HomeMy WebLinkAbout2010-4106
ALAN T. DICK, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 10-4106 CIVIL TERM
:
ALLISON M. DICK, : CIVIL ACTION – LAW
Defendant : IN DIVORCE
IN RE: DEFENDANT’S PETITION FOR SPECIAL RELIEF
BEFORE EBERT, J.
ORDER OF COURT
th
AND NOW
, this 8 day of July, 2011, upon consideration of Defendant’s Petition for
Special Relief and after oral arguments,
IT IS HEREBY ORDERED AND DIRECTED
that Defendant’s Petition for Special
DENIED
Relief is .
By the Court,
__________________________________________
M.L. Ebert, Jr., J.
Thomas W. Gregory, Jr., Esquire
Attorney for Plaintiff
201 N. George Street, Suite 200
York, PA 17401
P. Richard Wagner, Esquire
Attorney for Defendant
2233 N. Front Street
Harrisburg, PA 17110
ALAN T. DICK, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 10-4106 CIVIL TERM
:
ALLISON M. DICK, : CIVIL ACTION – LAW
Defendant : IN DIVORCE
IN RE: DEFENDANT’S PETITION FOR SPECIAL RELIEF
BEFORE EBERT, J.
OPINION AND ORDER OF COURT
Ebert, J., July 8, 2011 –
PROCEDURAL HISTORY
Case No. 250 Support 2010 preceded the current case, and a final judgment was entered
on December 13, 2010. Plaintiff, Alan T. Dick, filed his Complaint in the current case on June
18, 2010, seeking a decree of divorce and equitable distribution of marital property. Defendant,
Allison M. Dick, filed her Answer with Additional Counts on August 25, 2010. Defendant filed
her Petition for Special Relief on February 22, 2011, alleging that she is entitled to contribution
from Plaintiff toward the mortgage, taxes, and insurance on the marital home to preserve the
asset.
STATEMENT OF FACTS
Plaintiff, Alan T. Dick, and Defendant, Allison M. Dick, were married on December 29,
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1998. The parties separated on or about April 4, 2010. Defendant and her three minor children
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continue to reside in the marital home. The home is subject to a mortgage with a monthly
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payment requirement of approximately $1,500.
1
Plaintiff’s Complaint, filed June 18, 2010, ¶ 4 [hereinafter Pl.’s Compl. ¶ __.].
2
Pl.’s Compl. ¶ 9.
3
Defendant’s Petition for Special Relief, filed Feb. 22, 2011, ¶ 4, 5 [hereinafter Def.’s Pet. Special Relief ¶ __.].
4
Def.’s Pet. Special Relief ¶ 7, 8.
1
Proceedings were previously held before Michael R. Rundle, Support Master for the
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Cumberland County Domestic Relations Office, on July 14, 2010. At that time, the Findings of
Facts stated that no payments had been made by either party on their mortgage since February,
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2010. The Support Master’s Report and Recommendation stated that Rule 1910.16-6(e) of the
Pennsylvania Rules of Civil Procedure did not warrant a mortgage adjustment when the spouse
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occupying the marital residence was not paying the mortgage. On July 19, 2010, upon
consideration of the Support Master’s Report and Recommendation, the Interim Order of Court
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was entered. On August 6, 2010, Allison filed Exceptions to the Interim Order of Court,
alleging that the Support Master had misapplied Pa.R.C.P. 1910.16-6(e) in that Allison was
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occupying the marital residence and had insufficient income to pay the mortgage. Allison
further alleged that the Support Master erred when he did not award the mortgage adjustment to
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her. On December 13, 2010, the Honorable Albert H. Masland dismissed Allison’s Exceptions
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and affirmed the interim order.
In the current case, Plaintiff’s Complaint alleges that this marriage is irretrievably broken,
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and he seeks a decree in divorce as well as equitable distribution of the marital property.
Defendant’s Petition for Special Relief alleges that, although there was a period of time when
payments were not made on the mortgage, Defendant’s father has attempted to preserve the
13
integrity of the asset by making over $15,000 in payments on the mortgage. Defendant alleges,
5
Support Master’s Report and Recommendation, Case No. 250 Support 2010, filed Jul. 19, 2010, 1 [hereinafter
Supp. Master’s Report Rec. __.].
6
Supp. Master’s Report Rec. 1.
7
Supp. Master’s Report Rec. 3.
8
Interim Order of Court, Case No. 250 Support 2010.
9
Pl.’s Exceptions to the Interim Order of Court Dated July 19, 2010, Case No. 250 Support 2010, filed Aug. 6,
2010, ¶ 6A [hereinafter Pl.’s Exceptions to Interim Order ¶ __.].
10
Pl.’s Exceptions to Interim Order ¶ 6D.
11
In Re: Pl.’s Exception to Supp. Master’s Report Rec., Case No. 250 Support 2010, filed Dec. 14, 2010.
12
Pl.’s Compl. ¶ 8, 11.
13
Def.’s Pet. Special Relief ¶ 11.
2
therefore, that she is entitled to contribution from Plaintiff toward the mortgage, taxes, and
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insurance on the marital home and asks that this court grant her relief.
DISCUSSION
The most appropriate method for Defendant to pursue the relief she is seeking is to file a
new claim for support with the Cumberland County Domestic Relations Office. It would appear
from the record that Defendant Allison Dick’s Father is loaning her money to make mortgage
payments on the marital home. Accordingly, unlike the scenario which was presented to the
Support Master and Judge Masland, it would appear that the Defendant is now making mortgage
payments. It is therefore appropriate that she seek a modification of support pursuant to
Pa.R.C.P. No. 1910.12 and 1910.19. The Defendant may file a new claim with the Domestic
Relations Office that includes the changes in circumstance which have taken place since the
original order was issued in the previous support case.
Accordingly, the following order will be entered:
ORDER OF COURT
th
AND NOW
, this 8 day of July, 2011, upon consideration of Defendant’s Petition for Special
Relief and after oral arguments,
IT IS HEREBY ORDERED AND DIRECTED
that Defendant’s Petition for Special
DENIED
Relief is .
By the Court,
__________________________________________
M.L. Ebert, Jr., J.
14
Def.’s Pet. Special Relief ¶ 14.
3
Thomas W. Gregory, Jr., Esquire
Attorney for Plaintiff
201 N. George Street, Suite 200
York, PA 17401
P. Richard Wagner, Esquire
Attorney for Defendant
2233 N. Front Street
Harrisburg, PA 17110
4