HomeMy WebLinkAbout2010-2145DAVID C. SCHANBACHER,
Plaintiff
u
MICHELE M. SCHANBACHER, :
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION — LAW
NO. 10 — 2145 CIVIL TERM
IN RE: PLAINTIFF'S PETITION FOR SPECIAL RELIEF
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., March 15, 2011.
In this domestic relations case involving the termination of the parties' marriage
and equitable distribution of marital property, Plaintiff commenced an action in divorce
by filing a Complaint in the Court of Common Pleas of York County, Pennsylvania,' in
response to which Defendant raised certain economic issues,2 and disputed Plaintiffs
allegation that the marriage was irretrievably broken.3 Defendant has since filed an
affidavit of consent to the divorce.4
For disposition at this time is Plaintiffs Petition for Special Relief, which
requests, inter alia, that this court bifurcate the divorce action from the related economic
issues.5 A hearing on the petition was held on January 7, 2010 and February 16, 2011.
' Complaint, filed November 2, 2007 (York County).
2 Defendant's Claim of Rights, filed December 18, 2007 (York County).
' Defendant's Counter Affidavit Under Section 3301(d) of the Divorce Code, filed October 5, 2009 (York
County).
4 [Defendant's] Affidavit of Consent, filed January 13, 2011. Plaintiff has also filed an Affidavit of
Consent on January 12, 2011.
' Plaintiffs Petition for Special Relief, filed September 1, 2010.
For the reasons stated in this opinion, the petition will be granted.
PROCEDURAL HISTORY
This divorce action was commenced by the filing of a complaint in the Court of
Common Pleas of York County, Pennsylvania on November 2, 2007.6 The Complaint
alleged that the parties' marriage was irretrievably broken.' On December 18, 2007,
Defendant filed a Claim of Rights, requesting that the court award to her alimony and
equitably divide the marital property. s
On September 22, 2009, Plaintiff filed an affidavit pursuant to §3301(d) of the
Divorce Code, which asserted that the parties had been separated for at least two years
and that the marriage was irretrievably broken.9 On October 5, 2009, Defendant filed a
Counter -Affidavit in opposition to the entry of a divorce decree, in which she denied that
the marriage was irretrievably broken and indicated her intention to pursue a claim for
economic relief. 10
On November 23, 2009, Plaintiff filed a Motion for Expedited Hearing on Issue of
Divorce, which requested that a Divorce Master be appointed, and that the court bifurcate
all economic and property distribution proceedings. I I On February 2, 2010, the
Honorable Richard K. Renn, President Judge of the Court of Common Pleas of York
6 Complaint, filed November 2, 2007 (York County).
Complaint, ¶7, filed November 2, 2007 (York County).
'Defendant's Claim of Rights, filed December 18, 2007 (York County).
9 Plaintiffs Affidavit Under §3301(d) of the Divorce Code, filed September 22, 2009 (York County).
10 Defendant's Counter Affidavit Under Section 3301(d) of the Divorce Code, filed October 5, 2009
(York County); but see Notes of Testimony, 6, Hearing, January 7, 2011 (hereinafter N.T. Jan. 7,
2011).
" Plaintiffs Motion for Expedited Hearing on Issue of Divorce Pursuant to §3301(d) (York County).
2
County, transferred the matter to this court for disposition. 12 By Order of Court, dated
February 16, 2010, this court referred Plaintiff's Motion for Expedited Hearing to the
Cumberland County Divorce Master for a recommended order. 13 However, none was
forthcoming.
On September 1, 2010, Plaintiff filed a Petition for Special Relief, which included
counts for bifurcation of the divorce proceedings, a request to compel the sale of the
marital residence, and a request to compel Defendant to respond to Plaintiffs discovery
requests. 14 On September 23, 2010, Plaintiff filed a Motion for Continuance and
Consolidation of Issues, in which he requested that this court consolidate the Motion for
Expedited Hearing on Divorce15 with the Petition for Special Relief16 By Order of Court,
dated October 5, 2010, this court consolidated the related issues, and scheduled a hearing
on the matter for November 2, 2010.17
12 Administrative Order Appointing Judge From Cumberland County to Preside Over Case, dated
February 2, 2010 (York County). The matter was transferred to this court because of Plaintiff's status as a
practicing attorney in York County, Pennsylvania.
" Order of Court, In re: Motion for Expedited Hearing on Issue of Divorce Pursuant to §3301(d), dated
February 16, 2010.
14 Petition for Special Relief, filed September 1, 2010.
" This Expedited hearing was referred to the Cumberland County Divorce Master by the February 16,
2010 Order of Court.
16 Plaintiff's Petition for Continuance and Consolidation of Issues, filed September 23, 2010.
17 Order of Court, In re: Motion for Continuance and Consolidation of Issues, dated October 5, 2010. At
the request of Plaintiff, the hearing scheduled for November 2, 2010 was rescheduled to January 7, 2011
due to the unavailability of plaintiff's counsel. Order of Court, In re: Plaintiff's Motion for Continuance
and Consolidation of Issues and Plaintiff's Petition for Special Relief, dated October 6, 2010.
3
For disposition at this time is the request for bifurcation filed by Plaintiff." A
hearing on this issue was held on January 7, 2011 and February 16, 2011. For the reasons
stated in this opinion, the petition will be granted.
STATEMENT OF FACTS
Plaintiff, David C. Schanbacher, Esquire, is an adult individual who presently
resides in Dover, York County, Pennsylvania. 19 Defendant, Michele M. Schanbacher, is
an adult individual who presently resides in York, York County, Pennsylvania .20 The
parties were married on April 26, 1997,21 and separated on September 22, 2007.22 The
parties have two minor children, and agreed, shortly after their separation, to share
custody. 23 Plaintiff s complaint, which was filed on November 2, 2007, was based upon
an allegation that there was an irretrievable breakdown of the marriage .24 On September
22, 2009, two years following the parties' separation '25 Plaintiff filed an affidavit, which
asserted, in part, that the parties' marriage was irretrievably broken.26 Defendant opposed
18 Petition for Special Relief, filed September 1, 2010. At the January 7, 2011 hearing, the parties
stipulated, inter alia, that Defendant would be permitted to reside in the marital residence for as long as
six months from that date, at which point Plaintiff would be allowed to occupy the house. N.T. 3, Jan. 7,
2011.
19 N.T. 8, Jan. 7, 2011.
20 Complaint, ¶2, filed November 2, 2007.
21 N.T. 9, Jan. 7, 2011; Notes of Testimony, 56-57, Hearing, February 16, 2011 (hereinafter N.T. ,
Feb. 16, 2011). [The citations to the February 16, 2011 hearing are to a Rough Draft and differ slightly
from a final version]; Complaint, ¶3, filed November 2, 2007; see [Defendant's] Petition for Alimony
Pendente Lite, ¶3, filed January 5, 2011.
22 N.T. 9, Jan. 7, 2011.
23 See N.T. 12, Jan. 7, 2011.
24 Complaint, ¶7, filed November 2, 2007.
2s N.T. 9, Jan. 7, 2011.
26 Plaintiffs Affidavit Under §3301(d) of the Divorce Code, filed September 22, 2009 (York County)
4
Plaintiff's affidavit by way of a counter -affidavit, asserting that the marriage was not
irretrievably broken 27 and preserving a claim for certain economic relief 28
Plaintiff and Defendant now agree that there is no prospect of reconciliation
between the parties, and have filed affidavits of consent .29 Since the parties' separation,
and continuing until the time of the January 7, 2011 hearing, Plaintiff has resided with a
woman other than his spouse in Dover, York County, Pennsylvania.30 Plaintiff asserts
that, once the parties' divorce becomes final, he and this woman intend to marry.31 She,
Plaintiff, and Plaintiff's two children 32 have formed a family relationship. 33
Since the parties' separation, Defendant has continued to reside in the marital
residence .34 Plaintiff testified that he has preserved the marital assets pending economic
distribution of the marital estate .35 Plaintiff testified that he has taken action to maintain
and increase the value of investments and retirement assets located in the parties'
investment portfolio, as well as the value of the parties' minor children's accounts .36
27 Defendant's Counter Affidavit Under Section 3301(d) of the Divorce Code, filed October 5, 2009
(York County); but see N.T. 6, Jan. 7, 2011.
28 Defendant's Counter Affidavit Under Section 3301(d) of the Divorce Code, filed October 5, 2009
(York County).
29 N.T. 6, Jan. 7, 2011. At the beginning of the January 7, 2011 hearing, the parties agreed that there was
no prospect of reconciliation, a position that departed from Defendant's previous contention.
30 N.T. 9-10, Jan. 7, 2011.
31 N.T. 10, Jan. 7, 2011.
12 N.T. 11, Jan. 7, 2011. Plaintiff and Defendant are the biological father and mother, respectively, of the
two minor children.
" Petition for Special Relief, ¶10, filed Sept. 10, 2010.
34 N.T. 36-37, Feb. 16, 2011.
" N.T. 16, Jan. 7, 2011.
36 N.T. 16-18, Jan. 7, 2011; Petition for Special Relief, ¶11, filed Sept. 10, 2010.
5
Plaintiff further testified that, since the time of separation, he has made voluntary
payments to Defendant for her personal expenses, as well as household expenses .37
Plaintiff further testified that, since the parties' separation, he has provided an average of
$4,200.00 per month for marital obligations and expenses, including $800.00 per month
to Defendant for spousal and child support '31 in addition to any additional extracurricular
activities for the parties' children.39 Plaintiff testified that he maintains the parties' two
vehicles, including costs for repairs, maintenance, insurance, and fuel .40 Further,
according to his testimony, Plaintiff provides himself, Defendant, and the parties' two
children with health insurance coverage through a private policy, and confirmed with his
health insurance agent that, if a final decree of divorce were entered, he would be
permitted to continue providing such coverage for Defendant on the same policy, until
the final disposition of equitable distribution issues.41
At a hearing held by the court on Plaintiff's petition, the evidence tended to show
that Plaintiff has provided economic protections to Defendant since filing for divorce,
and is agreeable to an order that would continue the same pending resolution of the
economic claims. 42
37 N.T. 18, Jan. 7, 2011. Plaintiff testified that the only personal expenses Defendant pays are associated
with her personal student loans, which she had acquired prior to the marriage.
" N.T. 19, Jan. 7, 2011. Plaintiff testified that the estimated total amount that he has paid on a regular
monthly basis for Defendant, including sums paid to creditors, insurance companies, and other third
parties, since separation has been $4,100 to $4,300. See Petition for Special Relief, ¶11, filed Sept. 10,
2010; N.T. 58-60, Feb. 16, 2011.
39 N.T. 19, Jan. 7, 2011.
40 Petition for Special Relief, ¶10, filed Sept. 10, 2010.
41 Petition for Special Relief, ¶10, filed Sept. 10, 2010; N.T. 4-5, Feb. 16, 2011.
42 N.T. 13, Jan. 7, 2011.
6
DISCUSSION
Statement of Law. The Divorce Code authorizes the severance of divorce claims
from economic claims. Bonawits v. Bonawits, 2006 PA Super 238, ¶5, 907 A.2d 611,
614; 23 Pa. C.S. §3323. Section 3323 of the Divorce Code reads, in pertinent part, as
follows:
§3323. Decree of Court
(a) General rule, In all matrimonial causes, the court may either
dismiss the complaint or enter a decree of divorce or annulment of
the marriage.
(b) Contents of decree, A decree granting a divorce or an annulment
shall include, after a full hearing, where these matters are raised in
any pleadings, an order determining and disposing of existing
property rights and interests between the parties, custody, partial
custody and visitation rights, child support, alimony, reasonable
attorney fees, costs and expenses and any other related matters,
including the enforcement of agreements voluntarily entered into
between the parties. In the enforcement of the rights of any party to
any of these matters, the court shall have all necessary powers,
including, but not limited to, the power of contempt and the power to
attach wages.
(c.1) Bifurcation, With the consent of both parties, the court may enter a
decree of divorce or annulment prior to the final determination and
disposition of the matters provided for in subsection (b). In the
absence of the consent of both parties, the court may enter a decree
of divorce or annulment prior to the final determination and
disposition of the matters provided in subsection (b) if:
(1) Grounds have been established as provided in
subsection (g); and
(2) the moving party has demonstrated that:
(i) compelling circumstances exist for the entry of
the decree of divorce or annulment; and
(ii) sufficient economic protections have been
provided for the other party during the
pendency of the disposition of the matters
provided for in subsection (b).
(g) Grounds established, For purposes of [subsection (c.1)], grounds are
established as follows:
(1) In the case of an action for divorce under section
3301(a) or (b) (relating to grounds for divorce), the
court adopts a report of the master or makes its
own findings that grounds for divorce exist.
(2) In the case of an action for divorce under section
3301(c), both parties have filed affidavits of
consent.
(3) In the case of an action for divorce under section
3301(d), an affidavit has been filed and no counter-
affidavit has been filed or, if a counter -affidavit has
been filed denying the affidavit's averments, the
court determines that the marriage is irretrievably
broken and the parties have lived separate and apart
for at least two years at the time of the filing of the
affidavit.
23 Pa. C.S. §3323.
The purpose of the bifurcation provision set forth above is explained in the
Official Comments to Section 3323 of the Divorce Code, reading as follows:
New subsection (c.1) rejects the weighing of advantages and
disadvantages under Wolk v. Wolk, 318 Pa. Super. 311, 464 A.2d 1359
(1983), rejects any notion of automatic bifurcation and statutorily provides
for bifurcation with the consent of both parties. In absence of consent,
8
bifurcation in permitted only under the limited circumstances provided for
under paragraphs (1) and (2).
Part of the reasoning behind paragraph (1) is the idea that knowing
bifurcation is not available until the separation has run might motivate a
party to move the process along by being cooperative in discovery and
participating in the resolution of economic issues. Subsection (g) [of
Section 3323] provides when such grounds are established.
Paragraph (2) is intended to limit bifurcation to cases where
compelling circumstances exist and where economic protections have been
provided the other party. Paragraph (2) contemplates that the court will
exercise its judgment as to what constitutes "compelling circumstances"
and "sufficient economic protections."
23 Pa. C.S.A §3323, Official Comments.
Therefore, this court may grant a petition to bifurcate the proceedings and enter a
decree of divorce prior to the final determination and disposition of the ancillary issues,
where grounds have been established for the divorce as provided by statute, 43 and where
the moving party has demonstrated that compelling circumstances exist for the entry of
the decree of divorce, 44 and sufficient economic protections have been provided for the
other party during the pendency of the economic disposition proceedings. 45
Application of Law. In this case, Plaintiff has demonstrated that grounds have been
established for the parties' divorce as provided by the Divorce Code, namely that the
43 23 Pa. C.S. §3323(c.1)(1), referring to 23 Pa. C.S. §3323(g).
44 23 Pa. C.S. §3323(c.1)(2)(1).
4s 23 Pa. C.S. §3323(c.1)(2)(11).
9
parties' marriage is irrevocably broken, and each now consents to the divorce .46 At the
January 7, 2011 hearing, the parties stipulated that the marriage is irrevocably broken '47
that there is no prospect of reconciliation '48
and that each would sign and file an affidavit
of consent for entry of divorce decree ,49 which has been done .50
Further, Plaintiff has demonstrated that compelling circumstances exist for the
entry of the decree of divorce .51 Plaintiff and Defendant have lived separated and apart
for over three years. Plaintiff currently lives with a woman not his spouse, whom he
intends to marry once the parties' divorce is finalized. Plaintiff has demonstrated
convincing evidence that finalizing the parties' divorce would permit him to move on
with his life. This court does not find that granting bifurcation would provide Plaintiff
with a disincentive to be cooperative in the economic distribution proceedings, as this
court's review of the record reveals that Plaintiff has cooperated in the resolution of the
economic issues between the parties thus far.
Lastly, Plaintiff has shown that sufficient economic protections have been
provided to Defendant since the parties separated over three years in the past, and will
46 [Plaintiff's] Affidavit of Consent, filed January 12, 2011; [Defendant's] Affidavit of Consent, filed
January 13, 2011; see N.T. 6, Jan. 7, 2011.
47 N.T. 6, Jan. 7, 2011.
48 N.T. 6, Jan. 7, 2011.
49 N.T. 7, Jan. 7, 2011.
so [plaintiff's] Affidavit of Consent, filed January 12, 2011; [Defendant's] Affidavit of Consent, filed
January 13, 2011.
51 Although the bifurcation provision of the divorce code, as amended, does not require the opposing
party to proffer legitimate reasons why bifurcation should not be granted, such a consideration may be
appropriate when considering the reasons for bifurcation presented by the moving party. See Bowatis v.
Bowatis, 2006 PA Super 238, n. 5, 907 A.2d 611, n. 5.
10
continue to be provided until the final disposition of the economic proceedings. Plaintiff
has provided sufficient economic protections to Defendant thus far, including payment of
relatively all marital expenses, as well as spousal and child support. Further, Plaintiff is
agreeable to the entry of an order which would protect the equitable distribution rights of
each party, which includes provisions enjoining a party from disposing of any marital
property, and preserving assets and debt values .52 Accordingly, this court finds
convincing evidence that Defendant will receive sufficient economic protections pending
the final disposition of the economic proceedings.
For the foregoing reasons, the court concludes that (a) the parties marriage is
irrevocably broken and that grounds for divorce have been established, (b) compelling
circumstances exist for the entry of a decree of divorce at this time, and (c) sufficient
economic protections have been, and will continue to be, provided to Defendant should
bifurcation be ordered. Accordingly, the following order will be entered:
ORDER OF COURT
AND NOW, this 15th day of March, 2011, upon consideration of Plaintiff's
Petition for Special Relief, and following hearings held on January 7, 2011 and February
16, 2011, and both Plaintiff and Defendant having filed Affidavits of Consent, the
petition is granted and either party may file a praecipe to transmit record for purposes of
effecting a divorce, subject to the following directions:
1. All economic issues between the parties shall survive the divorce decree. The
economic rights of the parties shall not be impaired or diminished by any
Sz N.T. 14-16, Jan. 7, 2011.
11
event, including, but not limited to, the death of either party or the remarriage
of either party.
2. All outstanding economic issues shall be considered by Cumberland County
Divorce Master E. Robert Elicker, 11, Esq.
3. Until further Agreement of the parties or Order of Court on equitable
distribution, Plaintiff shall continue to provide medical insurance coverage for
Defendant under a health care insurance policy, which provides, at a minimum,
benefits which are comparable to those available to a spouse under Plaintiff's
existing health insurance, including coverage for any pre-existing medical
conditions.
4. Plaintiff shall continue to maintain Defendant as beneficiary of any and all life
insurance policies, employment benefits and other policies he currently owns
until further Agreement of the parties or Order of Court on equitable
distribution.
5. Until final economic resolution, if either party remarries, a prenuptial
agreement shall be executed by that party with his or her future spouse
preserving and protecting any and all marital rights of the other party arising
out of this marital relationship. Such agreement shall provide that the intended
spouse shall waive any and all rights to marital property of the parties to this
action.
6. All marital property of the parties shall be held in custodia legis after entry of
the divorce decree, including any and all rights which either party may have
12
under ERISA or the Retirement Equity Act of 1984. Plaintiff shall take
whatever steps necessary to preserve Defendant's rights in any retirement
interest and the children's college accounts.
7. Both parties shall retain the status of surviving spouse entitled to death benefits
upon the other party's death even though the parties are divorced while the
economic claims remain pending and even though the deceased party has
remarried prior to death.
8. Until final economic resolution, each party is hereby enjoined and restrained
from alienating, assigning, concealing, conveying, dissipating, encumbering,
secreting, transferring, or otherwise disposing of any of the marital property.
Plaintiff shall continue to have the right to reallocate his retirement accounts,
the children's college accounts and the American Funds account to protect
them from downward market fluctuation to the extent possible, so long as such
management actions are based upon the sound advice of a qualified financial
planner.
9. Neither party shall convey, transfer, encumber or otherwise dispose of any
property or interest acquired during the marriage without regard to how the
property is titled, or of any property listed as marital property in the inventory
and Appraisement of either party, without the written consent of both parties or
Order of Court.,
10. The parties specifically agree that the marital residence, located at 2131 Jesse
Lane, York, York County, Pennsylvania 17404 shall be conveyed to Plaintiff,
13
upon Defendant's vacation of the residence and pursuant to the Order of Court,
dated January 7, 2011.
11. This court shall retain jurisdiction to enforce the provision of this bifurcation
order.
E. Robert Elicker, 11, Esq.
9 North Hanover Street
Carlisle, PA 17013
Divorce Master
James G. Keenan, Esq.
30 North George Street
York, PA 17401
Attorney for Plaintiff
N. Christopher Menges, Esq.
145 East Market Street
York, PA 17401
Attorney for Defendant
14
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
DAVID C. SCHANBACHER,
Plaintiff
u
MICHELE M. SCHANBACHER, :
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION — LAW
NO. 10 — 2145 CIVIL TERM
IN RE: PLAINTIFF'S PETITION FOR SPECIAL RELIEF
BEFORE OLER, J.
ORDER OF COURT
ORDER OF COURT
AND NOW, this 15th day of March, 2011, upon consideration of Plaintiff's
Petition for Special Relief, and following hearings held on January 7, 2011 and February
16, 2011, and both Plaintiff and Defendant having filed Affidavits of Consent, the
petition is granted and either party may file a praecipe to transmit record for purposes of
effecting a divorce, subject to the following directions:
1. All economic issues between the parties shall survive the divorce decree. The
economic rights of the parties shall not be impaired or diminished by any
event, including, but not limited to, the death of either party or the remarriage
of either party.
2. All outstanding economic issues shall be considered by Cumberland County
Divorce Master E. Robert Elicker, 11, Esq.
3. Until further Agreement of the parties or Order of Court on equitable
distribution, Plaintiff shall continue to provide medical insurance coverage for
Defendant under a health care insurance policy, which provides, at a minimum,
benefits which are comparable to those available to a spouse under Plaintiff's
existing health insurance, including coverage for any pre-existing medical
conditions.
4. Plaintiff shall continue to maintain Defendant as beneficiary of any and all life
insurance policies, employment benefits and other policies he currently owns
until further Agreement of the parties or Order of Court on equitable
distribution.
5. Until final economic resolution, if either party remarries, a prenuptial
agreement shall be executed by that party with his or her future spouse
preserving and protecting any and all marital rights of the other party arising
out of this marital relationship. Such agreement shall provide that the intended
spouse shall waive any and all rights to marital property of the parties to this
action.
6. All marital property of the parties shall be held in custodia legis after entry of
the divorce decree, including any and all rights which either party may have
under ERISA or the Retirement Equity Act of 1984. Plaintiff shall take
whatever steps necessary to preserve Defendant's rights in any retirement
interest and the children's college accounts.
7. Both parties shall retain the status of surviving spouse entitled to death benefits
upon the other party's death even though the parties are divorced while the
economic claims remain pending and even though the deceased party has
remarried prior to death.
8. Until final economic resolution, each party is hereby enjoined and restrained
from alienating, assigning, concealing, conveying, dissipating, encumbering,
secreting, transferring, or otherwise disposing of any of the marital property.
Plaintiff shall continue to have the right to reallocate his retirement accounts,
the children's college accounts and the American Funds account to protect
them from downward market fluctuation to the extent possible, so long as such
management actions are based upon the sound advice of a qualified financial
planner.
9. Neither party shall convey, transfer, encumber or otherwise dispose of any
property or interest acquired during the marriage without regard to how the
property is titled, or of any property listed as marital property in the inventory
and Appraisement of either party, without the written consent of both parties or
Order of Court.,
10. The parties specifically agree that the marital residence, located at 2131 Jesse
Lane, York, York County, Pennsylvania 17404 shall be conveyed to Plaintiff,
upon Defendant's vacation of the residence and pursuant to the Order of Court,
dated January 7, 2011.
11. This court shall retain jurisdiction to enforce the provision of this bifurcation
order.
BY THE COURT,
J. Wesley Oler, Jr., J.
E. Robert Elicker, 11, Esq.
9 North Hanover Street
Carlisle, PA 17013
Divorce Master
James G. Keenan, Esq.
30 North George Street
York, PA 17401
Attorney for Plaintiff
N. Christopher Menges, Esq.
145 East Market Street
York, PA 17401
Attorney for Defendant