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HomeMy WebLinkAbout89-3342 CIVILBENJAMIN J. PARISER, Plaintiff VS. ISHWOREE M. PARISER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3342 CIVIL 1989 CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE ALIMONY AND MOTION TO TERMINATE ALIMONY OPINION AND ORDER This matter is before the court on cross petitions of the parties. The defendant seeks reinstatement of alimony in the case. The plaintiff seeks its termination. This matter has been something of a saga as divorce cases go and a review of the factual and procedural history is in order. Benjamin J. Pariser (Plaintiff) and Ishworee M. Pariser (Defendant) were married on June 27, 1974 in Kathmandu, Nepal. after the birth of their first child. The Parisers returned to the United States in 1975, six weeks The Parisers are the natural parents of three children: Robert J. Pariser (6/29/75), Serena J. Pariser (7/21/79), and Joseph J. Pariser (3/28/84). Robert recently graduated from law school and Serena is a school teacher in Philadelphia. Joseph just graduated from high school and will be starting college in the honors program at Penn State University this fall. Defendant is still a citizen of Nepal. After their return to the United States plaintiff worked for a year as a substitute teacher before starting medical school at the Philadelphia College of Osteopathic Medicine. Upon his completion of medical school in 1979 plaintiff began practicing medicine. The family lived for approximately four years in Pine Grove, Pennsylvania before moving to Carlisle. At the time of 3342 CIVIL 1989 the filing of the divorce complaint, plaintiff maintained a solo medical practice in Mechanicsburg, Pennsylvania. The Parisers separated on December 31, 1992. A divorce complaint had been filed by plaintiff on September 20, 1989, raising irretrievable breakdown of the marriage and indignities as grounds for the divorce. No economic claims were raised in plaintiff' s complaint. Defendant filed a counterclaim for divorce, on March 18, 1993, in which she raised claims for alimony, alimony pendente lite, counsel fees and expenses. Defendant raised a claim for equitable distribution through an amended complaint on July 15, 1993. By an order of court dated July 19, 1993, plaintiff was ordered to pay alimony pendente lite in the amount of $1,890.00 per month, effective upon the couple's separation. In April 1994, the alimony pendente lite amount was reduced to $1,720.00 per month, effective January 1, 1994. The alimony pendente lite award was again reduced and lowered to $1,200.00 per month in September 1994, effective October 1, 1994. The reductions in alimony were made because of decreases in plaintiff' s income and the added costs of the children's college educations. A series of hearings were held before the divorce master in late-1994 and early-1995. The hearings culminated in the filing of the master's report on June 28, 1995. Cross-exceptions to the master's report were filed in July 1995. On May 1, 1996, defendant's exceptions to the master's report were denied while plaintiff' s exceptions to the master's report were denied except for the master's assessment of certain federal and state income tax liabilities. Cross- appeals to the May 1, 1996 order of court denying the exceptions were taken to the Pennsylvania Superior Court in May and June 1996. A final divorce decree was entered on October 11, 1996. The Superior Court upheld the trial court's decision regarding the exceptions to the master's report in their opinion issued May 19, 1997. 2 3342 CIVIL 1989 The divorce master set plaintiff' s alimony payment at $1,250.00 per month in his report filed June 28, 1995, effective upon the filing of the final divorce decree. The alimony order was suspended on February 29, 2000, retroactively to December 2, 1999, after plaintiff entered an inpatient treatment facility, was no longer employed and was without income to make the alimony payments as ordered by the court. On July 11, 2000 the court continued the suspension of alimony because of plaintiff' s changed circumstances, retroactive to November 1, 1999. Defendant filed a petition for the reinstatement of alimony on May 2, 2002 and the plaintiff responded with a petition for termination of alimony on June 24, 2002. A hearing has since been held. Our review of Pennsylvania case law provides little guidance with respect to the facts of this particular case. The Pennsylvania Divorce Code, however, does provide statutory guidance. One of the policies underlying the Divorce Code and its adoption is contained in the legislative findings and intent section of the code itself. The Code provides that it is the policy of the Commonwealth to: "Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights." 23 Pa.C.S.A. § 3102(a)(6) (emphasis added). Concerning modification and termination of alimony the Divorce Code provides: e) Modification and termination.--An 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 whereupon the order may be modified, suspended, terminated or reinstituted or a new order made. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party 3 3342 CIVIL 1989 receiving alimony shall terminate the award of alimony. 23 Pa.C.S.A. § 3701(e) (emphasis added). Further, the Divorce Code provides seventeen "relevant factors" the court "shall" consider in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony. The relevant factors provided by the code are: (b) Factors relevant.--In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including: (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, 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. 4 3342 CIVIL 1989 (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 except that the court shall consider the abuse of one party by the other party. As used in this paragraph, "abuse" shall have the meaning given to it under section 6102 (relating to definitions). (15) The Federal, State and local tax ramifications of the alimony award. (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 for the party's reasonable needs. (17) Whether the party seeking alimony is incapable of self-support through appropriate employment. 23 Pa.C.S.A. § 3701(b)(1-17). Finally, the authority to award alimony is within the discretion of the trial court as it deems reasonable. 23 Pa.C.S.A. § 3701(a). The testimony at our recent hearing made it clear that Dr. Pariser's financial situation has improved. He has been able to pay down a substantial amount on his debt for back taxes. He is currently employed at the Carlisle Barracks as a family physician at an annual salary of approximately $110,000. He continues, however, to pay on a debt to City Financial and to Visa and he has assumed college expenses of his youngest child at a cost of $1,272.00 per month. Despite the restoration of his earning power, Dr. Pariser has only approximately $1,700.00 in the bank. The defendant was working only part time in July of 2000 when the alimony was terminated in this case. Since that time she has voluntarily stopped all employment and has essentially refused to work while offering no competent evidence indicating she has any restriction with respect to her earning capacity. The defendant has lived for two years with no alimony from the plaintiff. She offered 3342 CIVIL 1989 testimony, which we do not find credible, suggesting she has lived on "gold" given to her by her family from out of the country. She has offered no objective evidence of her financial means and it is clear that she is receiving support from some outside source, potentially from a male friend who has been a part of the prior history of this case. We are satisfied that over the years there has been a considerable change in Ms. Pariser's employability. We have noted a vast improvement in her grasp of the English language and we can only conclude that this impacts positively on her ability to earn a living. Suggestive, however, that she is in at least some financial need is the fact that she has been unable to afford health insurance. Such insurance is nothing short of a necessity in this day and age. Moreover, while she should be working to help support herself, her income will never approximate that of her former husband. We will reinstate alimony in this case but, because of the changes in the circumstances of the parties which include Dr. Pariser's debt load and Mrs. Pariser's ability to support herself through gainful employment, we will set the amount of alimony in an amount less than that previously ordered. ORDER AND NOW, this day of October, 2002, the motion of the defendant to reinstate alimony is GRANTED and the plaintiff is directed to pay to the defendant the sum of $500.00 per month as alimony effective May of 2002. The motion of the plaintiff to terminate alimony is DENIED. BY THE COURT, Kevin A. Hess, J. 3342 CIVIL 1989 Hubert X. Gilroy, Esquire For the Plaintiff Robert L. O'Brien, Esquire For the Defendant :rlm BENJAMIN J. PARISER, Plaintiff VS. ISHWOREE M. PARISER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 3342 CIVIL 1989 CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE ALIMONY AND MOTION TO TERMINATE ALIMONY ORDER AND NOW, this day of October, 2002, the motion of the defendant to reinstate alimony is GRANTED and the plaintiff is directed to pay to the defendant the sum of $500.00 per month as alimony effective May of 2002. The motion of the plaintiff to terminate alimony is DENIED. BY THE COURT, Kevin A. Hess, J. Hubert X. Gilroy, Esquire For the Plaintiff Robert L. O'Brien, Esquire For the Defendant :rlm