Tomashefski v. Tomashefski
Tomashefski v. Tomashefski
Opinion of the Court
This appeal raises the question of when a petitioner can be considered unable to pay the costs of his divorce for purposes of proceeding in forma pauperis. Because we find the lower court did not abuse its discretion in determining that the petitioner-appellant in the present case was financially able to pay the costs of his divorce, we affirm.
Petitioner, Bernard Tomashefski, filed a petition with the lower court for leave to bring an action in divorce in forma pauperis, i. e. without payment of costs and fees. As is its policy in reviewing such petitions, the lower court held a hearing to determine the veracity of petitioner’s allegations of indigency. The testimony at the first hearing was not transcribed due to petitioner’s failure to request a transcription, and therefore a second hearing was held at petitioner’s request and the testimony transcribed. At the conclusion of the second hearing, the lower court judge found Mr. Tomashefski able to pay $200 toward the cost of his divorce, to be paid at $25 a month beginning two months from the date of the hearing.
In his petition, Mr. Tomashefski indicated that his wife had left him in November 1973, he did not know her whereabouts or financial condition, that he was regularly employed at a job he had always held and at the time of the petition he lived with three children aged six, four and three. He alleged that his total income for the past
At his hearing, the petitioner testified to a fluctuating income which we have computed to average $361.04 a month take home pay.
It is important to note at this point that petitioner’s take-home income, whether it is closer to $7,262 as alleged in the petition, or $6,636.48 as alleged in the hearing, is not reduced by medical or legal expenses, or by costs of day care for his children which is provided free of charge by the Headstart program along with two free meals a day. Furthermore, the figures set out above represent a decision to favor the petitioner whenever a doubt arose. Thus, the income figure does not include a probable raise in pay when petitioner begins to work an extra half day, whereas the expense figure does include an anticipated increase in living costs while not reflecting a probable decrease when the second child enrolls in Headstart. Even adopting this approach in analyzing petitioner’s finances, however, he still has a surplus at the end of the month. In addition, the hearing judge, who not only reviewed the petition but had the opportunity to observe and question petitioner at two hearings, expressed his doubt concerning the reliability of the fig
Pa.R.C.P. 1137 governs the right of an indigent party to proceed with a divorce without full payment of costs: “Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring his inability to pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting him to proceed upon payment of only those costs which the court finds he is able to pay. Costs include masters’ fees and stenographic charges. The petition must disclose his full financial condition including his income and property.” The rule was adopted in response to the opinion of the United States Supreme Court in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) which pronounced the due process requirement that the states make available a procedure by which individuals who are unable to pay may nevertheless have access to the courts in order to obtain a divorce. Whitehead v. Whitehead, 224 Pa.Super. 303, 307 A.2d 371 (1973).
In making its finding the Supreme Court was careful to stress that the due process right it outlined did not give free access to the courts without inquiry into the circumstances of each case. “In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to re-emphasize that we go no further than necessary to dispose of the case before us, a case where the bona fides of both appellants’ indigency and desire for divorce are here beyond
Petitioner relies heavily on Gerlitzki v. Feldser, 226 Pa.Super. 142, 307 A.2d 307 (1973) in which this Court stated, “The question put by the Act of June 16, 1836 [P.L. 715, § 28, 5 P.S. § 72] is not whether petitioners are unable to pay the costs but whether they are in poverty. If they are in poverty, it follows that they are unable to pay the costs, and their petition should be granted. The Act, moreover, is to be read not with an accountant’s but a housewife’s eyes. ‘Poverty’ does not refer solely to a petitioner’s ‘net worth’ but to whether he is able to obtain the necessities of life. Where, as here, petitioners allege that they have no income except public assistance benefits, and that their net worth is minimal, it appears prima facie that they are in poverty.” Id. at 144-45, 307 A.2d at 308. There are, however, some notable distinctions between that case and the one at bar. In the first instance, the court in Gerlitzki was interpreting the Act of 1836 which deals with inability to pay the costs of an appeal from arbitration, not Rule 1137. Whatever the dispute in Gerlitzki regarding the interpretation of the qualifying phrase “by reason of poverty” which appears on the Act of 1836, it is clear in the present case that the question upon which we must focus, as it is posed by the rule, is the party’s “inability to pay all or part of the costs of the action.” Furthermore, the petitioners in Gerlitzki were shown to have no income except welfare benefits whereas the petitioner at bar re
The standard set by the rule permitting a party to proceed without full payment of costs is proof of inability to pay. Mere receipt of supplemental public assistance does not mean that an individual is unable to meet the costs of his legal action. Although proof of financial need is necessary to qualify for public assistance, it would constitute an unrealistically pessimistic assessment of the welfare program to assume that the need persisted even after public funds were made available. The present case provides a good example of a situation where a family, with the help of some welfare assistance to supplement a small income, does make enough to afford the necessities of life and still have some money left over. Such a circumstance does not constitute inability to pay.
Petitioner’s allegation that he had no money with which to pay for his divorce is clearly refuted by his own
The order of the lower court is affirmed.
. The court in its order noted that the costs would include master’s and stenographer’s fees and sheriff’s and prothonotary’s costs plus any miscellaneous items.
. In another place on the form petition, petitioner alleged a weekly take home income of $150.00: $60.00 a week from DPA and $90.00 a week from his employment.
. This figure is based on petitioner’s testimony that he earns $78 a week during the year and between $96 and $101 during the summer. We have averaged his summer earnings at $98.50 weekly for 13 weeks and combined that total with 39 weeks of earning $78 a week.
. We arrive at this figure by taking all petitioner’s alleged expenses at the figure he set except for food: $70 for rent (includes anticipated increase), $30 for gas (averaged), $15 for electricity, $130 for babysitters, $98 for loan repayments. Food was computed at $152, or $35 a week. Although petitioner testified, “Food varies about $28-$30 a week but then I am running back for more groceries. I would have to say about $45,” the lower court found this an excessive estimation, and reduced the amount to
Dissenting Opinion
dissenting:
Appellant contends that the court below should have granted appellant’s petition for leave to proceed in divorce without payment of fees and costs.
Susquehanna Legal Services represents appellant in these proceedings without compensation because appellant receives welfare assistance and, therefore, automatically qualifies as indigent. On August 13, 1974, appellant’s affidavit reflected the following income and assets: assorted household furnishings, a 1967 Ford Mustang automobile, no real property, $90 per week from employment, and a supplementary grant of $120 every two weeks from the Department of Public Welfare under the Aid to Families with Dependent Children program. Appellant’s affidavit recited the following expenses and obligations : rent, $60 per month; utilities, $33 to $48 per month; food, $30 per week; clothing, $10 to $20 per month; transportation expenses, $8 per week; babysitting, $30 per week; loan payments, $98 per month (on a balance of $2,353); and miscellaneous bills due, $520 total. Appellant filed his complaint in divorce, application to proceed in forma pauperis, and affidavit of income and expenses on September 30, 1974. On January 9, 1975, the court held a hearing on the application.
The Court of Common Pleas of Montour County holds hearings on all applications to proceed in forma pauper-is, but does not customarily take notes of testimony.
Rule 1137, Pa.R.C.P., provides:
“(a) Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring his inability to .pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting him to proceed upon payment of only those costs which the court finds he is able to pay. Costs include masters’ fees and stenographic charges. The petition must disclose his full financial condition including his income and property. No filing fee shall be required for the filing of the petition.
“(b) A petition by a plaintiff shall also include a statement of the financial condition of the defendant in-*128 eluding income and property, to the extent known to the plaintiff. The petition shall not be denied or delayed because of defendant’s financial ability to pay the costs. The entry of an order relieving the plaintiff from costs of the action, in whole or in part, shall not relieve the defendant from any liability for payment of the costs of the action.
“(c) If the plaintiff has been relieved of the payment of all or part of the costs the court by general Rule or special order may provide the procedure by which the defendant may be required to pay such costs. Such proceedings shall in no manner delay or interfere with the disposition of the plaintiff’s action.”
Rule 1137 implements the United States Supreme Court decision in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), which held that a state may not deny access to its divorce courts because of the plaintiff’s inability to pay the costs of the proceedings. See Schoepple v. Schoepple, 239 Pa.Super. 557, 361 A.2d 665 (1976).
In Gerlitzki v. Feldser, 226 Pa.Super. 142, 307 A.2d 307 (1973), our Court interpreted a statute
Appellant in the instant case receives a partial grant from state and federal funds under the Aid to Families with Dependent Children program (AFDC). “The AFDC program is one of three major categorical public assistance programs established by the Social Security Act of 1935. See U.S. Advisory Commission Eeport on Intergovernmental Eelations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 5-7 (1964) . . . The category singled out for welfare assistance by AFDC is the ‘dependent child,’ who is defined in § 406 of the Act, 49 Stat. 629, as amended, 42 U.S.C. § 606(a) (1964 ed., Supp. II), as an
The AFDC program is administered by the Department of Public Welfare through County Boards of Assistance under the Act of 1967, June 13, P.L. 31, No. 21, art. 4, § 401 et seq.; 62 P.S. § 401 et seq.: “It is hereby declared to be the legislative intent to promote the welfare and happiness of all the people of the Commonwealth, by providing public assistance to all of its needy and distressed; that assistance shall be administered promptly and humanely with due regard for the preservation of family life ... in such a way and manner as to encourage self-respect, self-dependency and the desire to be a good citizen and useful to society.” -Thus, the Congress and the legislature of the Commonwealth have attempted to provide the necessities of life to children who are needy and deprived of the support of at least one parent. An applicant for public assistance must establish to the satisfaction of the County Board that he qualifies for assistance under a very elaborate body of regulations, which are designed to qualify for assistance only those persons who cannot otherwise provide the basic essentials of life to their dependents. The County Board approves an application for assistance only after careful examination of an applicant’s assets and available income. The approval, therefore, represents an administrative determination by the County Boárd that the AFDC recipient is needy.
In the instant case, appellant, has worked for the same employer for 15 years. His income and the continued absence of his wife from the home qualifies him for assistance under the AFDC program. Thus, there has
The clear, unambiguous policy of the United States Congress and the Commonwealth of Pennsylvania is to provide subsistence to needy, dependent children. Further, it is the intent of Rule 1137 to allow persons unable to pay the costs of litigation to proceed without payment of costs. It is illogical for the courts of this Commonwealth to require litigants who receive federal and state funds to purchase necessities for their children, to divert those funds to the payment of court costs to the county or to be barred from the relief which only the courts can give. I would, therefore, hold, that whenever an individual has qualified administratively for welfare payments,
I would, therefore, reverse the order of the lower court, and grant appellant’s petition to proceed in forma pauperis.
. Act of June 16, 1836, P.L. 715, § 28, 5 P.S. § 72.
. In Schoepple v. Schoepple, supra, the lead opinion was authored by Spaeth, J., and joined by Hoffman, J. Price, J., wrote a concurring opinion in which Watkins, P. J., joined. Cercone, J., wrote a concurring opinion, and Van der Voort, J., concurred in the result. Jacobs, J., dissented. The lead opinion suggested the proper standard should be whether the petitioner was presently unable to pay the costs of litigation. The concurring opinions expressed the fears of three judges that such a standard was too generous and would permit persons to squander their resources and still qualify as indigent under the Rule. The holding proposed in this opinion would conflict with neither the lead opinion nor the concurring opinions.
. There is some conflict between the income and expense figures contained in appellant’s petition and those to which he testified at the hearing. These discrepancies are relatively minor and, therefore, do not affect the result. At the hearing, appellant testified that he earned $338 per month and received a supplementary grant of $211.33 per month.
. See note 3, supra. This total is based on monthly expense figures of $70 for rent, $55 for utilities, $178.33 for food, $34.75 for transportation, $130 for babysitting and $98 for loan repayments.
. This is not meant to suggest that persons ineligible for welfare assistance bear any greater burden of proof or that the standards for qualification for welfare and for Rule 1137 are identical.
Reference
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- Bernard TOMASHEFSKI, Appellant, v. Joanne TOMASHEFSKI
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