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HomeMy WebLinkAbout1999-308 Civil (2) 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: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., July 18, 2007. In this divorce case, Plaintiff James D. Yingst has appealed from an order of this court denying his third petition in less than 26 months to terminate an alimony obligation. The obligation was agreed upon by the parties in a marital 1 settlement agreement and incorporated, but not merged, in their divorce decree. The grounds for the appeal, as expressed in a five-page statement of matters complained of on appeal, have been stated as follows: 1. The alimony in this case is contractual alimony under §5.01 of the Property Settlement and Separation Agreement (hereinafter the “Agreement”). 2. The alimony in this case was not awarded under the statutory alimony factors of the Divorce Code. 3. Where both parties were represented by their present counsel in the negotiation and execution of the Agreement and where §5.01 of the Agreement provided that the alimony could be modified or terminated upon a substantial change in circumstances, it was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how the language of the Agreement fails to show that the intentions of the parties were that it was contemplated that Husband’s employment at Ahlstrom would end at age 65. 4. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how the language of the Agreement fails to show that the intentions of the parties were that it was expressly contemplated that Husband’s no longer working for Ahlstrom at age 65 would constitute a substantial change in circumstances. 5. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how the characterization of the alimony by Wife’s counsel as a 1 Decree of Divorce, December 28, 2000. premium on equitable distribution fails to show that the parties intended that alimony was not based upon need and ability to pay but, rather, would terminate if Husband were no longer working for Ahlstrom at age 65. 6. It was contrary to the language of the Agreement, the evidence and the law to require Husband to continue working after the age of 65 to pay contractual alimony where it was expressly contemplated in the Agreement that Husband would be retiring at age 65. 7. It was contrary to the language of the Agreement, the evidence and the law to require Husband to draw against his retirement accounts to pay alimony after age 65, where it was expressly contemplated in the Agreement that Husband would be retiring at age 65 and where he has paid more than $100,000 in what Wife and her counsel have characterized as a premium on the equal division of marital property at the time of entry into the Agreement. 8. It was error to deny Husband’s request for modification or termination of alimony where Wife’s testimony did not offer evidence of her net income going forward. 9. It was error to deny Husband’s request for modification or termination of alimony without discussion of Wife’s errors in her calculations of Husband’s net income which she admitted in her brief. 10. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how Husband’s current gross cash flow of $47,562 without benefits, including $7,000 in earnings from working after age 65, is not a substantial change in circumstances from the $52,300 in annual gross income with $12,000 in benefits at the date of the Agreement or from the more than $60,000 in annual gross income with $12,000 in benefits at the time of the actual termination of employment from Ahlstrom in 2004. 11. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination without addressing how the statement on page 9 of the Opinion that “the court has been unable to find that Plaintiff has shown a detrimental, substantial change in his financial circumstances” affords any analysis of the positive changes in Wife’s financial circumstances which would also be material to the language of the Agreement which addresses substantial changes in circumstances, generally, not only substantial changes in Husband’s circumstances. 12. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how a change in Wife’s circumstances from part-time employment at the time of the Agreement to full-time employment with benefits does not constitute a substantial change in circumstances. 13. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how the resulting increase in Wife’s income of $8,000 per year plus the value of her benefits, does not constitute a substantial change in circumstances. 2 14. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how the resulting increase in Wife’s income of $8,000 per year plus the value of her benefits, on top of Husband’s resulting decreases in income does not constitute an even more substantial change in circumstances. 15. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how Wife’s receipt of a $30,000 inheritance, that she admitted was not contemplated at the date of the Agreement, did not constitute a substantial change in circumstances. 16. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination without addressing how, even if the appropriate standard were need and ability to pay rather than the intentions of the parties at the time of entry into the Agreement, Wife’s stated expenses, of $3,600 per year for clothing, $6,000 per year for food for one person, $5,000 per year for gifts, $68 per month for hospital bills for surgery that was performed last year and for which she provided no testimony will be ongoing, are not unsubstantiated and excessive. 17. It was contrary to the language of the Agreement, the evidence and the law to deny Husband’s request for termination of alimony without addressing how the failure to find Husband’s illustrations of changes in circumstances since the date of the Agreement to be material and substantial changes affords any indication of what the court would view as a sufficiently substantial change in circumstances, other than death or exhaustion of Husband’s retirement funds, to ever entitle Husband to 2 relief. The rationale for the court’s order from which Plaintiff has appealed was 3 contained in an opinion accompanying the order. This opinion included citations to the record in support of its finding that Plaintiff’s financial situation had not been shown to have significantly deteriorated since the parties’ agreement and divorce, notwithstanding that he had in the interim reached the retirement age mentioned in the agreement. This opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) is written to supplement the earlier opinion to respond to several assertions contained in Plaintiff’s statement of matters complained of on appeal. 2 Plaintiff’s Rule 1925(b) Statement of Matters Complained of on Appeal, filed May 29, 2007. 3 Opinion and Order of Court, April 20, 2007. 3 DISCUSSION With respect to paragraphs 3-6 of the statement of matters complained of on appeal, which seem to suggest that Plaintiff’s attainment of retirement age would per se warrant a modification or termination of his alimony obligation, it may be noted that the agreement could have included a provision to this effect if that had been the intention of the parties. The agreement’s provision that Plaintiff could not seek a modification or termination of alimony based upon voluntary retirement prior to age 65 was not the equivalent of such a provision. With respect to paragraph 7 of the statement of matters complained of, suggesting that Plaintiff’s withdrawals from retirement funds should not have been factored into the calculation of his income, it was the court’s view that such funds are intended to be employed during retirement and that it was not unfair to include Plaintiff’s fractional withdrawals from retirement funds in a determination of his income. With respect to paragraphs 8 and 11-16 of the statement of matters complained of, faulting Defendant and the court for not addressing supposed changes in Defendant’s financial situation, it may be noted that the substantial changes asserted in Plaintiff’s petition for relief related to his situation and not that of Defendant. Neither Defendant nor the court was required to expand the inquiry 4 beyond the scope of Plaintiff’s petition. Finally, with respect to paragraph 17 of the statement of reasons, assigning as error the court’s failure to indicate “what the court would view as a sufficiently substantial change in circumstances,” the factual bases in the record for the court’s comparative calculations of Plaintiff’s financial circumstances are cited in the 4 It may also be noted that the subject of Defendant’s inheritance as a change of circumstance, referred to in paragraph 15 of the statement of matters complained of, was dealt with in a prior order and opinion of this court, affirmed on appeal. See Order of Court, dated January 3, 2005, and Opinion of Court, dated March 15, 2005, aff’d, 170 MDA 2005 (Pa. Super. December 14, 2005), rearg. denied, 170 MDA 2005 (Pa. Super. February 24, 2006.) 4 earlier opinion. It would not have been proper for the court to have included, in addition, a holding as to the effect of a calculation based upon figures different from those found. Even the United States Supreme Court does not issue advisory opinions. Herb v. Pitcairn, 324 U.S. 117, 65 S. Ct. 459, 89 L. Ed. 789 (1945); see Stilp v. Commonwealth, 2007 WL 1892081 (Pa. Commw. 2007). For the foregoing reasons, it is believed that the order declining to terminate Plaintiff’s alimony obligation from which Plaintiff has appealed was properly entered. 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 5