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HomeMy WebLinkAbout1999-879 RANDA J. TODD, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA : : : : v. : DOMESTIC RELATIONS SECTION : : DENNIS M. BERDANIER, : No. 99-879 CIVIL Defendant/Petitioner : PACSES NO. 624110738 ORDER OF COURT th AND NOW , this 6 day of June, 2012, following the Non-Jury trial and upon consideration of the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Petition to Modify GRANTEDTERMINATED. is . The Defendant’s alimony obligation is The termination shall beretroactive to December 22, 2010. By the Court, M. L. Ebert, Jr., J. Ann V. Levin, Esquire Attorney for Plaintiff Lori K. Serratelli, Esquire Attorney for Defendant RANDA J. TODD, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA : : : : v. : DOMESTIC RELATIONS SECTION : : DENNIS M. BERDANIER, : No. 99-879 CIVIL Defendant/Petitioner : PACSES NO. 624110738 OPINION AND ORDER OF COURT Ebert, J., June 6, 2012- Background Before this Court is Mr. Berdanier’s Petition to Modify or terminate alimony payments 1 to Ms. Todd. Mr. Berdanier (“Petitioner”) is 61 years of age and Ms. Todd (“Respondent”) is 65 23 years of age. The parties were married in June of 1984. This was Petitioner’s first marriage and Respondent’s second marriage. The marriage lasted approximately 5 years until 1988-1989 4 when the parties separated. On August 23, 2000, the parties entered into an agreement and 5 stipulation resolving the economic issues of their divorce. On November 29, 2000, an Order was entered for parties to file a praecipe to transmit the record of the August 23, 2000, proceedings so that a final divorce decree could be entered incorporating the terms of the agreement. Pursuant to 6 the agreement, Petitioner was to pay Respondent $500 per month in alimony. 1 Petition to Modify, filed Dec. 22, 2010. 2 Notes of Testimony 4, 40 [hereinafter N.T. __]. 3 N.T. 4, 41. 4 N.T. 4-5. 5 N.T. 3-4; Petitioner’s Exhibit 1 [hereinafter Pet.’s Ex. __]. 6 N.T. 6; Pet.’s Ex. 1. 1 Dennis M. Berdanier Petitioner was employed as a woodworker by the Defense Department in New 7 Cumberland, Pennsylvania for the past 30 years. Pursuant to the FERS retirement system, Petitioner was eligible for retirement after attaining the age of 60 and completing 30 years of 89 service. In October of 2010, Petitioner reached those milestones and retired. Petitioner’s ending 10 salary was approximately $41,000 a year. Currently, Petitioner receives a $1,442.48 monthly 11 annuity payment. Petitioner has a joint checking account and savings account with his current 12 wife with a balance of $1,450 and $3,000, respectively. 13 After retirement, in March 2011, Petitioner was diagnosed with colon cancer. Petitioner’s cancer appears to be in remission after surgery and chemotherapy treatments in 14 2011. As a result of the cancer, Petitioner exhibited symptoms including numbness, depression, 15 nausea, and a decrease in energy level. Additionally, Petitioner has learned that he suffers from scarring on his lung that results in a shortness of breath, a deteriorated lower spine, liver damage, 16 and a herniated abdomen which will require additional surgery. 17 Petitioner stated that his current total household expenses were $3,900 per month. These expenses include all household expenses such as utilities, auto insurance, car payments, 7 N.T. 6-7. 8 N.T. 8. 9 N.T. 8. 10 N.T. 9-11, 28; Pet.’s Ex. 2. 11 N.T. 11-13; Pet.’s Ex. 3. 12 N.T. 35-36. 13 N.T. 13. 14 N.T. 13. 15 N.T. 14. 16 N.T. 14-15. 17 N.T. 31. 2 18 health insurance, student loans, and food. However, these expenses include costs associated with Petitioner’s current wife and thus, the total amount of expenses is less than the $3,900 per 19 month initially estimated. Randa Jean Todd Respondent has an Associate’s degree from Harrisburg Area Community College in 20 Human Services. Respondent was employed for 9.5 years with the Department of Commerce 21 as a crew leader or an interviewer with the Census Bureau. Her employment with the federal 22 government ended in 1991. After working for the Department of Commerce, Respondent worked as the Director of 23 the Domestic Violence Shelter at the Harrisburg YWCA between 1998-1999. Again, this was almost 10 years after the couple separated. Respondent claims that she was fired from the 24 YWCA because she “mentioned” at work that Petitioner had thrown a sawhorse at her. She claims that the YWCA could not have an abused spouse working as a Director of the Domestic 25 Violence Shelter. The Respondent provided no other evidence to support this allegation, and this Court having worked with victims services for many, many years does not find the Respondent’s account of her firing credible. In 1999, Respondent filed for and now receives social security disability in the amount of 26 $855 per month due to back and spine related injuries. Since 2001, Respondent has been 18 N.T. 31-33. 19 N.T. 32-33. 20 N.T. 40. 21 N.T. 41. 22 N.T. 42. 23 N.T. 42. 24 N.T. 43. 25 N.T. 43. 26 N.T. 44, 69. 3 2728 receiving Medicare. Respondent does not receive any other source of income. Respondent has 29 estimated her monthly expenses at $1,441.25. Respondent receives housing assistance from HUD to live in a mid-income apartment for 30 senior citizens. Respondent’s rent is $476 per month but only pays $82 per month out of 31 pocket. Respondent has an Agency on Aging waiver which provides her help through a worker that does chores around the house such as laundry, cooking, cleaning, and grocery shopping five 32 days a week for 2-5 hours per day. Wegman’s provides Respondent with unsold fruits, 33 vegetables and bread. Respondent has, in the past, received assistance from the Lions Club for 34 vision screening and glasses. In addition to the county, state, and federal assistance helping 35 Respondent with living expenses, she has received help from her church community and son. 36 Respondent has been diagnosed with a multitude of medical conditions. Respondent’s past and present medical conditions include, inter alia, breast cancer, atrial defibrillation, shortness of breath, kidney stones, arthritis, shingles, depression, bladder incontinence, visual 37 impairment, obesity, and hypothyroidism. Respondent is on a regimen of medications and 38 vitamins to regulate her illnesses. For the past two years Respondent has been using a wheelchair, however, she can self-transfer in and out of the wheelchair when necessary and 39 operates an accessible van. Although Respondent’s doctors have recommended back surgery, 27 N.T. 45. 28 N.T. 45. 29 Respondent’s Exhibit 9 [hereinafter Res.’s Ex. __]. 30 N.T. 39-40. 31 N.T. 40, 60. 32 N.T. 54. 33 N.T. 60. 34 N.T. 56. 35 N.T. 60. 36 N.T. 51-52. 37 N.T. 52. 38 N.T. 71. 39 N.T. 73. 4 40 she has refused the surgery because “it is just too invasive for [her].” Respondent has qualified 41 to live in a skilled nursing facility, but she has decided to remain living on her own. Discussion “[T]he Divorce Code expressly provides that any alimony order may be modified, suspended, terminated, reinstated or a new order made upon changed circumstances.” McFadden v. McFadden, 563 A.2d 180, 183 (Pa. Super. 1989) (internal quotations omitted). An obligor may seek a modification of an existing alimony order when the changed economic circumstances are continuous and substantial. Id. at 182. “Pennsylvania case law clearly establishes that retirement can serve as the basis for the changed circumstances of a substantial and continuing nature necessary to modify an alimony award.” Id. at 183 (noting that voluntary retirement qualifies as a substantial change). In considering a modification of an alimony award “the court must consider all relevant, including those statutorily prescribed for at 23 Pa.C.S.A. § 3701, Alimony, (b) Relevant Factors (1)-(17).” Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003). The factors enumerated in section 3701 used in determining the “nature, amount, duration and manner of payment of alimony” are as follows: (1) The relative earning and earning capacities of the parties. (2) The ages and the physical, mental and emotional conditions of the parties. (3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits. (4) The expectations and inheritances of the parties. (5) The duration of the marriage. 40 N.T. 72. 41 N.T. 71. 5 (6) The contribution by one party to the education, training or increased earning power of the other party. (7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child. (8) The standard of living of the parties established during the marriage. (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment. (10) The relative assets and liabilities of the parties. (11) The property brought to the marriage by either party. (12) The contribution of a spouse as homemaker. (13) The relative needs of the parties. (14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions). (15) The Federal, State and local tax ramifications of the alimony award. (16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party's reasonable needs. (17) Whether the party seeking alimony is incapable of self-support through appropriate employment. 23 Pa.C.S.A. § 3701(b)(1)-(17). After a review of the record, this Court grants Petitioner’s request to modify or terminate alimony. Petitioner’s voluntary good faith retirement is a change in his economic situation that is both continuous and substantial. See McFadden, 563 A.2d at 183. Petitioner’s changed circumstances allow him the opportunity to demonstrate why the existing alimony order should 6 be modified or terminated. See id. at 184. An analysis of all factors in light of the record has led this Court to conclude that Petitioner’s obligation to provide alimony to Respondent should be terminated. In the case sub judice, the determinative factors weigh in favor of terminating the existing alimony order. Petitioner is now in his early 60s and facing a substantial decrease in earning and earning capacity with his retirement. In addition to a decrease in earning, Petitioner’s health has declined since his diagnosis and treatment of colon cancer. Additionally, Petitioner suffers from depression and other physical conditions, such as scarring of his lungs, which are only now being diagnosed and treated. Furthermore, the record does not indicate that 1) Respondent contributed overly significantly to the marital estate, 2) made extraordinary contributions as the homemaking spouse, or 3) was a factor in increasing Petitioner’s earning capacity during marriage. Regarding the length of marriage, Petitioner and Respondent’s marriage lasted only approximately 5 years, from 1984-1989. During the parties’ period of separation and before their divorce, Petitioner provided Respondent with support. After their divorce in 2000, Petitioner has 42 continued to faithfully pay $500 per month in alimony to Respondent. Petitioner has been supporting Respondent three times longer than the actual length of their marriage. Although this Court is sympathetic to Respondent’s numerous medical conditions, the length of the marriage and cohabitation between Petitioner and Respondent in comparison to the amount of time Petitioner has been paying alimony and would be required to continue to pay alimony with a reduced income, is inequitable. See Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004) (citing DeMarco v. DeMarco, 787 A.2d 1072, 1081 (Pa. Super. 2001)). Therefore, after a review 42 Since November 2010, Petitioner has an arrears balance of $7,711.37 as of Feb. 3, 2012 for payments made to the Pennsylvania State Collection and Disbursement Unit. 7 of the record in consideration of section 3701(b) factors, this Court finds that Petitioner’s alimony obligation is terminated. Accordingly, the following Order is entered: ORDER OF COURT th AND NOW , this 6 day of June, 2012, following the Non-Jury trial and upon consideration of the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Petition to Modify GRANTEDTERMINATED. is . The Defendant’s alimony obligation is The termination shall beretroactive to December 22, 2010. By the Court, M. L. Ebert, Jr., J. Ann V. Levin, Esquire Attorney for Plaintiff Lori K. Serratelli, Esquire Attorney for Defendant 8