HomeMy WebLinkAbout1999-308 Civil
JAMES D. YINGST, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
CONNIE L. YINGST, :
Defendant : NO. 99-308 CIVIL TERM
IN RE: PLAINTIFF’S THIRD PETITION
FOR TERMINATION OF ALIMONY
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., April 20, 2007.
In this divorce case in which Defendant wife was awarded alimony
pursuant to a marital settlement agreement, Plaintiff husband recently filed a third
petition for termination of alimony, based upon an alleged substantial change of
1
circumstances. A hearing, at which evidence was received and at which the
parties stipulated to the incorporation of evidence received at a prior hearing on
December 30, 2004, was held on March 15, 2007.
For the reasons stated in this opinion, Plaintiff’s petition will be denied.
STATEMENT OF FACTS
Plaintiff is James D. Yingst (hereinafter Husband or Plaintiff), 65, a
domiciliary of Dauphin County, residing at 4804 Lancer Street, Harrisburg,
2
Pennsylvania. Defendant is Connie L. Yingst (hereinafter Wife or Defendant),
61, a domiciliary of Cumberland County, residing at 308 N. Baltimore Avenue,
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Mount Holly Springs, Pennsylvania. The parties were divorced by a decree dated
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December 28, 2000.
1
Plaintiff’s Third Petition for Termination of Alimony, filed December 11, 2006.
2
N.T. 17, Hearing, March 15, 2007.
3
N.T. 6, 11, Hearing, March 15, 2007.
4
Decree in Divorce, December 28, 2000.
The divorce decree incorporated a marital settlement agreement between
the parties dated December 21, 2000, which included the following alimony
provision:
Alimony Payable.
5.01 Husband will pay to Wife the sum
of $1,500 per month, through the Cumberland County
Domestic Relations Office, commencing on the date of
issuance of a Decree in Divorce. Said alimony payments shall
be wage attached. Alimony will be modifiable or terminable
upon a substantial change in circumstances. Provided,
however, that Husband will not seek a reduction of alimony on
account of his retirement before age 65, unless he should be
required to retire on the basis of medical advice due to a
material and substantial increase in the severity of his existing
high blood pressure condition or due to a condition that is
unknown at the date of this Agreement. Further, Husband
warrants that he knows of no medical condition which would
not permit him to maintain employment until age 65. The
parties acknowledge that Husband has been maintained for
several years prior to the date of separation on medication for
high blood pressure. Alimony will be terminable upon Wife’s
death, remarriage or cohabitation with a male individual to
whom she is not related within the degrees of consanguinity.
The Order of October 14, 1999, docketed to No. 99-422
Support in the Court of Common Pleas of Cumberland County,
Pennsylvania, for alimony pendente lite shall be terminated
upon the entry of a full and final Decree in Divorce and the
payment of all payments and arrearages, if any, due through
the date of Decree in Divorce. Any such arrearages will be
payable at the rate of $500 per month. The first such payment
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shall be due on January 1, 2001.
On October 25, 2004, Husband filed a Petition for Termination or
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Reduction of Alimony, alleging substantially changed circumstances. The
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primary changed circumstance asserted was Husband’s loss of employment. In
this regard, the parties’ agreement was said to “express[] the intention of the
5
Plaintiff’s Ex. 1, at 6-7 (emphasis added), Hearing, December 30, 2004.
6
Plaintiff’s Petition for Termination or Reduction of Alimony, filed October 25, 2004.
7
Id, paras. 7-18, 22.
2
parties that [Husband] would be entitled to modification or termination of alimony
8
in the event that his employment were to be terminated involuntarily.”
In addition, Husband’s petition averred that, since the initiation of alimony,
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Wife’s income had increased, she had sold a certain lot, and she had received an
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inheritance. A hearing on the petition was held on December 30, 2004. The
evidence at the hearing showed the following:
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The parties were married on March 14, 1964. Four children were born of
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the marriage, wherein Wife’s role was primarily as a homemaker. Husband left
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Wife for another woman, with the separation occurring in February, 1997
1516
(according to Husband) or in 1999 (according to Wife). As previously
indicated, a decree in divorce was issued on December 28, 2000, which
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incorporated the parties’ aforesaid marital agreement.
Under the agreement, the marital property was divided equally, with the
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“premium” for Wife’s agreement to the divorce being the alimony provision. At
the time of the agreement, Wife received $10,000.00 in cash, the marital residence
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and most of its contents, a lot, and a 1996 Pontiac automobile, and Husband
8
Id., para. 22.
9
Id., para. 19.
10
Id., para. 20.
11
Id., para. 21.
12
N.T. 61, Hearing, December 30, 2004.
13
N.T. 27, Hearing, December 30, 2004. As of the hearing, the children had all been
emancipated. N.T. 6, Hearing, December 30, 2004.
14
N.T. 27, Hearing, December 30, 2004.
15
N.T. 6, Hearing, December 30, 2004.
16
N.T. 61, Hearing, December 30, 2004.
17
Decree in Divorce, dated December 28, 2000.
18
N.T. 55, Hearing, December 30, 2004.
19
N.T. 22, 63, Hearing, December 30, 2004; Plaintiff’s Ex. 1, paras. 3.01-3.02, Hearing,
December 30, 2004.
3
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received his retirement accounts and a 1991 Chevrolet truck. In addition, Wife
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was, as noted, to receive alimony at the rate of $1,500.00 per month.
At the time of the agreement on December 21, 2000, Wife had begun to
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work thirty to thirty-two hours per week, and immediately after the divorce at the
end of that month she increased her hours to forty per week, working as a clerk for
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a trucking company at $7.35 per hour. Her gross earned income was $14,743.00
2425
in 2000, $18,295.00 in 2001, $14,681.00 in 2002, $20,208.00 in 2003, and
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$22,359.00 in 2004. Husband, at the time of the agreement, occupied a
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foreman’s position with an industrial paper manufacturing company. His gross
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earned income was $53,000.00 in 2000, $59,830.00 in 2003, and $60,282.00 in
30
2004.
At some point following the parties’ divorce, Wife sold the lot which she
31
had received in equitable distribution for $24,000.00, and she received an
32
inheritance from her mother in the amount of $30,000.00. With a take-home pay
of $1,252.00 per month, her monthly expenses at the time of the December 30,
20
N.T. 53, 63, Hearing, December 30, 2004; Plaintiff’s Ex. 1, para. 3.02, Hearing, December 30,
2004.
21
Plaintiff’s Ex. 1, para. 5.01, Hearing, December 30, 2004.
22
N.T. 71, Hearing, December 30, 2004.
23
N.T. 62, Hearing, December 30, 2004.
24
N.T. 71-72, Hearing, December 30, 2004; Defendant’s Ex. 4, Hearing, December 30, 2004.
25
Defendant’s Ex. 3, Hearing, December 30, 2004.
26
Defendant’s Ex. 5, Hearing, December 30, 2004. Wife’s hourly rate was $10.25 as of the
December 30, 2004, hearing. N.T. 65, Hearing, December 30, 2004.
27
N.T. 28, December 30, 2004.
28
Plaintiff’s Ex. 5, Hearing, December 30, 2004; N.T. 29, Hearing, December 30, 2004.
29
Defendant’s Ex. 1, Hearing, December 30, 2004.
30
Plaintiff’s Ex. 6, Hearing, December 30, 2004; N.T. 1, Hearing, December 30, 20045.
31
N.T. 63-64, Hearing, December 30, 2004.
32
N.T. 64, December 30, 2004.
4
33
2004, hearing exceeded her net earned income by about $2,100.00. She had
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about $50,000.00 in a savings account and $5,000.00 in an investment retirement
35
account.
By letter dated August 13, 2004, Husband and four other employees in
positions similar to his were notified that the company had decided to “upgrade
the level of performance” of their positions by assigning new “tasks” and
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“qualities” to them. The letter expressed reservations about Husband’s ability
“to meet the expectations” of the revised position and offered him a severance
37
package in lieu of continued employment past December 31, 2004. However, the
letter did not state that Defendant would be terminated if he chose to remain
3839
employed, Defendant did not know whether he would be terminated, the letter
40
specified that “the choice [was his],” and, as it developed, neither of the two
41
persons who chose to remain with the company was immediately terminated.
42
Husband elected to resign and accept the severance package, believing
that at the age of 63 he was too old for any additional education contemplated for
43
the upgraded position. The severance package, in the court’s view, for the
period immediately following his employment put Husband in a better financial
position than his continued employment would have.
33
N.T. 68, December 30, 2004.
34
N.T. 74, December 30, 2004.
35
N.T. 74, Hearing, December 30, 2004.
36
Plaintiff’s Ex. 2, Hearing, December 30, 2004.
37
Plaintiff’s Ex. 2, Hearing, December 30, 2004.
38
Plaintiff’s Ex.2, Hearing, December 30, 2004.
39
N.T. 34, Hearing, December 30, 2004.
40
Plaintiff’s Ex. 2, Hearing, December 30, 2004.
41
N.T. 33, Hearing, December 30, 2004.
42
Plaintiff’s Ex. 4, Hearing, December 30, 2004.
43
N.T. 52, Hearing, December 30, 2004.
5
In this regard, it may be noted that his retirement under the package as of
December 31, 2004, made available the following: (1) a lump sum payment
equivalent to the continuation of his salary of $4,800.00 per month for 35 weeks
4445
beyond the date of retirement; (2) $595.00 per month from one pension plan;
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(3) $961.00 per month from another pension plan; (3) at least $1,106.00 per
47
month from social security; (4) the continuation of his medical, dental and vision
4849
insurance benefits; and (5) his availability for other employment. In addition,
there was the possibility of unemployment compensation in the amount of up to
50
$1,733.00 per month; however, somewhat inconsistently in view of Defendant’s
position that his retirement was involuntary, his counsel argued that he would not
51
be eligible for unemployment compensation benefits.
Husband did nothing to exercise these income options. He chose not to
5253
apply currently for either of the pensions or for social security, preferring to
54
defer receipt of income from them until he reached the age of 65, and he did not
immediately secure new employment, having applied to only three prospective
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employers for jobs paying $9.00 per hour.
44
N.T. 32, December 30, 2004.
45
N.T. 35, December 30, 2004.
46
N.T. 37, December 30, 2004.
47
N.T. 44, December 30, 2004.
48
N.T. 12, December 30, 2004; Plaintiff’s Ex. 4, December 30, 2004.
49
N.T. 41-43, Hearing, December 30, 2004.
50
N.T. 38-40, Hearing, December 30, 2004.
51
N.T. 39, 84, Hearing, December 30, 2004.
52
N.T. 19, 36-37, Hearing, December 30, 2004.
53
N.T. 43-46, Hearing, December 30, 2004.
54
N.T. 36-37, Hearing, December 30, 2004.
55
N.T. 42-43, Hearing, December 30, 2004.
6
As of the December 30, 2004, hearing, Husband owned a 401K account
5657
with a value of about $104,000.00, and a 1999 Chevrolet pickup truck. He
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claimed to owe $5,800.00 to a credit union and $2,000.00 on a credit card.
Following the hearing on December 30, 2004, Plaintiff’s first petition to
59
terminate alimony was denied. On appeal, the Pennsylvania Superior Court
affirmed the denial, holding that the evidence supported findings that (a) Plaintiff
had not been terminated from his employment involuntarily and (b) Defendant’s
60
financial situation had not substantially changed.
Prior to the Superior Court’s affirmance of the denial of Plaintiff’s first
petition for termination of alimony, and before reaching the age of 65, Plaintiff
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filed a second petition for termination of alimony. However, the Superior
Court’s holding that Plaintiff’s voluntary termination of employment rendered any
attempt to reduce alimony prior to his attainment of the age of 65 inconsistent with
the terms of the marital settlement agreement effectively rendered the petition
premature.
On December 11, 2006, Plaintiff filed a third petition for termination of
62
alimony, noting that he would become 65 on January 13, 2007. The petition was
based upon changed circumstances in Plaintiff’s financial situation in the form of
56
N.T. 55, Hearing, December 30, 2004. Husband claimed that the value of this 401K portfolio
had decreased since the time of the marital settlement agreement, but produced no documentation
to support the allegation. N.T. 23, 56, Hearing, December 30, 2004. This alleged decrease has
was apparently attributable to the vicissitudes of the stock market and might or might not
eventually be recognized, depending upon market conditions at the time of sale. In this regard, it
may be noted that changes in circumstances which will warrant a modification of alimony must
be continuing in nature. See Act of December 19, 1990, P.L. 1240, §2, as amended, 23 Pa. C.S.
§3701(e).
57
N.T. 24, 53, Hearing, December 30, 2004.
58
N.T. 24-25, Hearing, December 30, 2004.
59
Order of Court, January 3, 2005.
60
Yingst v. Yingst, 170 MDA 2005 (Pennsylvania Superior Ct. December 14, 2005)
(memorandum opinion).
61
Plaintiff’s Second Petition for Termination or Reduction of Alimony, filed September 8, 2005.
62
Plaintiff’s Third Petition for Termination of Alimony, para. 27, filed December 11, 2006.
7
“the expiration of the thirty-five weeks to which the lump sum severance payment
was attributed, . . . the exhaustion of Plaintiff’s unemployment compensation
benefits, . . . [and] his inability to obtain better employment [than a part-time job
63
at a used car lot, providing net earnings of approximately $61 per week] . . . .”
A hearing on Plaintiff’s third petition to terminate alimony was held on
March 15, 2007. The credible evidence at the hearing may be summarized as
follows:
In February of 2005, Plaintiff became employed as a shuttle driver for a car
dealership on a part-time basis, working about twenty-four hours per week; his
64
present hourly wage is $7.00. Beyond inquiries to the three potential employers
to which he had applied prior to the December 30, 2004, hearing, Plaintiff has not
65
attempted to secure full-time or more remunerative part-time employment.
Plaintiff’s unemployment compensation payments of $461.00 per week terminated
66
on August 5, 2005, and the $1,108.00 weekly addition to his income effected by
the severance pay received upon his prior retirement ended in the same month.
67
On the other hand, Plaintiff’s gross income in 2006 totaled $58,122.00,
which was more than he had been receiving while fully employed at the time of
the marital settlement agreement and divorce in 2000 and not appreciably less than
he was receiving as of the prior hearing in 2004 on Plaintiff’s earlier petition to
terminate. This 2006 income figure consisted of $21,199.00 in pension income,
$18,569.00 from social security, $10,560.00 from an IRA, $7,728.00 in wages,
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and $66.00 in interest. Plaintiff’s federal, state and local taxes, and FICA and
63
Plaintiff’s Third Petition for Termination of Alimony, para. 24, filed December 11, 2006.
64
N.T. 21-22, 37, Hearing, March 15, 2007.
65
N.T. 22-23, 25-26, Hearing, March 15, 2007.
66
N.T. 23, 27, Hearing, March 15, 2007.
67
Defendant’s Ex. 1, Hearing, March 15, 2007.
68
Defendant’s Ex. 1, Hearing, March 15, 2007.
8
69
medicare payments, for 2006 totaled only $2,955.00. His monthly income
70
exclusive of those obligations is $4,840.50. Even with withdrawals following
71
retirement, Plaintiff’s retirement account is presently worth more ($113,790.00)
than it had been at the time of the 2004 hearing ($104,000.00), and it did not
appear to the court that any significant change in his financial obligations had
occurred.
Defendant’s own financial situation has not been helped by the fact that she
incurred $8,000.00 in legal fees defending against Plaintiff’s first two petitions to
terminate the $1,500.00 monthly alimony obligation.
DISCUSSION
On a petition to terminate or modify alimony, the burden of proof rests
upon the petitioner to demonstrate that a change is warranted. See Anderson v.
Anderson, 2003 PA Super. 152, 822 A.2d 824. In the present case, involving a
contractual alimony provision, the relief requested by Plaintiff was dependent
upon proof of the allegations in his petition that a substantial, detrimental change
in his financial circumstances had occurred.
Although the court certainly understands Plaintiff’s desire to be relieved of
the obligation to continue to pay alimony, the terms of the obligation in this case
were contractual and, to the extent relating to modification or termination,
dependent, inter alia, upon a substantial change of circumstances from those
existing at the time of the agreement’s execution. In this regard, the court has
been unable to find that Plaintiff has shown a detrimental, substantial change in his
financial circumstances as alleged in his current petition, either from the time of
the agreement in 2000 or the date of the hearing on an earlier petition to terminate
alimony in 2004.
For these reasons, the following order will be entered:
69
N.T. 35, Hearing, March 15, 2007.
70
N.T. 35, Hearing, March 15, 2007.
71
N.T. 31, Hearing, March 15, 2007.
9
ORDER OF COURT
th
AND NOW, this 20 day of April, 2007, upon consideration of Plaintiff’s
Third Petition for Termination of Alimony, following a hearing held on March 15,
2007, and for the reasons stated in the accompanying opinion, the petition is
denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Wayne F. Shade, Esq.
53 West Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
Carol J. Lindsay, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Defendant
10
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JAMES D. YINGST, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
CONNIE L. YINGST, :
Defendant : NO. 99-308 CIVIL TERM
IN RE: PLAINTIFF’S THIRD PETITION
FOR TERMINATION OF ALIMONY
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this day of April, 2007, upon consideration of Plaintiff’s
Third Petition for Termination of Alimony, following a hearing held on March 15,
2007, and for the reasons stated in the accompanying opinion, the petition is
denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Wayne F. Shade, Esq.
53 West Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
Carol J. Lindsay, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Defendant