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HomeMy WebLinkAbout1994-2035 Civil R. SAMUEL LONG, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PAMEllA L. LONG, DEFENDANT 94-2035 CIVIL TERM IN RE: PETITION TO TERMINATE ALIMONY OPINION AND ORDER OF COURT Bayley, J., August 30, 2005:-- R. Samuel Long and Pamelia Long were married on January 2, 1958. They separated in April, 1994. A divorce was entered on April 15, 1998, concurrent with an economic order. Pamelia was awarded alimony of $189 per week without limitation as to duration. On May 11,2005, Samuel filed a petition to terminate the alimony. A hearing was conducted on August 17, 2005. During the course of the marriage, Samuel worked for Conrail. He was dismissed at the beginning of June, 1998. He testified at the hearing on August 1 th, that he was dismissed because he could no longer perform his duties due to the mental stress caused by his marital problems. He then "disappeared," to Tucson, Arizona. Repeated efforts by Pamelia to collect alimony were unsuccessful. In October, 2004, after Samuel started to draw railroad retirement benefits, an attachment was made for the alimony and arrearages. The attachment is for $840 per month, $689 on the order and $151 on arrearages. Samuel now claims that his former wife cohabitated with a man. He seeks the 94-2035 CIVIL TERM following relief: a. Order that the alimony be retroactively terminated back to the date that Respondent began cohabitating; b. Order that the arrearages accumulated against the Petitioner during the time that Respondent was cohabitating be discharged; and c. Order that the receipt of the railroad retirement in the amount of $840 be applied to the arrearages until paid in full at which point collection will cease. The Divorce Code at 23 Pa.C.S. Section 3706 provides: 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. In Miller v. Miller, 352 Pa. Super. 432 (1986), the Superior Court of Pennsylvania held that cohabitation, for the purpose of barring alimony, occurs when: [t]wo persons of the opposite sex reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social, and sexual interdependence, by a sharing of the same residence, and by other means. . . . Where, upon proof by a preponderance of the evidence, the trier of fact concludes that the dependent former spouse has entered into a relationship with "a member of the opposite sex who is not a member of the petitioner's immediate family within the degrees of consanguinity" and the two have assumed the rights, duties, and obligations attendant to the marital relationship, the dependent former spouse is no longer entitled to receive alimony from the other former spouse. An occasional sexual liaison, however, does not constitute cohabitation. (Emphasis added.) Pamelia Long admits living with a man at 242 South Enola Drive, in East Pennsboro Township, Cumberland County, for about six years. Her address was listed in the telephone book. She moved to Harrisburg in December, 2004, where she now lives with her two adult -2- 94-2035 CIVIL TERM sons to her marriage to Long.1 Pamelia and the man had sexual relations during the time they lived together. He paid the rent and the cable TV. She paid the telephone and the groceries. They went on vacations together. Pamelia maintains that she was forced into this arrangement because of her physical problems, a limited earning capacity, and the failure of her former husband to pay the alimony. Notwithstanding, we find that her conduct constituted cohabitation. Although she still sees the man on a regular basis, she is no longer living with him. She argues that if she cohabitated, her termination of that cohabitation warrants a continuation of alimony. That argument was rejected in Moran v. Moran, 839 A.2d 1091 (Pa. Super. 2003), a case in which it was found that the wife had cohabitated with a man named Martinkovic. The Superior Court of Pennsylvania stated: Although Wife argues that she terminated her relationship with Martinkovic, she provides no legal support for her argument that by terminating her relationship, she became re-eligible for alimony. As in Moran, no legal support for this argument has been provided in the present case. In Purdue v. Purdue, 398 Pa. Super. 228 (1990), a spousal and child support order was entered in October of 1984. A bifurcated decree in divorce was entered in September of 1985, but the division of the marital estate was not ordered until 1989. Despite the divorce decree, and wife's remarriage one month later, the spousal support order continued. Approximately three and one-half years later, when considering the parties' economic claims, the trial court heard husband's claim that the spousal support award should be reduced retroactive to the time of wife's remarriage. The court refused because husband failed to raise 1 Both sons have severe medical problems and disabilities. -3- 94-2035 CIVIL TERM the issue at that time. The Superior Court of Pennsylvania reversed. The Court noted that although spousal support orders may convert to alimony pendente lite pending a final decree in divorce, they do not convert automatically. Thus, whether wife was entitled to alimony pendente lite was never determined. While the Court stated that wife had no duty to notify husband of her remarriage pursuant to 23 Pa.C.S. Section 4353, because the Section only addresses orders of support which terminate when a marriage ends,2 it nevertheless concluded: A party seeking to have alimony pendente lite modified or terminated should not be charged with the delay in filing his or her petition if that party was not notified by the former spouse of the circumstances which would cause the filing. In this case, if husband did not know of wife's remarriage, he cannot be held accountable for failing to file his termination petition sooner. Thus, as in support orders, the party in receipt of alimony pendente lite must notify the former spouse of any material change in circumstances, such as remarriage. Absent such notification the party seeking modification or termination should be excused for the late filing and the court's decision should reflect back to the time when the change of circumstances occurred, not to the date the petition was filed. (Emphasis added.) The difference in the case sub judice, is that Samuel Long was not paying alimony when Pamelia Long started cohabitating with the man. He disappeared, so she had no way to 2 Section 4353 provides: (a) Notice of changes affecting support.-An individual who is a party to a support proceeding shall notify the domestic relations section, the department and the other parties in writing or by personal appearance within seven days of any material change in circumstances relevant to the level of support or the administration of the support order, including, but not limited to: (1) change of employment; and (2) change of personal address or change of address of any child receiving support. -4- 94-2035 CIVIL TERM notify him.3 Besides, whether someone is cohabitating with another, as cohabitation is defined in Miller, can be a close question. See Light v. Light, (96-4552 Civil, August 27, 2002). Unlike the remarriage situation in Purdue, it is not for the person awarded alimony to make the legal determination that she is cohabitating. There is no statute requiring a person receiving alimony to give any type of notice to the payor. Purdue involved a spousal support order that was not transferred to alimony pendente lite. It did not involve alimony. It is not for this court to create a duty of notification where none has been established under the law. Accordingly, we will terminate the current alimony as of May 11,2005, the day Samuel Long filed his petition. ORDER OF COURT AND NOW, this day of August, 2005, IT IS ORDERED: (1) That portion of the order of April 15, 1998, ordering R. Samuel Long to pay alimony to Pamelia L. Long in the amount of $189 per week, IS VACATED EFFECTIVE MAY 11,2005. (2) The arrearages shall be adjusted accordingly. (3) The attachment of the railroad retirement benefits of R. Samuel Long in the amount of $840 per month is converted to arrearages only. (4) The attachment shall remain in effect until all arrears are paid in full. 3 The Longs' marital home had been in Enola. -5- 94-2035 CIVIL TERM Joseph L. Hitchings, Esquire For R. Samuel Long John King, Esquire For Pamelia L. Long Domestic Relations Office :sal By the Court, Edgar B. Bayley, J. -6- R. SAMUEL LONG, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PAMEllA L. LONG, DEFENDANT 94-2035 CIVIL TERM IN RE: PETITION TO TERMINATE ALIMONY ORDER OF COURT AND NOW, this day of August, 2005, IT IS ORDERED: (1) That portion of the order of April 15, 1998, ordering R. Samuel Long to pay alimony to Pamelia L. Long in the amount of $189 per week, IS VACATED EFFECTIVE MAY 11,2005. (2) The arrearages shall be adjusted accordingly. (3) The attachment of the railroad retirement benefits of R. Samuel Long in the amount of $840 per month is converted to arrearages only. (4) The attachment shall remain in effect until all arrears are paid in full. By the Court, Edgar B. Bayley, J. Joseph L. Hitchings, Esquire For R. Samuel Long John King, Esquire For Pamelia L. Long 94-2035 CIVIL TERM Domestic Relations Office :sal -2-