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[U] Swisher v. Swisher

Superior Court of Pennsylvania

January 6, 2013



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




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 duration of alimony?

Wife's Brief at 4.

Wife's issues all question the trial court's alimony award. Our standard of review follows.

The role of an appellate court in reviewing alimony orders is limited; we review only to determine whether there has been an error of law or abuse of discretion by the trial court. Absent an abuse of discretion or insufficient evidence to sustain the support order, this Court will not interfere with the broad discretion afforded the trial court.

Smith v. Smith, 904 A.2d 15, 20 (Pa.Super. 2006) (citation omitted).

We previously have explained that 'the purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met.' Alimony 'is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor's ability to pay.' Moreover, 'alimony following a divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill.'

Gates v. Gates, 933 A.2d 102, 106 (Pa.Super. 2007), appeal denied, 980 A.2d 608 (Pa. 2009), quoting Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa.Super. 2004) (emphasis in original). "The Divorce Code dictates that in determining the nature, amount, duration and manner of payment of alimony, the court must consider all relevant factors, including those statutorily prescribed for at 23 Pa.C.S.A. § 3701, Alimony, (b) Relevant Factors (1)-(17)." Smith, supra (internal quotation marks and citation omitted).

Wife first argues that the trial court erred in ordering that the alimony award commence as of January 24, 2012, the date of the master's report and 11 months prior to the entry of the divorce decree. Wife's Brief at 9. She avers the order had the effect of retroactively terminating her APL award, which at that time was $1, 989.00 per month. Id. Primarily, Wife notes that, by statute, alimony is an economic benefit allowable after the entry of a divorce. Id., citing 23 Pa.C.S.A. § 3701(a) (stating, "[w]here a divorce decree has been entered, the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary").

Consistent with 23 Pa.C.S.A. § 3701(a), this Court has held, "alimony is not available until after the divorce decree has been entered." DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa.Super. 1991), appeal denied, 629 A.2d 1380 (Pa. 1993). Consequently, "any attempt by the court to order alimony before entry of the divorce decree is premature." 24A Standard Pa. Practice 2d, § 126:662, p. 176, citing Dech v. Dech, 492 A.2d 41 (Pa.Super. 1985). Additionally, APL typically survives through an appeal.

[APL] is defined as "[a]n order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding." 23 Pa.C.S.A. § 3103. Pursuant to 23 Pa.C.S. § 3702, [APL] is allowable to either spouse during the pendency of the action.
However, "[t]he award of APL is not dependent upon the status of the parties but on the state of the litigation. This means, in theory, that the APL terminates at the time of divorce which usually concludes the litigation." DeMasi v. DeMasi, 408 Pa.Super. 414, 597 A.2d 101, 104 (1991). In DeMasi, our Court held that
a divorce is not final for purposes of APL until appeals have been exhausted and a final decree has been entered. Thus, while APL typically ends at the award of the divorce decree, which also should be the point at which equitable distribution has been determined, if an appeal is pending on matters of equitable distribution, despite the entry of the decree, APL will continue throughout the appeal process and any remand until a final Order has been entered.
Id. at 104.

Prol v. Prol, 840 A.2d 333, 335 (Pa.Super. 2003), appeal quashed, 871 A.2d 791 (Pa. 2005). We therefore conclude the trial court erred in commencing the alimony award prior to the entry of the divorce decree. We further conclude that Wife is entitled to the continuation of the APL award through this appeal and subsequent remand.

In her next two issues, Wife argues the trial court abused its discretion in drawing certain conclusions and making various findings, without sufficient support in the record, when fashioning an inadequate alimony award. Wife's Brief at 11, 13-15. Specifically, Wife faults the trial court's finding that Wife had committed marital fault in the form of adultery and indignities and that the trial court erred in its determination of the amount and duration of the alimony by overvaluing Wife's income potential, undervaluing Husband's potential dividend income, and overemphasizing Wife's future benefit from her father's life insurance policy. Id. at 13-16.

Instantly, the trial court placed different emphases on the factors considered by the master to adjust the probable income potential of the parties. Trial Court Opinion, 10/10/12, at 7-8. For example, the trial court noted that a two-year record of dividends from Husband's shares in the automobile sales business was insufficient to adequately extrapolate into the future and tempered the figure downward to reflect that uncertainty citing variability in the car business. Id. at 7. The trial court's conclusion, however, is itself speculative without some evidence in the record that the dividends had in fact varied over time. Also, the trial court gave greater weight to the fact that Wife had a bachelor's degree than did the master in raising her estimated income potential. Id. at 8. Again, the trial court's assignment of an earning potential based on Wife's degree is speculative in the absence of evidence in the record of Wife's job prospects in the field and potential salaries. These findings by the trial court are accordingly unsupported by the record and evidence an abuse of discretion. Smith, supra.

With respect to the trial court's assessment of Wife's expectancy under the life insurance policy payable only upon the death of her father or mother, whichever death is later, however, we agree with Wife that the trial court's evaluation is misplaced, since the trial court considered only her father's state of health. Trial Court Opinion, 10/10/12, at 9; see Master's Report, 3/29/12, Husband's Exhibit 18. On the current record, Wife's ability to avail herself of the expectancy during the pendency of the alimony payments is speculative at best and of little consequence to her present need. Rather, it presents a potential change of circumstances that can be addressed through modification if the circumstances warrant.

Of particular concern is Wife's claim that the trial court erred in finding she had committed marital fault and emphasizing its finding as a major reason for reducing the master's recommended alimony award. Wife's Brief at 13.

The Judge found Appellant's testimony not credible although he did not observe her testify. [Husband] testified only to finding emails and that [Wife] acknowledged that she spent an afternoon in a public place with a third party. (R.R. 292a, 294a). The emails themselves contain no evidence that a sexual relationship had occurred. (R.R. 216a-217a). These emails are subject to various interpretations. Sending emails, having daily conversations, sending photographs and sitting and talking in a car at a public place, do not give rise to the factual finding of adultery. "[C]oy" or "flirtatious" banter between friends does not prove adultery. There is no evidence in the record to support a finding of adultery.


Again, we agree. The trial court's consideration of this issue is problematic in two ways. First, we conclude the trial court's factual findings are unsupported by the evidence. The master heard the testimony regarding Husband's allegations of Wife's marital fault and determined that no adulterous relationship occurred prior to the parties' separation. Master's Report, 3/29/12, at 12. The trial court accepted the facts found by the master but rejected his credibility determinations to conclude that Wife did commit adultery or at least indignities. Trial Court Opinion, 10/10/12, at 11.

A master's report is entitled to great consideration, but the [trial] court is not bound by it. If in its discretion the [trial] court determines it must deviate from the recommendation of the master it may do so regardless of whether either party has raised the issue in an exception. Our function then becomes one of determining if the [trial] court's action constituted an abuse of discretion under the statutory guidelines.

Morschhauser v. Morschhauser, 516 A.2d 10, 15 (Pa.Super. 1986) (citations and footnote omitted). "We are also aware that a master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties." Childress v. Bogosian, 12 A.3d 448, 455-456 (Pa.Super. 2011) (internal quotation marks and citations omitted). "[W]e are limited to a review of the trial court's decisions, not those of the Master." Diament v. Diament, 816 A.2d 256, 264 (Pa.Super. 2003). Proof of fault must be by clear and convincing evidence. Hoffman v. Hoffman, 762 A.2d 766, 769 (Pa.Super. 2000).

We acknowledge the trial court is not bound by a master's recommendations. Here, however, the trial court abused its discretion in reversing the master's credibility findings based on its own subjective interpretation of the facts that it deemed raised "a presumption of adultery" because there existed a supposed inclination and opportunity between Wife and her friend C.Y. Trial Court Opinion, 10/10/12, at 11. "The so-called 'inclination and opportunity' rule allows a presumption of adultery where (1) both parties to the alleged adulterous conduct are so disposed or inclined; and (2) opportunity has existed for the satisfaction of such inclination." Com. ex rel. D'Andrea v. D'Andrea, 396 A.2d 765, 769 (Pa.Super. 1978). The trial court found "inclination" based on the fact Wife knew C.Y. from childhood and one evening's string of five e-mail exchanges. Trial Court Opinion, 10/10/12, at 11.

The trial court found "opportunity" in the fact that Wife admitted she spent a day with C.Y. once while Husband was at a car auction, although the trial court also cites the fact that "other people were around" at the time to support its conclusion that indignities also occurred. Trial Court Opinion, 10/10/12, at 12-13. Far from finding proof of marital fault by clear and convincing evidence, the trial court engaged in speculation based on ambiguity and suggestion. Compare D'Andrea, supra (determining inclination existed where Wife "dated" paramour for a substantial period of time and "opportunity" existed where Wife and paramour spent the night alone together in the same room).

We also conclude the trial court abused its discretion in the manner it evaluated the relevance of Wife's behavior during the marriage to her need for alimony. The trial court noted that its finding of marital misconduct by Wife was one of the two "most relevant and weighty considerations in this case." Trial Court Opinion, 10/10/12, at 14. However, the trial court's analysis is devoid of any discussion of how Wife's conduct implicates the economic disparity or earning potential of the parties. As noted above, alimony is not to be imposed or denied to punish. Gates, supra. Thus, the relevance of marital fault as a factor in determining alimony is its relation to the purpose for alimony, to wit, meeting the reasonable needs of a party unable to support him or herself in accordance with the parties' lifestyle and ability to pay. Id.

Thus, even if Wife's conduct could be deemed marital fault, that conduct must implicate the economic purpose of an alimony award to be relevant. A spouse, otherwise deserving of alimony cannot be denied the same as a punishment for misconduct. See e.g. Miller v. Miller, 744 A.2d 778, 789 (Pa.Super. 1999) (affirming the trial court's refusal to deny alimony where allegation of wife's marital misconduct had minimal, if any, impact on husband's health, employment or income).

For the reasons expressed above, we conclude the trial court abused its discretion in determining on insufficient evidence that wife engaged in marital misconduct. We further conclude the trial court erred in determining such conduct, however characterized, was relevant to its alimony award absent a showing such conduct was relevant to the parties economic situation, and instead applying the factor in a punitive fashion. Since the trial court erroneously gave this unsupported consideration great weight in reducing the master's recommended alimony award, it must re-evaluate the proper amount and duration of the alimony award in the absence of such consideration.

In sum, we conclude the trial court erred in determining that Wife engaged in marital fault based on insufficient evidence and in determining Wife's conduct was highly relevant to its alimony award absent any nexus with the economic standing of the parties. We further conclude the trial court erred in ordering the alimony to commence retroactively to a date prior to the entry of the divorce decree. Accordingly, we vacate the trial court's alimony award and remand for reassessment in accordance with this memorandum. We affirm all other aspects of the November 6, 2012 decree.

Decree vacated in part and affirmed in part. Case remanded. Appeal at 1851 MDA 2012 is quashed. Jurisdiction relinquished.

Judgment Entered.

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