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DAVID GEORGE MCFADDEN v. MARJORIE MAROTTE MCFADDEN (08/02/89)

decided: August 2, 1989.

DAVID GEORGE MCFADDEN, APPELLANT,
v.
MARJORIE MAROTTE MCFADDEN



Appeal from the Order of the Court of Common Pleas of Franklin County, Civil Division at No. F.R. 1980 - 520.

COUNSEL

Lynn Y. MacBride, Chambersburg, for appellant.

Sandra L. Meilton, Harrisburg, for appellee.

McEwen, Olszewski and Popovich, JJ. McEwen, J., files a Concurring and Dissenting Statement.

Author: Popovich

[ 386 Pa. Super. Page 507]

The appellant, David McFadden, appeals from the denial of his petition to terminate or reduce his spousal support obligations. We reverse and remand for proceedings in accordance with the provisions of this opinion.

On October 1, 1981, David McFadden and Marjorie McFadden were granted a divorce. At the same time, the parties entered into a Stipulation and Agreement which was approved by the court and incorporated into the divorce decree. The Stipulation and Agreement covered the issues of alimony and equitable distribution of property. In regard

[ 386 Pa. Super. Page 508]

    to alimony, the Agreement provides that "The plaintiff [David McFadden] is to pay the defendant [Marjorie McFadden] alimony in the amount of $400.00 per month so long as she may live or until changed by order of court, . . ." Concerning the equitable distribution of their property, the Agreement provided that the marital residence became property of the parties as tenants in common subject to several conditions: First, Marjorie McFadden was granted the right to possess and occupy the residence during her lifetime or until she decides to cease occupying the home permanently; second, she was obligated to maintain the property; and third, upon sale of the property, the parties are to divide the proceeds equally or David McFadden is to receive $22,5000 whichever is less. The Agreement further provided that "All other property of the plaintiff and defendant, whether marital property or not, shall become the absolute property of the party now having possession or control or ownership thereof, . . ." The Agreement also provided for the payment of taxes and counsel fees.

For four and one-half years, David McFadden faithfully complied with the Stipulation and Agreement. However, on March 13, 1986, he filed a petition to terminate or reduce alimony due to his impending retirement on April 1, 1986. A Master was appointed to hear the petition. He found that the Agreement was modifiable and that the approximately 56% reduction in David McFadden's income due to his "good faith" retirement constituted a substantial change in circumstances warranting modification. After the hearing, the Master recommended a reduction in alimony from $400 per month to $320 per month. Both parties filed exceptions to the Master's Report. Upon review, the lower court found that the Agreement did not contain a specific modification clause and, consequently, held the Agreement was not modifiable. The court further opined that David McFadden's retirement was a foreseeable and expected change and did not qualify as a substantial change in circumstances which would warrant modification. This appeal followed.

[ 386 Pa. Super. Page 509]

On appeal, David McFadden contends: 1) The lower court erred in ruling that the Stipulation and Agreement's provision regarding alimony was not modifiable due to the absence of a modification clause; 2) The lower court erred in ruling that, even if the Agreement was modifiable, there has not been a substantial and continuing change of circumstances which would justify modification; and 3) His pension was awarded in toto to him as a part of the equitable distribution of marital property, and, consequently, it should not be included as income for the purpose of computing his alimony obligation.

When reviewing alimony orders, our review is limited to a determination of whether the lower court committed an error of law or an abuse of discretion. Lee v. Lee, 352 Pa. Super. 241, 245-46, 507 A.2d 862, 865 (1986); Mazzei ...


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