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HomeMy WebLinkAbout99-282 civilJOHN W. WETTERAU, Plaintiff Vo LINDA V. WETTERAU, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 99-0282 CIVIL TERM · CIVIL ACTION- DIVORCE · PACSES #806101187 IN RE' DEFENDANT'S APPEAL FROM DENIAL OF THE ENTRY OF AN APL ORDER BEFORE GUIDO, J., ORDER OF COURT AND NOW, this ~ ~~ day of JANUARY, 2O00, plaintiff's claim for Alimony Pendente Lite is DENIED. By the Court.~ Edward E. Guido, J. Lisa M. Coyne, Esquire For the Plaintiff John C. Howett, Jr., Esquire For the Defendant 'sld JOHN W. WETTERAU, Plaintiff ge LINDA V. WETTERAU, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 99-0282 CIVIL TERM · CIVIL ACTION- DIVORCE · PACSES #806101187 IN RE: DEFENDANT'S APPEAL FROM DENIAL OF THE ENTRY OF AN APL ORDER BEFORE GUIDO, J. OPINION AND ORDER OF COURT On January 15, 1999, plaintiff filed a complaint in divorce. On June 2, 1999, he filed an amended complaint in divorce seeking, inter alia, alimony pendente lite. On that same date, he requested a conference at the Domestic Relations Office on his claim for alimony pendente lite. The conference was held on August 11, 1999. The conference officer recommended that the petition for alimony pendente lite be denied. Based upon the recommendation of the Domestic Relations Office, The Honorable Kevin A. Hess entered an order denying plaintiff's petition for alimony pendente lite. Plaintiff filed a timely appeal. A hearing de novo was held before this Court on December 9, 1999. The parties have filed briefs in support of their respective positions. This matter is now ready for disposition. FINDINGS OF FACT 1) The parties were married on June 17, 1972. 99-0282 CIVIL 2) Plaintiff is a management analyst for the Navy Inventory Control Point in Philadelphia, Pennsylvania. His net monthly income is approximately $3500. 3) Defendant is a vice-president of First Union Bank. Her net monthly earnings are $5292, which includes a gross bonus of $11,500. Her net monthly earnings without the bonus are approximately $4500. The bonus is not guaranteed. 4) Plaintiff has monthly expenses of $3300.~ 5) Defendant has monthly expenses of approximately $4500.2 6) Plaintiff left the marital home in June of 1998. The parties have lived separate and apart since that time. 7) Defendant continues to live in and to pay all expenses in connection with the marital 8) At the time of separation there were two mortgages on the marital home. Payments on the first mortgage total were (and continue to be) $1722 per month. That amount includes taxes and insurance. The parties were also paying $1000 per month on a second mortgage. 9) From the time of separation until March of 1999, plaintiff was paying defendant approximately $1650 per month as a contribution toward expenses on the marital home. He stopped those contributions in March. 10) The second mortgage was paid off sometime in the early part of 1999. Since March of 1999, wife has paid all expenses in connection with the marital home. She has kept ~ See defendant's Exhibit # 1 which contains the expenses submitted by plaintiff to the Domestic Relations Office in August. We find that these expenses are more believable than those submitted at the hearing on December 9, 1999. Although, in truth, we feel that both sets of expenses are somewhat inflated. 2 See Plaintiff's Exhibit 5 whiCh contains the expenses submitted bY defendant to the Domestic Relations Office. 99-0282 CIVIL the mortgage current. 11) The standard of living enjoyed by each party during the marriage has not significantly changed during separation.3 12) Plaintiff's earnings are sufficient to enable him to adequately support himself in the standard of living to which he was accustomed during the marriage and to prosecute this divorce action.4 13) In the early summer or late spring of 1999, plaintiff moved to Philadelphia to be near his girlfriend. By doing so, his expenses increased significantly in the form of higher local taxes.5 14) Plaintiff filed the instant petition for APL because he was angry with wife for not allowing him to remove any furniture from the marital home to furnish his new apartment in Philadelphia. 15) The parties have a marital asset consisting of more than $60,000 in readily available cash. Although the account is currently controlled by wife, plaintiff could access a portion of it, via a petition for special relief, if necessary to enable him to prosecute this action. DISCUSSION The threshold question we must address is whether plaintiff is entitled to an award of alimony pendente lite. In determining whether to award APL we must look to the need of the petitioner, Jayne v. Jayne, 443 Pa. Super. 664, 663 A.2d 169 (1995), as well as 3 Plaintiff continues to hold season tickets to the NFL team in Baltimore. In addition, he has taken vacations to Florida and Green Bay, Wisconsin. Defendant is still setting aside money in her tax deferred savings accounts, as well as spending $2000 per year on vacations. 4 The expenses submitted by plaintiff to the Domestic Relations Office contained a $400 monthly payment toward legal fees. 5 Plaintiff contends that the move was to provide for job security. However, he presented no credible evidence that his local job was in jeopardy, 99-0282 CIVIL the respondent's ability to pay, Powers v, Powers, 419 Pa. Super. 464, 615 A.2d 459 (1992). Since we have determined that plaintiff has not established a need for APL, the claim will be denied. The purpose of alimony pendente lite is "to enable the dependant spouse to prosecute or defend a divorce action." DeMasi v. DeMasi, 366 Pa. Super. 19, 38, 530 A.2d 871,880 (1987). It is also designed to help the dependent spouse maintain the standard of living enjoyed prior to separation. Id. It is not designed to punish one of the parties. See McNulty v. McNulty, 347 Pa. Super. 363,500 A.2d 876 (1985). In the instant case, we are satisfied that plaintiff has not demonstrated a need for alimony pendente lite. He was able to pay more than $1600 per month toward the expenses of the marital home from the time of separation through March of 1999. He stopped paying on those expenses and filed for APL, even though his income stayed the same. His claim for APL is motivated not by need, but rather by vengeance. He wants to punish his wife for refusing to allow him to remove items of furniture from the marital Plaintiff has been paying for his legal bills and, for the most part, maintaining his pre-separation standard of living, all from his current income.6 He commutes to Baltimore to attend all of the home games of the NFL's Ravens. He has taken regular vacations, while all the while paying legal fees of $400 per month. Yet, his income still exceeds his expenses by more than $200 per month.7 Therefore, his claim for APL will 6 The only difference we can see is that he is living in a $560 per month apartment rather than in the marital home. 7 We are using the expenses appearing on defendant's Exhibit 1 which is the income and expense statements submitted by plaintiff to the Domestic Relations Office on August 1, 1999. Among those expenses are a $500 per month payment on his credit cards to cover the purchase of new furniture for his apartment. The balance on that account as of August 1, 1999 was $5000. 99-0282 CIVIL be denied.8 ORDER AND NOW, this 27TM day of JANUARY, 2000, plaintiff's claim for Alimony Pendente Lite is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Lisa M. Coyne, Esquire For the Plaintiff John C. Howett, Jr., Esquire For the Defendant :sld 8 Since we have decided that plaintiff does not need APL, we have not addressed the issue of whether defendant has the ability to pay. However, we note that as long as she is paying the expenses in connection with the marital home, the net disposable income available to the parties is not very disparate.