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CHARLES R. HESS v. ALVERTA A. HESS (04/13/84)

filed: April 13, 1984.

CHARLES R. HESS
v.
ALVERTA A. HESS, APPELLANT



NO. 16 HARRISBURG, 1982, Appeal from the Order of December 7, 1981, in the Court of Common Pleas of Dauphin County, Civil Division, at No. 3559 S 1980.

COUNSEL

John W. Purcell, Jr., Harrisburg, for appellant.

John Stewart Davidson, Hershey, for appellee.

Wickersham, Beck and Montemuro, JJ.

Author: Beck

[ 327 Pa. Super. Page 281]

In this appeal from the final decree filed December 7, 1981, denying appellant's exceptions and approving the Special Master's report in a divorce action, appellant Alverta A. Hess claims that she was erroneously denied alimony and counsel fees. Appellee Charles R. Hess initiated the complaint in divorce in July 1980. Alverta answered the complaint with a counterclaim for alimony, alimony pendente lite, counsel fees, and equitable distribution of marital property.

The final divorce decree was entered October 1980, with the court reserving jurisdiction over economic matters. At a Special Master's hearing in June 1981 Alverta waived her claim to equitable distribution and proceeded on her claim for alimony, alimony pendente lite, and counsel fees. The Special Master's report denied alimony, made no mention of alimony pendente lite,*fn1 and recommended that fees and costs be divided between the parties. The Court of Common Pleas, Dauphin County, accepted the report and overruled the exceptions. Alverta claims on appeal that the Master erred in the statutory interpretation of 23 P.S. § 501(a), (b), (c) and that she is entitled to alimony by the weight of the evidence.

[ 327 Pa. Super. Page 282]

We agree that the lower court erred in its statutory interpretation of 23 P.S. § 501(a), (b), (c) and accordingly vacate and remand.

Alverta and Charles were married in 1947 and separated after twenty-seven years of married life in 1974. Divorce proceedings began after six years of separation. Five children were born to the marriage, all of whom were adults at the times relevant to the hearings and decrees. Alverta, fifty-three at the time of divorce, had primary responsibility for raising the children and taking care of the marital household. In addition, she held jobs outside the home, usually as a laborer in a shoe factory. Charles was under a support order for $45 per week which ended November 1981. Alverta is currently employed at an hourly wage of $4.40, and is not guaranteed full-time work. Her assets consist of a 1966 Buick, $265 in savings, and $3,000 in Certificates of Deposit. She suffers from ulcers and partial blindness in one eye.

For most of the marriage Charles, age 56, has been employed by Bethlehem Steel, his current employer, where he is a maintenance man. He is under union contract for $20,000 per year. He remarried following the divorce. He has debts of approximately $13,400 accumulated during his first and second marriages. In addition, he recently undertook the financial expense of the funeral of the parties' daughter, approximately $3,200, and has assumed responsibility for caring and providing for his grandson following the death of the child's mother. He is in relatively good health. The record reveals that Charles was guilty of marital misconduct prior to the separation, including adultery, beating, improper treatment, and excessive drinking.

The Master, applying § 501 to the Hesses' circumstances, determined that Charles should not be required to pay alimony:

It is obvious that Mrs. Hess does not have a substantial earning capacity and, were it not for her having an accumulation of savings, we would recommend that she be awarded alimony. She has however, managed to save

[ 327 Pa. Super. Page 283]

$3,000.00 since the time of separation. It is our opinion after reviewing the Divorce Code and the Legislative debates that the purpose of alimony in this Commonwealth is to provide economic rehabilitation and that the Court is not permitted to grant an award unless both factors enumerated in Section 501(a) are met. Since Mrs. Hess has accumulated considerable savings, we cannot find that she lacks sufficient property to provide for her reasonable needs nor that she is unable to support herself through her employment. We also have considered the substantial obligations that Mr. Hess has incurred, none of which appear to be unreasonable. Consequently, we recommend that the demand for alimony be denied. R. 85A.

A goal of the Divorce Code of 1980 was to bring economic justice and fairness to parties upon dissolution of a marriage. A provision for alimony was included to implement that goal. The alimony provision was in part a response to the prior law under which no party was entitled to alimony following the entry of a divorce decree. Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); Commonwealth ex rel. Bortin v. Bortin, 210 Pa. Super. 355, 234 A.2d 55 (1967). In the usual situation where the husband was the primary wage earner, ending the marriage terminated the wife's right to support regardless of the length of the marriage, the wife's role in raising the family, her efforts on behalf of the husband's career, and the disparity in earning power and assets of the parties.

The Divorce Code was remedial and provided for economic fairness for both parties upon divorce through the vehicle of equitable distribution (Chapter 4) and alimony (Chapter 5). Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983); Geyer v. Geyer, 310 Pa. Super. 456, 456 A.2d 1025 (1983). Alimony and equitable distribution must be viewed as part of the legislative intention: to do economic justice. This is apparent in § 501(a) which requires that the court in

[ 327 Pa. Super. Page 284]

    determining the entitlement to alimony consider the property distributed equitably pursuant to Chapter 4.

The provisions for alimony and equitable distribution provide the trial court with flexibility in resolving the economic fate of the parties upon divorce. The economic resolution for a marriage in which the parties have substantial assets but meager cash might be heavily weighted toward property distribution. On the other hand, the economic resolution for a marriage in which the parties have few assets but substantial cash might be weighted more heavily toward alimony*fn2 provided the standards established under Chapter 4 and Chapter 5 are satisfied.

With this background in mind, we analyze the alimony provision of the Divorce Code of 1980 as it relates to the instant case. The ...


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