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Home My WebLink About1997-3059 Civil THOMAS A. DEMPSEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : V. : : NO. 97-3059 CIVIL TERM : NOREEN P. DEMPSEY, : Defendant : IN DIVORCE IN RE: ALIMONY ORDER OF COURT th AND NOW , this 20 day of January, 2010, Husband’s Request of Termination of DENIED Alimony is . By the Court, M. L. Ebert, Jr., J. Wayne F. Shade, Esquire Attorney for Plaintiff Hubert X. Gilroy, Esquire Attorney for Defendant THOMAS A. DEMPSEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : V. : : NO. 97-3059 CIVIL TERM : NOREEN P. DEMPSEY, : Defendant : IN DIVORCE IN RE: ALIMONY OPINION AND ORDER OF COURT Ebert, Jr., J., January 21, 2010 – Husband requests that this Court grant his request for Termination of Alimony. After hearing and consideration of the briefs filed by the parties, this Court denies that request. Accordingly, Husband is required to continue payment of alimony. I. STATEMENT OF FACTS Thomas A. Dempsey (hereinafter “Husband”) and Noreen P. Dempsey (hereinafter 1 “Wife”) were married on July 5, 1980, and together had three children. A divorce complaint 2 was filed on June 9, 1997, and the parties reached an agreement on December 12, 2000. In part, the agreement provided for Wife to receive a portion of Husband’s pension and alimony in the 3 monthly amount of $779.09. The agreement provided that the alimony would be “modifiable in the event of a substantial change in circumstances. Alimony is terminable in the event of death, 4 remarriage, or cohabitation of wife. . . .” 1 Dempsey v. Dempsey, September 1, 2009, Plaintiff’s Exhibit 1. 2 Id. 3 Id. 4 Id. 2 II. PROCEDURAL HISTORY Husband previously filed for reduction or termination of alimony based upon substantial 5 changes. In that case (hereinafter “Dempsey I”), decided on November 27, 2007, Husband claimed that because Wife was now receiving a portion of his pension and had obtained an 6 increase in employment income, his obligation of alimony should cease. This Court found that there was no substantial change, as Wife’s income only increased moderately and the pension 7 payments were contemplated in and mandated by the agreement. III. DISCUSSION Husband has requested a termination of alimony due to a substantial change in circumstances. Husband cites Cost of Living Adjustments to Wife’s portion of his military pension, Wife’s increase in salary, and Husband’s current unemployment. Husband also attempts to bolster his argument by stating that there is one less child in Wife’s household. A.Cost of Living Adjustment to Pension Similar to Dempsey I, where the receipt of Husband’s pension did not constitute a substantial change, the Cost of Living Adjustments increasing the pension is not a substantial change. At the time of the agreement, both parties knew Wife would receive a portion of the 8 pension and even laid out the percentage of that pension in their agreement. It is reasonable to suggest then that both parties were aware that the pension came with Cost of Living Adjustments. According to the Office of the Secretary of Defense, “Retirement . . . Cost of 5 Defendant’s Brief, November 17, 2009, page 1. 6 Defendant’s Brief, November 17, 2009, pages 1, 9. 7 Defendant’s Brief, November 17, 2009, page 9. 8 It is also very possible that Wife would not have agreed to the settlement of monthly alimony of $779.09 had it not been for the future pension income. Removing the pension, or the pension cost of living adjustments, changes the entire scenario. 3 9 Living Adjustments (COLAs) are given annually based on . . . inflation.” If the parties did not want Wife to receive a COLA with her portion of the pension, those intentions should have been declared in the agreement and not years later. B.Wife’s Salary Increase “An increase in [Wife’s] salary does not ipso facto require the Court to reduce the amount of the award, and [Husband’s] current status as unemployed, though unfortunate, does not diminish his capacity to earn.” Wing v. Wing, 338 Pa. Super 516, 521 (Pa. 1985). Any reasonable person would expect (or at least hope for) an increase in his or her earnings throughout a ten-year period. Wife should not be penalized simply because she has advanced somewhat in the workplace. While this Court acknowledges Wife’s modest salary increase, it is insufficient to merit a termination or reduction of alimony. When cost of living increases, using 10 the December 2009 Consumer Price Index, are taken into consideration, Wife’s salary increase 11 is only 13.5% or $359.38 a month. As in Dempsey I, this is a moderate increase and insufficient to reduce or terminate alimony. C.Husband’s Current Unemployment Additionally, in regards to Husband’s decrease in earnings, “[t]he Court has the power and the duty to look beyond the actual earnings of the parties and may consider ‘his earning power…and the nature and extent of his property and other financial resources.’” Shuster v. Shuster, 226 Pa. Super. 542, 547 (Pa.) (citing Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 9 Cost of Living Adjustment, Military Compensation, available at http://militarypay.defense.gov/retirement/cola/index.html. 10 Applicable Consumer Price Index for December 2009 is 231.462. Available at http://www.bls.gov/cpi/#tables. 11 Cost of Living Increase: (231.462 – 181.3)/181.3 x 100= 27.67% Original Salary with Cost of Living Adjustment: $1803.57 x 1.2767= $2302.62 Percent Salary Increase: 1 - $2302.62 / $2662 = 13.5% Dollar Salary Increase: $2662 - $2302.62 = $359.38 4 387 (1967); Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Super. 247 (1973)). Husband’s earned income in 2009 may be approximately half that of his 2007 and 2008 earned income; however, this is not taking into account the considerable amount of interest he is earning on 12 accounts, nor his earning capability. When taking all factors into consideration, similar to Wife, Husband’s “change in circumstances” has actually improved from the time of the agreement. Also, it should be noted that while Husband, as of the filing of briefs, was not employed, his skills will likely be in higher demand in the future. To adjust alimony due to 13 Husband’s brief unemployment, by the same logic, will require another modification upon Husband becoming gainfully employed. D.Reduction of Children In Household Several times in Husband’s brief, although noting that alimony is only for the expenses of Wife, Husband references that there is now only one child in the household and suggests a change in alimony accordingly. While minor children is one of seventeen factors considered in determining the amount of alimony, that factor is based not upon the number of minor children, but rather “[t]he 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.” 23 Pa.C.S. §3701. No mention is made of a requirement of multiple minor children, nor does it consider the number of minor children; only one minor child is necessary for the consideration of the factor. See id. Alimony does not increase or decrease as children mature. That is what child support is for. Child support and alimony are different legal concepts and should be treated as such. To reduce 12 These accounts are merely mentioned to note that Husband is not destitute, as he is still receiving a sufficient pension and a handsome account interest. 13 It should also be noted that Husbands non-employment compensation supports him sufficiently and he has not sought unemployment compensation. 5 alimony solely because one child has reached the age of majority defeats the purpose of child support and as a lone factor is not a valid argument in decreasing alimony. CONCLUSION Given the above analysis, there is no substantial change in circumstances. Husband’s reliance in Dalrymple is misplaced. The increase in Wife’s salary and the COLA adjustments to the pension are not increases in alimony at all, and they certainly were not awarded . . . “simply because Husband would still have . . . discretionary income.” Dalrymple v. Kilishek, 920 A.2d 14 1275, 1279 (Pa. Super., 2007). The only potential unpredicted change in the amount Wife is receiving would be her salary increase of 13.5% (considering cost of living increases), which is insufficient to render alimony terminated or reduced. Husband is not entitled to reduce or terminate alimony. Accordingly, the following Order of Court is entered: ORDER OF COURT th AND NOW , this 20 day of January, 2010, Husband’s Request of Termination of DENIED Alimony is . By the Court, M. L. Ebert, Jr., J. Wayne F. Shade, Esquire Attorney for Plaintiff Hubert X. Gilroy, Esquire Attorney for Defendant 14 The Court notes that the unpredictability of salary increases is debatable. To deem Wife’s salary increase unpredictable awards Husband the benefit of the doubt. 6