HomeMy WebLinkAbout00-1483 CivilVICKI L. CLOUSE,
Plaintiff
V.
ARTHUR J. CLOUSE,
JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-1483 CIVIL TERM
IN RE: PLAINTIFF'S PETITION FOR ALIMONY PENDENTE LITE
BEFORE OLER, J.
~;, ORDER OF COURT
AND NOW, this I c/'clay of January, 2001, upon consideration of Plaintiff's
petition for alimony pendente lite, and for the reasons contained in the
accompanying opinion, the petition is denied, without prejudice to Plaintiff's right
to pursue a claim for spousal support if she deems it appropriate.
BYtTHE COURT,._.,
yWesley Ole , J~. '
Mark D. Schwartz, Esq.
60 West Pomfret Street
Carlisle, PA 17013-3222
Attorney for Plaintiff
Charles Chenot, III, Esq.
P.O. Box 250
217 S. Carlisle Street
New Bloomfield, PA 17068
Attorney for Defendant
VICKI L. CLOUSE,
Plaintiff
V.
ARTHUR J. CLOUSE,
JR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-1483 CIVIL TERM
IN RE: PLAINTIFF'S
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., January 19, 2001.
This divorce case was commenced on March 14, 2000.
PETITION FOR ALIMONY PENDENTE LITE
For disposition at
this time is Plaintiff wife's petition for alimony pendente lite (APL).l The matter
is presented on an appeal by Defendant2 from a recommended order,3 entered
following a Domestic Relations Office Conference,4 awarding Plaintiff APL in the
amount of $576.00 per month.
The basis for Defendant's appeal from the recommended order was .that
Plaintiff's circumstances did not meet the criteria for an award of APL.s A de
novo hearing on Plaintiff's petition was conducted by the court on October 6,
2000, and October 20, 2000.6 Counsel thereafter submitted briefs in support of
their respective positions.
Based upon the evidence presented at the hearing, the court is constrained
to deny Plaintiff's petition for alimony pendente lite.
~ Plaintiff's Petition for Alimony Pendente Lite, filed March 14, 2000.
2 Defendant's Demand for Hearing, filed April 27, 2000.
3 Order of Court, dated April 12, 2000.
nsec Pa. R.C.P. 1910.11.
5 Defendant's Demand for Hearing, flied April 27, 2000.
6 Notes of Testimony, Hearing, October 6, 2000; Notes of Testimony, Hearing, October 20, 2000
(hereinafter N.T. __, Hearing, October __, 2000).
STATEMENT OF FACTS
Plaintiff is Vicki L. Clouse; she resides at 3 Clay Road, Carlisle,
Cumberland County, Pennsylvania.7 Defendant is Arthur J. Clouse; he resides at
R.R. 2, Box 360, Landisburg, Perry County~ Pennsylvania.8
The parties were married on May 28, 1988.9 No children were born of the
man'iage. ~0 They separated in December of 1999, TM and the present divorce action,
filed under Section 3301(c) of the Divorce Code, has been pending since March
14, 2000. Plaintiff's petition for alimony pendente lite, which is the subject of this
opinion, was filed with the complaint.
Plaintiff has been employed by the Cumberland-Perry Association for
Retarded Citizens (CPARC) for fourteen years.~2 She has held the position of pre-
school director for CPARC for over four years and is responsible for supervising a
number of day-care centers in Perry and Cumberland Counties.~3 Her annual
salary is approximately $30,000.00.14
Plaintiff holds a bachelor's degree in elementary education, and has
previously worked as a substitute teacher.~5 She has also been a notary public.~6
Plaintiff resides with her parents and brother in Carlisle, Cumberland
County, Pennsylvania, where she contributes to household expenses.~7 She has
possession of the parties' Jeep and has assumed responsibility for payments and
N.T. 9, Hearing, October 6, 2000.
N.T. 30, Hearing, October 6, 2000.
N.T. 10, Hearing, October 6, 2000.
~° Id'
l~ Id'
N.T. 9, Hearing, October 6, 2000.
N.T. 9, 14, Hearing, October 6, 2000.
See Plaintiff's Exhibit 1.
N.T. 5, Hearing, October 20, 2000.
N.T. 28-29, Hearing, October 6, 2000.
N.T. 9, 15-16, Hearing, October 6, 2000.
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repair expenses relating to it.la Plaintiff also pays one-third of the mortgage, as
well as a portion of the maintenance expenses, on a hunting cabin purchased by
the parties and Plaintiff's parents,l°
~5:~intil:~' ttlso has expenses in the form of payments o~ a cellular phone
which she purchased for job purposes,2° payments for a storage locker in which
some of her personal belongings, including an old bedroom suite, are kept,2~
payments on a new bedroom suite,22 payments for dental surgery and crowns,23
and payments on an individual credit card debt, not including marital obligations?
Other expenses claimed by Plaintiff include charitable donations, vacation costs,
gift expenditures, and entertainment costs?
Assets in which Plaintiff has a legal interest, but as to which Defendant has
been paying expenses, include the marital residence and two rental properties.26 In
addition, Plaintiff obtained possession of marital funds in the approximate amount
of $5,500.00 at the time the parties separated; some of these funds ~vere used to
pay off marital debt, and the rest have been retained and used in part to pay
Plaintiff's legal fees.27 She is currently up to date on payments to her attorney?
Defendant has been employed as a truck driver for twelve years, working
approximately 60 hours per week.29 His annual wages are around $52,000.00, but
~ N.T. 12, 18-19, Hearing, October 6, 2000.
~9 N.T. 13, 16-17, Hearing, October 6, 2000.
20 N.T. 14, Hearing, October 6, 2000.
2~ N.T. 22-23, Hearing, October 6, 2000.
22 Id.
2~ N.T.
24 N.T.
2s N.T.
26 N.T.
27 N.T.
2s N.T.
29 N.T.
19-20, 25-26, Hearing, October 6, 2000.
20, Hearing, October 6, 2000.
21-22, 24-25, Hearing, October 6, 2000.
15-16, Hearing, October 20, 2000.
20-21, 26-27, Hearing, October 6, 2000.
13, Hearing, October 6, 2000.
30, Hearing, October 6, 2000; N.T. 4-5, Hearing, October 20, 2000.
may vary due to fluctuations in overtime and periods of medical leave.3°
Defendant has been experiencing back pain ~vhich has forced him to take medical
absences from his job on several occasions.31 He is a high school graduate.32
Del~nct:.m.: resides iix the ~mrital l',onv3 i!q Lancli,~,?,clrg. Perry County,
Pennsylvania, and pays the mortgage on that residence and on two mobile homes
which the parties purchased for use as rental properties? Although Defendant
receives some income from the rental properties, he has also been expending
money for repairs to one of the properties.34 He is in possession of three pickup
trucks, in varying states of repair on which no payments are owing? He is
currently in arrears on payments to his attorney.36
Plaintiff has not filed an affidavit of consent in the present divorce action.
Defendant has indicated his willingness to file an affidavit of consent immediately
and to proceed with the divorce?
DISCUSSION
Statement of law. The determination of whether to award alimony pendente
lite has traditionally been a matter within the sound discretion of the trial court.
Litmans v. Litmans, 449 Pa. Super. 209, 222, 673 A.2d 382, 388 (1996) (citing
Murphy v. Murphy, 410 Pa. Super. 146, appeal denied, 530 Pa. 633,606 A.2d 902
(1992), cert. denied, 506 U.S. 868, 113 S. Ct. 196, 121 L. Ed. 2d 139 (1992)).
APL is based on the need of one spouse to have the financial resources to pursue
or defend a divorce action. Litmans, 449 Pa. Super. at 222, 673 A.2d at 388. The
30 N.T. 30-31, Hearing, October 20, 2000.
3~ N.T. 7-8, Hearing, October 20, 2000.
32 N.T. 4, Hearing, October 20, 2000.
33 N.T. 30, Hearing, October 6, 2000; N.T. 10-I 1, Hearing, October 20, 2000.
34 N.T. 10-11, Hearing, October 20, 2000.
35 N.T. 13-14, Hearing, October 20, 2000.
36 N.T. 33, Hearing, October 6, 2000; N.T. 16-17, Hearing, October 20, 2000.
37 N.T. 12, Hearing, October 20, 2000.
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claimant must show that APL is needed to adequately preserve his or her rights in
the litigation. Sutliffv. Sutliff, 326 Pa. Super. 496, 500, 474 A.2d 599, 600 (1984),
overruled on other grounds, Rosen v. Rosen, 520 Pa. 19, 549 A.2d 561 (1988). In
this regard, the Pennsylvania Superior Court has stated that "a spouse seeking
alimony pendente lite who has sufficient assets to meet the needs of the pending
litigation and who is equally situated with the other spouse to maintain or defend
the action, will not be awarded alimony pendente lite." Powers v. Powers, 419 Pa.
Super. 464, 467, 615 A.2d 459, 460 (1992).
In adjudicating a claim for alimony pendente lite, a 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. Litmans, 449 Pa. Super. at 224, 673 A.2d at 389. Historically, the
mere fact that one party earns less than the other has not automatically entitled him
or her to APL. Szttliff, 326 Pa. Super. at 500, 474 A.2d at 600. Additionally, a
plaintiff"[s]hould not be allowed to withhold [his or] her consent to the divorce
while simultaneously seeking alimony pendente lite." Hoffman v. Hoffman, 350
Pa. Super. 280, 283-84, 504 A.2d 356, 358 (1986).
In 1989, Pennsylvania adopted Rule of Civil Procedure 1910.16-1,
providing that the support guidelines were to be used in determining the amount of
alimony pendente lite to be awarded. In addition, Rule 1910.1 provides that "the
rules of this chapter govern all civil actions or proceedings brought in the court of
common pleas to enforce a duty of support, or an obligation to pay alimony
pendente lite."
Based upon this principle, Plaintiff herein argues that, where an application
of the guidelines to the parties' net incomes xvould yield a sum owing to a
claimant for APL, an award should be made ~vithout regard to an initial
determination of entitlement in accordance with the traditional prerequisites for
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APL.38 Perhaps implicit within the argument is the proposition that such
entitlement is conclusively presumed by the calculation.
However, the 1994 comment to Rule 1910.1 states that "[n]othing in this
rule should be interpreted to eliminate tile distinctions between spousal support
and alimony pendente lite which are established by case law." Instead, as the
Honorable Edgar B. Bayley of this court has observed,
[w]hat has been erased regarding the distinction between
spousal support and alimony pendente lite is the way that the
amount of an alimony pendente lite award is calculated, not the
distinct concepts that underlie those causes of action .... II]fan
award of alimony pendente lite is warranted in a pending
divorce case, the method of calculating the award is pursuant
to the Pennsylvania support guidelines which are the same
guidelines used for calculating spousal support.
Little v. Little, 47 Cumberland L.J. 131,134 (1998).
Thus, notwithstanding the equivalency of spousal support and APL for
purposes of computation under the rules of civil procedure, a determination of
entitlement in accordance with the traditional test remains a prerequisite to an
award of APL. See Nemchick v. Nemchick, 53 Somerset L.J. 260 (1995); Dietch v.
Dietch, 87 Berks L.J. 210 (1995).
Application of law to facts. In the present case, a number of factors have
led the court to conclude that Plaintiff has not shown an entitlement to alimony
pendente lite in the traditional sense. These include her superior education relative
to Defendant's, her present income and apparent security of employment, her
ability to remain current on legal expenses related to the litigation, the availability
of marital assets to ultimately cover expenses in the action, Defendant's
continuing payment of various marital obligations, Defendant's physical problems
which have affected his earning capacity, and Defendant's inability to pay his own
3s Plaintiff's Brief in Opposition to the Defendant's Appeal of the Award of Alimony Pendente
Lite, at 4-5, dated November 20, 2000.
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expenses in the litigation (which was initiated by Plaintiff and xvhich Defendant
desires to conclude). For these reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 19th day of January, 2001, upon co.~sideration of
Plaintiff's petition for alimony pendente lite, and for the reasons contained in the
accompanying opinion, the petition is denied, xvithout prejudice to Plaintiff's right
to pursue a claim for spousal support if she deems it appropriate.
BY THE COURT,
Mark D. Schwartz, Esq.
60 West Pomfret Street
Carlisle, PA 17013-3222
Attorney for Plaintiff
Charles Chenot, III, Esq.
P.O. Box 250
217 S. Carlisle Street
Ne~v Bloomfield, PA 17068
Attorney for Defendant
/s/J. Wesley Oler. Jr.
J. Wesley Oler, Jr., J.
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