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HomeMy WebLinkAbout2015-6636 SUSAN M. WHEELER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 2015-06636 CIVIL : MICHAEL J. WHEELER, : CIVIL ACTION – LAW Defendant : IN DIVORCE : IN RE: PLAINTIFF’S PETITION TO ENFORCE DECREE OF DIVORCE AND MARITAL AND SEPARATION AGREEMENT AND DEFENDANT’S PETITION TO TERMINATE SPOUSAL SUPPORT/ALIMONY OPINION and ORDER BREWBAKER, J., May 23, 2016 In the present matter, Plaintiff Susan M. Wheeler has filed a Petition to Enforce Decree of Divorce and Marital and Separation Agreement, seeking to enforce court orders from Virginia. The Virginia courts ordered Defendant Michael J. Wheeler to make spousal support payments owed to Plaintiff that were in arrears, as well as surrender half of the net proceeds from the sale of certain property as required by the parties’ divorce agreement. Defendant responded by filing a Petition to Terminate Spousal Support on the basis of changed circumstances in that he has voluntarily retired. Plaintiff currently resides in Norfolk, Virginia, while Defendant currently resides in Boiling Springs, Pennsylvania in Cumberland County. The parties were married on May 28, 1976 and separated around March 1, 2007. Ultimately, the parties reached an agreement concerning the distribution of their marital assets and the payment of ongoing spousal support to Plaintiff, which was reflected in a Marital and Separation Agreement (“Agreement”) dated May 11, 2010. The Virginia Circuit Court for the City of Virginia Beach incorporated the Agreement into a Decree of Divorce entered on November 10, 2010. 1 As part of that Agreement, Defendant agreed to pay Plaintiff alimony/spousal support in the amount of $8,500.00 per month. These payments were to cease “upon the death of either party, the remarriage of \[Plaintiff\], or \[Plaintiff’s\] continual cohabitation in a relationship analogous to a marriage for a period in excess of one year.” Plaintiff’s Petition to Enforce, Ex. B, §2.1. Additionally, the parties owned property in White Sulphur Springs, West Virginia (“Greenbrier Property”), which was to be sold, with the net proceeds from the sale to be divided equally between the parties. Defendant made regular payments to Plaintiff in the required amount until mid-2014. After Defendant ceased making payments, Plaintiff sought to enforce the spousal support provisions in Virginia, and on October 2, 2014, the Virginia Court entered an order finding Defendant to be in civil contempt and ordered him to pay $34,000.00 in arrears, $1,087.50 in attorney fees, and resume making regular spousal support payments. Defendant was present at the October 2, 2014 hearing and thereafter satisfied the terms of the contempt order. He also made payments in November and December of 2014. Beginning in January 2015, after notifying Plaintiff of his intention to do so, Defendant again stopped making spousal support payments. In May 2015, Plaintiff brought another enforcement action and on May 12, 2015 the Virginia Court entered another order finding Defendant in civil contempt. The court calculated Defendant’s arrearage at that time to be $42,500.00, and also ordered Defendant to pay $1,173.00 in attorney fees. Defendant was not present at that hearing and has not satisfied the mandates of the May 12, 2015 order. Moreover, in early 2014, Plaintiff learned that the Greenbrier Property had been sold in December 2013. Plaintiff filed an action in Virginia to enforce the Agreement under which she 1 In Virginia, ongoing support payments made after the conclusion of a divorce are known as Spousal Support, while in Pennsylvania they are referred to as Alimony. For purposes of clarity, the term “spousal support” will be used. was to receive half of the net proceeds from the sale. On May 29, 2015, a hearing was held and the Virginia Court determined that Plaintiff’s share from the sale of the Greenbrier Property was $83,593.92. The court entered an order against Defendant in the amount of $83,593.92 plus $1,729.00 in attorney fees. The court also indicated that six percent interest would begin to accrue on that amount as of May 15, 2015. Defendant has not complied with the May 29, 2015 order. In December 2015, Plaintiff’s counsel forwarded the Decree of Divorce and Agreement to the Cumberland County Prothonotary’s Office, which was registered for enforcement. On January 26, 2016, Plaintiff filed a Petition to Enforce the various Virginia court orders for spousal support arrears and proceeds from the sale of the Greenbrier Property, plus attorney fees. On March 1, 2016, Defendant filed an Answer to Plaintiff’s petition, as well as a Petition to Terminate Spousal Support/Alimony. A hearing was held on April 20, 2016, and briefs from both parties in support of their relative petitions were filed on May 13, 2016. In her Petition to Enforce, Plaintiff requested the following: (1) that Defendant pay $144,500 in outstanding spousal support from January 2015 to May 2016, (2) that Defendant resume and continue to make spousal support payments in accordance with the Agreement, (3) that Defendant pay $83,593.92 and attorney’s fees of $1,729, plus six percent interest as of May 15, 2015, and (4) that Defendant pay $7,000 in attorney’s fees in connection with this enforcement action. Defendant counters that this Court does not have jurisdiction to enforce the Virginia order pursuant to res judicata because the issues regarding spousal support and the distribution of the Greenbrier Property net proceeds have already been decided in Virginia. The Pennsylvania Divorce Code provides in relevant part: Whenever a person subject to a valid decree of a sister state or territory for the distribution of marital property or for the payment of alimony, . . . or the property of that person is found within this Commonwealth, the obligee of the decree may petition the court where the obligor or the property of the obligor is found to register, adopt as its own and enforce the decree as a properly issued and authenticated decree of a sister state or territory. Upon registration and adoption, such relief and process for enforcement as is provided or prescribed by law in similar cases originally commenced in this Commonwealth shall be available. . . . The obligor shall have whatever defenses and relief are available to the obligor in the state or territory which issued the original decree and may question the jurisdiction of that court if not otherwise barred. 23 Pa. C.S. §3705. In the present case, Plaintiff registered the Agreement from Virginia in Pennsylvania and provided copies of the orders from Virginia in accordance with this section. Contrary to Defendant’s arguments, the doctrine of res judicata does not apply to Plaintiff’s action in Pennsylvania. Plaintiff is not seeking to relitigate the issue of whether Defendant owes spousal support or if he is required to turn over half the proceeds from the sale of the Greenbrier Property. Those issues have already been addressed by the Virginia Court through several orders. Instead, Plaintiff is seeking to enforce the orders from the Virginia Court resulting from Defendant’s violations of the Agreement, which the Virginia Court has already determined requires Defendant to make monthly spousal support payments and turn over half the proceeds from the Greenbrier sale. This action is expressly permitted by 23 Pa. C.S. §3705, and this Court is required under the Full Faith and Credit Clause of the United States Constitution to enforce the prior decisions by Virginia. U.S. Const. Art. IV §1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.”). Therefore Defendant’s arguments are without merit, and Plaintiff’s Petition to Enforce will be granted. Turning next to Defendant’s Petition to Terminate Spousal Support, Defendant points to 23 Pa. C.S. § 3701(e) as permitting a modification or termination of spousal support if there are changed circumstances, and argues that Section 3.18 of the Agreement permits a court to modify spousal support. Defendant contends that he voluntarily retired at the end of 2014 and is without a source of income other than the proceeds from his portion of the distributed marital estate. As a result, any spousal support payments made at this point will be coming from the divided marital estate, essentially allowing Plaintiff to “double dip.” Plaintiff counters that Virginia law, not Pennsylvania law, governs whether the Court can modify the Agreement. Plaintiff further argues that Virginia law does not permit termination of spousal support absent death, remarriage, or cohabitation of the supported spouse, unless the divorce agreement permits otherwise. While we are highly sympathetic to Defendant’s arguments, we are constrained to agree with Plaintiff. Our Superior Court has held that a Pennsylvania court cannot use Pennsylvania law to modify the terms of an agreement entered in another jurisdiction when the agreement states that the law of the originating state governs the agreement. Schifano v. Schifago, 471 A.2d 839, 843 (Pa. Super. 1984). In the present case, the Agreement states that it is to be “construed and governed in accordance with the laws of the Commonwealth of Virginia.” Plaintiff’s Petition to Enforce, Ex. B, §5.8. Therefore, Virginia law, not Pennsylvania law, must be used to interpret the Agreement. Under Virginia law, if a party enters into a written agreement for the payment of spousal support prior to the entry of a final decree, a court may only enter orders consistent with that 2 agreement. Va. Code Ann. §20-109(c). In Newman v. Newman, 593 S.E.2d 533 (Va. Ct. App. 2004), the Virginia Court of Appeals held that Section 20-109(c) prohibits a divorce settlement 2 Va. Code Ann. §20-109(c) states in relevant part: \[I\]f a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract. Va. Code Ann. §20-109(c). agreement from being judicially modified or terminated at the unilateral request of one party absent the agreement’s express authorization for such relief. Id. at 539. The Agreement in the present case regrettably does not contain language permitting such modification. The provisions in the Agreement cited by Defendant are found in the section of the Agreement pertaining to “Enforcement” and therefore do not authorize modification of the 3 Agreement; rather, those provisions specifically refer to how the Court may ensure compliance with the terms of the Agreement. The only stated reasons in the Agreement for modification or termination of spousal support are “upon the death of either party, the remarriage of \[Plaintiff\], or \[Plaintiff’s\] continual cohabitation in a relationship analogous to a marriage for a period in excess of one year.” Plaintiff’s Petition to Enforce, Ex. B, §2.1. There is absolutely nothing in the Agreement that otherwise allows for a Court-ordered modification or termination of spousal support based on a change of circumstances. We are constrained to enforce the orders from Virginia and order that Defendant make payment on the spousal support payments in arrears and continue to make payments in the future, as well as turn over to Plaintiff half of the proceeds from the sale of the Greenbrier 4 Property as ordered by the Virginia Court. We sympathize with Defendant and agree that Plaintiff is in essence “double dipping” by continuing to receive spousal support payments which will come from Defendant’s portion of the divided marital property. However, that is the contract Defendant signed with Plaintiff, and Defendant must live with that agreement. Finally, 3 The Defendant refers to the following two provisions of the Agreement: “The parties \[further\] acknowledge that the court has the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered with regard to the property rights of the parties….” Agreement, Pg. 13 of 18 (emphasis added). “The parties further acknowledge that after entry of the final divorce decree, the proceedings may be re- opened by either party to request additional orders to effectuate previous orders pertaining to the property rights of the parties.” Agreement, Pg. 13 of 18 (emphasis added). 4 Because we agree with Plaintiff that Virginia law applies, we do not address her alternative arguments applying Pennsylvania law to the issue of modification or termination of spousal support. as the prevailing party, pursuant to Section 5.2 of the Agreement, we will order that Plaintiff’s attorney fees in the amount of $7,000 be paid by Defendant. ORDER AND NOW, this _____ day of May, 2016, upon consideration of Plaintiff’s Petition to Enforce Decree of Divorce and Marital and Separation Agreement, and Defendant’s Petition to Terminate Spousal Support/Alimony, and after a hearing and careful consideration of briefs from GRANTED both parties, it is hereby ORDERED that Plaintiff’s Petition is and Defendant’s DENIED Petition is . It is further ORDERED as follows: 1.Defendant shall pay to Plaintiff $144,500 in outstanding spousal support arrears within thirty (30) days of the date of this Order; 2.Defendant shall immediately resume payment of the monthly spousal support obligation as outlined in the parties’ Decree of Divorce and Marital and Separation Agreement; 3.Defendant shall immediately pay to Plaintiff $83,593.92 plus attorney’s fees in the amount of $1,729 plus 6% interest as of May 15, 2015; and 4.Defendant shall pay to Plaintiff $7,000 for counsel fees and expenses within thirty (30) days of the date of this Order. BY THE COURT, __________________________ Jessica E. Brewbaker, J. SUSAN M. WHEELER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : No. 2015-06636 CIVIL : MICHAEL J. WHEELER, : CIVIL ACTION – LAW Defendant : IN DIVORCE : ORDER rd AND NOW, this 23 day of May, 2016, upon consideration of Plaintiff’s Petition to Enforce Decree of Divorce and Marital and Separation Agreement, and Defendant’s Petition to Terminate Spousal Support/Alimony, and after a hearing and careful consideration of briefs from GRANTED both parties, it is hereby ORDERED that Plaintiff’s Petition is and Defendant’s DENIED Petition is . It is further ORDERED as follows: 1.Defendant shall pay to Plaintiff $144,500 in outstanding spousal support arrears within thirty (30) days of the date of this Order; 2.Defendant shall immediately resume payment of the monthly spousal support obligation as outlined in the parties’ Decree of Divorce and Marital and Separation Agreement; 3.Defendant shall immediately pay to Plaintiff $83,593.92 plus attorney’s fees in the amount of $1,729 plus 6% interest as of May 15, 2015; and 4.Defendant shall pay to Plaintiff $7,000 for counsel fees and expenses within thirty (30) days of the date of this Order. BY THE COURT, __________________________ Jessica E. Brewbaker, J. Quintina M. Laudermilch, Esquire th 635 N. 12 Street, Suite 101 Lemoyne, PA 17043 For the Plaintiff Lindsay Gingrich Maclay, Esquire 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 For the Defendant :rlm