HomeMy WebLinkAbout2012-4250
THERESA DELUCA CHIPLEY : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
MICHAEL A. CHIPLEY :
Defendant : NO. 12 – 4250 CIVIL TERM
IN RE: PLAINTIFF’S PETITION FOR BIFURCATION
BEFORE PECK, J.
ORDER OF COURT
th
AND NOW, this 4 day of June, 2013, upon consideration of Plaintiff’s Petition
and Amended Petition for Bifurcation, and following a hearing held on April 25, 2013,
and upon this Court’s finding that sufficient grounds exist to grant a divorce, the petitions
are 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, II, Esq.
3.Plaintiff and Defendant shall continue to maintain each other as a beneficiary
of any and all life insurance policies, employment benefits and other policies
each currently owns until further Agreement of the parties or Order of Court on
equitable distribution.
4.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.
5.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 and Defendant
shall take whatever steps necessary to preserve Plaintiff and Defendant’s rights
in any retirement interest, pension or other retirement funds or accounts.
6.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.
7.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.
Defendant may reallocate his retirement accounts to protect them from
downward market fluctuation to the extent possible, so long as such
management actions are based upon the sound advice, and written proof
thereof, of a qualified financial planner.
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8.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.
9.This Court shall retain jurisdiction to enforce the provision of this bifurcation
order.
BY THE COURT,
_______________________
Christylee L. Peck, J.
E. Robert Elicker, II, Esq.
9 North Hanover Street
Carlisle, PA 17013
Divorce Master
N. Christopher Menges, Esq.
145 East Market Street
York, PA 17401
Attorney for Plaintiff
Jeff R. Lawrence, Esq.
2 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
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THERESA DELUCA CHIPLEY : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
MICHAEL A. CHIPLEY :
Defendant : NO. 12 – 4250 CIVIL TERM
IN RE: PLAINTIFF’S PETITION FOR BIFURCATION
BEFORE PECK, J.
OPINION and ORDER OF COURT
PECK, J., June 4, 2013.
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 Cumberland County,
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Pennsylvania, in response to which Defendant raised certain economic issues. For
disposition at this time is Plaintiff’s Petition and Amended Petition for Bifurcation, which
requests, inter alia, that this Court bifurcate the divorce action from the related economic
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issues. Defendant, in his Answer to Plaintiff’s Petition for Bifurcation, contested that
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grounds existed to grant a divorce and that he was unwilling to consent thereto. Plaintiff
thereafter filed an Affidavit under Section 3301(d) of the Divorce Code alleging that the
parties had been separated from November, 2009, that they have continued to live
1
Compl., filed July 9, 2012.
2
Obj. to Divorce Compl., filed Aug. 6, 2012.
3
Pet. for Bifurcation, filed Oct. 31, 2012; Am. Pet. for Bifurcation, filed Nov. 6, 2012.
4
Answer to Pet. for Bifurcation, filed Dec. 13, 2012; See 23 Pa.C.S.A.§3301(c), (d).
separate and apart for a period of at least two years and that the marriage was
5
irretrievably broken. Defendant failed to answer the Affidavit. A hearing on the petitions
was held on April 25, 2013. Defendant failed to appear at the hearing due to his
incarceration, but was represented at the hearing by defense counsel.
For the reasons stated in this opinion, the petition will be granted.
STATEMENT OF FACTS
Plaintiff, Theresa Chipley, is an adult individual who presently resides in Mount
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Holly Springs, Cumberland County, Pennsylvania. Defendant, Michael A. Chipley, is an
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adult individual who is presently incarcerated in West Virginia. The parties were
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married on May 7, 1994, and separated in November, 2009. The parties have no
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biological children. The parties had six adopted children, but both parties’ parental rights
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to the children have been terminated. Defendant was incarcerated in August, 2010 from
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a conviction for molesting his two eldest adopted children. Plaintiff’s complaint, which
was filed on July 9, 2012, was based upon an allegation that there was an irretrievable
5
Aff. under Section 3301(d) of the Divorce Code, filed December 27, 2012.
6
Notes of Test., Apr. 25, 2013, p. 3 (hereinafter “N.T. at ___.”).
7
N.T. at 4; Am. Pet. for Bifurcation, ¶ 2 filed Nov. 6, 2012.
8
N.T. at 3, 6; Am. Pet. for Bifurcation, ¶ 3 filed Nov. 6, 2012; Answer to Pet. for Bifurcation, ¶ 3 filed
Dec. 13, 2012.
9
N.T. at 4.
10
N.T. at 4-5.
11
N.T. at 4, 8.
2
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breakdown of the marriage. Defendant filed an objection to the economic claim
13
contained in the complaint.
Following the parties’ separation, and continuing until the time of the April 25,
2013 hearing, Plaintiff has resided with a man other than her spouse in Mount Holly
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Springs, Cumberland County, Pennsylvania. Plaintiff asserts that, once the parties’
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divorce becomes final, she and the man she lives with intend to marry. Plaintiff testified
that, since the time of separation, virtually all of the marital assets have been disposed of
1617
or equitably distributed. The marital home was foreclosed upon. The parties had three
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vehicles during marriage. They agreed outside of court to give two of the vehicles to
Defendant, for which Plaintiff signed off on her rights to those vehicles, and one vehicle
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was given to Plaintiff, for which Defendant signed over his rights. There is no spousal
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support or alimony pendent lite paid to or by either party.
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Plaintiff is a full time student and works part-time as a nanny. Defendant
formerly had employment as a postal worker but lost his job upon his criminal
12
Compl., ¶8, filed July 9, 2012.
13
Obj. to Divorce Compl., ¶ 2 filed Aug. 6, 2012.
14
N.T. at 6, 9.
15
N.T. at 9.
16
N.T. at 9-10.
17
N.T. at 10.
18
N.T. at 10.
19
N.T. at 10.
20
N.T. at 6.
21
N.T. at 3.
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convictions. Defendant represented that he has paid off all of the parties’ marriage
2324
debts. Plaintiff suffers from Crohn’s disease and frequent kidney stones. Neither party
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currently has health insurance. Plaintiff seeks this bifurcation and grant of divorce, in
26
part, so that she may remarry and obtain health insurance.
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,
22
N.T. at 7.
23
Obj. to Divorce Compl., ¶ 2 filed Aug. 6, 2012.
24
N.T. at 7.
25
N.T. at 6-7.
26
N.T. at 9-10.
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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
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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,
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,
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where grounds have been established for the divorce as provided by statute, and where
27
23 Pa. C.S. §3323(c.1)(1), referring to 23 Pa. C.S. §3323(g).
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the moving party has demonstrated that compelling circumstances exist for the entry of
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the decree of divorce, and sufficient economic protections have been provided for the
29
other party during the pendency of the economic disposition proceedings.
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 Plaintiff
filed an Affidavit stating that they have been separated for over two years and that the
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parties’ marriage is irrevocably broken. Defendant failed to answer the Affidavit. At the
hearing, Defense counsel conceded Defendant’s failure to answer and agreed that
grounds existed to grant a divorce. Pursuant to 23 Pa. C.S. §3323 (g)(3), sufficient
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grounds have been established to terminate the marriage.
Further, Plaintiff has demonstrated that compelling circumstances exist for the
32
entry of the decree of divorce. Plaintiff and Defendant have lived separated and apart
for over three years. Plaintiff currently lives with and is engaged to a man who is not her
28
23 Pa. C.S. §3323(c.1)(2)(i).
29
23 Pa. C.S. §3323(c.1)(2)(ii).
30
Aff. under Section 3301(d) of the Divorce Code, filed Dec. 27, 2012.
31
In addition, although not raised by either party, it appears sufficient grounds exist to grant the divorce
under 23 Pa.C.S.A.§3301(a)(5), providing that fault grounds for divorce are established if a litigant has
been sentenced to imprisonment for a term of two or more years upon conviction of having committed a
crime. Uncontradicted testimony at the hearing established that Defendant was incarcerated in August,
2010 for the molestation of the parties’ adopted children and that his first parole hearing is not scheduled
until May, 2014.
32
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.
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spouse, whom she intends to marry once the parties’ divorce is finalized. Plaintiff has
demonstrated convincing evidence that finalizing the parties’ divorce would permit her to
move on with her life. Plaintiff has not had health insurance for over a year. Plaintiff
suffers from Crohn’s disease and kidney stones and requires frequent medical care.
Defendant cannot provide health insurance to Plaintiff. No spousal support or alimony
pendente lite is being paid to or by either party. Plaintiff is unable to afford health
insurance. Plaintiff’s fiancée is employed with health insurance and can provide
immediate health insurance coverage to Plaintiff in the event that a divorce is entered for
the parties’ hereto. 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 evidence reveals that Plaintiff has cooperated in the
resolution of economic issues, albeit outside of court, 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 ago. Defendant does
not require support to live as he has been incarcerated since August, 2010 and will
continue to be so until a minimum of May, 2014. No funds to support the parties’ home
are required because it has already been foreclosed upon. No funds to support children
are required as both parties’ parental rights to their adopted children have been
terminated. Defendant represented to this Court that all major debts incurred by the
33
parties’ during marriage have been paid. An order which would protect the equitable
distribution rights of each party, which includes provisions enjoining a party from
33
Obj. to Divorce Compl., Aug. 6, 2012.
8
disposing of any marital property, and preserving assets and debt values will adequately
provide for the economic protection of both parties. 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, this Court concludes: (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
th
AND NOW, this 4 day of June, 2013, upon consideration of Plaintiff’s Petition
and Amended Petition for Bifurcation, and following a hearing held on April 25, 2013,
and upon the Court’s finding that sufficient grounds exist to grant a divorce, the petitions
are 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, II, Esq.
9
3.Plaintiff and Defendant shall continue to maintain each other as a beneficiary
of any and all life insurance policies, employment benefits and other policies
each currently owns until further Agreement of the parties or Order of Court on
equitable distribution.
4.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.
5.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 and Defendant
shall take whatever steps necessary to preserve Plaintiff and Defendant’s rights
in any retirement interest, pension or other retirement funds or accounts.
6.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.
7.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.
10
Defendant may reallocate his retirement accounts to protect them from
downward market fluctuation to the extent possible, so long as such
management actions are based upon the sound advice, and written proof
thereof, of a qualified financial planner.
8.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.
9.This Court shall retain jurisdiction to enforce the provision of this bifurcation
order.
BY THE COURT,
s/ Christylee L. Peck
Christylee L. Peck, J.
E. Robert Elicker, II, Esq.
9 North Hanover Street
Carlisle, PA 17013
Divorce Master
N. Christopher Menges, Esq.
145 East Market Street
York, PA 17401
Attorney for Plaintiff
11
Jeff R. Lawrence, Esq.
2 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
12