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HomeMy WebLinkAbout93-3691 civilJOHN F. HARDING, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 3691 CIVIL 1993 ANNE M. HARDING, Defendant IN RE: PLAINTIFF'S PETITION TO TERMINATE ALIMONY AND DEFEDANT'S PETITION TO INCREASE ALIMONY BEFORE HOFFER, J. t~,,..,~.. O~ R~DER~OO~F~ .__ THE COURT AND NOW, ~~, after careful consideration of both parties' findings of fact and conclusions of law, Plaintiff's request to terminate alimony is denied and defendant's request to increase alimony is denied. By the Court, James M. Bach, Esquire ~Ge~ J. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for the Plaintiff Girard E. Rickards, Esquire Wix, Wenger & Weidner 4705 Duke Street Harrisburg, PA 17109-3099 Attorney for the Defendant JOHN F. HARDING, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 3691 CIVIL 1993 : ANNE M. HARDING, : Defendant IN RE: PLAINTIFF'S PETITION TO TERMINATE ALIMONY AND DEFENDANT'S PETITION TO INCREASE ALIMONY BEFORE HOFFER, J. OPINION OF THE COURT Hoffer, J.: In this opinion, we address Plaintiff's Petition to Terminate Alimony and Defendant's Petition to Increase Alimony. Based upon the following reasons, we now deny both parties' petitions. John F. Harding ("Plaintiff") and Anne M. Harding ("Defendant") were married on October 5, 1974, and divorced in Cumberland County on May 30, 1996. The Divorce Master's Report ("Master's Report"), along with additions by both parties, was incorporated but not merged into the divorce decree. The Master's Report found that Defendant was entitled to 55% of the marital assets while Plaintiff would receive 45% of the martial assets. In order to achieve this distribution scheme, Plaintiff had to pay Defendant $27,258.86. In addition to the equitable distribution, Plaintiff was required to pay Defendant $500 per month in alimony in order to help Defendant maintain the modest standard of living she was accustomed to while 3691 CIVIL 1993 married to Plaintiff. However, the parties agreed in the additions to the Master's Report that the amount and duration of alimony would be subject to modification and termination under 23 Pa. C.S. Section 3701(e) of the Domestic Relations Code. Both parties have now petitioned to have the alimony modified. Before addressing the arguments made by both sides concerning the modification of alimony, it is necessary to review the Master's Report to elicit several findings of fact which are pertinent to alimony modification in this case. The Divorce Master held two hearings after which several findings of fact were made including the following: Defendant would be having neck surgery in March 1996 and this would prevent her from working for three months. (Master's Report, 3.) Additionally, Defendant stated that her present health was not good. (Master's Report, 3.) Plaintiff, at the time of the hearings, had recently bought land in Perry County and was building a new house there. (Master's Report, 3.) Additionally, Plaintiff stated that his health was very good. (Master's Report, 6.) The Master also found that Defendant was employed with Delta Dental and was earning a weekly gross income of $395. (Master's Report, 3.) Plaintiff was employed with the Navy Fleet Support Office and earning a biweekly gross income of approximately $2,600. (Master's Report, 6.) Finally, the Master found that both parties had medical insurance coverage through their respective employers. 3691 CIVIL 1993 (Master's Report, 6.) On October 20, 1997, a hearing was held concerning both parties' petitions to modify alimony. At this hearing the following testimony was made: Plaintiff testified that he has suffered from Legg Perthes disease since the age of four. (Notes of Testimony, hereinafter "N.T." 17-18.) This disease caused 75% of the bone in.his left hip to die and created a 50% chance that the Plaintiff would contract arthritis. (N.T. 17-18.) Plaintiff also alleged that he was suffering from several more recent health maladies; however, he failed to present any expert medical opinion concerning these problems. Furthermore, Plaintiff also testified that prior to the divorce he had health insurance through Defendant's Delta Dental health insurance. (N.T. 18.) Plaintiff then testified that after the divorce he had to acquire American Postal Workers Union insurance. (N.T. 18.) Plaintiff also testified that he had to take a second and third mortgage on his house in order to pay Defendant her share of the equitable distribution. (N.T. 22.) Additionally, Plaintiff also claimed that he had to stop construction on his house, leaving an unfinished chimney, deck, garage, and landscaping. (N.T. 22.) Finally, Plaintiff testified that he purchased a hunting license for this year's doe season and intended to hunt. (N.T. 32.) At this same hearing, Defendant testified that she was fired from Delta 3691 CIVIL 1993 Dental, where she earned $20,000 per year. (N.T. 7.) Defendant has since been hired at Eagle Managed Care at a salary of approximately $15,000 per year. (N.T. 7.) Defendant also testified that since the divorce she has taken one course at Harrisburg Area Community College. (N.T. 8.) DISCUSSION The modification of alimony in this case is determined by Pennsylvania Statute which states "[a]n order entered pursuant to this section is subject to. further order of the court upon changed circumstances of either party of a substantial and continuing nature. 23 Pa. C.S. Section 3701(e) (1995). The courts have held that the purpose of alimony is "to provide for economic justice to be met according to actual needs and the ability of the parties to pay." Geyer v. Geyer, 310 Pa. Super. 456, 456 A.2d 1025, 1029 (1983). Additionally, alimony that was specifically incorporated into a divorce decree can be modified if the petitioning spouse has proven that continuing and substantial changes in the circumstances have occurred. McFadden v. McFadden, 386 Pa. Super. 506, 563 A.2d 180, 182 (1989). In the case at bar, we find that both parties have failed to meet their burden of proving that continuing and substantial changes in circumstances have occurred. 3691 CIVIL 1993 Plaintiff failed to meet his burden in proving that alimony should be terminated. He alleges that his recent health maladies have caused significant hardship on him and have made it difficult for him to pay the present alimony. However, Plaintiff failed to present any expert evidence to prove this claim. Plaintiff offered only his own testimony, which was not enough evidence for alimony modification. Additionally, Plaintiff also claims that his Legg Perthes disease may require him to have hip replacement. Again, no expert testimony was offered on this matter. Furthermore, Plaintiff had the opportunity to reveal this disease at the two hearings held by the Divorce Master since Plaintiff has known about his condition since the age of four. Additionally, Plaintiff testified that he was in good health at the Master's Hearing. Therefore, he had an opportunity to discuss his condition but he chose not to do so. Furthermore, Plaintiff has stated throughout this proceeding how his ill health has affected his job performance and his ability to pay alimony; yet, at the hearing for termination of alimony, Plaintiff admitted that he bought a hunting license and planned to use it for the upcoming season. Again, the court finds that Plaintiff's health may not be as troublesome as claimed if Plaintiff feels hearty enough to hunt deer in the middle of winter. Furthermore, Plaintiff claims under his petition that after the divorce he had to remove himself from Defendant's health insurance and instead purchase 5 3691 CIVIL 1993 American Postal Workers Insurance. However, the Divorce Master made findings of fact that both Defendant and Plaintiff were covered under their own separate employers' policies. This Court is unable to find a substantial and continuing change of circumstances based upon contradictory testimony offered by Plaintiff at two different hearings. Finally, Plaintiff claims that his circumstances have changed because he has had to take out another mortgage on his house in order to pay Defendant her share of the equitable distribution. This, in turn, Plaintiff claims, has left his house unfinished. Again, the court finds no substantial or continuing change of circumstances which would require termination of alimony. Plaintiff chose to buy the land and began building the house before the Divorce Master finished his findings. Obviously, Plaintiff felt secure enough in his finances to determine that it was viable for him to begin building a house before equitable distribution between the parties was determined. Furthermore, Plaintiff had to realize that Defendant would be entitled to some of the marital assets. Plaintiff claims that paying Defendant her share of the equitable distribution has caused a substantial change in circumstances, therefore requiring the modification of alimony. The Court takes issue with this on two counts. First, equitable distribution is different than alimony. The purpose of equitable 3691 CIVIL 1993 distribution is to divide the marital assets between the parties. Conversely, alimony's purpose is to help one party maintain the standard of living he or she was accustomed to prior to the divorce. Furthermore, alimony does not come from the marital assets and therefore is not part of the equitable distribution. Second, Plaintiff, as part of the equitable distribution, received his pension in whole rather than having to split it with the Defendant since a pension is a marital asset. Because Plaintiff was allowed to keep his pension in whole, he was required to pay Defendant $27,258,86 as part of the equitable distribution. Again, this Court does not understand how this could be considered a substantial and continuing change of circumstances. Plaintiff knew the marital assets would be divided and, just because he is required to pay Defendant a sum of money as part of the distribution scheme, this can not be viewed as a substantial and continuing change in circumstances involving alimony. For the reasons stated above, this Court finds that Plaintiff failed to meet his burden of proving that a substantial change in circumstances has occurred and, therefore, Plaintiff's petition to terminate alimony is denied. Defendant has also petitioned claiming that a substantial change in circumstances has occurred and therefore alimony should be increased. We find that Defendant has failed to meet her burden. 7 3691 CIVIL 1993 Defendant testified at the hearing that she underwent neck surgery and was out of work for three months. However, this fact was brought up during one of the Divorce Master's hearings and taken into account by the Divorce Master when determining alimony. Therefore, we do not consider the operation to be a change in circumstances. Furthermore, Defendant testified that she lost her job, but has found a position earning approximately $5000 less than her previous position. The Court does not find this to be a substantial and continuing change in circumstances. Defendant has the opportunity to move up in the position or find a new job. Additionally, Defendant has had the opportunity to take one class at Harrisburg Area Community College and hopes to further her education in the area of social work. Based upon these facts, this Court finds that the Defendant has not met her burden of proving substantial and changed circumstances. For these reasons, both parties' petitions are denied. 8