MARGARET H. HOUSE vs. RODNEY HOUSE.

WILKINS, J. The libellant (wife) was granted a decree nisi for divorce on the ground of cruel and abusive treatment. At the time of the granting of the divorce, the judge denied the wife's application for counsel fees in connection with the maintenance of the libel on the ground that Rule 47 of the Rules of the Probate Courts (1959) was unconstitutional as violative of the Fourteenth

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Amendment to the Constitution of the United States. [Note 1] We granted the wife's application for direct appellate review.

Rule 47 of the Rules of the Probate Courts (1959) sets forth certain requirements which must be met by a wife in an application for an allowance to enable her to defend or prosecute a divorce libel. [Note 2] Rule 47 does not grant a wife the right to seek an allowance for counsel fees, and it does not deny a husband the right to seek such an allowance. There is no parallel rule, however, specifying procedures to be followed by a husband who makes an application for such an allowance.

The parties have assumed on appeal that because of Rule 47 a wife, but not a husband, may seek an allowance for counsel fees in a divorce proceeding in this Commonwealth. [Note 3] They have devoted a substantial portion of their arguments to the question whether Rule 47 violates the equal protection clause of the Fourteenth Amendment. In our view, this matter can be resolved without adjudication of constitutional questions.

There is ample statutory authority for awarding counsel fees to either spouse in a divorce proceeding. Section 38 of G. L. c. 208, as appearing in St. 1933, c. 288, provides that "[i]n any proceeding under this

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chapter . . . the court may, in its discretion, award costs and expenses, or either, to either party, whether or not the marital relation has terminated." Section 38 provides further that, where costs or expenses are awarded to a party, "they may be awarded to his or her Counsel" (emphasis supplied). [Note 4] Chapter 208 of the General Laws governs divorces. Prior to the 1933 amendment, Section 38 did not permit an award of counsel fees. See Wallace v. Wallace, 273 Mass. 62, 65 (1930). Since that amendment we have acknowledged that under Section 38 "the court now undoubtedly has power to award costs and expenses, which may include counsel fees, and may order them to be paid to counsel for the opposing party." Hayden v. Hayden, 326 Mass. 587, 594-595 (1950).

Rule 47 obviously deals with the more common economic circumstance -- a wife who needs funds to prosecute or defend a divorce action. However, Rule 47 should not be read as an attempt to restrict, by court rule, authority plainly given to the Probate Court by legislation. Because a husband in appropriate circumstances has an equal right to an allowance to prosecute or defend a divorce libel, there is no discrimination in fact between husbands and wives.

We do not read Rule 47 as imposing any significantly different burden on a wife from that which implicitly is imposed on a husband seeking an allowance for counsel fees. Any husband seeking an allowance for counsel fees would have to establish, quite apart from any rule, that he intends to defend or prosecute the libel in good faith.

Because of what we have said, we need not consider whether discrimination in favor of wives in such circumstances would be constitutional. Compare cases invalidating sex-based discrimination (Reed v. Reed, 404 U.S. 71, 76 [1971]; Stanley v. Illinois, 405 U.S. 645,

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658 [1972]; Frontiero v. Richardson, 411 U.S. 677, 690-691 [1973]; Taylor v. Louisiana, 419 U.S. 522, 537 [1975]; Weinberger v. Wiesenfeld, 420 U. S. 636, 651 [1975]; Stanton v. Stanton, 421 U.S. 7, 13-17 [1975]) with cases upholding statutory distinctions based on sex. (Kahn v. Shevin, 416 U.S. 351, 355 [1974]; Schlesinger v. Ballard, 419 U.S. 498, 508 [1975]). Also, we need not decide whether, if such discrimination were unconstitutional, the appropriate cure would be to deny counsel fees to wives in divorce proceedings. A more rational result might be to interpret Rule 47 (and G. L. c. 208, Section 17) as intending that spouses have equal rights in similar circumstances. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 543 (1942); Stanton v. Stanton, 421 U.S. at 17-18 (1975); Note, The Effect of an Unconstitutional Exception Clause Upon the Remainder of a Statute, 55 Harv. L. Rev. 1030 (1942); Developments, Equal Protection, 82 Harv. L. Rev. 1065, 1136-1137 (1969); Brown and others, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L. J. 871, 912-920 (1971). In any event, even if Rule 47 (and G. L. c. 208, Section 17) were unconstitutional and treated as void, the general statutory provisions allowing an award of counsel fees in divorce proceedings would remain untarnished by any suggestion of sex-based discrimination.

An award of counsel fees was permissible; and, as the judge indicated that he would grant the wife's application for an allowance if Rule 47 were constitutional, the application should have been granted. The order denying the application is reversed, and the case remanded to the Probate Court for further proceedings consistent with this opinion.

So ordered.