Tomashefski v. Tomashefski

*120JACOBS, Judge:

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.1 The order indicated that $200 was the maximum that Mr. Tomashefski would have to advance for his divorce and if the fees and costs were less than that amount the excess would be refunded to the petitioner. If the expenses were greater than that amount, petitioner would, of course, be relieved of any obligation to satisfy them.

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 *121year was a net of $7,262.00 after taxes and other deductions were made, or about $605.00 a month.2 According to the figures in the petition, his monthly expenses total between $483 and $508 including monthly installment payments of $98 on loans. Deducting his alleged expenses from his stated income, it seems that petitioner should be clearing $97 to $122 each month. In addition, the petition lists other loans which do not appear to be included in the installment payments totaling $520 for such things as a new refrigerator, new furniture and Christmas gifts.

At his hearing, the petitioner testified to a fluctuating income which we have computed to average $361.04 a month take home pay.3 He also testified to receiving $96.00 every two weeks from welfare, which he asserts in his brief is not really a fortnightly payment but a semimonthly receipt totaling $192 a month. Assuming these figures are accurate, we reach a total of $553.04 income after taxes and deductions a month, or $6,636.48 a year. This income was apparently expected to increase shortly after the hearing as petitioner testified that he was soon to begin working five and one half days as opposed to simply five days a week. His expenses, including an anticipated increase in his rent, totaled $495 a month.4 To these expenses we will add $32 for transpor*122tation monthly which is the amount claimed in the petition, as that expense was not testified to at the hearing. The result is $527 of expenses a month, leaving petitioner with at least an additional $26.04 a month unaccounted for. Petitioner also testified that his household consisted of not three but two children, aged three and four, and in discussing his loans did not mention the $520 alleged in the petition in addition to his $98 monthly installment payments. The failure to allege these additional loans could mean, and apparently was taken by the lower court to mean, that they were satisfied between the time of the petition and the hearing.

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*123ures which petitioner presented to the court. Due to the unexplained discrepancies in petitioner’s varying representations of his financial condition, we believe the lower court was amply justified in concluding that petitioner’s method of arriving at his figures was less than accurate and that the whole financial picture which he presented to the court was therefore suspect.

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 *124dispute.” Boddie v. Connecticut, supra, 401 U.S. at 382, 91 S.Ct. at 788. Rule 1137 provides that the court must satisfy itself of the truth of the averment of inability to pay made in the petition before ordering that the petitioner may proceed by paying reduced costs or no costs. When a question has arisen under this rule in the past, this Court has referred the matter of determining the veracity of the petitioner’s allegations to the lower court. See Whitehead v. Whitehead, supra; Wilson v. Wilson, 218 Pa.Super. 344, 280 A.2d 665 (1971).

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*125ceives welfare only as a supplement to an income he is earning for himself. Finally, in Gerlitzki the judge failed to conduct a hearing, reaching his decision by merely considering the petition, and therefore had no basis for suspecting the truth of the allegations contained therein. Here, the judge observed the petitioner and reviewed his allegations of financial insufficiency at two hearings before determining that the petitioner did not present a full and accurate account of his financial affairs. Despite the finding that petitioner’s testimony was conflicting and inexact and therefore to be received with some skepticism, the lower court attempted to sketch an outline of petitioner’s financial picture. It is not surprising considering petitioner’s apparent lack of concern for accuracy that the hearing judge, the author of this opinion, the dissent, and indeed petitioner himself, arrive at widely differing results in separately attempting to reconcile petitioner’s figures. This tends to support the court’s finding that petitioner’s allegations lack credibility.

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 *126evidence which demonstrates that after deducting necessary expenses from income he is in possession of extra money from which he could afford $25 a month toward the expenses of his legal proceeding and is further undermined by the lower court’s finding regarding credibility.

The order of the lower court is affirmed.

SPAETH, J., concurs in the result. HOFFMAN, J., files a dissenting opinion.

. 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 *122$35 a week. We feel that the petitioner would agree that the lower figure represents a more accurate figure, which in fact he seems to have done in his supplemental brief. Our decision to use the lower figure is based on the fact that petitioner claimed only $30 for food for himself and three children in his written petition a mere six months previously; at the time of the hearing he claimed only two children aged three and four in his household; one child attends Headstart where she receives two free meals a day; and the other will soon begin the program.