HomeMy WebLinkAbout2000-4155 Civil
MARJORIE R. MCMULLEN,
alk/a MARJORIE R. KUTZ
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
RONALD E. KUTZ
NO. 2000 - 4155 CIVIL TERM
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., May
, 2006
Plaintiff has appealed our order of February 21,2006 granting her legal fees in the
amount of $1200. She contends that we erred in failing to grant her total claim for
$2931.99 in counsel fees.
Plaintiff filed a "Petition to Enforce Marriage and Property Settlement
Agreement" on September 13, 2005. It stemmed from the defendant's failure to pay
$250 in child support for their oldest son in July and August of2005, as well as for his
alleged failure to pay plaintiff her full share of his military pension. At the hearing on her
petition plaintiff claimed that she was entitled to $1292.12 representing a $792.12
shortfall in retirement benefits and $500 in unpaid child support. 1 After hearing the
evidence, we found that the defendant owed only $292.12 in unpaid retirement benefits
as well as $500 in child support for July and August.
The evidence showed that defendant retired from the military early in 2005.
Under the Marriage and Property Settlement Agreement, plaintiff was to receive 35% of
his military pension. Eventually plaintiff s portion was forwarded directly to her by the
Defense Finance and Accounting Service. Until that time the defendant made payments
1 See Plaintiff's Exhibit 7.
NO. 2000 - 4155 CIVIL TERM
to her on a timely basis every month. However, the amount he paid was less than
plaintiff received from DF AS. Defendant explained (and the evidence confirmed) that he
was sending her 35% of his net retirement check. 2 He also explained that he stopped
paying support for his son over the summer because the child had graduated from high
school, was working full time, and had not yet begun to attend college.3 While his
uncounseled interpretation of the Marriage and Property Settlement Agreement was
reasonable, we found that it was also erroneous.
We did not, however, feel that it was reasonable for plaintiff to incur almost
$3000 in legal fees to litigate this matter. We note that there was no attempt by her
counsel to resolve these issues short of involving the courts. Counsel's first contact with
defendant in connection with these matters was a letter which accompanied the "Petition
to Enforce".4 The letter demanded payment of all sums due plus counsel fees. However,
there was no breakdown of what sums were due, or the counsel fees being claimed.
The issues involved in this case were simple and straightforward. Further, the
record is devoid of any attempt by plaintiff, or her counsel, to resolve the issues or to
keep counsel fees reasonable. Under those circumstances, we felt the award of$1200 for
counsel fees (about 1.5 times the amount awarded for the underlying dispute) was
reasonable.
DATE
Edward E. Guido, 1.
2 DF AS sent her 35% of his gross check.
3 We note that the defendant timely paid $1000 support for his other children. The marital agreement
provided that child support would continue after age 18 if the child attended college.
4 See Plaintiff's Exhibit 12.
2
NO. 2000 - 4155 CIVIL TERM
Lisa M. Coyne, Esquire
3901 Market Street
Camp Hill, Pa. 17011
Mark F. Bayley, Esquire
64 South Pitt Street
Carlisle, Pa. 17013
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