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HomeMy WebLinkAbout85-1247 MARIANNE G. RUSSELL, . Plaintiff v. STEPHEN S. RUSSELL, • Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1247 CIVIL 1985 IN RE: MODIFICATION OR TERMINATION OF ALIMONY BEFORE OLER, J. ORDER OF COURT AND NOW, this 12~ day of December, 1997, upon consideration of Defendant's petition for termination of alimony and for refund of excess payments, and of Plaintiff's counterclaim for an increase in alimony, following a hearing and for the reasons stated in the accompanying opinion, Defendant's petition is granted to the extent that alimony is terminated as of this date, and Plaintiff's counterclaim is dismissed. BY THE COURT, J John J. Connelly, Jr., Esq. 108-112 Walnut Street P.O. Box 963 Harrisburg, PA 17108 Attorney for Plaintiff Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendant esley Ole C ~ . , J. ~~_~.~., ~rut.~.Cr ~t 1 ~~is~5''7. ..~- ~S'. :rc MARIANNE G. RUSSELL, Plaintiff v. . STEPHEN S. RUSSELL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1247 CIVIL 1985 IN RE: MODIFICATION OR TERMINATION OF ALIMONY BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., December 12, 1997. For disposition in this 1985 divorce case is a petition filed by Defendant for termination of an alimony order and fo:r refund of excess payments, and a counterclaim filed by Plaintiff for an increase in the alimony order. A hearing on the matter was held on Monday, November 24, 1997. For the reasons stated in this opinion, Defendant's petition for termination will be granted. STATEMENT OF FACTS Plaintiff, 54, and Defendant, 54, were married on December 30, 1967, separated for a final time on October 1, 1986, and divorced on February 16, 1990.1 Two children were born of the marriage: Amanda P. Russell (July 1, 1972) and Katie G. Russell (May 5, 1977). Katie G. Russell was born with cerebral palsy, is mentally retarded and requires constant supervision. She is presently a 1 Some of the facts recited in this opinion are taken from a master's report dated November 28, 1989 (C. Roy Weidner, Jr., Esq., Master), to which no exceptions were filed. N0. 1247 CIVIL 1985 resident of a facility known as Deveraux, Kanner Center, located at 390 East Boot Road, West Chester, Pennsylvania. At the time of the parties' divorce in 1990, Plaintiff had been employed on a part-time basis for about two years with a private investigating firm, earning $192.00 per week; interest income brought her gross earnings to $204.00 per week. She is a high school graduate, with additional training for employment as a medical secretary. Defendant, at the time of the parties' divorce, had been employed for about sixteen years as a staff attorney with the Pennsylvania School Boards Association, earning approximately $650.00 net per week. He is a law school graduate. The parties' no-fault (mutual consent) divorce followed the filing of a master's report, to which neither party filed exceptions. The master's report dealt with issues of equitable distribution and alimony, inter alia. With respect to equitable distribution, the parties' $115,260.00 marital estate was divided on a 55/45 basis. Plaintiff received the five-bedroom marital home in Hampden Township (having an equity value of $52,000.00), and other property worth $11,038.00, and Defendant received his pension, having a value of $52,222.00. With respect to alimony, Plaintiff was awarded $85.00 per week, for an indefinite period. In this regard, the master 2 NO. 1247 CIVIL 1985 considered numerous factors, including the parties' relative educations and earning capacities, their respective abilities to support themselves through appropriate employment, their assets and liabilities, and the effect of custodial responsibilities. Of particular importance to the master, in recommending that the period of alimony be indefinite, was the indefinite nature of Plaintiff's custodial responsibility for the parties' handicapped daughter. Among the points made by the master in his discussion of alimony were the following: 1. There will be a significant effect on Mrs. Russell's earning power due by reason of her serving as a custodial parent for Katie in particular, and this has been given significant weight in regard to the need fo:r an indefinite alimony award. Such an award is merited due to the fact that the situation with Katie cannot be clearly determined at this time as it relates to placement outside of Mrs. Russell's custody at the time Katie reaches 18. Far too many factors, including Katie's own willingness to enter a CLA, were presented to allow one to predict with any degree of certainty whether Mrs. Russell's custody of Katie will, in fact, terminate at that time. Since Katie's situation is probably the single most weighty factor involved in this situation, the unpredictability of her situation makes an indefinite order appropriate. In this way, the law can protect both parties from the uncertainty at hand, since an order of alimony is subject to change when there is a change in the circumstances of either party of a substantial and continuing nature. 3 N0. 1247 CIVIL 1985 3. It is believed that Mrs. Russell does have and will have sufficient property if the equitable distribution of property herein recommended is carried out to provide for her reasonable needs. However, given the fact that she will be assuming the mortgage on the home and it is believed that alimony will be needed for her, at least until the situation is determined with regard to Katie's placement in a CLA; the amount recommended is related to the statements filed by the parties, the amounts heretofore contributed by Mr. Russell, and with reference to the Standard Pennsylvania Support Guideline. 6. As far as the relative needs of the parties are concerned, that has been amply discussed. But in summary, it is the needs of the parties as they relate to the specific circumstances of Katie's situation which are, for the most part, controlling. Once Mrs. Russell is no longer custodian of Katie, it is believed that her needs will not be such as to require any further alimony. 9. The fact that Mrs. Russell is incapable of self-support through appropriate employment has been considered in the context of her need to accommodate Katie's situation, which thereby restricts her employability and consequentially her ability to support herself . At the present time, Plaintiff is employed full time as a unit secretary at a nursing home/retirement community known as Messiah Village. Her weekly net income from this employment if $333.00. She continues to live in the former marital home, which now has a value of between $150,000.00 and $175,000.00, with her equity in the property being between $90,000.00 and $115,000.00. She owns a 4 NO. 1247 CIVIL 1985 1990 Mazada, and has about $4,900.00 in cash, bonds and stocks. The parties' daughter Katie, now 20, moved from Plaintiff's residence to the Deveraux facility in West Chester in November of 1994 .2 Defendant presently has risen to the position of chief counsel with the Pennsylvania School Boards Association. His weekly net income is $1074.00.3 He has remarried, and resides in Dillsburg. Defendant's assets include a jointly-owned equity interest in the amount of $38,000.00 in a $249,000.00 home in which he and his spouse live, an IRA account worth $5,000.00, and about $8,700.00 in cash. It is not clear from the record whether his pension fund with the Association is still extant, but the court will assume it is. DISCUSSION The factors relevant to a determination of the nature, amount, duration and manner of payment of alimony are set forth in the Divorce Code: (1) The relative earnings and earning capacities of the parties. (2) The ages and the physical, mental and emotional conditions of the parties. (3) The sources of income of both parties, including, but not limited to, 2 The parties' older daughter Amanda, now 25, continues to reside with Plaintiff. 3 See Petitioner's Exhibit 5. 5 N0. 1247 CIVIL 1985 medical, retirement, insurance or other benefits. (4) The expectancies and inheritances of the parties. (5) The duration of the marriage. (6) The contribution by one party to the education, training or increased earning power of the other party. (7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child. (8) The standard of living of the parties established during the marriage. (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment. (10) The relative assets and liabilities of the parties. (11) The property brought to the marriage by either party. (12) The contribution of a spouse as homemaker. (13) The relative needs of the parties. (14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony. (15) The Federal, State and local ta.x ramifications of the alimony award. 6 N0. 1247 CIVIL 1985 (16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide far the party's reasonable needs. (17) Whether the party seeking alimony is incapable of self-support through appropriate employment.4 With respect to modification and termination of an award of alimony, the Code provides as follows: An order [for alimony] ... is subject to further order of court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made.s Alimony in Pennsylvania was, at one time, intended to be for rehabilitative purposes only. See Peterson v. Peterson, 427 Pa. Super. 572, 629 A.2d 1017 (1993) (Grillo, J., concurring). As Judge Grillo observed in his concurring opinion in Peterson: In 1988, however, the legislature eliminated from the Divorce Code the requirement that alimony be solely rehabilitative in nature. A court may now order alimony, "as it deems reasonable, to either party only if it finds that alimony is necessary." 23 Pa. C.5.A. ~ 3701(x). "Necessity is the only requirement in determining the propriety of an alimony award and that necessity is judged by numerous considerations only some of which have to do with the rehabilitation of the recipient. spouse." Zullo v. Zu11o, 395 Pa.Super. 113, 4 Act of December 19, 1990, P.L. 1240, §2, 23 Pa. C.S. ~3701(b}. s Id., 23 Pa. C.S. ~3701(e). 7 NO. 1247 CIVIL 1985 122 n.3, 576 A.2d 1070, 1074 n.3 (1990), aff'd, 531 Pa. 377, 613 A.2d 544 (1992). Significantly, the guideline for determining the duration of an alimony award now reads, "[t]he court in ordering alimony shall determine the duration of the order, which may be for a definite or indefinite period of time which is reasonable under the circumstances." 23 Pa.C.S.A. ~ 3701(c). This definition clearly "eliminat[es] any legislative mandate to link the term of alimony to such time as the recipient becomes gainfully employed."' Zullo, 395 Pa.Super. at 122 n.3, 576 A.2d at 1074 n.3. Id. at 575, 629 A.2d at 1019. Notwithstanding the expansion of factors to be considered with respect to alimony, an event or circumstance which serves to favorably affect one's capacity for self-support through appropriate employment remains a proper consideration under the statute.6 In this sense, a rehabilitative feature of alimony is still discernible in certain situations. In the present case, a number of factors have led the court to conclude that Defendant's petition for termination of alimony should be granted. First, the primary condition upon wh_i.ch alimony was awarded pursuant to the master's report - Plaintiff's incapacitation due to extraordinary child-care responsibilities - has terminated. Second, neither party chose at the time to except to the master's recommendation for alimony of an indefinite duration premised upon the indefinite duration of Plaintiff's 6 Id., 23 Pa. C.S. ~3701(b)(17). 8 NO. 1247 CIVIL 1985 custodial duties. Third, Plaintiff owns her own home and has several thousand dollars in savings. Fourth, Plaintiff has obtained full-time employment, and is earning over $140.00 more per week than she was when the parties were divorced. These factors, when weighed with all of the prescribed considerations in Section 3701(b) of the Divorce Code, suggest that the function of alimony in this case has been fulfilled. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 12th day of December, 1997, upon consideration of Defendant's petition for termination of alimony and for refund of excess payments, and of Plaintiff's counterclaim for an increase in alimony, following a hearing and for the reasons stated in the accompanying opinion, Defendant's petition is granted to the extent that alimony is terminated as of this date, and Plaintiff's counterclaim is dismissed. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. John J. Connelly, Jr., Esq. 108-112 Walnut Street P.O. Box 963 Harrisburg, PA 17108] Attorney for Plaintiff 9 N0. 1247 CIVIL 1985 Richard C. Snelbaker, Esq. 44 West Main Street Mechanicsburg, PA 17055 Attorney for Defendant :rc 10 MARIANNE G. RUSSELL, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW STEPHEN S. RUSSELL, NO. 1247 CIVIL 1985 Defendant IN DIVORCE c- ,,~, ~_} -:, _T. - PRAECIPE REQUESTING HEARING -~ ,.; -_ _ .'-, TO: Prothonotary of Cumberland County ~_ _ --= ;'> Court Administrator of Cumberland County -~ ., ~•~~ -:~, ,,~ .~~; This is to request a hearing on Defendant's Petition for Termination of Alimony Order and Refund of Excess Payments and Plaintiff's Counterclaim thereto. The pleadings are closed and the matter is ready for an evidentiary heax~i?~ig on the merits. President Judge Sheely has issued the Rule on the Petition and has presided in other matters in this case. A copy hereof is being served this date via first class mail upon the attorney for Defendant indicated below. SNELBAKER, BRENNEMAN & SPARE, P. C. By: Richard C. Snelbaker Atto eys for Defendant (Petitioner) LAW OFFICES SNELBAKER. BRENNEMAN & SPARE Copy to: John J. Connelly, Jr., Esquire Connelly, Reid & Spade P. O. Box 963 Harrisburg, PA 17108-0963 (Attorney for Plaintiff) Dated: May 22, 1997 .~ . MARIANNE G. RUSSELL, . Plaintiff . vs. STEPHEN S. RUSSELL, . Defendant €1i~~~ ~ c. I~`~ i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1247 CIVIL 1985,-•. IN DIVORCE PRAECIPE REQUESTING HEARING '~- TO: Prothonotary of Cumberland County Court Administrator of Cumberland County ;~} -_, ~: --; This is to request a hearing on Defendant's Petition for (Termination of Alimon Order and Refund of Excess Payments and Plaintiff's Counterclaim thereto. The pleadings are closed and the matter is ready for an evidentiary hearing on the merits. President Judge Sheely has issued the Rule on the Petition and has presided in other matters in this case. A copy hereof is being served this date via first class mail upon the attorney for Defendant indicated below. SNELBAKER, BRENNEMAN & SPARE, P. C. By: Richard C. Snelbaker Atto eys for Defendant (Petitioner) LAW OFFICES SNELBAKER. BRENNEMAN & SPARE Copy to: John J. Connelly, Jr., Esquire Connelly, Reid & Spade P. O. Box 963 Harrisburg, PA 17108-0963 (Attorney for Plaintiff) Dated: May 22, 1997 MARIANNE G. RUSSELL, Plaintiff/Respondent v. STEPHEN S. RUSSELL, Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1247 CIVIL 1985 IN DIVORCE IN RE: MATTER TAKEN UNDER ADVISEMENT ORDER OF COURT AND NOW, this 24th day of November, 1997, upon consideration of Defendant's Petition for Termination of Alimony Order and for Refund of Excess Payments and of Plaintiff's Answer to Petition for Termination of Alimony Order and Refund of Excess Payments and Counterclaim, and following a hearing, the record is declared closed, and the matter is taken under advisement. By the Court, ~~ J. esley O Jr., John J. Connelly, Esquire Counsel for Plaintiff/Respondent Richard C. Snelbaker, Esquire ~ , ~ ~~=, Counsel for Defendant/Petitioner ' :slr . ~., .. ~ ~ `