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HomeMy WebLinkAbout94-5250 CivilKIMBERLY N. ORTENZIO, Plaintiff VS. JOHN M. ORTENZIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-5250 CIVIL CIVIL ACTION - LAW IN RE: PLAINTIFF'S PETITION FOR SPECIAL RELIEF REQUESTING ENFORCEMENT OF PROPERTY SETTLEMENT AGREEMENT AND AGREEMENT MADE ON THE RECORD ON MARCH 2, 1998 AND OTHER EQUITABLE RELIEF OPINION AND ORDER In this case, the plaintiff seeks to enforce certain rights to receive alimony and child support payments from the defendant. Because the defendant has reduced his payments to her, the plaintiff also seeks counsel fees in connection with this litigation. She has also made a request of the court that it enforce provisions of the parties' agreement that the defendant would make certain repairs to the residence occupied by the plaintiff. The hearing in this case adduced well over 140 exhibits. The production of the paper filed in connection with this case would lay waste to a small forest. With one or two exceptions, however, the issues are not as complicated as they might seem. John and Kim Ortenzio were married on November 15, 1986. There were three children born of the marriage: Lauren Ortenzio, born August 14, 1987; Michael Ortenzio, born November 28, 1989; and Andrew Ortenzio, born April 28, 1994. Prior to their marriage, the parties had executed an antenuptial agreement dated in October of 1986. On February 6, 1992, they entered into one of the agreements which is at issue in this case. The 1992 agreement altered the terms of the prior antenuptial agreement. 94-5250 CIVIL The 1992 agreement reflected that the parties were joint owners of a residence located at 1756 Marlin Ridge, Camp Hill, Cumberland County, Pennsylvania. The agreement provided, further, that in the event that the parties divorced, Kim Ortenzio would continue to have the right to occupy the marital residence until the earliest of the following events: (1) their youngest child attained age twenty-five; (2) one year after the graduation of their youngest child from a four- year undergraduate college; (3) such time as Kim ceased to occupy the property, with Kim and John's children, as her primary residence; or (4) Kim's death. Paragraph 5 of the agreement provided that, in the event of divorce, John Ortenzio would pay to his wife the sum of $250,000.00 and also $5,000.00 per month until such time as Kim's right to occupy the property, aforementioned, terminated. The 1992 agreement also provided that, in the event of a divorce, Mr. Ortenzio would pay to Mrs. Ortenzio the sum of $2,000.00 per month as child support with respect to each of their children whose "primary residence is with Kim," until such time as that child attained age twenty-one. On October 23, 1995, the parties executed yet another agreement reflecting their desire to live separate and apart. This agreement was touted as a "clarification, modification, ratification and confirmation" of the prior property settlement agreement. The 1995 agreement acknowledged that the parties were signing affidavits of consent necessary to finalize their divorce action. It incorporated the agreement of February 6, 1992, but clarified or modified it to provide that Kim could occupy the marital residence provided that she continued to occupy it with "any one" of the children of the parties as her and their primary residence. It also provided for an initial adjustment to the lump-sum payment of $250,000.00 to $276,000.00 and an adjustment in the alimony to $5,305.00. This was in accordance with paragraph 18 of the 1992 2 94-5250 CIVIL agreement which provided for an adjustment in pecuniary amounts for the cost of living. The 1995 agreement adjusted child support accordingly. Following their separation, a number of orders of court were issued concerning the custody of the minor children of the parties. These orders generally reflected that the parties have shared not only legal but physical custody of the minor children. One such order was dated August 29, 1996. That order provided that the children would be in the physical custody of their mother, but with the father every weekend from Friday at 5:00 p.m. until Monday morning, and every Wednesday at 5:00 p.m. until Thursday morning. Following conciliation, this arrangement was modified to provide that the mother would have custody of the children from Monday morning until Friday evening with the exception of an overnight visit with their father on Wednesdays and also a visit on Tuesday evening from 5:00 p.m. until 8:00 p.m. The order further provided for a pattern of weekend visitations through November of 1996. It was contemplated that the parties would continue to negotiate the custody situation. An order entered on January 9, 1997, maintained the foregoing general pattern of weekday custody but gave the mother every fourth weekend. A special order was entered on May 12, 1997, which dealt with the summer of that year. Later the same year, a special order was entered governing holiday periods. On April 9, 1998, following conciliation, yet another custody order was entered attaching a four page calendar for custody during the summer of 1998. On November 11, 1998, an order of court was entered essentially ratifying the mother's weekday custody, the father's Wednesday overnight, and the mother's fourth weekend. In addition, the order addressed itself to holidays. In March 1999, another order was entered dealing with the summer months of that year. On 3 94-5250 CIVIL September 18, 2000, a stipulated order was entered whereby the parties shared physical custody equally during alternating weeks commencing on Wednesdays. While other orders were subsequently entered, the parties now share physical custody of their children equally, week on week off. This arrangement was ratified by order of March 21, 2001. To that extent, it can no longer be said that the children reside primarily with their mother. Nor, for that matter, do they reside primarily with their father. This is, instead, a 50/50 arrangement and child support should be calculated to reflect this reality. We note that on April 9, 2002, John Ortenzio filed a complaint in support against Kim Ortenzio. CHILD SUPPORT We agree with the defendant that the parties provided for child support to be paid with respect to each of the children whose primary residence was with the plaintiff. Even though the parties have always claimed to have shared physical custody, the custodial arrangement is different today than it was in 1995. It is the defendant's position that the custody order setting in place the current arrangement is dated March 21,2001. He contends that his obligation to pay support in the amount set by contract terminated on that date. With this contention we cannot disagree. ~ Hearing in the support matter involving these parties has been continued pending an adjudication with regard to whether their prior contract controls. Inasmuch as we now find that the children no longer reside primarily with their mother, we hold that the defendant is not bound by an amount of support pursuant to a contract of the parties, the support case may now proceed. ~ Mr. Ortenzio also contends that there has been a material change in his financial circumstances. The plaintiff is correct when she observes that Mr. Ortenzio was and continues to be a wealthy man. Notwithstanding, his 2001 statement of assets (plaintiff's exhibit 55), while reflecting that Mr. Ortenzio is a multi-millionaire, also reflects that his assets in 2001 were less than half of what they were in 1996. We are constrained to conclude that this change is material. 4 94-5250 CIVIL ALIMONY Since the separation of the parties, Mrs. Ortenzio has continued to reside at 1756 Marlin Ridge, Camp Hill, Cumberland County, Pennsylvania. Even though she has a residence in State College, there is nothing in the record of this case which suggests that the Marlin Ridge address is not her primary residence. It is, more importantly, the primary residence of the children when they are with her. The defendant contends that the phrase "primary residence" means the same thing for the purposes of both child support and alimony. This contention "mixes oranges and apples." The agreement with respect to child support obligates the defendant with respect to the children whose primary residence is with their mother. The alimony provision remains effective or is controlled by the premises which constitute Kim's primary residence. Alimony is payable until such time as Kim's right to occupy the home on Marlin Ridge terminates in accordance with paragraph 2 of the agreement of 1992. None of the preconditions for termination, as listed in that paragraph, have yet occurred. Accordingly, alimony continues to be due and owing in accordance with the agreements of the parties. COST-OF-LIVING ADJUSTMENT The alimony and child support payments due to the plaintiff in this matter are subject to a biennial cost-of-living adjustment. The initial adjustments were made pursuant to the agreement of October 23, 1995. Adjustments were again made in 1997 and 1999. The plaintiff now observes that an adjustment should have been made on November 1, 1995, days after the 1995 agreement was entered into. The plaintiff contends that, because this adjustment was not made, Mr. Ortenzio has underpaid the amounts due to her by more than $70,000.00. During the past seven years, cost-of-living adjustments have been made resulting in increased payments from the 5 94-5250 CIVIL defendant which were accepted by the plaintiff without complaint. The first allegations of a miscalculation were made in February of 2002. Notwithstanding, there does not appear to be any serious disagreement with the assertion that an adjustment should have been made in November of 1995 and was overlooked. We have rethought our initial conclusion that the plaintiff' s claim for back payments is barred by laches. To the contrary, the case ofHorowitz v. Horowitz, 600 A.2d 982 (Pa. Super. 1991) makes clear that such claims are governed by a four-year statute of limitation and not by principles having to do with laches. The petition sub judice was filed July 17, 2002. We will award the plaintiff back alimony and child support payments retroactive to August 1, 1998. In that connection, we have no reason to question the calculations as set forth in the brief filed on behalf of the plaintiff. In accordance, however, with our previously stated conclusion concerning a change in custody, we will compute back child support from August 1, 1998 through March of 2001 instead of October 31,2001. This reduces the amount proposed by the plaintiff by $4,065.25. Combining the total underpayment of alimony from August 1, 1998 through October of 2001 in the amount of $18,946.50, with the total underpayment of child support from August 1, 1998 through March of 2001 in the amount of $18, 670.30, a total is reached of $37, 616.80. Another adjustment was to have been made on November 1, 2001. That adjustment must be made but is only applicable to the alimony payment. The plaintiff alleges that Mr. Ortenzio has been paying less than his due under the agreement since the end of 2001. We do not have the precise figures at our disposal and will simply direct that the November 1, 2001, cost-of- living adjustment be calculated and that Mr. Ortenzio pay to his former wife the difference between what was due and what he has paid. 6 94-5250 CIVIL MAINTENANCE OF MARLIN RIDGE PROPERTY In our hearings in this matter, we heard testimony as to numerous repairs and improvements which the plaintiff desires to accomplish at her Marlin Ridge residence. These involve but are not limited to sealing the driveway, maintaining the deck, painting work and replacement of carpeting. She also seeks reimbursement for invoices from David F. McClure Company for service to the HVAC system. At a hearing on March 2, 1998, the parties further clarified their February 6, 1992, agreement. Mr. Ortenzio acknowledged responsibility for future repairs of the HVAC and plumbing systems but indicated that he would be responsible for major repairs only. "He will not be responsible for things such as broken parts of a commode or what would be considered more minor repairs ..." Plaintiff's exhibit 76, N.T. 6. In addition, it was agreed that Mrs. Ortenzio would not "contract for any work for which she may expect and/or later request reimbursement from John without his prior approval." Plaintiff' s exhibit 76, N.T. 8. It is clear from the testimony at our hearings that Ms. Ortenzio had not sought approval for any of the repairs prior to litigating those matters. There was also no indication that the invoices from McClure were for anything other than minor repairs or routine service to the HVAC system. We do not believe that it is appropriate, at this juncture, to direct Mr. Ortenzio to pay bills and make repairs when he has not had the opportunity to accept or reject his former wife's demands in those regards or explore with her the most economical ways in which to deal with necessary repairs. We therefore decline to grant relief on those matters at this juncture. 7 94-5250 CIVIL COUNSEL FEES Finally, the plaintiff has raised the matter of counsel fees in connection with the instant litigation. She seeks these fees as a result of Mr. Ortenzio's "willful violations" of his agreements with her. The Divorce Act, of course, provides that if a party fails to comply with the terms of an agreement, the court may, in order to effect compliance, award counsel fees and costs. 23 Pa.C.S.A. 3502(e)(7). An award of counsel fees, however, has normally been awarded in cases where a litigant has been dilatory or vexatious in the conduct of litigation or where that litigant's conduct has been at the least unreasonable. See Bonds v. Bonds, 689 A.2d 275 (Pa. Super. 1997). In this case, the defendant has raised valid and good faith defenses with respect to his continuing obligation to pay child support under the 1992 agreement and to the claims for reimbursement for expenses of maintenance for the former marital residence. While we disagree with his contention that he does not owe alimony, we cannot say that this claim was asserted in bad faith. In short, we do not see a basis for the award of counsel fees in this case. ORDER AND NOW, this day of May, 2003, upon consideration of plaintiff' s petition for special relief and defendant's counterclaim, following hearing and the submission of briefs, it is ordered and directed as follows: 1. The plaintiff has resided and continues to reside at Marlin Ridge and that is the residence where Ms. Ortenzio has the children when they are in her physical custody. Therefore, the defendant remains obligated to pay alimony and the Marlin Ridge expenses pursuant to the agreement of the parties as discussed in our opinion of even date herewith. 94-5250 CIVIL 2. Since the entry of the court's custody order on March 21, 2001, the obligation of the defendant to pay child support pursuant to the 1992 or 1995 agreement of the parties ceased. The appropriate amount of support, if any, shall be determined by the court in a separate support action which is now pending. 3. The defendant shall pay to the plaintiff amounts due for back alimony and child support payments retroactive to August 1, 1998 through March of 2001 for child support, and retroactive to August 1, 1998 through October of 2001 for spousal support which amounts have been calculated to total $37, 616.80. 4. The appropriate cost-of-living adjustment for spousal support/alimony shall be made effective November 1, 2001, and the defendant shall pay to the plaintiff the difference between what is due based on the adjustment and what has been paid. 5. Amounts due the plaintiff from the defendant as a result of this order, over and above any regular monthly payment, shall be due within ninety (90) days hereof. 6. To the extent not expressly herein granted, the petition of the plaintiff for special relief is herein denied. BY THE COURT, Delano Lantz, Esquire For the Plaintiff Jordan Cunningham, Esquire For the Defendant :rlm Kevin A. Hess, J. 9 KIMBERLY N. ORTENZIO, Plaintiff VS. JOHN M. ORTENZIO, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-5250 CIVIL CIVIL ACTION - LAW IN RE: PLAINTIFF'S PETITION FOR SPECIAL RELIEF REQUESTING ENFORCEMENT OF PROPERTY SETTLEMENT AGREEMENT AND AGREEMENT MADE ON THE RECORD ON MARCH 2, 1998 AND OTHER EQUITABLE RELIEF ORDER AND NOW, this day of May, 2003, upon consideration of plaintiff' s petition for special relief and defendant's counterclaim, following hearing and the submission of briefs, it is ordered and directed as follows: 1. The plaintiff has resided and continues to reside at Marlin Ridge and that is the residence where Ms. Ortenzio has the children when they are in her physical custody. Therefore, the defendant remains obligated to pay alimony and the Marlin Ridge expenses pursuant to the agreement of the parties as discussed in our opinion of even date herewith. 2. Since the entry of the court's custody order on March 21, 2001, the obligation of the defendant to pay child support pursuant to the 1992 or 1995 agreement of the parties ceased. The appropriate amount of support, if any, shall be determined by the court in a separate support action which is now pending. 3. The defendant shall pay to the plaintiff amounts due for back alimony and child support payments retroactive to August 1, 1998 through March of 2001 for child support, and retroactive to August 1, 1998 through October of 2001 for spousal support which amounts have been calculated to total $37, 616.80. 4. The appropriate cost-of-living adjustmem for spousal support/alimony shall be made effective November 1, 2001, and the defendam shall pay to the plaimiffthe difference between what is due based on the adjustmem and what has been paid. 5. Amoums due the plaimiff from the defendam as a result of this order, over and above any regular momhly paymem, shall be due within ninety (90) days hereof. 6. To the extem not expressly herein grained, the petition of the plaimiff for special relief is herein denied. BY THE COURT, Delano Lamz, Esquire For the Plaimiff Jordan Cunningham, Esquire For the Defendam :rim Kevin A. Hess, J.