Loading...
HomeMy WebLinkAbout97-4676 civilKATHLEEN E. JUMPER Ve JAMES J. JUMPER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4676 CIVIL TERM IN RE: DEFENDANT'S APPEAL FROM RECOMMENDED APL ORDER ...,BEFORE GUIDO, J. AND NOW, this ~O ORDER day' of MARCH, 1998, after hearing, it is ordered and directed that Defendant pay Plaintiff alimony pendente lite in the amount of $847.00 per month, effective November 1, 1997. In all other respects, the Order of Judge Sheely dated December 19, 1997, shall remain in full force and effect. By the Edward E. Guido, J. Samuel L. Andes, Esquire For the Plaintiff Dale F. Shughart, Jr, Esquire For the Defendant Domestic Relations Office :sld KATHLEEN E. JUMPER V. JAMES Jo JUMPER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4676 CIVIL TERM _IN RE: DEFENDANT'S APPEAL FROM RECOMMENDED APT_. ORDER BEFORE GUIDO, J. OPINION AND ORDER OF COURT On September 16, 1997, Plaintiff filed a Complaint in Divorce seeking, inter alia, alimony pendente lite. On October 28, 1997, Plaintiff requested a conference at the Domestic Relations Office for a hearing on the alimony pendente lite claim. The conference was held on December 11, 1997. The Domestic Relations Office recommended an APL order of $735.00 per month effective November 1, 1997.x The Defendant filed a timely appeal. A hearing de novo was held before this Court on February 19, 1998. This matter is now ready for disposition. FINDINGS OF FACTS 1. The parties separated in September of 1997. 2. Defendant's net monthly income is $4162.00. 3. Plaintiff's net monthly income is $2044.00. 4. Defendant has continued to reside in the marital home since the date of separation. 5. The monthly payment on the 1st mortgage is $1372.00. ~Although the guidelines would call for an APL award of $847.00 the Domestic Relations Hearing Officer felt a deviation from the guidelines was appropriate since Defendant was paying the monthly mortgage payment on the marital home. NO. 97-4676 CIVIL TERM 6. There is also a 2nd mortgage with a balance of approximately $10,000.00. This was incurred during the course of the marriage to pay marital bills and acquire marital property. The monthly payment is approximately $200.00. 7. Defendant has paid both mortgages on the marital residence since the date of separation. 8. The home has been listed for sale since December 19, 1997. 9. The annual homeowner's insurance premium is approximately $240.00. The annual real estate taxes on the marital home are approximately $2900.00. All of those expenses were paid prior to the date of separation. 10. The next home owners insurance premium is due in May of 1998. No real estate taxes are due until June 30, 1998, at which time the county and township .taxes are due. The school taxes are not due until October 31, 1998. 11. Plaintiff's monthly expenses (including legal fees) are approximately $3200.00, of which $735.00 represent payment on a marital obligation (her automobile) . 12. Defendant's monthly expenses2 range between $3418.00 and $3506.00.~ 13. Plaintiff lives with her daughter by a prior marriage in the home of Plaintiff's mother. She indicates that she is not able to afford a residence of her own at the current time. 14. There are no unusual needs or fixed obligations of either party that would justify a deviation from the guidelines. 15. The mortgage payment is not so "unusually high" as to justify a deviation from the guidelines. 16. The amount of APL due under the guidelines is $847.00 per month. 2The expenses do not include~ the real estate taxes and homeowner's insurance. They do, however, include the payments on the first and second mortgages. 3Four months of the year his monthly expenses are $3506.00. In the other eight months his expenses are only $3418.00. Each of those figures include a $500.00 per month expense for "vacations, entertainment and lunch/breaks." NO. 97-4676 CIVIL TERM DISCUSSION Our threshold question is whether Plaintiff is entitled to alimony pendente lite. The purpose of alimony pendente lite is to enable a dependant spouse to prosecute or to defend a divorce action. It is also designed to help the dependent spouse maintain the standard of living enjoyed during the marriage. See Litmans v. Litmans, 449 Pa. Super. 209, 673 A.2d 382 (1996), and DeMasi v. DeMasi, 366 Pa. Super. 19, 530 A.2d 871 (1987). As the Litmans Court stated: In ruling on a claim for alimony pendente lite, the Court should consider the following factors: The ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation and surroundings of the parties. 449 Pa. Super. at 224. In the instant case, we have no question that an award of APL is appropriate. Plaintiff is clearly the dependent spouse. Since separation she has been forced to live with her mother.4 Just as clearly Defendant has the ability to pay an award of APL.5 Once we have determined that an award of APL is appropriate, Pa. Rule of Civil Procedure 1910.16-1 mandates that we apply the 4Plaintiff is paying her mother a modest $400 per month rent. Her monthly expenses exceed her income by almost $1200. SEven living in the marital home and paying both mortgages, Defendant's monthly income substantially exceeds his expenses. NO. 97-4676 CIVIL TERM support guidelines.6 The Rules make clear that the guideline amount is presumed to be the appropriate amount of support and that any deviation must be based on Rule 1910.16-4. TerDak v. _ Terpak, 697 A.2d 1006 (Pa..Super. 1997). As the Terpak Court stated: The presumption is strong that the appropriate amount of support in each case is the amount determined from the support guidelines. * * * Deviations will be permitted only where special needs and/or · circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate. 697 A.2d at 1007. 6 Rule 1910.16-1 specifically provides that: "The amount of support (child support, spousal support or alimony pendente lite) to be awarded . . . shall be determined in accordance with the support guidelines. . ." Awards of alimony are not subject to the support guidelines. Rather, the Court must consider the numerous factors set forth in the Divorce Code at 23 Pa. C.S.A. 3701(b). Title 23 was amended by the legislature effective January 1, 1998. (Act No. 1997-58 ~1). Defendant points out that the following language has been added to 23 Pa. C.S.A. 3702 (dealing with APL): (b) ~elevant factors. - In determining whether alimony pendente lite, spousal support and reasonable counsel fees and expenses are necessary and in determining %he amount of payment, the court shall consider all relevant factors, pursuant to section 370~(b) (relating to alimony). Defendant argues that the guidelines no. longer apply to APL awards, but that, the Court must.now consider only the factors applicable to an alimony award. While we cannot imagine that the legislature intended to abrogate the application of the support guidelines in connection with spousal support and APL awards, we need not address that issue in the current case. We are satisfied that the amendment to 23 Pa. C.S.A. § 3702 is not to be applied retroactively. The Statutory Construction Act of 1972 specifically provides that "No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." 1 Pa. C.S.A. § 1926. Our Supreme Court has recently reaffirmed this well settled presumption against retroactive application of statutes affecting substantive rights. See Nicholson v. Combs, 1997 WL 706533 (Pa. Supreme). NO. 97-4676 CIVIL TERM In the instant case, Defendant argues that consideration should be given to the fact that he is paying the mortgages on the marital home. However, he has elected to occupy the marital home. Pursuant to Rule 1910.16-5(g) it is presumed that~he will be paying the monthly mortgage payments. The Rule specifically provides that no deviation should be allowed absent a finding of "unusual circumstances, such as an unusually high mortgage payment." Defense Counsel has made a forceful and well reasoned argument that mortgage payments exceeding 36% of Defendant's net monthly income are "unusually high" and should justify a deviation from the guidelines. However, we cannot agree.? This is especially true in light of the fact that Plaintiff is paying approximately 36% of her net monthly income to keep current another marital obligation, i.e. her car payment. Defendant's payment of the mortgages, and payment by both parties of other marital obligations, can and should be considered by the Master in fashioning an appropriate equitable · distribution award in this case. However, we see no reason to deviate from the support guidelines. ?Defendant argues that he should not be paying more than 17% to 20% of his net monthly income for housing. However, he misses the point. The fair rental value of the marital home is the proper focus of inquiry. If the fair rental value of the home is less than the monthly mortgage payments, the Master can consider this fact at the equitable distribution phase. NO. 97-4676 CIVIL TERM ORDER AND NOW, this day of MARCH, 1998, after hearing, it is ordered and directed that Defendant pay Plaintiff alimony pendente lite in the amount of $847.00 per month, effective November 1, 1997. In all other respects, the Order of Judge Sheely dated December 19, 1997, shall remain in full force and effect. Samuel L. Andes, Esquire For the Plaintiff By the Court, Dale F. Shughart, Jr., Esquire For the Defendant Domestic Relations Office /s/ Edward E. Guido, J. Edward E. Guido, Jo