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HomeMy WebLinkAbout98-412 supportMADALINE S. KING Ve THOMAS L. KING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 412 SUPPORT 1998 PACSES 210100137 DR# 27,590 IN RE: SPOUSAL SUPPORT BEFORE GUIDO AND NOW, this ORDER OF COURT day of NOVEMBER, 1998, Plaintiff's Claim for Spousal Support is DENIED. By the C~~t~,~~ Edward E. Guido, J. Carol J. Lindsay, Esquire For the Plaintiff Michael Scherer, Esquire For the Defendant Domestic Relations Office :sld MADALINE S. KING Ve THOMAS L. KING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 412 SUPPORT 1998 PACSES 210100137 DR# 27,590 IN RE: SPOUSAL SUPPORT BEFORE GUIDO OPINION AND ORDER OF COURT On May 15, 1998, Plaintiff filed a petition for spousal support. A conference was held at the Domestic Relations Office at which time the Defendant denied liability for spousal support. The matter was referred to the Court for a hearing. Several continuances were requested by the parties. A hearing was finally held before this Court on November 5, 1998. The matter is now ready for disposition. FINDINGS OF FACT 1) Plaintiff Madaline King is sixty (60) years old. 2) Defendant Thomas King is sixty-five (65) years old. He is retired from Roadway Trucking. 3) The parties were married on April 28, 1990. They separated on May 22, 1998. 4) From the time he retired several years ago until his 65th birthday in June 1998, Defendant had been covered by a health insurance plan as a result of his former employment. 5) Defendant is required to take medication that costs several hundred dollars per month. The cost of said medication had been NO. 412 SUPPORT 1998 covered by the aforementioned health insurance plan. 6) The parties were aware that Defendant would no longer be eligible for health insurance as a result of his former employment when he reached age sixty-five (65). The maintenance of appropriate health insurance was a major concern to Defendant. 7) Defendant arranged to obtain a job working for a firm owned by his cousin in Armstrong County, Pennsylvania. This job provides him with the health insurance he needs. 8) Defendant began working as an unpaid trainee on the new job in late April or early May 1998 so that his new health insurance would be effective on June 1, 1998. 9) After Defendant obtained the new job, the parties cancelled the lease on their apartment effective May 31, 1998. 10) On May 22, 1998 Plaintiff informed Defendant that she was not going to accompany him to Armstrong County. 11) Prior to that time, the parties had talked about the move on several occasions. Plaintiff never gave any indication that she did not intend to go with him. 12) The parties had undergone marriage counseling in late 1997. 13) The counseling began as a result of several anonymous phone calls received by Plaintiff informing her that Defendant was having an affair. 14) ~Defendant terminated the marriage counselling because he did not like the counselor. NO. 412 SUPPORT 1998 15) Plaintiff stated two reasons for not accompanying Defendant to Armstrong County. First, she thought he was having an affair and, second, she was fearful that she would never see her children again. 16) Defendant has denied that he had an affair. We find his testimony to be credible. 17) Although Defendant was friendly with a woman whose husband participated as a clown with Defendant in a Masonic clowning organization, there is no credible evidence that their relationship was anything other than friends. 18) Although Plaintiff has had a driver's license for almost twenty (20) years, she is not comfortable driving on highways. 19) The parties' residence in Armstrong County would be about a three (3) hour drive from Cumberland County. 20) Defendant testified that he would have been happy to drive Plaintiff back to this area to visit her children on occasion. She never discussed this with him. 21) Defendant's children live in the Armstrong County area. 22) Defendant stood ready and willing to have Plaintiff accompany him to Armstrong County. He told her that he loved her and asked that she move with him. 23) Recently Defendant talked with Plaintiff about a reconciliation. He was unimpressed because she only talked of a reconciliation for financial reasons. He was hurt because she never mentioned the word "love". NO. 412 SUPPORT 1998 24) Plaintiff recently obtained a job at Kentucky Fried Chicken working ten (10) hours per week. Her monthly net income at that job is $192.40. 25) Prior to obtaining a job at Kentucky Fried Chicken, Plaintiff last worked at CVS Pharmacy. She worked that job .on a part time basis from 1984 through 1992. She worked twenty (20) to thirty (30) hours per week. 26) Plaintiff is treating for various ailments. Although her conditions are painful, she has produced no credible evidence to indicate that she is physically unable to work.~ 27) We see no reason why Plaintiff could not work twenty (20) to thirty (30) hours per week at KFC or some other minimum wage job. Therefore, we ascribe to her an earning capacity of $481.00 per month.2 28) Plaintiff claims a monthly interest income of $163.12 on investments of approximately $33,000.00. 29) We find as a fact that Plaintiff's investments are $76,000 and her monthly interest income is $326.24.3 ~She testified that the reason she is working only ten (10) hours per week at KFC is because no more hours are being offered to her. 2If she worked twenty-five (25) hours per week at a minimum wage job she would earn 2 1/2 times the $192.40 she is currently earning at KFC. This amounts to $481.00. 3Plaintiff listed certificates of deposit totalling $76,000 on the income and expense statement provided to the Domestic Relations Office at the July conference. She also listed interest income of over $3,000 at that time. She now tells us that her daughter is the joint owner of those certificates of NO. 412 SUPPORT 1998 30) We attribute to Plaintiff a total net monthly income of $807.00. 31) Defendant's total net monthly income is $2,698.00 which he receives from the following sources: a. Teamster pension $1313.00 b. Social Security Retirement $1194.00 c. T.J. Smith Trucking, Inc. $191.00 32) Neither party has given any reason that would justify a deviation from the guidelines. 33) Although he has denied responsibility for spousal support, Defendant has contributed $5,650 to the support of Plaintiff from the time this support complaint was filed through November 1, 1998. DISCUSSION At the outset, we must determine which party is the separating spouse. As Judge Bayley stated in Little v. Little, 47 Cumb. 131 (1998): (I)f a separating spouse seeks support, that spouse must show adequate legal cause for leaving. As to a departing spouse, the only cause that will excuse a refusal to support a dependant spouse is conduct on the dependant spouse's part that would constitute a valid ground divorce. 47 Cumb. at 133 - 134. In the instant case, neither party deposit, as per the wishes of Plaintiff's mother from whom she inherited the money in 1989. Although the certificates of deposit are titled in the name of Plaintiff and her daughter, Plaintiff has paid taxes on all of the interest income throughout the years. We believe Defendant's testimony that Plaintiff's daughter was listed on the certificates of deposit only so that she would inherit them in the event of Plaintiff's death. NO. 412 SUPPORT 1998 contends that the Defendant had grounds for divorce at the time of separation. Therefore, if he is to be considered the "departing spouse," Plaintiff's right to spousal support would be clear. Under the facts before us, we find that Mr. King was not the separating spouse. His decision to take a job in Armstrong County was not made lightly. It was discussed with Plaintiff and based upon valid economic reasons. She never objected to the move until it was too late to change the decision. Defendant told Plaintiff that he loved her and wanted her to accompany him to Armstrong County. She chose not to. Therefore, we hold that Plaintiff separated from the Defendant. Since Plaintiff is the separating spouse, she has the burden of establishing that Defendant's conduct justified her in leaving. However, she need not establish facts which would entitle her to a divorce, Larkin v. Larkin, 262 Pa. Super 2.94, 396 A.2d 761, (1978). There is no hard and fast rule as to what constitutes adequate legal case for leaving. The issue must be addressed on a case by case basis. Rock v. Rock, 385 Pa. Super 126, 560 A.2d 199 (1989). In the instant case, Plaintiff chose not to accompany Defendant because she was afraid that she would lose contact with her children. However, Armstrong County is only a three hour drive from Carlisle. Even though Plaintiff is afraid to make such a drive, Defendant stood willing to drive her back and forth NO. 412 SUPPORT 1998 for visits., Furthermore, there is no indication that the children could not visit with their mother in Armstrong County. Plaintiff also testified that she chose not to go to Armstrong County because she suspected that her husband was having an affair with another woman. As noted above, there is absolutely no credible evidence that any such affair took place. There is nothing more than rumor and innuendo. We are satisfied that Defendant was truthful when he stated that he and his suspected paramour were nothing more than good friends. In view of the above, we must find that the reasons articulated by the Plaintiff for her separation from the Defendant do not amount to the "adequate legal cause for leaving" necessary to justify the entry of a spousal order. Therefore, her request for support must be denied.4 4The denial of a claim for spousal support does not preclude a claim for alimony pendente lite. In the interest of judicial economy we have made several findings of fact regarding the earnings, earning capacity, and net monthly income of the parties. This should enable them to resolve any alimony pendente lite claim without the need for another hearing. NO. 412 SUPPORT 1998 AND NOW, this ORDER day of NOVEMBER, 1998, Plaintiff's Claim for Spousal Support is DENIED. By the Court, Carol J. Lindsay, Esquire For the Plaintiff Michael Scherer, Esquire For the Defendant Domestic Relations Office :sld /s/ Edward E. Guido Edward E. Guido, J.