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[U] Swisher v. Swisher

Superior Court of Pennsylvania

January 6, 2013

KELLY M. SWISHER Appellant
v.
KEVIN M. SWISHER Appellee KELLY M. SWISHER Appellant
v.
KEVIN M. SWISHER Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 10, 2012 In the Court of Common Pleas of Columbia County Civil Division at No(s): 2010-CV-0001279-DV

Appeal from the Decree November 6, 2012 In the Court of Common Pleas of Columbia County Civil Division at No(s): 1279-2010

BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Kelly M. Swisher (Wife), appeals from the final decree entered November 6, 2012, divorcing Wife and Appellee, Kevin M. Swisher (Husband) from the bonds of matrimony and resolving all outstanding economic issues. Specifically, Wife challenges the trial court's October 10, 2012 alimony award as adopted by the November 6, 2012 decree. After careful review, we vacate in part and remand for further proceedings consistent with this memorandum.

The factual and procedural history of the case follows. Wife commenced the instant action on July 22, 2010, by filing a complaint in divorce against Husband, including counts for alimony, alimony pendente lite (APL), and equitable distribution. All issues were referred to a master on April 19, 2011.[1] Following a hearing held January 24, 2012, the master issued a report and recommendation on March 29, 2012. Therein the master found the net value of marital property to be $556, 218.93, which he recommended be divided 55% to Wife and 45% to Husband. Master's Report, 3/29/12, at 11.[2] Additionally, the master recommended that the trial court order Husband to pay to Wife $3, 000.00 per month in alimony for a period of four years. Id. at 12.

Husband filed exceptions to the master's report on April 16, 2012. Husband took exception to the master's alimony recommendation, alleging it was excessive in amount and duration, based on incorrect assumptions concerning his future income, and lacked support in the record. Husband's Exceptions to the Report and Recommendations of Special Master, 4/16/12, at 1. After entertaining argument and reviewing the master's report, the trial court, on October 10, 2012, issued an opinion and order sustaining Husband's exceptions in part and denying them in part. Specifically, the trial court ordered that Husband pay alimony to Wife in the amount of $1, 000.00 per month for a period of 12 months, to commence retroactively from the date of the hearing before the master, January 24, 2012. Trial Court Opinion and Order, 10/10/12, at 14.

On October 22, 2012, Wife filed a notice of appeal from the October 10, 2012 order. Subsequently, on November 6, 2012, the trial court entered a final decree, divorcing the parties and, in resolution of the economic claims, adopting the master's recommendations as modified in the trial court's October 10, 2012 order. Wife filed a second timely notice of appeal on November 19, 2012.[3] This Court consolidated Wife's appeals, sua sponte, on December 28, 2012.[4]

Wife raises the following issues on appeal.

I. Did the [trial] court err as a matter of law by entering an alimony award as of the date of the special master's hearing and effectively terminating [Wife's] temporary alimony?
II. Was the [trial] judge's finding of adultery or indignities supported by the facts of record?
III. Did the [trial] court err in determining the amount and ...

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