HomeMy WebLinkAbout1999-308 Civil
JAMES D. YINGST,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
CONNIE L. YINGST,
Defendant
NO. 99-308 CIVIL TERM
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., March 15,2005.
In this divorce case III which Defendant wife was awarded alimony
pursuant to a marital settlement agreement, Plaintiff husband recently petitioned
for a termination or reduction in amount of the alimony based upon substantially
changed circumstances. 1 Following a hearing, the court denied the petition?
From the order denying the petition, Plaintiff has filed an appeal to the
Pennsylvania Superior Court. 3 The bases of the appeal have been expressed by
Plaintiff in a statement of matters complained of on appeal as follows:
1. The alimony in this case is contractual alimony under
95.01 of the Property Settlement and Separation Agreement
(Agreement).
2. The alimony in this case was not awarded under the
statutory alimony factors of the Divorce Code.
3. Where the Ahlstrom letter [to Husband from his
employer] of August 13, 2004, informed Husband in writing
that Ahlstrom had major doubts regarding Husband's ability to
meet the new requirements of his position and where the letter,
in effect, threatened Husband that, if he were to fail to meet the
new requirements, he could be terminated without any
severance benefits, it was contrary to the evidence and the law
to find that the termination of Husband's employment was not
an involuntary substantial change in circumstances and was not
a retirement where Husband was 63 years of age and had only
a tenth grade education.
1 Plaintiffs Petition for Termination or Reduction of Alimony, filed October 25,2004.
2 Order of Court, January 3, 2005.
3 Plaintiffs Notice of Appeal, filed January 31,2005.
4. Where the parties contemplated at the time of the
agreement for alimony that Husband would be able to continue
his employment with his then employer, it was contrary to the
evidence and the law to find that the tens of thousands of
dollars of losses sustained by Husband as a result of his
involuntary termination from his employment did not
constitute a substantial change in circumstances entitling him
to termination of the contractual alimony as of the December
31,2004, termination of his employment.
5. When the cash severance received by Husband at the
termination of his employment was $76,000 less than the
salary that he would have earned if he would have been assured
of continued employment to age 65, it was contrary to the
evidence and the law to find that the effective date of the
substantial change in circumstances was not the December 31,
2004, termination of his employment.
6. It was contrary to the evidence and the law to find that
the tens of thousands of dollars of additional losses that
Husband would sustain, if his financial circumstances were to
require him to begin drawing his pension and social security
benefits before age 65, did not constitute a substantial change
in circumstances entitling him to termination of the contractual
alimony as of the December 31, 2004, termination of his
employment.
7. It was contrary to the evidence and the law to find that,
if Husband's financial circumstances were to require him to
begin drawing his pension and social security benefits before
age 65, the pension and social security benefits would not
completely cancel out any unemployment compensation
benefits for which he would otherwise be eligible.
8. Where Wife was only employed part-time at the date of
the agreement and where Husband was earning more than
$52,000, per year, it was contrary to the language of the
agreement, the evidence and the law to find that the parties did
not intend that Husband would be entitled to relief from his
alimony obligation in the event of a substantial change in
circumstances other than his voluntary termination of
employment.
9. It was contrary to the evidence and the law to find that
Wife's improved financial circumstances since the date of the
agreement for alimony did not constitute a substantial change
2
in circumstances entitling Husband to modification of alimony
as of the December 31,2004, termination of his employment.
10. Even if the alimony in this case were pursuant to an
award under the statutory factors rather than contractual
alimony, it was contrary to the evidence and the law to find
that Husband would not be entitled to termination of the award
under the sixteenth statutory factor for alimony which
provides: "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".
11. Even if the alimony in this case were pursuant to an
award under the statutory factors rather than contractual
alimony, it was contrary to the evidence and the law to find
that Husband would not be entitled to termination of the award,
for lack of Wife's demonstrated need, under the seventeenth
statutory factor for alimony which provides: "Whether the
party seeking alimony is incapable of self-support through
appropriate employment". 4
This opinion in support of the denial of Plaintiff s petition for termination
or reduction in the amount of alimony is written pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a).
STATEMENT OF FACTS
Plaintiff is James D. Yingst (hereinafter Husband or Plaintiff), 64, a
domiciliary of Cumberland County, residing at 6105 Locust Lane, Mechanicsburg,
Pennsylvania. 5 Defendant is Connie L. Yingst (hereinafter Wife or Defendant),
59, also a domiciliary of Cumberland County, residing at 308 N. Baltimore
Avenue, Mount Holly Springs, Pennsylvania. 6 The parties were divorced by a
decree dated December 28,2000.7
4 Plaintiffs Rule 1925(b) Statement of Matters Complained of on Appeal, filed February 8, 2005.
5 NT 5-6, Hearing, December 30,2004 (hereinafter NT ~.
6 NT 61.
7 Decree in Divorce, December 28,2000.
3
The divorce decree incorporated a marital settlement agreement between
the parties dated December 21, 2000, drafted by Husband's counsel,8 which
included the following alimony provision:
5.01 Alimony Payable. Husband will pay to Wife the sum
of $1,500 per month, through the Cumberland County
Domestic Relations Office, commencing on the date of
issuance of a Decree in Divorce. Said alimony payments shall
be wage attached. Alimony will be modifiable or terminable
upon a substantial change in circumstances. Provided,
however, that Husband will not seek a reduction of alimony on
account of his retirement before age 65, unless he should be
required to retire on the basis of medical advice due to a
material and substantial increase in the severity of his existing
high blood pressure condition or due to a condition that is
unknown at the date of this Agreement. Further, Husband
warrants that he knows of no medical condition which would
not permit him to maintain employment until age 65. The
parties acknowledge that Husband has been maintained for
several years prior to the date of separation on medication for
high blood pressure. Alimony will be terminable upon Wife's
death, remarriage or cohabitation with a male individual to
whom she is not related within the degrees of consanguinity.
The Order of October 14, 1999, docketed to No. 99-422
Support in the Court of Common Pleas of Cumberland County,
Pennsylvania, for alimony pendente lite shall be terminated
upon the entry of a full and final Decree in Divorce and the
payment of all payments and arrearages, if any, due through
the date of Decree in Divorce. Any such arrearages will be
payable at the rate of $500 per month. The first such payment
shall be due on January 1, 2001.9
On October 25, 2004, Husband filed a Petition for Termination or
Reduction of Alimony, based upon substantially changed circumstances.lO The
primary changed circumstance alleged was Husband's loss of employment. 11 In
8 NT 48.
9 Plaintiffs Ex. 1, at 6-7, Hearing, December 30, 2004 (emphasis added) (hereinafter
Plaintiffs/Defendant's Ex. ~.
10 Plaintiffs Petition for Termination or Reduction of Alimony, filed October 25,2004.
llId, paras. 7-18,22.
4
this regard, the parties' agreement was said to "express[] the intention of the
parties that [Husband] would be entitled to modification or termination of alimony
in the event that his employment were to be terminated involuntarily.,,12
In addition, Husband's petition averred that, since the initiation of alimony,
Wife's income had increased,13 she had sold a certain lot,14 and she had received
an inheritance. 15 A hearing on the petition was held on December 30, 2004. The
credible evidence at the hearing may be summarized as follows:
Plaintiff husband and Defendant wife were married on March 14, 1964.16
F our children were born of the marriage, wherein Wife's role was primarily as a
homemaker.17 Husband left Wife for another woman,18 with the separation
occurring in February, 1997 (according to Husband)19 or in 1999 (according to
Wife )?O As previously indicated, a decree in divorce was issued on December 28,
2000, which incorporated the parties' aforesaid marital agreement. 21
Under the agreement, the marital property was divided equally, with the
"premium" for Wife's agreement to the divorce being the alimony provision.22 At
the time of the agreement, Wife received $10,000.00 in cash, the marital residence
and most of its contents, a lot, and a 1996 Pontiac automobile,23 and Husband
12 Id., para. 22.
13 Id., para. 19.
l4Id., para. 20.
15 Id., para. 21.
l6NT 61.
17 NT 27. As of the hearing, the children had all been emancipated. NT 6.
18 NT 27.
19 NT 6.
20 NT 61.
21 Decree in Divorce, dated December 28,2000.
22 NT 55.
23 NT 22, 63; Plaintiffs Ex. 1, paras. 3.01-3.02.
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received his retirement accounts and a 1991 Chevrolet truck. 24 In addition, Wife
was, as noted, to receive alimony at the rate of $1,500.00 per month?5
At the time of the agreement on December 21, 2000, Wife had begun to
work thirty to thirty-two hours per week,26 and immediately after the divorce at the
end of that month she increased her hours to forty per week, working as a clerk for
a trucking company at $7.35 per hour.27 Her gross earned income was $14,743.00
in 2000, $18,295.00 in 2001, $14,681.00 in 2002,28 $20,208.00 in 2003,29 and
$22,359.00 in 2004?0 Husband, at the time of the agreement, occupied a
foreman's position with an industrial paper manufacturing company.31 His gross
earned income was $53,000.00 in 2000,32 $59,830.00 in 2003,33 and $60,282.00 in
2004.34
At some point following the parties' divorce, Wife sold the lot which she
had received in equitable distribution for $24,000.00,35 and she received an
inheritance from her mother in the amount of $30,000.00?6 With a take-home pay
of $1,252.00 per month, her monthly expenses at the time of the hearing herein on
Husband's petition exceeded her net earned income by about $2,100.00.37 She had
24 NT 53, 63; Plaintiffs Ex. 1, para. 3.02.
25 Plaintiffs Ex. 1, para. 5.01.
26 NT 71.
27 NT 62.
28 NT 71-72; Defendant's Ex. 4.
29 Defendant's Ex. 3.
30 Defendant's Ex. 5. Wife's hourly rate is presently $10.25. NT 65.
31 NT 28.
32 Plaintiffs Ex. 5; NT 29.
33 Defendant's Ex. 1.
34 Plaintiffs Ex. 6; NT 15.
35 NT 63-64.
36 NT 64.
37 NT 68.
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about $50,000.00 in a savings accoune8 and $5,000.00 in an investment retirement
39
account.
By letter dated August 13, 2004, Husband and four other employees in
positions similar to his were notified that the company had decided to "upgrade
the level of performance" of their positions by assigning new "tasks" and
"qualities" to them.40 The letter expressed reservations about Husband's ability
"to meet the expectations" of the revised position and offered him a severance
package in lieu of continued employment past December 31,2004.41 However, the
letter did not state that Defendant would be terminated if he chose to remain
employed,42 Defendant did not know whether he would be terminated,43 the letter
specified that "the choice [was his],"44 and, as it developed, neither of the two
persons who chose to remain with the company was terminated. 45
Husband elected to resign and accept the severance package,46 believing
that at the age of 63 he was too old for any additional education contemplated for
the upgraded position.47 The severance package, in the court's view, for the
immediate future put Husband in a better financial position than his continued
employment would have.
In this regard, it may be noted that his retirement under the package as of
December 31, 2004, made available the following: (1) a lump sum payment
equivalent to the continuation of his salary of $4,800.00 per month for 35 weeks
38 NT 74.
39 NT 74.
40 Plaintiffs Ex. 2.
41 Plaintiffs Ex. 2.
42 Plaintiffs Ex.2.
43 NT 34.
44 Plaintiffs Ex. 2.
45 NT 33.
46 Plaintiffs Ex. 4.
47 NT 52.
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beyond the date of retirement;48 (2) $595.00 per month from one pension plan;49
(3) $961.00 per month from another pension plan;50 (3) at least $1,106.00 per
month from social security;51 (4) the continuation of his medical, dental and vision
insurance benefits;52 and (5) his availability for other employment.53 In addition,
there was the possibility of unemployment compensation in the amount of up to
$1,733.00 per month;54 however, somewhat inconsistently in view of Defendant's
position that his retirement was involuntary, his counsel argued that he would not
be eligible for unemployment compensation benefits. 55
Husband did nothing to exercise these income options. He chose not to
apply currently for either of the pensions56 or for social security, 57 preferring to
defer receipt of income from them until he reached the age of 65,58 and he did not
secure new employment, having applied to only three prospective employers for
jobs paying $9.00 per hour.59 He conceded that with the passage of time his actual
earned income potential would be able to be determined. 60
48 NT 32.
49 NT 35.
50 NT 37.
51 NT 44.
52 NT 12; Plaintiffs Ex. 4.
53 NT 41-43.
54 NT 38-40.
55 NT 39, 84.
56 NT 19,36-37.
57 NT 43-46.
58 NT 36-37.
59 NT 42-43.
60 NT 43.
8
As of the hearing date, Husband owned a 401K account with a value of
about $104,000.00,61 and a 1999 Chevrolet pickup truck.62 He claimed to owe
$5,800.00 to a credit union and $2,000.00 on a credit card.63
Following the hearing, the court took the matter of Plaintiff s petition to
terminate or reduce alimony under advisement.64 Subsequently, an order denying
Husband's petition was entered as follows:
AND NOW, this 3rd day of January, 2005, upon
consideration of Plaintiffs Petition for Termination or
Reduction of Alimony, and following a hearing held on
December 30, 2004, the petition is denied under the
circumstances as they presently exist, including the lump sum
severance payment which Defendant is about to receive.
From this order, Husband filed a direct appeal to the Pennsylvania Superior
Court on January 26,2005.65
DISCUSSION
On a petition to terminate or modify alimony, the burden of proof rests
upon the petitioner to demonstrate that a change is warranted. See Anderson v.
Anderson, 822 A.2d 824 (Pa. Super. Ct. 2003). Thus, in the present case, the relief
requested by Husband was dependent upon his proof that a substantial change of
financial circumstances as contemplated by the parties' agreement had occurred,
either to Defendant's prejudice or Wife's advantage, or both.
61 NT 55. Husband claimed that the value of this 40lK portfolio had decreased since the time of
the marital settlement agreement, but produced no documentation to support the allegation. NT
23, 56. This alleged decrease has not been specifically referred to in Husband's statement of
matters complained of on appeal, and in any event was apparently attributable to the vicissitudes
of the stock market and might or might not eventually be recognized, depending upon market
conditions at the time of sale. In this regard, it may be noted that changes in circumstances which
will warrant a modification of alimony must be continuing in nature. See Act of December 19,
1990, P.L. 1240, ~2, as amended, 23 Pa. C.S. ~370l(e).
62 NT 24, 53.
63 NT 24-25.
64 Order of Court, December 30, 2004.
65 Plaintiffs Notice of Appeal, filed January 26, 2005. A motion for reconsideration filed by
Husband had been denied by this court by order dated January 10,2005.
9
In this regard, the agreement generally foreclosed voluntary retirement of
Husband prior to the age of 65 as a change of circumstance actionable on his
behalf. To the extent that the provision in question was unclear as to application
to a given situation, it was to be construed against Husband, whose counsel drafted
it. See Wiegand v. Wiegand, 349 Pa. 517, 37 A.2d 492 (1944).
In the present case, it would obviously be difficult to find that Husband's
retirement from his employment at the age of 62 was not encompassed by the
provision of the parties' agreement generally precluding an alimony modification
based upon his resignation for other than medical reasons prior to age 65.
However, more significantly, the evidence revealed that Husband's income
situation when he filed his petition and as of the hearing date was better than it had
been at the time of the marital agreement, and for the immediate future would be
better following his departure from Ahlstrom than during his employment. As a
consequence, in the court's view, the event which prompted Husband's petition
did not support an immediate termination or reduction in alimony, rendering the
petition, at best, premature.
With respect to Wife's financial situation, the modest receipt from her
mother's estate was, presumably, factored into the parties' determination of an
alimony amount as an expectancy pursuant to Section 3701 (b)( 4) of the Divorce
Code. Act of December 19, 1990, P.L. 1240, 92, as amended, 23 Pa. C.S.
93701(b)(4) (factors relevant to determination of alimony); see Anderson v.
Anderson, 822 A.2d 824 (Pa. Super. Ct. 2003). In that sense, its evolution into a
small inheritance did not appreciably change the equation, nor, given today's
interest rates, can it be said to have materially affected her income.
Similarly, Wife's sale of a lot received in equitable distribution represented
a change in the form of an asset, not an increase in her estate. Finally, the increase
in her salary since the date of the agreement, while significant percentage-wise,
did not elevate her yearly earned income to a significant figure in today's society,
10
and the court found credible her testimony that she remained unable to meet her
reasonable expenses.
Based upon the foregoing, it was the court's view that Husband had failed
to meet his burden of showing that, at the present time, a substantial change in
circumstances had occurred which warranted a termination or reduction in
alimony.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Wayne F. Shade, Esq.
53 West Pomfret Street
Carlisle, P A 17013
Attorney for Plaintiff
Carol 1. Lindsay, Esq.
26 West High Street
Carlisle, P A 17013
Attorney for Defendant
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