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HomeMy WebLinkAbout2009-5684LISA J. BARNHARDT, PLAINTIFF V. MARK S. BARNHARDT, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION (DIVORCE) NO. 2009-05684 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR ENFORCEMENT OF MARITAL SETTLEMENT AGREEMENT/DEFENDANT'S MOTION TO MODIFY ALIMONY ORDER OF COURT AND NOW, this 30th day of July, 2018, upon consideration of Plaintiffs Petition for Enforcement of Marital Settlement Agreement, Defendant's Answer thereto and Defendant's Motion To Modify Alimony, following a hearing thereon held on June 4, 2018, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's Petition for Enforcement of Marital Settlement Agreement is granted; 2. Defendant's Motion To Modify Alimony to $1.00 Per Month is denied; 3. Defendant is ordered to pay Plaintiff the sum of $5,100.00, constituting missed alimony payments for the months of February, March and April 2018, which Plaintiff sought in her petition; 4. Plaintiff is awarded attorney's fees in the amount of $950.00, representing the legal expenses incurred in filing and litigating Plaintiff's petition; and 1 5. Defendant is ordered to pay the above sums to Plaintiff within thirty days of the date of the entry of this order. Distribution - James R. Demme[, Esquire Demmel Law Office LLC 518 Bridge Street New Cumberland, PA 17070 Attorney for Plaintiff Patrick F. Lauer, Jr., Esquire 2108 Market Street Camp Hill, PA 17011-4706 Attorney for Defendant 2 By the Court, - ) IL=;' J. re sley Oler S.J. LISA J. BARNHARDT, PLAINTIFF MARK S. BARNHARDT, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION (DIVORCE) NO. 2009-05684 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR ENFORCEMENT OF MARITAL SETTLEMENT AGREEMENT/DEFENDANT'S MOTION TO MODIFY ALIMONY OPINION and ORDER OF COURT Oler, S.J., July 30, 2018 — Before the court are Plaintiffs petition to enforce the parties' Marital Settlement Agreement and compel Defendant to comply with his obligation to make $1,700 monthly alimony payments,' and Defendant's motion seeking relief from the same.2 A hearing on this matter was held on June 4, 2018. For the reasons stated in this opinion, Plaintiff's petition will be granted and Defendant's motion will be denied. STATEMENT OF FACTS In the interest of brevity, this court will begin by incorporating by reference the facts and procedural history stated in the Opinion and Order of Court dated February 7, 2018 and filed of record on February 9, 2018. Subsequent to that Opinion and Order of Court, on May 1, 2018, Plaintiff filed the instant petition to enforce the alimony provision of the parties' Marital Settlement Agreement (hereinafter "MSA"). Plaintiff was prompted to do so by Defendant's failure to make scheduled alimony payments for the months of ' See Petition for Enforcement of Marital Settlement Agreement, filed May 1, 2018, at Iff10. Plaintiff also sought attorney's fees, in the amount of $1,450.00 as supported by Plaintiff's Exhibit 2, which was submitted at the June 4, 2018 hearing. Of the $1,450.00 that Plaintiff sought, $500.00 was incurred in the response to Defendant's motion to modify alimony. 2 See Defendant's Motion To Modify/Suspend Alimony, filed May 17, 2018. February, March and April of 2018.3 On May 17, 2018, Defendant filed his answer to Plaintiff's petition, which incorporated a motion to modify his alimony obligation to $1 per month. In that motion Defendant averred that he retired effective January 1, 2018,4 or in the alternative was permanently medically disabled and incapable of holding employment.5 Defendant, born on March 2, 1957, was sixty years old as of the date of his claimed retirement. A hearing on the matter was held on June 4, 2018, leaving Plaintiff's petition and Defendant's motion ripe for disposition. DISCUSSION The purpose of alimony is to provide the receiving spouse with sufficient income to obtain the necessities of life. Stamerro v. Stamerro, 2005 PA Super 424, 889 A.2d 1251, 1259 (internal citation omitted). Alimony is generally based upon reasonable needs in accordance with the parties' standard of living established during the marriage, and the payor's ability to pay. Id. (internal citation omitted). Modification and termination of an alimony order is governed by 23 Pa. C.S.A. §3701(e), which provides for the modification of an alimony order upon changed circumstances of either party of a substantial and continuing nature. 23 Pa. C.S.A. $3701(e)__ A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the 3 Defendant had also failed to make timely alimony payments for a significant portion of 2017, as addressed in this court's February 7, 2018 Opinion and Order of Court. 4 See Defendant's Answer to Plaintiff's Petition for Enforcement of Marital Settlement Agreement, filed May 17, 2018, at 110. 5 Id. at p. 6. F agreement. 23 Pa. _C.S_.A. -�j3105_(a). Retirement can serve as the basis for the changed circumstances of a substantial and continuing nature necessary to modify an alimony award. McFadden v. McFadden, 386 Pa. Super. 506, 563 A.2d 180, 183 (1989). In general, retirement does not entitle a petitioner to a reduction in a support obligation, but simply permits a petitioner the opportunity to demonstrate the need for a reduction. Id. at 184. Paragraph 16 of the parties' MSA, which contains the relevant alimony provisions, states the following: 16. Husband is currently paying alimony pendente lite to wife through the Cumberland County Domestic Relations Office. Effective March 1, 2014, the alimony pendente lite order shall be modified to a monthly rate of $1,700.00. Additionally, upon the entry of a divorce decree and effective the date of the divorce decree, the APL order shall be modified and become an alimony order payable through the Cumberland County Domestic Relations Office. This alimony payment shall be fixed at the rate of $1,700.00 per month and nonmodifiable by the parties until such time as husband retires from his employment or becomes disabled and is receiving disability benefits through the social security administration. For the purpose of disability, the term shall include permanent and partial disability, with it noted that if husband is temporarily disabled he may seek a temporary modification of the alimony award. Without regard to husband's disability or retirement, all income received by husband, including retirement benefits, disability benefits, or any other income, shall be included for purposes of determining whether a modification is appropriate for the Court to consider. These payments shall be made through the Cumberland County Domestic Relations Office and subject to wage attachment consistent with their guidelines. 3 Wife's death, husband's death, wife's remarriage, or wife's cohabitation shall result in termination of the alimony.s This court's analysis herein has been informed by Stamerro v. Stamerro, 2005 PA Super 424, 889 A.2d 1251. In Stamerro, the former husband entered into a marital settlement agreement requiring him to pay alimony for an indefinite amount of time, so long as his annual income was in excess of $200,000. Id. at $2, 889 A.2d at 1255. The former husband voluntarily departed his employment, where he was earning in excess of $200,000, in order to begin working for his new paramour at an annual salary of approximately $83,000. He then filed a petition to reduce his alimony obligation based on his $83,000 annual salary. The trial court denied the petition to modify alimony, and was affirmed by the Superior Court on appeal. The Superior Court held that the parties' unmerged marital settlement agreement had to be read to include the implied covenant of good faith and fair dealing, and consistent with the doctrine of necessary implication. In light of that consideration, the former husband's voluntary reduction of his income was a clear breach of his obligation to act in good faith under the marital settlement agreement, and his petition to modify alimony was denied. Relevant to this case, the Stamerro court noted that: The obligation to act in good faith in the performance of contractual duties varies somewhat within the context, and a complete catalogue of types of bad faith is impossible, but it is possible to recognize certain strains of bad faith which include: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance. Id. at 111, 889 A.2d at 1259. 6 See In Re. Marital Settlement Agreement, testimony before Divorce Master, dated February 11, 2014, at 5-6. 4 Similarly, in interpreting the doctrine of necessary implication, the Stamerro court stated that: In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party's right to receive the fruits of the contract. Stamerro, supra at ¶12, 889 A.2d at 1259. The court held that the former husband's decision to voluntarily depart from his higher -paying employment was a breach of the doctrine of necessary implication. To hold otherwise, the court noted, would be to give the former husband the unilateral authority to destroy the former wife's right to receive the benefit of the bargained -for alimony by voluntarily reducing his own income. See id. at ¶20, 889 A.2d at 1261-62. In short, the court held that the terms of the marital settlement agreement necessarily implied that the former husband ,would not deliberately act to frustrate the agreement. In the instant case, as in Stamerro, the parties' unmerged Marital Settlement Agreement' was subject to the implied covenant of good faith and fair dealing and the doctrine of necessary implication. When reviewing Defendant's motion, his testimony and the evidence of record following the June 4, 2018 hearing, this court concludes that Defendant was not acting in good faith when he withheld alimony payments on the grounds that he was retired, or in the alternative permanently medically disabled and incapable of meeting his alimony obligation to Plaintiff. Instead, Defendant was acting to frustrate the parties' MSA, and attempting to evade the bargain that he struck with Plaintiff. See Divorce Decree, entered June 3, 2014. 5 To begin, there was no documentary evidence or credible testimony$ offered that Defendant's medical condition degraded since this court's previous opinion, dated February 7, 2018. In that opinion this court found that Defendant's medical disability was both temporary and resolved by May 2017. Defendant did not appeal from or otherwise challenge that determination and the time for him to do so has passed. Therefore, in keeping with the prior finding in this case and considering that there was no new credible evidence of an ongoing permanent disability offered at the June 4, 2018 hearing, this court finds that Defendant is not permanently medically disabled. The question turns to whether Defendant was retired, and if so whether that was a change in circumstance sufficient to support a reduction of his alimony obligation to $1 per month. The first time that Defendant claimed to be retired was in his May 17, 2018 answer to Plaintiffs petition. In his answer, Defendant claimed a retirement date of January 1, 2018.9 However, during the January 10, 2018 hearing in this matter Defendant expressly stated at that time that he did not wish to retire. In light of Defendant's previous testimony, this court does not find credible Defendant's assertion that he retired effective January 1, 2018. Defendant also averred in his answer to Plaintiff's petition that he earned no income from employment and had no prospects for employment between May 2017 and May 2018.10 That averment contradicted Defendant's testimony before the court at the June 4, 2018 hearing. Defendant testified that he was employed between May 2017 and s To the extent that Defendant testified about his medical condition, his testimony was regarded as not persuasive, for reasons that will be discussed infra. 9 See note 4, supra. 10 See Defendant's Answer, supra note 4, at 118. 9 July 2017, which presents this court with conflicting statements from Defendant." Defendant further testified at the June 4, 2018 hearing that Plaintiff's counsel was the reason why Plaintiff was not receiving alimony, due to Defendant's having been required to attend court proceedings and meet with attorneys in the May through July 2017 time frame. Attending court and meeting attorneys allegedly led to Defendant's being unable to meet his work requirements, and forced him to leave his employer. That claim is not supported by the record, which reveals that Defendant failed to appear at the sole court proceeding scheduled during that time period, a hearing on Plaintiff's motion for sanctions against Defendant. 12 In light of these contradictions, this court did not find Defendant's testimony concerning his retirement to be credible, and finds that Defendant acted in bad faith in bringing the instant motion to modify his alimony obligation. Ultimately, the test for this court to consider is whether Defendant had a change in circumstances of a substantial and continuing nature sufficient to support a modification of alimony. The record reflects that Defendant's circumstances have not changed since July 2017, when he was last employed. There is no documentary evidence of record to support the position that Defendant retired in good faith or was permanently disabled, such as Defendant's filing a claim for disability benefits. Instead, the record reflects that, after Defendant was partially successful in suspending alimony payments due to his temporary medical disability in 2017, he refused to pay further alimony to Plaintiff. Only after Plaintiff filed her second petition to enforce the parties' " See Verification, signed May 14, 2018, attached to Defendant's Answer, supra Note 4. 12 See Opinion and Order of Court, filed February 9, 2018, at 3 (wherein this court noted that Defendant failed to appear at a hearing on Plaintiffs Motion for Sanctions scheduled for July 6, 2017). See also Order of Court, filed July 7, 2017. 7 MSA did Defendant claim that he was retired, and that he should be relieved from further alimony obligations. Defendant's financial circumstances are unchanged from July 2017, and Defendant retains more than sufficient means to meet his alimony obligations. As such, this court does not find Defendant's testimony that he was either permanently disabled or retired to be credible, and will order that Defendant pay Plaintiff $5,100.00, representing missed alimony payments for the months of February, March and April 2018, as well as attorney fees in the amount of $950.00, representing the costs incurred by Plaintiff to litigate her petition to enforce the parties' MSA.13 For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 30" day of July, 2018, upon consideration of Plaintiff's Petition for Enforcement of Marital Settlement Agreement, Defendant's Answer thereto and Defendant's Motion To Modify Alimony, and following a hearing thereon held on June 4, 2018, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's Petition for Enforcement of Marital Settlement Agreement is granted; 2. Defendant's Motion To Modify Alimony to $1.00 Per Month is denied; 3. Defendant is ordered to pay Plaintiff the sum of $5,100.00, constituting missed alimony payments for the months of February, March and April 2018, which Plaintiff sought in her petition; 13 The sum of $950.00 was reached by subtracting $500.00, representing the sum accrued while Plaintiff's counsel responded to Defendant's motion, from the $1,450.00 overall sum of Plaintiffs attorney's fees. 4. Plaintiff is awarded attorney's fees in the amount of $950.00, representing the legal expenses incurred in filing and litigating Plaintiff's petition; and 5. Defendant is ordered to pay the above sums to Plaintiff within thirty days of the date of the entry of this order. Distribution: James R. Demmel, Esquire Demmel Law Office LLC 518 Bridge Street New Cumberland, PA 17070 Attorney for Plaintiff Patrick F. Lauer, Jr., Esquire 2108 Market Street Camp Hill, PA 1 701 1-4706 Attorney for Defendant 9 By the Court, al" J. bsley Oler, S.J.