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HomeMy WebLinkAbout00-6578 DivorceKRISTI L. NUTAITIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION Vo CIVIL ACTION - SUPPORT THEODORE J. NUTAITIS, JR., Defendant NO. 00-0592 SUPPORT DR 29,837 KRISTI L. NUTAITIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - DIVORCE THEODORE J. NUTAITIS, JR., Defendant NO. 00-6578 DIVORCE IN RE: PLAINTIFF'S CLAIMS FOR ALIMONY PENDENTE LITE and SPOUSAL SUPPORT BEFORE OLER~ J. OPINION and ORDER OF COURT OLER, J., August 22, 2001. In these civil matters, which were heard together, Plaintiff Kristi L. Nutaitis has petitioned the court for alimony pendente lite and for spousal support from Defendant Theodore J Nutaitis, Jr.~ On September 28, 2000, Plaintiff filed a complaint in divorce.2 On December 1, 2000, Plaintiff filed an amendment to the complaint to include a claim for alimony pendente lite.3 A divorce decree has not yet been entered in the divorce action. On October 16, 2000, Plaintiff filed a complaint for child and spousal support with the Domestic Relations Section of the court.4 Following a Domestic Relations Office ~ N.T. 4, Hr'g, July 6, 2001 (hereinafter N.T. ). 2 Compl. in Divorce, filed September 28, 2000, Nutaitis v. Nutaitis, No. 00-6578 Divorce (Ct. Com. Pl. Cumberland County). 3 Am. Compl. in Divorce at 2, filed December 1, 2000, Nutaitis, No. 00-6578 Divorce. conference, a recommended child support order was entered whereby Defendant was required to pay child support to Plaintiff in the amount of $525.27 per month.5 At the conference, Defendant denied liability for spousal support, and the issue of spousal support was referred to the court for a hearing.6 The alimony pendente lite and spousal support claims were both heard at this proceeding, which was held on July 6, 2001.7 The issues presented in these matters are whether Plaintiff has established financial need so as to entitle her to alimony pendente lite and whether Plaintiff has established adequate legal cause for leaving the marital home so as to entitle her to spousal support. Based upon the evidence presented at the hearing, Plaintiff's claims for alimony pendente lite and spousal support will be denied. STATEMENT OF FACTS Plaintiff is Kristi L. Nutaitis, 40. Defendant is Theodore J. Nutaitis, Jr., 45. The parties were married on November 14, 1992. One child, Sara E. Nutaitis, 8, was bom of the marriage.8 Plaintiff, who currently has primary physical custody of the child, moved out of the marital home on October 20, 2000. Both parties currently live in Cumberland County.9 4 See Compl. for Supp., filed Oct. 16, 2000, Nutaitis v. Nutaitis, No. 00-0592 Support (Ct. Com. Pl. Cumberland County). 5 Order of Ct. at 2, Dec. 8, 2000, Nutaitis, No. 00-0592 Support. Neither party has appealed this order. 6 Domestic Relations Office Conference Summ. at 1, December 8, 2000, Nutaitis, No. 00-0592 Support. The Domestic Relations Office did not prepare a recommended spousal support order; however, the Office did determine that Defendant's spousal support obligation, according the support guidelines, would have been $164.83 per month. Domestic Relations Office Conference Summ., December 8, 2000, Nutaitis, No. 00-0592 Support (attached spousal support calculation). 7 N.T. 4; see Pa. R.C.P. 213(a). 8 N.T. 4. 9 N.T. 4, 6. 2 Plaintiff is employed as an office manager and has a net monthly income of $1,645.78.~° Defendant is employed as a business manager and has a net monthly income of $2,720.48.~ After child support payments are allocated between the parties, Plaintiff's net monthly income is $2,171.05 and Defendant's net monthly income is $2,195.21. With respect to her financial situation, Plaintiff testified as follows. Her income is sufficient to meet both her normal living expenses and her current legal expenses associated with the divorce proceedings. ~2 Plaintiff does not have any outstanding debts, but she cannot afford to purchase a car to replace the one she now owns.~3 Defendant is making payments on the two mortgages on the marital home. ~4 At the hearing on these matters, Plaintiff contended that she had left the marital home because of stress from the marriage. Plaintiff testified that, during the marriage, she had been "not depressed, but very unhappy," and attributed this to Defendant's behavior during the marriage.~5 She alleged that this behavior included abuse of alcohol, accusations by Defendant that Plaintiff was unfaithful to him, use of pornographic materials, and indications by Defendant that he wanted a divorce. 16 Plaintiff testified that stress resulting from this behavior had caused migraine headaches, stomach problems and substantial weight gains during this period; however, she later testified that both the l0 N.T. 4, 5. The recommended child support order indicated Plaintiff's net monthly income to be $1,645.78. Order of Ct. at 1, Dec. 8, 2000, Nutaitis, No. 00-0592 Support. Since neither party appealed that order, this determination will be considered final. ~ N.T. 4, 5. The recommended child support order indicated Defendant's net monthly income to be $2,720.48. Order of Ct. at 1, Dec. 8, 2000, Nutaitis, No. 00-0592 Support. Since neither party appealed that order, this determination will be considered final. ~2 N.T. 23-24. ~3 N.T. 24, 35. Plaintiff testified that she was worried that her current car might develop mechanical problems. N.T. 36. ~4 N.T. 33. The second mortgage had been taken out for the purpose of debt consolidation, and the money received through this transaction had been used to pay debts of both Plaintiff and Defendant. N.T. 29-32. ~5 N.T. 19. 16jcl' migraine headaches and the stomach problems may have resulted from pre-existing conditions. 17 With respect to the allegations of Defendant's alcohol abuse, Plaintiff testified that, on a number of occasions, she had found bottles of alcohol hidden in the marital home. Plaintiff testified that she had marked these bottles, and that, after a day or two, she would return to find the bottles in order to see how much alcohol Defendant had consumed,la Plaintiff testified that the parties' daughter had seen Defendant intoxicated several times.19 Plaintiff also testified that, although Defendant had agreed to stop drinking in the home, she suspected that he had failed to do so because she had continued to find bottles of alcohol in the home.2° Defendant admitted that he had consumed alcohol "occasional[ly]," and that he had been intoxicated in the marital home once, but he denied that he had drunk "heavily" during the marriage.21 With respect to the allegations that Defendant had accused Plaintiff of infidelity, Plaintiff testified that, over the last two years of their cohabitation, Defendant had brought up his suspicions of her infidelity on a monthly basis.22 Defendant admitted this, but presented no credible evidence to substantiate his suspicion of infidelity.23 17 N.T. 12, 19, 27. la N.T. 8. Plaintiff testified that she had determined Defendant had been drinking a pint of whiskey every one to two days. Id 19 N.T. 8-9. Plaintiff also testified that "on one occasion... [Defendant had been] very intoxicated and he . . . [had] picked her [Sara Nutaitis] upside down and [had] held her over the toilet." N.T. 8. Plaintiff, however, did not testify that she had feared for the child's safety at any time during the marriage, and she later testified that Defendant had attempted to protect the child from witnessing arguments between the parties. N.T. 19. 2° N.T. 9. 21 N.T. 45-46. 22 N.T. 10. 23 Defendant, who had been a marine before accepting his current employment, testified that he based his accusations of infidelity on the fact that Plaintiff, while living in Pennsylvania, had contracted a sexually transmitted disease while he had been stationed 4 With respect to the allegations that Defendant had used pornography, Plaintiff testified that she had found pornographic videotapes and other pornographic material in the marital home.24 Although Plaintiff testified that she was offended by the material, she also testified that she had watched the videotapes with her husband.25 She testified that Defendant stopped using pornographic materials in the marital home after she asked him 26 to stop. With respect to the allegations that Defendant had indicated that he wanted a divorce, Plaintiff testified that, during the last two years of cohabitation, Defendant had stated that the parties should begin to date other people, had stayed out of the house until late at night three or four times a week, and had stopped wearing his wedding ring.27 Plaintiff also testified that, in July 2000, Defendant had told her that he would be leaving the marital home by December 2000.28 Defendant testified that he had done so because he had been frustrated that Plaintiff had refused to engage in sexual relations for the eight- or nine-month period preceding July 2000.29 Plaintiff admitted this and testified that she and Defendant had engaged in sexual relations only once a year during most of their marriage. 30 in North Carolina in 1997. N.T. 45. Plaintiff testified that, during the marriage, she has not been romantically involved with anyone outside of the marriage. N.T. 10. 24 N.T. 14, 26. Plaintiff testified that pornographic material had been e-mailed to their computer on a monthly basis for a sixth-month period. Id 25 Id. Plaintiff testified that she had watched the pornographic videotapes only once, but Defendant testified that she had watched the videotapes six times. N.T. 26, 47-48. 26 N.T. 14. 27 N.T. 15-16. Plaintiff also testified that she had stopped wearing her wedding ring at this time. N.T. 17. 28 N.T. 11-12. Plaintiff testified that she had discovered computer files, downloaded by Defendant, which indicated that he was looking for a new residence. N.T. 12-13. Plaintiff had filed a complaint for spousal support in July 2000 but the complaint was dismissed on the ground that she still lived with Defendant. N.T. 13, 28. 29 N.T. 47-48. 3o N.T. 26. Plaintiff also testified that she and Defendant had sought marriage counseling, but that he had refused to go back after a single visit.3~ Defendant admitted this, but testified that he had wanted to keep the marriage together and that, later in the marriage, he had suggested that the parties seek further marriage counseling, which Plaintiff had refused.32 DISCUSSION Statement of Law Alimony Pendente Lite. Under the Divorce Code, courts may award alimony pendente lite, defined as "[a]n order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding," in order to enable a dependent spouse to proceed with the divorce action and to maintain a level of economic equality between the parties. Act of Dec. 19, 1990, P.L. 1240, No. 206, § 2, 23 Pa. C.S.A. § 3103; 23 Pa. C.S.A. § 3702; see Jayne v. Jayne, 443 Pa. Super. 664, 678-79, 663 A.2d 169, 176 (1995); Powers v. Powers, 419 Pa. Super. 464, 467, 615 A.2d 459, 460-61 (1992). "[A] spouse seeking alimony pendente lite who has sufficient assets to meet the needs of the pending litigation and who is equally situated with the other spouse to maintain or defend the action, will not be awarded alimony pendente lite." Id. at 467, 615 A.2d at 460. "[N]otwithstanding the equivalency of spousal support and APL for purposes of computation under the rules of civil procedure, a determination of entitlement in accordance with the traditional test remains a prerequisite to an award of APL." Clause v. Clause, 50 Cumberland L.J. 167, 171 (2001); see Nemchick v. Nemchick, 53 Somerset L.J. 260 (1995); Dietch v. Dietch, 87 Berks L.J. 210 (1995). Spousal Support. Under the Divorce Code, courts may grant spousal support prior to the entry of a divorce decree in order to provide a dependent spouse with financial assistance for living expenses. 23 Pa. C.S.A. § 3702; see McKeawn v. McKeawn, 417 Pa. Super. 520, 523,612 A.2d 1060, 1061 (1992). The court, however, will not impose a duty of spousal support when the dependent spouse voluntarily withdrew from the marital 3~ N.T. 20. 32 N.T. 43, 48-49, 60. home unless the dependent spouse sustains the burden of proving "adequate legal cause" for leaving. McKolanis v. McKolanis, 435 Pa. Super. 103, 106, 644 A.2d 1256, 1257-58 (1994). "[T]he phrase adequate legal cause for leaving is not subject to exact definition. It must be interpreted based on the facts of each case." Clendenning v. Clendenning, 392 Pa. Super. 33, 38, 572 A.2d 18, 21 (1990). While it is not necessary that the dependent spouse present evidence that would also establish grounds for a divorce to show adequate legal cause for leaving, the spouse must show that his or her departure was justified by ongoing "psychological oppression" or other factors and was not done "maliciously or casually on a whim or caprice." Id at 37-39, 572 A.2d at 20-21. Although courts have developed no precise definition of adequate legal cause, a review of applicable case law provides some guidance for a determination of whether a dependent spouse had adequate legal cause for leaving the marital home. E.g., id at 37- 38, 527 A.2d at 20-21. In Brotzman-Smith v. Smith, 437 Pa. Super 509, 650 A.2d 471 (1994), a finding of adequate legal cause was upheld when testimony showed that a husband had told his wife to leave the marital home and that his wife had feared for the safety of her child and herself. Id at 515-16, 650 A.2d at 474. In Clendenning v. Clendenning, the Superior Court held that adequate legal cause existed when a wife testified that she had been "frightened" of her husband and that he had "controlled her life or made her suffer for not doing as he wished." 392 Pa. Super at 39, 572 A.2d at 21. In Rock v. Rock, 385 Pa. Super. 126, 560 A.2d 199 (1989), the Court upheld a finding of adequate legal cause based on testimony by a wife that she feared for the safety of both her child and herself due to her husband's "frightening and erratic behavior" while under the influence of alcohol. Id at 132, 560 A.2d at 202. In Common~vealth ex tel. Loosley v. Loosely, 236 Pa. Super. 389, 345 A.2d 721 (1975), the Court held that adequate legal cause had been established when the evidence showed that a husband who had known that his wife was being treated for a psychiatric disorder had persisted in telling his wife that he wanted a divorce, had argued with her often, and possibly had engaged in an act of physical abuse. Id at 391-92, 345 A.2d at 722. The Court, however, did not find adequate legal cause in Commonwealth ex tel. l/an Wagenen v. l/an Wagenen, 167 Pa. Super. 354, 74 A.2d 740 (1950), in which a wife testified that her husband had accused her of infidelity numerous times, that he "[had gone] into temper tantrums," and that she believed that he had wanted her to leave the marital home. Id. at 355-56, 74 A.2d 740-41, cited in McKolanis, 435 Pa. Super. at 108, 644 A.2d at 1258. Application of Law to Facts Alimony Pendente Lite. In the court's view, the evidence did not support Plaintiff's contention that she is entitled to alimony pendente lite. Alimony pendente lite is granted to enable a dependent spouse to prosecute or defend the divorce proceedings and to maintain a level of economic equality between the parties in that regard. Plaintiff testified that her current income was sufficient both to meet her living expenses and to continue the divorce proceedings. Further, when Defendant's child support obligation is allocated between the parties, the parties' incomes are almost equal. Because Plaintiff has sufficient assets to continue this action while maintaining her current standard of living, and because Defendant does not enjoy an appreciable financial advantage over Plaintiff, Plaintiff is not entitled to an award of alimony pendente lite. Spousal Support. The evidence showed that Plaintiff voluntarily left the marital home; therefore, she had the burden of proving that she had adequate legal cause for doing so. Applying the relevant case law to the facts of this case, it appears that Plaintiff has not sustained this burden. The testimony tended to show that Defendant may have abused alcohol on several occasions, but that Defendant had abstained from drinking in the presence of his family after Plaintiff had asked him to do so. Unlike cases in which a husband became physically abusive after drinking or otherwise frightened his wife or child, testimony indicated that, while Plaintiff had disapproved of Defendant's drinking practices, she had not feared for the safety of either her daughter or herself. The testimony also tended to show that Defendant had periodically accused Plaintiff of infidelity and otherwise indicated that he was dissatisfied with the marital relationship. In the court's view, Defendant's dissatisfaction with the parties' marriage was not an unpredictable consequence of Plaintiff's decision to withhold intimacy from the relationship. Further, unlike cases in which a husband told his wife that he did not want her to be in the marital home, the evidence in this case tended to show that Defendant had not wanted Plaintiff to move out of the marital residence and that he had desired a reconciliation. While it is clear that the parties had been experiencing difficulty in the marriage, and that Plaintiff had ultimately lost interest in preserving the marital relationship, Defendant's conduct did not provide Plaintiff with adequate legal cause to vacate the marital home for purposes of a spousal support action. Stated differently, the behavior by a party to a marriage which would justify the continued imposition upon that party of spousal support, an obligation which arises solely out of the marriage, after the other party has voluntarily withdrawn from the marriage relationship, is not present in this case. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 22nd day of August, 2001, upon consideration of Plaintiff's claims for alimony pendente lite and spousal support, and for the reasons stated in the accompanying opinion, the claims are denied. BY THE COURT, Bruce D. Foreman, Esq. 4409 North Front Street Harrisburg, PA 17110-1709 Attorney for Plaintiff /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Richard C. Rupp, Esq. 355 North 21st Street Camp Hill, PA 17011 Attorney for Defendant 10 11 KRISTI L. NUTAITIS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION Vo CIVIL ACTION - SUPPORT THEODORE J. NUTAITIS, JR., Defendant NO. 00-0592 SUPPORT DR 29,837 KRISTI L. NUTAITIS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - DIVORCE THEODORE J. NUTAITIS, JR., Defendant NO. 00-6578 DIVORCE IN RE: PLAINTIFF'S CLAIMS FOR ALIMONY PENDENTE LITE and SPOUSAL SUPPORT BEFORE OLER~ J. ORDER OF COURT AND NOW, this 22nd day of August, 2001, upon consideration of Plaintiff's claims for alimony pendente lite and spousal support, and for the reasons stated in the accompanying opinion, the claims are denied. BY THE COURT, J. Wesley Oler, Jr., J. Bruce D. Foreman, Esq. 4409 North Front Street Harrisburg, PA 17110-1709 Attorney for Plaintiff Richard C. Rupp, Esq. 355 North 21st Street Camp Hill, PA 17011 Attorney for Defendant