224 PASUPER 344 - Cooper v. Cooper

¶1Opinion

Per Curiam,

¶2The six Judges who heard this appeal being equally divided, the order of the court below is affirmed.

¶3Dissenting Opinion by

Spaulding, J.:

¶4I respectfully dissent.

¶5Appellant Bernard Cooper appeals from the order of the Court of Common Pleas of Montgomery County ordering him to pay his wife, the appellee, counsel fees and expenses in her action for divorce from bed and board. Appellant contends that §46 of The Divorce Law, Act of May 2, 1929, P. L. 1237, §46, as amended, 23 P.S. §46, violates the Equality of Rights Amendment to the Pennsylvania Constitution, Pa. Const., Article One, §27 (Adopted May 18, 1971).1 I believe the statute to be unconstitutional, since it allows for the payment of alimony pendente lite, counsel fees and costs to wives but not to husbands. The reasoning in support of this position was recently enumerated in the Dissenting Opinion in Henderson v. Henderson, 224 Pa. Superior Ct. 182, 303 A.2d 843 (1973). I would therefore reverse the order of the court below.

Cercone and Spaeth, JJ., join in this dissenting opinion.

¶6 Appellant also argues that the court below abused its discretion in the amounts assessed for fees and expenses. Since, I believe the statute under which they were awarded to be unconstitutional, I do not reach this question.