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CYNTHIA L. PARKER v. DENTON E. PARKER (11/09/84)

filed: November 9, 1984.

CYNTHIA L. PARKER
v.
DENTON E. PARKER, APPELLANT



No. 00356 Philadelphia 1983, Appeal from the Order entered January 4, 1983 in the Court of Common Pleas of Lycoming County, Civil Division, No. 82-20, 201.

COUNSEL

Warren R. Baldys, Jr., Williamsport, for appellant.

John P. Campana, Williamsport, for appellee.

McEwen, Tamilia and Cercone, JJ.

Author: Tamilia

[ 335 Pa. Super. Page 350]

This is an appeal from the Order of the Court of Common Pleas, Lycoming County, entered January 4, 1983, directing appellant/husband to pay $105 per week alimony pendente lite to his wife, Cynthia L. Parker.*fn1 Wife filed for divorce on February 16, 1982, requesting, inter alia, alimony pendente lite, interim counsel fees and costs. A hearing was conducted before a master, and findings and recommendations were made on wife's requests. Exceptions were timely filed to the master's proposed order, and the lower court, after a hearing, entered the appealed from order. This appeal followed. The single issue on appeal is whether service-connected disability benefits paid by the Veterans' Administration to appellant can be considered in determining the amount of alimony pendente lite to be awarded. We hold that such benefits may be considered and, therefore, affirm the order of the lower court.

Our scope of review of an award of alimony pendente lite is limited to determining whether or not the trial court has manifestly abused its discretion in awarding or denying alimony pendente lite. Cross v. Cross, 310 Pa. Super. 124, 456 A.2d 214 (1983).

The record discloses that the parties were married in 1975. Wife receives $127 per month from Social Security and $145 per month from the Veterans' Administration. She is trained as a beautician but remains in the home as the primary caretaker of the parties' two children. The lower court found that she could earn approximately $240 per month as a beautician working from her home. Appellant is certified as disabled resulting from his tenure in the

[ 335 Pa. Super. Page 351]

    military. Due to his disability, he receives $682 per month from Social Security and $1177 per month from the Veterans' Administration. Appellant also has a modest cash savings and a rental property.

Appellant argues that the lower court erred in considering his service-connected disability Veterans' Administration benefits in determining the amount of the award of alimony pendente lite since 38 U.S.C.A. § 3101(a) provides that those benefits are exempt from the claims of creditors. That code section states the following:

Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary . . . .

The purpose of the exemption under 38 U.S.C.A. § 3101(a) is to protect the recipient of the benefits from claims of creditors, see In re Estate of Pierce, 492 Pa. 10, 421 A.2d 1065 (1980) (and cases cited therein), and to afford some degree of security to the recipient's family and dependents. State ex rel. Eastern State Hospital v. Beard, Okl., 600 P.2d 324 (1979). Section 3101(a) does not apply in this case since a wife seeking to recover alimony pendente lite is not a "creditor" of her husband, the claim not being based upon a debt. See Magrini v. Magrini, 263 Pa. Super. 366, 371 n. 3, 398 A.2d 179, 181 n. 3 (1979); Commonwealth v. Berfield, 160 Pa. Super. 438, 441, 51 A.2d 523, 525 (1947); Commonwealth ex rel. Peterson v. Peterson, 100 Pa. Super. 600 (1930); see also Commonwealth ex rel. Deutsch v. Deutsch, 347 Pa. 66, 68, 31 A.2d 526, 527 (1943). Other ...


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