HomeMy WebLinkAbout1997-3059 Civil (2)
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: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, Jr., J., March 2, 2010 –
Husband filed a second Request for Termination of Alimony, which was denied by
opinion filed on January 21, 2010. Husband subsequently filed this appeal.
DISCUSSION
This Court previously filed a six-page opinion on January 21, 2010, which deals with the
legal issues presented in the case at length. This opinion is filed pursuant to Pa. R.A.P. 1925 (a)
to supplement the prior opinion and more specifically address those issues raised in the
Plaintiff’s Concise Statement of Matter Complained of on Appeal.
I.Dempsey I
In several instances, Husband makes reference to and argues against events that occurred
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in Dempsey I. However, Husband did not argue the issue of Dempsey I - the pension Wife
received in 2006 – during Dempsey II. Additionally, Husband stressed that he was not renewing
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the Dempsey I argument on several occasions during Dempsey II.
II.Mackay v. Mackay
Husband relies on the recent case of Mackay v. Mackay. Mackay v. Mackay, 984 A.2d
529, (Pa. Super 2009). In Mackay, the wife filed to enforce an oral agreement for the husband to
pay college expenses for the marital children and the husband subsequently petitioned to modify
child support. Id. at 532. The portion of the opinion on which Husband relies states that awards
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See, e.g. Plaintiff’s Statement of Matters Complained of on Appeal, ¶¶ 3, 4, filed Feb. 21, 2010.
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See Plaintiff’s Brief, Nov 2, 2009, pages 2, 5-6
of support are eligible to be modified at anytime if the moving party meets the burden of
showing a material and substantial change. Id. at 537. However, Mackay also states that this
determination is at the trial court’s discretion, and this Court feels that based upon the facts of
record, Husband did not meet that burden. Id.
III.McFadden v. McFadden
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Husband’s reliance on the similar facts of McFadden v. McFadden is misplaced.
McFadden v. McFadden, 386 Pa. Super. 506 (1989). In McFadden, the husband filed for a
reduction of alimony due to impending retirement and the distribution of a pension; however, in
McFadden, the retirement had not been considered during distribution of the marital property.
Id. at 508, 513. The Court found that retirement could be a changed circumstance but added that
future income should have been considered when distributing the marital property (as it was in
the case at hand – Dempsey II). Id. at 512-13. While the Court held that since the husband’s
pension had not been subject to equitable distribution, that his retirement could be a substantial
change. They also noted that their “holding does not imply the [husband] is entitled to a
reduction in his support obligation; rather, . . . the change in the appellant's economic situation
due to retirement merely allows him an opportunity to demonstrate the need for a reduction.” Id.
CONCLUSION
For the reasons addressed in both the prior opinion and this supplemental opinion filed
pursuant to Pa. R.A.P. 1925 (a), this Court did not err in denying Husband’s Request for
Termination of Alimony.
By the Court,
M. L. Ebert, Jr., J.
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The Court notes that the facts are closely aligned with the facts of Dempsey I, but they are not
similar to the facts of Dempsey II.
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Wayne F. Shade, Esquire
Attorney for Plaintiff
Hubert X. Gilroy, Esquire
Attorney for Defendant
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