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HomeMy WebLinkAbout315 S 2010 TINA M. SWINN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : JOHN A. SWINN, : PACSES NO. 681111637 Defendant : NO. 315 SUPPORT 2010 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., January 24, 2010. In this domestic relations case regarding the issue of whether Plaintiff (wife) is entitled to spousal support from Defendant (husband), Plaintiff has filed exceptions to the 1 Support Master’s report on the issue of spousal support entitlement. Following a hearing held on July 13, 2010 before Michael R. Rundle, Esq., Cumberland County Support Master, at which Plaintiff represented herself and Defendant was represented by counsel in the person of Andrew C. Sheely, Esq., the master issued a report recommending that 2 Plaintiff’s claim for spousal support be denied and her complaint be dismissed. An 3 interim order in accordance with the recommendation was thereafter entered. 1 Plaintiff’s Exceptions, filed November 9, 2010. 2 See Notes of Testimony, Support Master’s hearing, October 21, 2010 (hereinafter N.T. _____); Support Master’s Report and Recommendation, filed October 26, 2010. 3 Interim Order of Court, dated October 26, 2010 (Oler, J.). For disposition at this time are exceptions to the support master’s report, filed by 4 Plaintiff. The exceptions express Plaintiff’s disagreement with various findings of fact by the support master and read as follows: 1. Findings of Fact Number 6, The Plaintiffs move was voluntary and without consent of her husband. 2. Findings of Fact Number 7, on April 30, 2010 the Plaintiff filed a complaint for spousal support. 3. Findings of Fact Number 9, on July 9, 2010 the Plaintiffs daughter, Melinda Shatto, was temporarily residing with the Defendant in the marital residence 4. Findings of Fact Number 17, Mr. Foust was a co-worker of the Plaintiff with whom she spent a significant amount of time prior to the separation. 5. Findings of Fact Number 20, During the month immediately preceding her departure from the marital home, the Plaintiff had telephone contact with Leonard Foust more than 60 times. 6. Finding of Fact Number 21, Prior to the separation the Plaintiff accompanied Mr. Foust to several fire company functions and went dancing with him on other occasions. 7. Finding of Fact Number 22, In days leading up the separation the Plaintiff spent increasing amounts of time away from the marital residence during the evening hours. 8. Finding of Fact Number 23, During the course of the marriage the Defendant belittled his wife verbally by calling her vulgar names. 9. Findings of Fact Number 26, The Plaintiff is currently eligible for unemployment compensation benefits of $172.00 per week. 10. Findings of Fact Number 27, The Plaintiff has not submitted any applications for employment since losing her position with Surplus City. 4 Plaintiff’s Exceptions, filed November 9, 2010. 2 11. Findings of Fact Number 38, The Defendant is employed by Exel, Inc. 12. Findings of Fact Number 30, The Defendant pays $26.41 per week for health insurance coverage on the parties. 13. Findings of Fact Number 33, The monthly mortgage payment on the marital residence is $558.07, real estate taxes total $1,437.00 annually, and homeowners insurance is $355.00 annually. 14. Finding of Fact Number 34, The Defendant is two months behind on the mortgage and the 2010 property taxes have not been paid. 15. Furthermore, I Tina M. Swinn, Plaintiff, would like to make Exception 5 to the Discussion of the Support Master, Michael R. Rundle. For the reasons stated in this opinion, Plaintiff’s Exceptions will be dismissed and the Interim Order of Court issued in accordance with the support master’s recommendation will be entered as a final order. STATEMENT OF FACTS Plaintiff, Tina M. Swinn, is an adult individual who, at the time of the October 21, 6 2010 hearing, resided in Goldsboro, York County, Pennsylvania. Defendant, John A. Swinn, is an adult individual residing in Mechanicsburg, Cumberland County, 7 Pennsylvania. As of the hearing before the support master, Plaintiff and Defendant were 89 forty-six years old and thirty-nine years old, respectively. The parties were married on 5 Plaintiff’s Exceptions, filed November 9, 2010. 6 N.T. 3. Plaintiff testified that she would be residing in Goldsboro until “the end of the month” and asked her mailing address be at her parents’ address in Enola, Pennsylvania. N.T. 3. 7 N.T. 54-55; see N.T. 4;. 8 N.T. 12; see Complaint for Support, filed Aug. 30, 2010. 9 See Complaint for Support, filed Aug. 30, 2010. 3 1011 September 4, 1999 and separated on April 15, 2010. In June 2010, Plaintiff filed an 12 action for divorce, which is currently pending. On August 30, 2010, Plaintiff filed a complaint for spousal support against 13 Defendant. A hearing before the Cumberland County Support Master on the complaint, at which Plaintiff represented herself and Defendant was represented by Andrew C. Sheely, Esq., was held on October 21, 2010. The evidence at the hearing pertinent to the exceptions of Plaintiff may be summarized as follows: During their marriage, Plaintiff and Defendant resided together in the marital home, which was located on Willow Mill Park Road, Mechanicsburg, Cumberland 14 County, Pennsylvania. During the parties’ marriage, Plaintiff’s two daughters, born 15 from a prior marriage, resided with the parties in the marital home. Plaintiff testified 16 that, during the marriage, Defendant was both mentally and verbally abusive. On April 17 15, 2010, Plaintiff moved out of the marital residence. At the hearing, the master questioned Plaintiff regarding Defendant’s conduct which had allegedly caused her to 10 N.T. 4; Complaint for Support, filed August 30, 2010. 11 N.T. 4; Complaint for Support, filed August 30, 2010. 12 N.T. 19. 13 Complaint for Support, filed August 30, 2010. 14 N.T. 4; see N.T. 55. 15 See N.T. 9. Plaintiff’s oldest daughter moved out of the marital residence when she was nineteen, and Plaintiff’s youngest daughter moved out of the marital residence just before she had turned 18. 16 N.T. 8. 17 N.T. 4. 4 18 move from the marital home. The following testimony was offered by Plaintiff in response to the master’s inquiry: About a week before I left, I went to get in and go in one of the trucks that we jointly owned to go with my oldest daughter and her fiancé down to our river property. We were going to do some work on our campsite, a seasonal site. [Defendant] jumped in the passenger side and reached toward the ignition and pulled the keys and told me that I am not taking the truck. There was a lot of swear words. [Defendant] didn’t want me to take the truck. And I said well I own this truck just as much as you do and the kids need tools. We got into a big argument and I ended up just going with the kids in their vehicle. A couple of days before I left he woke me by shaking my ankles. I was in bed sleeping. He grabbed me by the ankles and vigorously shook me because he couldn’t find his sweatshirt at 4:30 or 5:30 in the morning . . . it was very early in the morning and he woke me this way. He was yelling at me and cussing at me . . . . The night before I left he had an anger temper tantrum. I wanted to watch TV before bed. He grabbed the remote control out of my hand. I took it then and turned the TV back on. He started an argument with me, and I said, no, this is my home too. I have every right to do what I want here as well as you do. And I am really tired of you telling me what I can and can’t do and when I can and can’t go somewhere, and when I can and can’t drive a vehicle. [Defendant] ended up reaching up . . . and [Defendant] yanked the entire TV, and the stand, and the VCR, and video tapes all down on the bedroom floor the night before I left. When I got up the next morning I grabbed a couple things and I said if you honestly think I am going to stay 19 here you are nuts. I have had enough of this. On direct examination, Defendant testified and gave a different version of the morning incident: 18 N.T. 5. 19 N.T. 5-7. 5 That was an incident where I went up and I laid my hand on her leg. She had to get up for work in the morning and she was not very reliable or responsible when getting up. I laid my hand on her leg and I said, honey, and I gave her a kiss I believe, and I vaguely even moved her leg. I said do you need to get up to go to work. And she jumped up like why are you shaking me to death. And I am like, ghee, I just laid my hand on her thigh 20 and barely even bumped her. I was waking her up for work. The master also questioned Defendant regarding Plaintiff’s allegations as to the events which occurred the night before Plaintiff left the marital residence. Again, Defendant’s version conflicted with that of Plaintiff: Q: Did you throw a television at her? A: No. I did not. I picked the T.V. up and I sat it on the floor, because it was like 2:00 or 3:00 in the morning and I had to get up and go to work at 6:00, and I don’t sleep very well when TV is playing all night long. So the TV was picked up off the stand and sat down on 21 the floor. Plaintiff testified that, although “[t]he Silver Spring[ ] Township police were out 22 to [the marital home] 67 times from 2004 until [April 15, 2010],” Defendant had not been physically abusive towards her except for “little pushes and shoves, nothing that . . . left a mark, [except for] one time, [when] he did put a small mark on my thumb and he 23 was arrested and put in jail overnight.” Plaintiff testified that, after she left the marital residence in April 2010, she did file a petition under the Protection from Abuse Act against Defendant, in which she alleged 20 N.T. 61. 21 N.T. 60-61. 22 N.T. 7. 23 N.T. 7. 6 24 physical abuse and mental abuse, and that her decision to move out had resulted, in part, 25 from a culmination of events similar to those alleged in the petition. The petition was 26 dismissed following a hearing by President Judge Kevin A. Hess. Defendant expressed a different understanding as to the motivations that caused Plaintiff to move out of the marital home and subsequently file for divorce. Defendant testified that, in March 2010, he became suspicious of Plaintiff’s actions. Defendant testified that he had gained access to a list of telephone numbers that Plaintiff had 27 frequently contacted, along with the ability to view where she was physically located at 28 certain times. Defendant testified that, on the evening of April 14, 2010, he confronted 29 Plaintiff regarding suspicions that he had formed based on his observations. Defendant testified that, during the confrontation, Plaintiff told him that “she didn’t love me no more 30 and she wanted to be [with] Leonard Foust.” Defendant testified that, on the morning of April 15, 2010, he had taken Plaintiff’s cellular phone, called Mr. Foust, and had asked him “not to see [his] wife anymore as it 31 was causing a marital conflict.” Defendant testified that, as a result of Mr. Foust’s 24 N.T. 7-8. Def. Ex. 1; The petition under the Protection From Abuse Act was dismissed on May 6, 2010. N.T. 8; Order of Court, In re: Protection from Abuse Petition Dismissed, May 6, 2010 (Hess, J.). 25 N.T. 9. 26 Order of Court, In re: Protection from Abuse Petition Dismissed, May 6, 2010 (Hess, J.). 27 Def. Ex. 6; Def. Ex. 7; Def. Ex. 8. Defendant testified that, during the time he started viewing the telephone logs, until the point where Plaintiff moved out of the residence, there had been 67 contacts between Plaintiff and a number, the owner of which he found out to be Mr. Foust. 28 N.T. 55-56. 29 N.T. 56. 30 N.T. 56. 31 N.T. 56. 7 32 response, he understood that Mr. Foust would continue to see Plaintiff. Plaintiff left the 33 marital home that day. At the hearing, both Mr. Foust and Plaintiff denied that their relationship had 34 extended beyond a friendship. Mr. Foust was a co-worker of Plaintiff’s, with whom she had spent a significant amount of time prior to the separation, which included dance 35 lessons and fire company social functions. Preceding the separation of Plaintiff and 36 Defendant, Mr. Foust was involved in his own divorce and had moved into a home 37 owned by his mother. Upon moving out of the marital residence, Plaintiff initially 38 resided with Mr. Foust and his mother. 32 N.T. 56-57. 33 N.T. 56-58, 60. 34 N.T. 49. 35 N.T. 48, 49, 54. 36 N.T. 51. 37 N.T. 50-51. 38 N.T. 50-51, 53. During his testimony, Mr. Foust maintained that Plaintiff had moved in with the owner of the residence, rather than with him: Q: Mr. Foust, at the time that [Plaintiff] moved in with you— A: No. She did not move in with me. Let’s clarify that, okay? She moved in with my mother. Q: Were you living there too? A: Yes. It is a four bedroom house. N.T. 50-51 * * * Q: Does [Plaintiff] pay your mother any type of compensation to stay? A: Nope. Q: Has [Plaintiff] paid you any compensation for the services provided? A: No. She don’t owe me nothing. N.T. 53. 8 DISCUSSION Statement of law. The standard of review of a support master’s report and recommendations is well settled. Although the report “is to be given the fullest consideration, especially with regard to the credibility of witnesses,” the findings and conclusions are advisory rather than binding. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988); see Pa. R.C.P. 1910.12 (d), (f), (g); Ewing v. Ewing, 2004 PA Super 46, ¶13, 843 A.2d 1282, 1286; see also McCurdy v. McCurdy, No. 02- 0097 Support (slip op.) (Cumberland Co. 2002) (Hess, J.). The reviewing court therefore has a duty to make a complete and independent review of all evidence, including an analysis of the weight and credibility to be given to the testimony of the witnesses. See Rothrock v. Rothrock, 2000 PA Super 412, 415, 765 A.2d 400, 404; Goodman v. Goodman, 375 Pa. Super. at 507, 544 A.2d at 1035; Gomez v. Gomez, 11 Phila. Co. 221, 226-27 (1984). Support generally. Generally, a dependent spouse is entitled to an award of spousal support until it is proven that the conduct of the dependent spouse constitutes grounds for a fault divorce. Crawford v. Crawford, 429 Pa. Super. 540, 549 633 A.2d 155, 159 (1993); Roach v. Roach, 337 Pa. Super. 440, 443, 487 A.2d 27, 28 (1985). The law is clear that a plaintiff’s right to support is not extinguished by her withdrawal from the marital home, if she has an adequate reason for leaving. See Clendenning v. Clendenning, 392 Pa. Super. 33, 36-37, 572 A.2d 18, 20 (1990). However, a plaintiff seeking support following a nonconsensual, voluntary vacation from the marital home 9 has the burden of establishing that the defendant’s conduct justified the plaintiff’s leaving the marital home. See Rock v. Rock, 385 Pa. Super. 126, 130, 560 A.2d 199, 201 (1989). An adequate legal reason is a general term, and must be interpreted based on the facts of each case. See Clendenning, 392 Pa. Super. at 37, 572 A.2d at 20. Essentially, the term means “a reasonable cause that would justify voluntary withdrawal from the common domicile.” Com. ex. Re. Loosley v. Loosley, 236 Pa. Super. 389, 291, 345 A.3d 721, 722 (1975); see Clendenning, 392 Pa. Super. at 37, 572 A.2d at 20. Whether the withdrawal was reasonable must be determined factually on a case-by-case basis. See, e.g., Com. ex rel. Bergwerk v. Bergwerk, 228 Pa. Super 190, 323 A.2d 243 (1974) (wife’s departure held not reasonable where husband criticized her housework and wife was seeing another man); Com. ex rel. Van Wagenen v. Van Wagenen, 167 Pa. Super. 354, 74 A.2d 740 (1950) (wife’s departure held not reasonable where her reasons for leaving were expressed as her husband “going into temper tantrums,” and accusing her of infidelity). Conduct of a defendant that causes a plaintiff to leave need not rise to the same level as a ground for a divorce. See Rock, 385 Pa. Super. at 130, 560 A.2d at 201. The law recognizes that a spouse who suffers psychological oppression over a period of time may be harmed as much as a spouse who, over a period of time, suffers physical injury. McKolanis v. McKolanis, 435 Pa. Super 103, 105-06, 644 A.2d 1256, 1258 (1994). Accordingly, the law does not require a psychologically oppressed spouse to remain in the marital home. See generally Clendenning, 392 Pa. Super. at 38-39, 572 A.2d at 21; Rock, 385 Pa. Super. at 130-31, 560 A.2d at 201-02. On the other hand, the law recognizes that it is not proper to impose a duty of support upon a spouse whose 10 partner departs the marital home maliciously, casually on a whim or caprice or for improper reasons. McKolanis, 435 Pa. Super at 106, 644 A.2d at 1258. Application to Facts. This court finds itself in agreement with the support master, who was in the best position to judge the credibility of the parties, that Plaintiff did not establish an adequate legal reason for leaving the marital residence. Plaintiff did not present evidence demonstrating physical abuse, and while Defendant may have belittled Plaintiff by calling her vile and vulgar names since 2004 this court, like the support master, does not find that Defendant’s conduct motivated Plaintiff to leave. This court further finds, on the basis of credibility, that neither the April 14, 2010 incident involving the television, nor the April 12, 2010 incident where Defendant awoke Plaintiff by shaking her foot, justified Plaintiff’s leaving the home. This court agrees with the master’s assessment that Plaintiff was not psychologically oppressed, and further agrees with the master’s determination that Plaintiff left the marital residence because she preferred the company and companionship 39 of another man compared to that of her husband. Based on the foregoing, it is the 40 court’s conclusion that an award of spousal support is not appropriate in this case. For these reasons, the following order will be entered: ORDER OF COURT th AND NOW, this 24 day of January, 2011, upon consideration of Plaintiff’s Exceptions [to Support Master’s Report], following oral argument held on 39 See Support Master’s Report and Recommendation, filed October 26, 2010. 40 By virtue of this determination, it is unnecessary to assess the merits of most of Plaintiff’s exceptions. 11 January 20, 2011, and for the reasons stated in the accompanying opinion, Plaintiff’s exceptions are dismissed and the interim order of court dated October 26, 2010 is entered as a final order. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler Jr., J. Michael R. Rundle, Esq. Support Master Tina M. Swinn 11 W. Highland Ave Enola, Pennsylvania 17025 Plaintiff, pro Se Andrew C. Sheely, Esq. 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 Attorney for Defendant 12 TINA M. SWINN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : JOHN A. SWINN, : PACSES NO. 681111637 Defendant : NO. 315 SUPPORT 2010 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE OLER, J. ORDER OF COURT th AND NOW, this 24 day of January, 2011, upon consideration of Plaintiff’s Exceptions [to Support Master’s Report], following oral argument held on January 20, 2011, and for the reasons stated in the accompanying opinion, Plaintiff’s exceptions are dismissed and the interim order of court dated October 26, 2010 is entered as a final order. BY THE COURT, _________________ J. Wesley Oler Jr., J. Michael R. Rundle, Esq. Support Master Tina M. Swinn 11 W. Highland Ave Enola, Pennsylvania 17025 Plaintiff, pro Se Andrew C. Sheely, Esq. 127 South Market Street P.O. Box 95 Mechanicsburg, Pennsylvania 17055 Attorney for Defendant