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[U] Bolus v. Bolus

Superior Court of Pennsylvania

February 19, 2014

ROBERT C. BOLUS, JR., Appellant
v.
HEIDI G. BOLUS, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order April 15, 2013 in the Court of Common Pleas of Columbia County Civil Division at No.: 74 of 2009

BEFORE: DONOHUE, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Husband, Robert C. Bolus, Jr., appeals from the order of April 15, 2013, granting his petition to modify alimony. We affirm.

Husband and Wife, Heidi G. Bolus, were divorced on April 14, 2011. They have one child, who lives with Wife in the marital home. On April 11, 2011, Husband and Wife executed a property settlement agreement, in which Husband agreed, inter alia, to pay $1, 157.00 per month in alimony until their daughter graduates from high school or turns nineteen, subject to certain conditions not at issue in this appeal. The agreement states that "[t]he amount of alimony . . . is only subject to modification by either upon a non[-]voluntary reduction of Husband's rental income or for the reasons set forth above in this paragraph." (Property Settlement Agreement, 4/12/11, at 8 ¶ 6.01).

Husband had substantial rental income ($10, 000 per month) in a partnership with his brother. But the partnership dissolved through no fault of [Husband]. His rental income essentially ended. In June of 2013, the parties voluntarily modified the alimony to $550 per month until January 1, 2013, when it went back up to $1157 per month. Then, [Husband] sought to modify it.

(Trial Court Opinion, 5/22/13, at 2-3). After a hearing, on April 15, 2013, the court ordered that the alimony be reduced from $1, 157.00 per month to $650.00 per month. (See Order, 4/15/13). The court found that Husband was until recently under-employed and had substantial income "from about a million dollars of cash assets which generates at least $28, 000 per year" and "several parcels of real estate." (Id. Trial Ct. Op., at 3).[1] Husband timely appealed.[2]

Husband raises two questions for our review:

1. Whether the [trial] court abused its discretion by not correctly considering the respective incomes of the parties when determining the modification of alimony?
2. Did the [trial] court abuse its discretion by considering [Husband's] other assets, effectively double dipping[?]

(Husband's Brief, at 4).

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.

Dalrymple v. Kilishek, 920 A.2d 1275, 1278 (Pa.Super. 2007) (citations omitted).

In his first issue, Husband argues that the trial court "abused its discretion by not sufficiently considering the respective incomes of the parties when determining the modification of alimony." (Husband's Brief, at 9). Specifically, he argues that the trial court should have relieved him entirely of his obligation to pay alimony because of the parties' relative earnings and expenses. (Id.). We disagree.

"To determine whether alimony is necessary and to establish the appropriate nature, amount, and duration of any alimony payments, the court is required to consider all relevant factors, including the 17 factors that are expressly mandated by statute." Lawson v. Lawson, 940 A.2d 444, 447 (Pa.Super. 2007), appeal denied, 951 A.2d 1165 (Pa. 2008) (citations and emphasis omitted). Alimony is provided for in Section 3701 of the Divorce Code, which states, in relevant part:

(b) Factors relevant.-In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The relative earnings and earning capacities of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(7) The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child.
(10) The relative assets and liabilities of the parties.
(15) The Federal, State and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party's reasonable needs.
(17) Whether the party seeking alimony is incapable of self-support through appropriate employment.

23 Pa.C.S.A. § 3701(b). "A determination of earning capacity must consider the party's age, education, training, health, work experience, earnings history, and child care responsibilities." Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa.Super. 2003) (citations omitted).

Here, the trial court found:

Although [Husband's] income dropped dramatically through no fault of his own, until recently he was under-employed considering his experience, education, intelligence, and decency. He had a higher earning capacity than the odd jobs that he had primarily been doing since the collapse of the partnership. Recently he started a much better paying full-time job. The income is uncertain, although he has the burden of proof here. In addition, he has substantial income from about a million dollars of cash assets which generates at least $28, 000 per year. He also has several parcels of real estate. The Florida condo has some rental potential. Some properties are tied up in the partnership squabble through no fault of his own. But he owns his residence and the condo in Florida which he bought after the separation.

(Trial Ct. Op., at 3). A review of the trial court opinion shows that the court considered the factors enumerated at Section 3701(b), including Husband's assets "to the extent they generated income, " his "non-voluntary reduction in income, " the "respective incomes and expenses of the parties, " Wife's continued residency in the marital home as contemplated by the agreement, and Husband's future proceeds in the home once it is sold pursuant to the agreement. (Id. at 4). The court further observed that the modified alimony award is "cut almost in half" because of Husband's income reduction. (Id.).

Husband disagrees with the trial court's conclusions regarding the effect of respective earnings and expenses by the parties on the obligation to pay alimony, and directs our attention to the fact that he pays the property taxes on the marital home. (See Husband's Brief, at 10-11). However, these factors, including the tax consequences of Wife retaining the marital home, were considered in full by the trial court. (See Trial Ct. Op., at 3-4); see also Isralsky, supra at 1190 ("It is important to remember that [this Court] is not free to usurp the trial court's duty as the finder of fact. As this Court has stated on prior occasions, appellate courts are . . . reluctant to substitute themselves as super-support courts when they have not had the opportunity to see and hear the witnesses and so determine credibility.") (citations, brackets, and quotation marks omitted).

We discern no abuse of discretion by the trial court where it considered Husband's earning capacity along with the other factors in Section 3701(b), and modified the alimony award accordingly. See Dalrymple, supra at 1278; see also, e.g., Gates v. Gates, 933 A.2d 102, 108 (Pa.Super. 2007) ("Given the relative economic positions of the parties, the lifestyle to which appellee was accustomed, and appellee's responsibilities for the couple's child, the trial court's award unquestionably was necessary to effectuate economic justice.") (citations omitted). This issue does not merit relief.

In his second issue, Husband alleges that the court "abused its discretion by considering [his] other assets, effectively double dipping." (Husband's Brief, at 11). Specifically, he contests the trial court's assertion that it only considered the income from his assets, argues that his only source of income is from his current employment, and claims that "[c]onsidering any of the assets divided by the parties' Property Settlement Agreement is an abuse of discretion." (Id. at 12). We disagree.

It is well-settled that "[w]e do not condone 'double dipping', i.e., using the same revenue as a source for 'support' and 'equitable distribution'." Rohrer v. Rohrer, 715 A.2d 463, 466 (Pa.Super. 1998) (citation omitted).

Here, as conceded by Husband, the trial court explicitly "did not consider the assets in this alimony analysis, except to the extent that they generated income." (Trial Ct. Op., at 4; see also Husband's Brief, at 12). Husband asserts that "none of [his] assets have generated any income this year, despite his efforts to sell or rent them, " claiming that the Florida properties are not viable rental properties and that his "only source of income is . . . from his current employment." (Appellant's Brief, at 12).

However, as noted by the trial court, Husband listed a dividend income of $28, 000 on his 2012 tax return, and a $23, 408 dividend income in 2011. (See N.T. Hearing, 4/15/13, at 58-59; see also Trial Ct. Op., at 3). Husband fails to mention this "substantial income from about a million dollars of cash assets, " (Trial Ct. Op., at 3), nor does he claim that the dividend income constitutes revenue earmarked for equitable distribution. (See Husband's Brief, at 11-12). Therefore, Husband's allegation of doubled-dipping is unsubstantiated. See Rohrer, supra at 466. We discern no abuse of discretion by the trial court in considering the income which is or could be generated by Husband's assets, including both his properties in Florida and his cash assets, under the factors listed in Section 3701(b). See 23 Pa.C.S.A. § 3701(b)(3), (10) (requiring trial court to consider "sources of income of both parties" and "relative assets and liabilities of the parties"); Dalrymple, supra at 1278. This issue does not merit relief.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.


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