payments for alimony pendente lite, attorney fees, and costs, while an appeal is pending, has been expressly recognized. In White v. White, 106 Pa. Super. 85, 161 A. 464, we stated, p. 89: "While an appeal ordinarily suspends the operation of the decree of the court below and such court may not in any way interfere with the jurisdiction of the appellate court, a decree for alimony pendente lite, counsel fees and expenses does not interfere with the jurisdiction of the appellate court or in any way affect the decree appealed from." See, also, Schofield v. Schofield, (No. 2), 51 Pa. Super. 579.
In Foust v. Foust, 144 Pa. Super. 513, 516, 19 A.2d 517, the appellant objected to the awarding of additional counsel fees and costs after an appeal had been taken to this court. We held there that an order for counsel fees is a collateral matter to the appeal in a divorce proceeding and it was within the discretion of the lower court, notwithstanding the pending of an appeal, to make such order pertaining thereto as it sees fit and proper.
The order of the court below is affirmed at appellant's costs.