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[U] Boyer v. Boyer

Superior Court of Pennsylvania

May 23, 2013

ROBERT L. BOYER, SR., Appellant
v.
DEBRA ANN BOYER, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered September 19, 2012 In the Court of Common Pleas of Lebanon County Civil Division No(s).: 2003-20756.

BEFORE: BENDER, SHOGAN, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Robert L. Boyer, Sr. ("Husband"), appeals from an order entered in the Lebanon County Court of Common Pleas, setting forth his alimony obligation to Appellee, Debra Ann Boyer ("Wife").[1] Husband argues the trial court committed several abuses of discretion and errors of law in rendering its decision. We affirm.

The following history is derived from the trial court opinion and supplemental opinion. Husband and Wife married in September of 1976 and have two children, now adults. The parties separated in September of 2003. Husband filed a divorce complaint on October 3, 2003. Wife filed a counterclaim, seeking alimony and other economic relief. On May 10, 2006 Special Master Keith Kilgore recommended divorce and permanent alimony to Wife in the amount of $900 per month. The trial court affirmed the recommendation of the Special Master on August 10, 2006, emphasizing Husband's greater earnings and better health and Wife's contribution as a homemaker throughout the relatively lengthy duration of the marriage.

On May 17, 2010, Husband filed a motion seeking modification of the alimony order. On November 17, 2010, Special Master Kilgore reduced Husband's alimony payment to $600 per month based on the following evidence: (1) Husband's gross income decreased as a result of his inability to earn overtime; (2) he began cohabitating with his girlfriend, with whom he had a child and who earned $3, 000 per month; (3) they purchased a house together; (4) Wife spent all of the equitable distribution money she received, including more than $100, 000 in liquid assets; (5) Wife moved into her daughter's residence; and (6) Wife's medical condition deteriorated to the point she could no longer work on a full-time basis. Both parties filed exceptions that were denied by the trial court.

On February 17, 2012, Husband filed the instant motion to terminate alimony, citing his belief that Wife was cohabitating with another man, his paramour's decrease in income, and an increase in his household expenses. On March 14, 2012, Wife filed a counterclaim seeking an increase in alimony. On June 22, 2012, the Special Master recommended an increase in alimony to $775 per month. The Special Master did not find credible Husband's claim as to Wife living with a man. The Master's increase was based on Wife's need to find housing independent of her daughter and mother, her limited income potential, and Husband's increased income. Husband filed timely exceptions on July 5, 2012, raising thirteen arguments.

On September 19, 2012, the trial court reduced Husband's alimony to $700 per month, noting the Special Master's determination that Husband will gross $84, 000 income during 2012 was "inappropriate and unfair." Trial Ct. Op., 9/19/12, at 12. We note the new $700 monthly amount is $100 more than his obligation under the prior alimony order. The trial court issued a detailed opinion in support of its order. Husband filed a timely notice of appeal and a statement of errors complained of on appeal on October 8, 2012, although the trial court did not order the filing of a Pa.R.A.P 1925(b) statement. The court issued a second opinion on October 12, 2012.

The argument section of Husband's brief raises the following issues:[2]

1. The trial couret [sic] erred and/or abused it's [sic] discretion by failing to properrly [sic] consider [Husband's] ability to pay alimony to [Wife], considering [Husband's] reduced household income and increased household expenses and the fact that [Husband] has gone into debt to the [sic] pay alimony over the past several years and will be forced to allow his own monthly bills to become delinquent.
2. The trial court erred and/or abused it's [sic] discretion by failing to consider whether [Wife's] monthly expenses are reasonable, particularly her claimed housing expense, as she has the ability to live with her parents or daughter free of charge, and as she has not looked at all options.
3. The trial court erred and/or abused it's [sic] discretion by failing to recognize alimony as a secondary remedy, and despite the fact that [Wife], who claims to be disabled, could qualify for supplemental security income [("SSI")] benefits in the amount of $726.00 per month, and may qualify for other benefits to subsidize her living expenses, including housing, the trial court failed to take into account that [Wife] has not availed herself of these benefits, which she should be required to do before seeking alimony from [Husband].
4. The trial court erred and/or abused it's [sic] discretion by failing to properly assign [Wife] with an increased earning capacity, due to her failure to look for any work or improve her financial position, and then failed to properly consider the earning capacity she was assigned by the Special Master and the court, with some requirement moving forward that [Wife] be required to provide regular and ongoing proof to the court and [Husband] of her efforts to find employment moving forward.
5. The trial court erred and/or abused it's [sic] discretion by failing to exclude Exhibit 15 from evidence and consideration by the court, as it does not meet the medical records exception to the hearsay rule, and further, as it does not clearly state the work restrictions that would be placed upon [Wife] in any event, and whether or not she would still be able to work in a part-time capacity.

Husband's Brief at 26, 32, 37, 42, 45 (capitalization omitted).

When reviewing an order of alimony, this Court has stated:

Our standard of review regarding questions pertaining to the award of alimony is whether the trial court abused its discretion. We previously have explained that [t]he 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, [a]limony 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.

Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (citation and quotation marks omitted).

Moreover,
[t]he 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 ...

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