*1 339 interviewed, counsel must be present and have an opportuni ty question child, the and the testimony must be tran G., scribed and made of the record. Gerald part a supra, 284 508, 161; at Commonwealth ex rel. Pa.Super. 426 A.2d at Shuster, Grillo v. 229, 226 Pa.Super. 235, 237-38, 58, 312 A.2d Morales, Commonwealth ex rel. Morales (1973); 63 222 373, 375-76, Williams v. Pa.Super. 782 (1972); A.2d Williams, 29, 33, 223 Pa.Super. 296 A.2d (1972); (5) as previously noted the court provided its order that protec tive supervision should be furnished Children and Youth of Butler Agency In this County. regard we call the Frank, to the cases of In re court’s attention of Custody 229, v. He 423 A.2d 1229 (1980) and Hemenway men way, 284 Pa.Super. 426 A.2d (1981) which require compliance Act, with the Juvenile 42 Pa.C.S.A. 6301 et seq. before an order providing § for supervision by an agency entered; may State properly (6) finally, before an appeal is taken from a subsequent court order in this matter it will be to file a new necessary notice appeal the case should be assigned appeal new number.

Remanded. LIEBENDORFER, Appellant Nils Appellee in No. 727 and

in No. LIEBENDORFER, Appellee Sue Ann in No. 727 and

Appellant in No. 1112.

Superior Court of Pennsylvania.

Argued Nov. 1980. 1,May

Filed 1981. Reargument Aug. Denied *2 Lucchino, Frank J. for at No. 727 Pittsburgh, appellant and for at No. 1112. appellee Rochester,

Barris for at No. 727 and for Siegel, appellee appellant at No. SPAETH, LIPEZ,

Before WICKERSHAM JJ.

LIPEZ, Judge: appeals Wife defendant from the of a in entry final decree divorce A.V.M. favor of her husband on grounds indignities, pursuant Section 10 the Divorce Law of 1929. The appeals husband from award of fees counsel and expenses. it contended that the wife exces-

Essentially drank sively, and was confirmed causing alcoholic the husband such indig- embarrassment and humiliation as to constitute *3 divorce, nities. The a believing master recommended the witnesses, husband and his and her disbelieving the wife witnesses, finding and the to be husband an innocent and injured The spouse. agreed. court below an Having made of independent complete evidence, and the study Leucci Leucci, 261 395 A.2d (1978), we are convinced husband an injured that the is not innocent and spouse We and reverse. think the award of fees and counsel expenses was and affirm. proper

There was abundant evidence show that to the wife drank was and indeed a confirmed excessively Though alcoholic. the parties were married for 25 years, some the crucial period was from to December when the husband left. He of president building association, a and loan entertaining functions, in the home and attending many parties and wife. period, conventions with the this During though the drank as considerably, wife wife and mother she duties, took care of the household took courses in various a colleges putting towards masters in hours in degree, long studies, her household duties and her and became associ- an ate professor college. at We that community agree actions, evidence of her as privately publicly, arising drinking, indigni- did out of her excessive constituted they ties.

However, his burden we think the husband has not carried of that he was an proving convincing clear and evidence Pa. O’Leary, innocent and injured spouse. O’Leary wife’s actions constitu- Super. (1979). The During were alcohol related. ting indignities clearly all for a short time in period, except whole of this five year brought beverages both the husband and wife alcoholic parties, The took his wife to various into the home. husband where were beverages conventions and clubs alcoholic her served, he made it a to drinks for point get where her himself, knowledge drinking pro- his notwithstanding clivities. all this the husband himself contin- During period to drink A number of times the husband considerably. ued about her suggested something drinking prob- that she do it, lem, except he not do about to actively anything but did them, none of whom certain doctors. She saw suggest that they then told her husband appeared helpful. She him to with her but he counseling, asking go both needed refused. that until telling

In the husband left her her May then returning. she he was not She got professional help to which about a Massachusetts inquired hospital Lynn, with the went for two weeks while the husband stayed she returned children. He made no calls to her there. She forgiveness began her husband’s and then improved, begged she him to meetings. Though requested to attend A.A. *4 refused do so. After a time attend with her he failed or to not it difficult babysit finding since her husband would this stopped going. During period to obtain she babysitters, drinking the former drinking. she had Thereafter stopped various started Both husband and wife at pattern again. house; into the both of them bringing liquor times started with went to a convention in company; they drank there for her and Francisco where husband ordered drinks San himself; where parties continued to various they going staying served. The husband started a liquor pattern 27, 1977, out late at on December he told her night. Finally, he he anymore—that that didn’t want to be restricted want- ed to be free to life. He then left her since which enjoy time have they separated. been

We are convinced that since the husband never effort made “a serious to shield the defendant from her change habits, weakness or to effect a in her he is drinking injured Hunter, not an and innocent Hunter v. spouse.” 498, also, Pa.Super. (1951). Carter, 83 A.2d 401 See Carter Pa.Super. (1950); Othmer, 72 A.2d 621 Othmer v. (1946). was, 45 A.2d 389 His for the Pa.Super. most service, part, lip doctors, her to merely by telling see without Indeed, about it. actually doing anything her to by taking served, clubs and where parties liquor was her by buying drinks, by allowing liquor in the house for a short (except period following hospitalization), her by allowing it to be home, served in the his considerable indulging in it himself, and by failing aid her in her actively efforts to habits, overcome her drinking he must share the responsibili actions, for her all of which ty were drink related. And while it is true that a plaintiff need not be free from wholly fault to be innocent and injured, McCaskey McCaskey, (1978), 385 A.2d 378 here the husband’s dere lictions were not a minor or passing phenomenon, but went to the very heart of the cause which brought about the marital difficulties.

As to the appeal fees, to counsel relating award was well within the of the range court’s discretion. See Oswald, Oswald v. 263 Pa. Super. (1979). Decree complaint reversed and dismissed. Award of coun- sel fees affirmed.

WICKERSHAM, J., files a dissenting statement. WICKERSHAM, Judge, dissenting: I would affirm the Allegheny Court En Banc County of the consisting (now Honorable John G. of the Brosky Superior Court of Pennsylvania) and the Honorable William *5 of the Colbert, concurred in the recommendations

H. who upon indig- a divorce based plaintiff granted Master that nities.

TIOGA COAL COMPANY Forepaugh Robert GENERAL CORPORATION. SUPERMARKETS Appeal of TIOGA COAL COMPANY. TIOGA COAL COMPANY Forepaugh Robert CORPORATION, Appellant. GENERAL SUPERMARKETS Superior Pennsylvania. Court Argued June 1980. May 1981. Filed Reargument Sept. En Banc Denied 1981. Appellee’s Appeal Granted Dec. Petition for Allowance