HomeMy WebLinkAbout97-2234 CivilBONNIE E. NADZOM,
Plaintiff
JOSEPH G. NADZOM,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-2234 CIVIL TERM
IN RE: DEFENDANT'S EXCEPTIONS TO MASTER'S REPORT
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this t~ [[qday of May, 2000, upon consideration of Defendant's
exceptions to master's report, and for the reasons stated in the accompanying
opinion, the exceptions are denied.
OF EVEN DATE HEREWITH, a Supplemental Decree Respecting
Alimony, in accordance with the master's recommendation, will be entered.
BY THE COURT,
~jw ~lr., J.~''
Samuel L. Andes, Esq.
525 North Twelfth Street
Lemoyne, PA 17043
Attorney for Plaintiff
Lori K. Serratelli, Esq.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
Attorney for Defendant
5/3/00 - Judge - Shepardized by Penny - 5/3/00
BONNIE E. NADZOM,
Plaintiff
JOSEPH G. NADZOM,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-2234 CIVIL TERM
IN RE: DEFENDANT'S EXCEPTIONS TO MASTER'S REPORT
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
OLER, J., May , 2000.
In this bifurcated divorce case, the parties resolved by agreement the issue
of divorce and all economic issues with the exception of claims by Plaintiff for
alimony and counsel fees and expenses. For disposition at this time are
Defendant's exceptions to a master's report filed by the Cumberland County
Divorce Master.
The master's report recommended that alimony be awarded to Plaintiff in
the amount of $1,250.00 per month,t In excepting to this portion of the report,
Defendant makes the following contentions:
1. The Master erred in awarding $15,000.00 per year as
alimony for an indefinite duration to Plaintiff ... by failing to
consider the relevant factors of 23 Pa. C.S.A. {}3701.
2. The Master erred in finding Plaintiff ... could not meet
her reasonable needs without alimony.
t An exception filed by Defendant, but unrelated to alimony, is not being pursued
by Defendant. See Cumberland County Rule of Procedure 210-7 (issues raised but
not briefed deemed waived).
With respect to Plaintiff's claim for counsel fees, the master's report
recommended against such an award, and neither party has excepted to that
recommendation.
3. The Master erred by not considering that portion of
[Defendant's] taxable income which must be reinvested in his
business and is not available for personal use.
4. [The] Master erred in his determination that [Plaintiffs]
income is inadequate to allow her to maintain herself consistent
with the standard of living to which she was accustomed
during the marriage.2
Argument on Defendant's exceptions to the master's report was held on
January 6, 2000. For the reasons stated in this opinion, the exceptions will be
dismissed.
PROCEDURAL HISTORY
A complaint in divorce was filed by Plaintiff on April 30, 1997, requesting
a divorce on grounds of irretrievable breakdown and seeking equitable
distribution, alimony, alimony pendente lite, and counsel fees and expenses. By
order of court dated May 29, 1997, Plaintiff was awarded alimony pendente lite.
An affidavit of consent was filed by Defendant on September 17, 1998.
The action was bifurcated by order of court dated December 3, 1998, pursuant to
an agreement of counsel.3 An affidavit of consent was filed by Plaintiff on
December 8, 1998. A decree in divorce was issued on December 30, 1998.
The parties resolved by agreement the issue of equitable distribution on
November 23, 1998.4 A master's hearing was held on the remaining issues of
Plaintiff's claim for alimony and her claim for counsel fees and expenses on
January 19, 1999.5 In addition, a factual stipulation dated March 11, 1999, was
2 Brief in Support of Defendant's Exceptions to Master's Report, at 6-7, 10-11.
3 Stipulation of Parties for Bifurcation of Divorce Action, filed November 30,
1998.
4 Partial Property Settlement Agreement, January 23, 1998; see N.T. 6, Master's
Hearing, January 19, 1999 (hereinafter N.T. ).
5N.T. 6.
2
presented to the master on or about March 12, 1999;6 the stipulation contained
income figures for the parties, and provided that "the Master shall use these
income figures for purposes of determining the Plaintiff's claim for alimony and
counsel fees in this matter?
The divorce master filed his report on April 5, 1999. With respect to
alimony, the report recommended as follows:
Husband shall pay to wife the sum of $1,250.00 per month
through the Cumberland County Domestic Relations Office to
begin upon the entry of a divorce decree in these proceedings.
The amount and duration of alimony shall be subject to
modification and termination on petition of either party as
allowed under Section 3701(e) of the Domestic Relations
Code. Specific termination provisions in the Domestic
Relations Code will also apply,s
Defendant's exceptions to the recommendation of the report as it related to
alimony were filed on April 14, 1999. The matter was argued on January 5, 2000.
STATEMENT OF FACTS
in a divorce action, a "master's report, although only advisory, is to be
given the fullest consideration, particularly on the issue of credibility.''9 "[I]n
determining issues of credibility, [a m]aster's findings must be given the greatest
weight because it is he who heard and observed the witnesses.''~° In accordance
6 See Stipulation, March 11, 1999; Letter from Plaintiff's counsel to divorce
master, dated March 12, 1999. Unfortunately, the stipulation was not filed with
the prothonotary and does not appear on the docket.
7 Stipulation, March 11, 1999, paragraphs 3-6.
s Master's Report, at 11. With respect to Plaintiff's claim for counsel fees and
expenses, the report recommended that the claim be denied. Master's Report, at
12.
9 Margolis v. Margolis, 201 Pa. Super. 129, 132, 192 A.2d 228, 230 (1963).
lo Mott v. Mott, 308 Pa. Super. 1, 3,453 A.2d 1038, 1039 (1982).
with this principle, the facts of the present case, as recited by the master and
supported by citations to the record, are found to be as follows:
1. The parties were married on October 25, 1979,Ii and
separated June 1, 1996 .... 12 There were no children born of the
marriage. 13
2. On November 23, 1998, the parties entered into a partial
settlement agreement. Paragraph 8 of that agreement
specifically sets forth the value of the assets which each of the
parties received in the settlement of the equitable distribution
claim.
Wife was awarded total marital assets having a marital
value of $78,379.11 and husband was awarded marital assets
having a total marital value, after credit for a cash payment to
wife, of $82,000.00.TM
3. Wife is 51 years of age and resides at P.O. Box 1,
Rolling Stone Road, Kylertown [Clearfield County],
Pennsylvania 16847.~5 She resides with her ailing mother who
is 74 years of age and has had heart problems, both breasts
removed, and now has a cancer spot on her spine .... ~6 [When
11 N.T. 74.
~2 N.T. 143, 186
~3 See Plaintiff's Exhibit 1 (Vocational Report), at 2, Hearing, January 19, 1999
(hereinafter Plaintiff's/Defendant's Exhibit ~.
~4 Partial Property Settlement Agreement, November 23, 1998.
~5 N.T. 71-72, 105. Plaintiff's date of birth is August 31, 1947; she was 51 as of
the master's hearing on January 19, 1999. N.T. 72.
~6 N.T. 102-04.
4
the parties separated], [Plaintiff] moved to her mother's home
to assist her with her health problems. ~7
4. Wife is employed as a coordinator for an adult day care
in Centre County, which job she started in June of 1998.~8 She
is currently taking home monthly the sum of $1,300.00 net .... ~9
Wife does have medical insurance coverage through her
employment.2°
Wife also receives alimony pendente lite from husband
pursuant to an order entered January 27, 1999, in the amount of
1,200.00 per month plus $100.00 monthly on arrears?
5. Wife has an Associates degree from Penn State
University in sociology which she obtained in 1985.22
Subsequently when she moved to the Harrisburg/Cumberland
County area she returned to college at Shippensburg University
and received a Bachelor's degree in August of 1992 in
sociology.23
6. Wife reports that she has suffered from depression and
anxiety and is currently taking medication for these problems.24
17 N.T. 102-03.
~8 N.T. 106.
19 Stipulation, March 11, 1999, paragraph 3.
2° N.T. 110.
2~ Order of Court, January 27, 1999.
22 N.T. 80-81.
23 N.T. 96-97.
24 N.T. 119-20.
5
7. When wife and husband moved to the
Harrisburg/Cumberland County area [from Clearfield County,
about 198525], wife was employed by Sutliff Chevrolet and
Saturn in a position involving marketing fleet sales and helping
to coordinate and implement that particular aspect of the car
business.26 She subsequently left that position27 and in 1993
until 1997 was the director of Senior Citizens Center Services
in Cumberland County, Pennsylvania, acting as a coordinator
of the various senior citizens centers? When the parties
finally separated, wife, as previously noted, left the
Harrisburg/Cumberland County area to return to her hometown
to care for her mother and to obtain employment, which she
has done in Centre County involving the present position as
adult day care coordinator.29
8. Husband is 42 years of age and lives in a rental unit at
212 Lindham Court, Mechanicsburg [Cumberland County],
Pennsylvania, where he lives alone.3°
9. Husband is a graduate of high school and took one
college course in mechanical drafting.3~ Following school he
25 N.T. 81,172.
26 N.T. 81, 84-95.
27 N.T. 90. Plaintiff left the job around August, 1991. N.T. 90.
28 N.T. 98-102.
29 N.T. 102, 106-08.
30 N.T. 167, 203,216. Defendant's date of birth is May 27, 1956; he was 42 as of
the master's hearing on January 19, 1999. N.T. 167.
3~ N.T. 168.
6
worked for his father in a chrome plating business,32 then
became an iron worker from 1976 to 1980.33 Shortly after he
was married, he and his wife ran the chrome plating shop for
approximately four years.34 They decided to close the shop,
wife moved [to] the Harrisburg/Cumberland County area
leaving husband behind for a few months to close the plating
business? The move to the Harrisburg/Cumberland County
area occurred in 1986 and when husband moved to the
Harrisburg/Cumberland County area, after discussion with
wife, [he] took a gold plating course in Lancaster from June to
December? He then worked for various jewelers and
ultimately became a partner in a jewelry business known as
Joseph James Jewelers located in Mechanicsburg,
Pennsylvania? Husband is currently working and operating
this business with a partner?
32 N.T. 169.
33 N.T. 169.
34 N.T. 75-80, 171.
35 N.T. 80-81.
36 N.T. 82-83, 173-75. The course provided training in jewelry manufacturing,
stone setting and basic jewelry repairing. It did not offer a goldsmith certification.
N.T. 174-75.
37 N.T. 114-17, 177-78, 180-81, 193. This business has been incorporated. N.T.
193.
38 N.T. 181,185.
10. Husband's net income monthly from the operation of
this business is $4,500.00 .... 39
11. Husband has been using COBRA benefits through
wife's prior employment with Cumberland County for his
medical insurance coverage but that benefit will end in
February of 1999.40 Consequently, husband will have to pick
39 Stipulation, March 11, 1999, paragraph 4. Paragraph 4 of the parties' stipulation
provided that "Defendant's monthly income from his employment by, and partial
ownership of Joseph James Jewelers, Inc. net of taxes, is $4,500.00 per month as
of January 1999."
The stipulation of the parties was the result of the development of an
unsatisfactory record, for purposes of fact-finding, on the subject of Defendant's
income, during the master's hearing. N.T. 209-10. As the master observed during
the testimony of Defendant, "[w]e are talking here about some very interesting and
perhaps complex tax computations. We are talking about retained earnings issues.
We are talking about draws .... "N.T. 209. Further evidence on the subject was
deferred, with a view toward the future presentation of expert testimony or a
stipulation on the subject. N.T. 209, 229-31. The stipulation followed.
The stipulation contained as an appendix a letter dated January 23, 1999,
from the corporation's accountant, which included this paragraph:
Mr. Nadzom is taxed on half of the corporation's income
even though he only drew out of the business $43,600. The
balance of the income was left in the corporation to maintain
the cash flow in order to buy inventory and pay back
[principal] on debt, which is not a tax deductible expenditure.
Likewise, the real estate partnership had a loss therefor there
were no distributions of cash to partners.
Notwithstanding this assessment of the propriety of attributing retained
earnings to the income of Defendant, the parties agreed that $4,500.00 was the
proper figure to be used for purposes of calculating Defendant's alimony pendente
lite obligation. See Stipulation, March 11, 1999, paragraph 5.
40 N.T. 191.
8
up the cost of that medical insurance which will be around
$250.00 per month.4~
12. Husband reports that he is suffering from clinical
depression and has been seeing a psychologist for over a
year.42 He also takes some medication for that problem.43 In
addition, husband indicated that he is suffering from dizzy
spells and has had to increase the power of his lens on his
glasses and his eye wear that he uses in his work.44
13. Wife's attorney fees and expenses for appraisals and
valuations are in excess of $8,000.00.45 Wife has raised a
claim for counsel fees and expenses. Although husband has
not raised a claim for counsel fees and expenses, husband
testified that he paid his first attorney in this case $15,000.00
for services from June 1996 until April 1998.46 Since April
1998 he has incurred fees and costs for the valuation of the
business, for the evaluation of wife by a vocational expert, and
for attorney Serratelli of around $9,200.00.47 Both parties will
incur additional fees following the hearing on January 19,
1999, as this case moves toward conclusion.
41 N.T. 205.
42 N.T. 190-91.
43 N.T. 189, 191.
44 N.T. 189, 192, 224.
45 N.T. 165-66.
46 N.T. 210.
47 N.T. 214.
9
Testimony at the master's hearing included that of the parties, counsel for
the parties, and two vocational experts. Plaintiff's income and expense statement
showed expenses of $3,553.60 per month.48
Of the vocational experts, one opined that Plaintiff's earning capacity was
between $21,000.00 and $25,000.00 per year.49 The other expressed the view that
her earning capacity was between $31,000.00 and $41,288.00.5°
Following an extended analysis of the statutory factors bearing upon the
issue of filimony,5! the master's report recommended an award of alimony to
48 Plaintiff's Exhibit 4 (Income and Expense Statement).
49 See Plaintiff's Exhibit 1 (Vocational Report).
5o See Defendant's Exhibit 1 (Vocational Report).
5! This analysis appears in the master's report in the following form:
ANALYSIS OF THE FACTORS AS SET FORTH IN
SECTION 370 l(b) OF THE DOMESTIC RELATIONS
CODE
1. Wife's earnings currently are $1,300.00 net monthly.
There has been raised an issue with respect to wife's earning
capacity and both parties offered expert testimony regarding
wife's income potential. Husband's earnings are $4,500.00 net
monthly.
2. Wife is 51 years of age and suffers from depression and
anxiety for which she is taking medication. Husband has
clinical depression and sees a psychologist and is also taking
medication.
3. The source of income of wife is through her
employment including the benefits provided through that
employment. The source of income of husband is through his
operation as a partner in the jewelry store business in
Mechanicsburg, Pennsylvania, and any benefits he receives are
a result of the income derived from that employment.
10
4. Neither party has indicated an expectation of receiving
funds or assets from sources other than earnings. Although
wife has an ailing mother for whom she cares, there was no
specific testimony offered to indicate that wife can reasonably
expect to receive any inheritance in the near future; therefore,
any inheritance that wife may receive from her mother is too
speculative to consider at the present time.
5. The parties were living together in a martial relationship
for approximately 16 and ½ years. The parties separated on
June 1, 1996, and were divorced by decree entered in
Cumberland County on December 30, 1998.
6. Both parties made some contribution to the education
and training of the other party. Husband attended gold plating
school and wife was the primary income producer during that
time. Wife obtained a degree at Shippensburg University and
husband was the primary provider during that time.
7. Neither party is serving as the custodian of a minor
child.
8. The standard of living of the parties established during
the marriage was middle-class.
9. Wife has a Bachelor's degree in sociology and is using
her education in her current position. Husband has training in
gold plating and jewelry design and is using his training and
skills in the operation of the jewelry store business.
10. The assets that the parties received in the equitable
distribution settlement as previously noted are set forth in
Paragraph 8 of the partial property settlement agreement
entered into on November 23, 1998. Husband does have an
ongoing interest in the jewelry store operation which he and his
partner purchased. There are also some rental units on that
property which husband and his partner lease to third parties.
Wife does not have any major liabilities. The liabilities which
husband has arise out of the purchase and operation of the
jewelry store.
11. Neither party brought any property of a significant
nature into the marriage.
11
Plaintiff, subject to modification or termination upon changed circumstances, of
$1,250.00 per month. In so recommending, the report indicated as follows:
The payment as recommended by the Master will provide
wife an additional $15,000.00 per year subject to the tax
liability so that her annual income will be $30,000.00 less the
tax due on the alimony payments.
Husband's net annual income is $54,000.00 per year less
the $15,000.00 payable to wife, leaving husband net
12. Although wife testified she took care of the household
chores and maintenance of the household, nevertheless, she did
acknowledge that husband assisted with those duties on
occasion.
13. Wife has a fixed income which allows her to provide
for her basis needs. Husband has a substantially higher income
and will be able to provide for his needs more easily than wife
through his earnings.
14. Neither of the parties offered any testimony on the
factor of marital misconduct of the other party.
15. The tax ramifications for alimony for federal tax
purposes will be that alimony will be treated as income to wife
and a tax deduction for husband.
16. Although wife has sufficient income to provide for a
modest lifestyle, nevertheless, considering all of the other
factors, wife does not have sufficient income and property to
provide for a lifestyle other than to provide for anything but the
basic needs for her existence.
17. Although wife is employed and is receiving income
from that employment, nevertheless, the income which she is
receiving is not sufficient and adequate to allow her to
maintain herself consistant with the standard of living to which
she was accustomed to during the marriage.
12
$39,000.00 per yea~2Plus the tax benefit resulting from the
payment of alimony.
DISCUSSION
Statement of Law
In ruling upon exceptions to a master's report in a divorce case, a court's
obligation is to "review the Master's Report, determine if his or her
recommendations are appropriate, and ... enter a final decree." Reed v. Reed, 354
Pa. Super. 284, 289, 511 A.2d 874, 877 (1986); see Pa. R.C.P. 1920-55-2(b). The
recommendations of the master, although advisory only, are "entitled to careful
consideration." Reedy. Reed, 354 Pa. Super. 284, 289, 511 A.2d 874, 877 (1986).
With respect to a claim for alimony, "[w]here a divorce decree has been
entered, the court may allow alimony, as it deems reasonable, to either party ... if
it finds that alimony is necessary." Act of December 19, 1990, P.L. 1240, §2, as
amended, 23 Pa. C.S. §3701(a) (1999 Supp.). "The purpose of alimony is not to
reward one party and punish the other, but rather to ensure that the reasonable
needs of the person who is unable to support herself through appropriate
employment are met." Miller v. Miller, 744 A.2d 778 (Pa. Super. Ct. 1999). As
the Superior Court has stated,
[a]limony is based upon reasonable needs in accordance with
the lifestyle and standard of living established by the parties
during the marriage, as well as the payor's ability to pay.
Necessity is the only requirement in determining the propriety
of an alimony award and that necessity is judged by numerous
considerations only some of which have to do with the
rehabilitation of the recipient spouse.
Twilla v. Twilla, 445 Pa. Super. 86, 90, 664 A.2d 1020, 1022 (1995).
The following factors, inter alia, are to be considered by a court in
determining whether alimony is necessary and in determining its nature, amount,
duration and manner of payment:
52 Master's Report, at 10.
13
(1) The relative earnings and earning capacities of the
parties.
(2) The ages and the physical, mental and emotional
conditions of the parties.
(3) The sources of income of both parties, including, but
not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training
or increased earning power of the other party.
(7) The extent to which the earning power, expenses or
financial obligations of a party will be affected by reason of
serving as the custodian of a minor child.
(8) The standard of living of the parties established during
the marriage.
(9) The relative education of the parties and the time
necessary to acquire sufficient education or training to enable
the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during
the marriage. The marital misconduct of either of the parties
from the date of final separation shall not be considered by the
court in its determinations relative to alimony except that the
court shall consider the abuse of one party by the other party.
As used in this paragraph, "abuse" shall have the meaning
given to it under section 6102 (relating to definitions).
(15) The Federal, State and local tax ramifications of the
alimony award.
(16) Whether the party seeking alimony lacks sufficient
property, including, but not limited to, property distributed
under Chapter 35 (relating to property rights), to provide for
the party's reasonable needs.
14
(17) Whether the party seeking alimonY53is incapable of
self-support through appropriate employment.
In ordering alimony, a court is to "determine the duration of the order,
which may be for a definite or an indefinite period of time which is reasonable
under the circumstances." Act of December 19, 1990, P.L. 1240, {}2, as amended,
23 Pa. C.S. {}3701(c) (1999 Supp.).
Finally, any order for alimony "is subject to further order of the court upon
changed circumstances of either party of a substantial and continuing nature
whereupon the order may be modified, suspended, terminated or reinstituted or a
new order made." Act of December 19, 1990, P.L. 1240, {}2, as amended, 23 Pa.
C.S. {}3701(e) (1999 Supp.).
Application of Law to Facts
Alleged failure of master to consider relevant factors for determination of
alimony. In arguing that the recommended award of alimony in the amount of
$1,250.00 in the present case was not based upon a consideration of the relevant
factors applicable to such a determination, Defendant notes that in Nemoto v.
Nemoto, 423 Pa. Super. 269, 620 A.2d 1216 (1993), the Pennsylvania Superior
Court upheld an alimony award of only $600.00 per month against a challenge that
it was insufficient?
Several factors, however, militate against accepting Plaintiff's position in
this regard. First, it is difficult to analogize between the present case and Nemoto,
because of the limited factual information which can be made available in a
court's opinion. The Superior Court's affirmance of the $600.00 alimony figure in
Nemoto was expressly based upon the court's inspection of an "extensive certified
record."
53 Act of December 19, 1990, P.L. 1240, {}2, as amended, 23 Pa. C.S. {}3701(b).
54 Brief in Support of Defendant's Exceptions to Master's Report, at 6-7.
15
Second, the affirmance of the figure in Nemoto was premised upon an
abuse of discretion standard of review. The appellate court noted that under such
a standard a reversal would not be appropriate unless "the law [was] overridden or
misapplied, or ... the judgment exercised [was] manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the evidence or the
record." Nemoto v. Nemoto, 423 Pa. Super. 269, 275, 620 A.2d 1216, 1219
(1993). The affirmance of the $600.00 figure in Nemoto can thus not be read as a
holding that any other amount would have been impermissible under the
circumstances.
Finally, the painstaking analysis in the master's report of the facts in the
present case in relation to the factors set forth in Section 3701(b) of the Domestic
Relations Code55 tends to refute any argument that appropriate consideration was
not accorded the factors. In this regard, the court is in agreement with the master's
analysis as expressed in the report.
Alleged ability of Plaintiff to meet her reasonable needs without alimony.
In arguing that the master erroneously concluded that Plaintiff could not meet her
reasonable needs without alimony, Defendant suggests that Plaintiff has skills in
fields other than social services,56 that she voluntarily left employment with some
prospect for advancement in Cumberland County,57 that her share of equitable
55 See note 51 supra and accompanying text.
56 Brief in Support of Defendant's Exceptions to Master's Report, at 9. In this
regard, Defendant cites testimony that during a certain three-month period in 1991
Plaintiff had earned $11,000.00 while working for an automobile dealership. Id.;
see N.T. 37. In that year, however, Plaintiff and Defendant agreed that Plaintiff
should return to school for further training in the social field, with a view toward
her employment in that field at the state or county level. N.T. 96.
57 Brief in Support of Defendant's Exceptions to Master's Report, at 9. However,
the difference in wages between the employment left and Plaintiff's present
employment is conceded by Defendant to be only $700.00 per year. Id.
16
distribution has been disregarded in estimating her resources,58 and that the
alimony recommendation is in reality based upon "the early success of
[Defendant's] business" rather than the needs of the Plaintiff? In addition,
Defendant contends in this section of his brief that Defendant's financial
circumstances do not support such an award?
In addressing Defendant's concerns as expressed above, the master
explained his conclusion that the reasonable needs of Plaintiff and the
circumstances of Defendant warranted an award of alimony at this time as follows:
Based on the substantial disparity of income between the
parties, wife's ability to provide for her basic needs require her
to use most of her income; whereas, husband, because of his
more substantial earnings, has more income available to
provide for his needs other than just the necessities of life.
Considerable testimony was offered regarding the question
of whether or not wife is earning up to her potential. Wife has
been criticized for leaving a position in Cumberland County
and previous to that a position with [an automobile dealership].
The Master does see some merit to the argument by husband
that had wife stayed with either of these positions she would
have developed a higher income and would have built up some
additional benefits through the longer term employment.
However, the Master cannot ignore the dynamics in wife's life
which brought her to her current circumstances. She had no
particular ties to the Harrisburg/Cumberland County area; she
has an ailing mother who needs care and assistance, and she
ultimately obtained employment which the Master believes is
consist[e]nt with her background and education in Centre
county. The Master does not believe that wife should be
penalized for making a decision to move on, and in this case,
move back to her hometown area to continue her life. To
58 Brief in Support of Defendant's Exceptions to Master's Report, at 8. However,
the record is not particularly helpful in terms of income being generated from this
resource.
59 Brief in Support of Defendant's Exceptions to Master's Report, at 8.
60 Brief in Support of Defendant's Exceptions to Master's Report, at 9.
17
require wife to ignore the other factors pulling her away from
the Harrisburg/Cumberland County area and to place primary
significance and importance on the one factor of the potential
for wife's additional earnings if she had stayed in the
Harrisburg/Cumberland County area, does not seem to balance
the needs that wife had to fulfill in her decision to move.
Further, the Master is not convinced that had wife stayed in
either of these two other positions in the
Harrisburg/Cumberland County area that her earnings would
be substantially more than what she is currently earning.
Admittedly her earnings would have been excess of her current
income, nevertheless, the difference between what potentially
she could have earned and what she is earning now would not,
in the Master's opinion, necessitate foregoing the other reasons
for making her move to Clearfield County where she is living.
The Master cannot ignore the issues surrounding wife's
decision to move which would include a family necessity,
finding a job which she seems to enjoy and has fulfillment in
doing, and returning to an area where she grew up as opposed
to an area where she had no real ties.
Husband, on the other hand, has established an ongoing
business which includes the recent purchase of property
providing rental income. He has shown some substantial
earnings over the last three years, and there is nothing to
indicate that his earnings will not continue at the same level or
improve. Although husband claims that he is having some
personal difficulties with his relationship with his partner,
nevertheless, should circumstances develop where there is a
problem with the business or with the partner, husband,
because of the nature of the way the alimony recommendations
are devised, can ask the Court at any time to review the
obligation of alimony based on a showing of changed
circumstances....6~
Plaintiff's yearly net earned income of $15,600.00, with claimed
in excess of twice that amount, justifies a conclusion that at
reasonable needs will not be met in the absence of income
source. The reasons articulated by the master for not placing
expenses
present Plaintiff's
from an external
upon Plaintiff the
6~ Master's Report, at 7-10.
18
burden of this deficiency (in the form of an assignment of a higher eaming
capacity), and for believing that Defendant is in a position to share a portion of his
income with Plaintiff for this purpose, are persuasive to the court.
Inclusion of earnings retained in business in Defendant's net income. In
arguing that the master erroneously included retained earnings in Defendant's net
income, Defendant maintains that the record compels a conclusion that his net
income from the business for purposes of alimony should be limited to his "actual
cash flow.''62
The record, however, indicates that the $4,500.00 net income figure
attributed by the master to Defendant was the amount subject to individual
taxation by the federal government,63 was the amount agreed upon by the parties
as Defendant's net income for purposes of alimony pendente lite,64 and was the
amount suggested by the parties' stipulation for the master's use.65 For the master
to have treated the retained earnings as the equivalent of deductible business
expenses under these circumstances would not, in the court's view, have been
warranted. See Cunningham v. Cunningham, 378 Pa. Super. 280, 548 A.2d 611
(1988), appeal denied, 522 Pa. 576, 559 A.2d 37 (1989).
Necessity for alimony in view of Plaintiff's standard of living during
marriage. In arguing that an award of alimony as recommended is not necessary
for Plaintiff to maintain the standard of living to which she was accustomed during
marriage, Defendant contends that the parties' "lifestyle during the marriage was
not a high lifestyle of luxury purchases and vacations,''66 that the proposed award
62 Brief in Support of Defendant's Exceptions to Master's Report, at 11.
63 Stipulation, March 11, 1999, Schedule D.
64 See note 39 supra and accompanying text.
65 The history and contents of the stipulation are summarized in note 39 supra.
66 Brief in Support of Defendant's Exceptions to Master's Report, at 13.
19
of $1,250.00 per month disregards the investment potential of Plaintiff's equitable
distribution share,67 and that it fails to take into consideration Plaintiff's
expectancy of a devise of her mother's house.68
Even if one accepts the proposition that the parties' standard of living
during marriage was not a luxurious one, it was financially sufficient to permit
Plaintiff to attend college and to permit Defendant to attend trade school and to
open his own business. The record supports the proposition that a net income of
less than $16,000.00 per year, even if supplemented by some investment of cash
received by Plaintiff in the division of marital property, would not afford her a
lifestyle approximating that to which she had become accustomed during the
marriage. In addition, the record does not support the proposition that an
inheritance in the form of her mother's home is a predictable occurrence?
For the foregoing reasons, Defendant's exceptions to the master's report
will be denied.
ORDER OF COURT
AND NOW, this 4th day of May, 2000, upon consideration of Defendant's
exceptions to master's report, and for the reasons stated in the accompanying
opinion, the exceptions are denied.
OF EVEN DATE HEREWITH, a Supplemental Decree Respecting
Alimony, in accordance with the master's recommendation, will be entered.
BY THE COURT,
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
67 Brief in Support of Defendant's Exceptions to Master's Report, at 12-13.
68 Brief in Support of Defendant's Exceptions to Master's Report, at 14.
69 See N.T. 163.
20
Samuel L. Andes, Esq.
525 North Twelfth Street
Lemoyne, PA 17043
Attorney for Plaintiff
Lori K. Serratelli, Esq.
2080 Linglestown Road
Suite 201
Harrisburg, PA 17110
Attorney for Defendant
21
BONNIE E. NADZOM,
Plaintiff
Vo
JOSEPH G. NADZOM,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 97-2234 CIVIL TERM
SUPPLEMENTAL DECREE RESPECTING ALIMONY
AND NOW, this C{%day of May, 2000, Defendant's exceptions to master's
report having been dismissed by an order of even date herewith, accompanied by
an opinion, it is ordered, adjudged and decreed that Defendant shall pay to
Plaintiff the sum of $1,250.00 per month through the Cumberland County
Domestic Relations Office as alimony, in accordance with the recommendation of
the master's report filed April 5, 1999. The amount and duration of alimony shall
be subject to modification and termination on petition of either party as allowed
under Section 3701(e) of the Domestic Relations Code. Specific termination
provisions in the Domestic Relations Code will also apply.
BY THE COURT,
esley Oler~/r], J.
Samuel L. Andes, Esq.
525 N. Twelfth Street
Lemoyne, PA 17043
Attorney for Plaintiff
Lori K. Serratelli, Esq.
2080 Linglestown road
Suite 201
Harrisburg, PA 17110
Attorney for Defendant