Nicholson v. Nicholson

PRICE, Judge:

This is an appeal- from an order of the court below finding that appellant was able to- pay the costs of her divorce and therefore was not entitled to proceed in forma pauperis. We affirm.

Appellant’s petition to proceed in forma pauperis was filed with the Court of Common Pleas of Clearfield County in 1975. Her petition set forth the following facts: she was wed to Clarence T. Nicholson on October 16, 1954, in Chestnut Grove, Clearfield County. Appellant has custody of her eight minor children, all living at home. Her only assets are items of personal property with an estimated worth of $250. Appellant’s total monthly income was $550 (now $587), consisting of a $384 (now $410) Public Assistance grant and a supplemental grant of $166 (now $177) from the Social Security Administration for one of her children who is blind.

On June 19, 1975, the lower court held a hearing on appellant’s petition and on October 2, 1975, it entered an order finding that appellant was not indigent and denying the requested relief. Appellant petitioned for leave to appeal to this court in forma pauperis, which petition was denied in a per curiam order on December 5, 1975. That order was vacated by the Supreme Court of Pennsylvania on April 26, 1976, with instructions to allow the petitioner to proceed in forma pauperis with her appeal to this court. That appeal is now before us.

Appellant’s claim is based on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), where the United States Supreme Court held that due process requires the states to make a procedure available whereby persons without the ability to pay are provided with access to the courts for the purpose of obtaining a divorce. This proce*175dure was codified in Pennsylvania under Pa.R.C.P. No. 1137, 42 Pa.C.S., which 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 including 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.”

The filing of a petition alleging indigency thus does not automatically establish the petitioner’s right to proceed in forma pauperis. “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.” Tomashefski v. Tomashefski, 246 Pa.Super. 118 at 124, 369 A.2d 839 at 842 (filed November 22, 1976).

In the instant case, the lower court held a hearing to determine the veracity and accuracy of appellant’s allegations in regard to her financial status. Appellant has not *176ordered the notes of testimony from that hearing and thus they are not transcribed. Because of this failure, we are unable to conduct an independent review of the evidence presented. However, as the lower court made a specific finding of non-indigency, the inescapable conclusion is that it was not convinced of the credibility of appellant’s budgetary assertions. The financial statement which accompanied appellant’s petition below contains several items that are less than self-explanatory: fifty dollars per month in “Transportation” (appellant is not employed, and would thus be spared the expense of travel to and from work); a fifty dollar per month allocation for “Non-Food Items” (in addition to clothing); and a seventeen dollar per month allowance under “Miscellaneous.” There is considerable discretion vested in the lower court in examining such a petition so that persons who are not indigent may not enjoy the privileges extended to them without the payment of fees and costs.

“When a question has arisen under this rule in the pas.t, this Court has referred the matter of determining the veracity of the petitioner’s allegations to the lower court. See Whitehead v. Whitehead, 224 Pa.Super. 303, 307 A.2d 371 (1973); Wilson v. Wilson, 218 Pa.Super. 344, 280 A.2d 665 (1971).” Tomashefski v. Tomashefski, supra, 246 Pa.Super. at 124, 369 A.2d at 842. Here, the lower court specifically found appellant not to be indigent. There is nothing in the record before us to indicate that the court abused its discretion in determining appellant’s ability to pay for her divorce.

The order of the lower court denying appellant’s petition to proceed in forma pauperis is affirmed.

HOFFMAN and SPAETH, JJ., file dissenting opinions.