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Home My WebLink About2005-5043 Civil : IN THE COURT OF COMMON PLEAS OF VALERIE D. BEANE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Respondent : : v. : CIVIL ACTION - LAW : CRAIG D. BEANE., : Defendant/Petitioner : NO. 05-5043 CIVIL TERM IN RE: DEFENDANT’S PETITION TO REVIEW AND TERMINATE AWARD OF ALIMONY ORDER OF COURT th AND NOW , this 11 day of June, 2009, after consideration of Defendant’s Petition to Review and Terminate Award of Alimony, IT IS HEREBY ORDERED DENIED that the Petition is and the February 28, 2008 . Order of Court remains in effect By the Court, M. L. Ebert, Jr., J. Shane B. Kope, Esquire 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 717-761-7573 Attorney for Plaintiff/Respondent Jeanné B. Costopoulos, Esquire 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 717-221-0900 Attorney for Defendant/Petitioner : IN THE COURT OF COMMON PLEAS OF VALERIE D. BEANE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Respondent : : v. : CIVIL ACTION - LAW : CRAIG D. BEANE., : Defendant/Petitioner : NO. 05-5043 CIVIL TERM IN RE: DEFENDANT’S PETITION TO REVIEW AND TERMINATE AWARD OF ALIMONY OPINION AND ORDER OF COURT EBERT, J., June 11, 2009 - STATEMENT OF FACTS Parties were married on February 4, 2000. The marriage was the third for both parties. The parties have been separated since December 18, 2004 when Plaintiff moved out of the marital residence. Plaintiff currently lives at 913 Old Silver Spring Road in Mechanicsburg, PA with William Ream and has been living there since February 4, 2005. PROCEDURAL HISTORY Wife filed a complaint for divorce on September 26, 2005. A Decree in Divorce was issued on February 28, 2008. Hearings were held on December 18, 2006, August 17, 2007, and September 14, 2007 before Divorce Master E. Robert Elicker. Mr. Elicker filed his report on October 9, 2007. On October 17, 2007, Husband filed Exceptions to Master’s Report. On December 19, 2007, this Court denied the Exceptions and entered an Order confirming alimony as determined in Master’s Report. On February 28, 2008, this Court issued an order accepting the Recommendation of the Master as the Final Order of Court, requiring Husband to pay Wife $600 per month alimony for an indefinite duration. On October 6, 2008, Husband filed 2 Defendant’s Petition to Review and Terminate Award of Alimony. By Order of dated December 18, 2008, the matter was set down for hearing before this Court on April 30, 2009. DISCUSSION A. Standard of Review – Termination of Alimony The Master’s Report states that the amount and duration of alimony shall be subject to modification and termination by petition of either party as allowed under Section 3701(e) of the 1 Domestic Relations Code. The relevant section of the Code states: (e) Modification and termination.-- An order entered pursuant to this section 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. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony. 23 Pa.C.S.A. § 3701. (emphasis added). Petitioner argues that Respondent Wife is cohabitating with a member of the opposite sex which therefore bars the payment of alimony. The relevant section of the statute states: No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity. 23 Pa.C.S.A. § 3706. The Pennsylvania Superior Court has held that cohabitation requires that two persons of the opposite sex reside together as husband and wife, mutually assuming those rights and duties usually present in a marriage. Miller v. Miller, 508 A.2d 550, 554 (Pa. Super. 1986). Cohabitation may be shown by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means. Id. 1 Master’s Report filed Oct. 9, 2007, p. 13. 3 B. Cohabitation This Court has already ruled on the cohabitation issue and was in agreement with the Master’s ruling that the Wife’s living arrangement with Mr. Ream is not considered cohabitation. No circumstances have changed with the living situation since that determination. There is no reason that the living arrangement should now be viewed as cohabitation. Respondent and Mr. Ream do not share bank accounts and do not assume financial or household duties normally held by husband and wife. Because of her health and financial situation, the respondent cannot afford to live on her own. In her current situation she simply relies on a male friend to provide her a room in which to live. This Court finds as credible the respondent’s testimony that she does not have any sexual contact with her roommate. Therefore, alimony cannot be terminated on the basis of cohabitation in this case, but still must be reviewed based on changed circumstances in the financial situation of Respondent. C. Change in Financial Situation Petitioner argues that Wife’s receipt of social security disability payments and reduction in health insurance premium because of Medicaid eligibility constitutes changed circumstances of a substantial and continuing nature warranting termination of alimony. Respondent Wife now 2 receives $425 per month in disability payments. Her disability status makes her eligible to receive medical coverage through Medicaid, so she no longer pays the $239 per month medical 3 insurance premium originally considered in the Master’s Report. The Divorce Master estimated Wife’s net monthly earning capacity at $1,069 and has 4 factored this amount into the alimony recommendation. The Master specifically indicated that any earnings by the Wife in the future up to the amount of the earning capacity would not be 2 Notes of Testimony, Apr. 30, 2009, p. 11 (hereinafter N.T. ___). 3 Master’s Report at 3. 4 Master’s Report at 11. 4 5 considered a substantial change of circumstances of a continuing nature. The Wife now has a net increase of $664 per month available to her (by receiving $425 in disability and having $239 less to pay in insurance premiums). Petitioner argues that according to Social Security guidelines, the Wife can still earn up to $980 and still receive the $425 in disability benefits and argues that this increases her earning capacity to $1405. Petitioner then argues that because the Divorce Master originally intended for Wife to have a total income of $1430 per month ($1069 earning capacity plus $600 per month alimony less $239 insurance premiums), there is now only a $25 gap in the monthly amount intended by the Divorce Master. Petitioner argues that this difference warrants the termination of alimony, or, at the least, a reduction in alimony to $25 per month. This Court disagrees with Petitioner’s argument. The Divorce Master clearly anticipated that the Wife might at some time receive disability benefits, and did not indicate in his report that this should reduce the amount of her 67 alimony. The Master also anticipated that Wife may at some point resume employment. This Court rejects Petitioner’s argument that the receipt of disability and elimination of insurance premiums changes the Wife’s earning capacity. We consider the disability payments and the elimination of insurance premiums the same as we would consider earnings from employment, and as such, consider those to be within the potential earning capacity. Applying disability payments to the estimated earning capacity of $1,069 assigned to her, she could still earn $644 per month before this Court would consider the circumstances to be of a substantial nature to warrant a reduction or termination of alimony. Even factoring in the benefit of the elimination of the $239 monthly health insurance premiums, Wife has available to her an additional $664 per 5 Master’s Report at 3. 6 Master’s Report at 12. 7 Master’s Report at 12. 5 month. Together with alimony of $600, her total monthly income is $1264, which is still $166 less than the $1430 intended by the Divorce Master. D. Continuance of Alimony This Court finds that Respondent’s disability award and elimination of health insurance premiums do not constitute changed circumstances of a substantial and continuing nature to warrant termination of alimony. These changes affect Respondent’s financial situation but do not cause her to exceed the monthly net income anticipated by the Divorce Master. This Court finds that Respondent is still entitled to alimony in the amount of $600 per month as originally determined by the Divorce Master. Accordingly, the following Order shall be entered: ORDER OF COURT th AND NOW , this 11 day of June, 2009, after consideration of Defendant’s Petition to Review and Terminate Award of Alimony, IT IS HEREBY ORDERED DENIED that the Petition is and the February 28, 2008 . Order of Court remains in effect By the Court, M. L. Ebert, Jr., J. Shane B. Kope, Esquire 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Attorney for Plaintiff/Respondent Jeanné B. Costopoulos, Esquire 5000 Ritter Road, Suite 202 Mechanicsburg, PA 17055 Attorney for Defendant/Petitioner 6