Opinion
599 WDA 2023 J-A29040-23
01-16-2024
LESLIE S. MILLER Appellant v. MICHAEL K. MILLER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered May 2, 2023 In the Court of Common Pleas of Mercer County Civil Division at No. 2020-1655
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.
Leslie S. Miller (Appellant) appeals from the decree divorcing her and Michael K. Miller (Miller) and resolving the parties' outstanding economic issues. Specifically, Appellant challenges the trial court's award of alimony to Miller. Upon careful review, we affirm.
Appellant and Miller married on October 26, 1993, and separated on January 26, 2020. They resided at 1703 Park Lane, Greenville, Pennsylvania (the marital residence). Upon separation, Appellant continued to live in the marital residence; Miller resided in an apartment at 4002 Hermitage Hills Boulevard, Hermitage, Pennsylvania. The parties have no minor children.
On June 1, 2020, Appellant filed her complaint in divorce. The economic issues between the parties were the subject of a master's report and recommendation filed on July 18, 2022. Appellant and Miller filed exceptions to the master's report. Following oral argument on May 2, 2023, the trial court denied the parties' exceptions. That same date, the trial court entered the divorce decree and directed the equitable distribution of the parties' marital assets. The trial court further awarded alimony to Miller:
The current Order for spousal support, through Mercer County Domestic Relations … shall be converted to post-divorce alimony effective this date, … with said payments being made, by [Appellant] to [Miller], as follows:
a. The sum of $400.00 per month shall be paid for the first 18 consecutive months.
b. For the next 18 consecutive months thereafter, the sum of $350.00 per month shall be paid.
c. For the following 18 consecutive months thereafter, the sum of $250.00 per month shall be paid.
d. Thereafter, the sum of $200.00 shall be paid per month until Miller attains normal, full retirement age for social security benefits.
It is noted should [Miller] receive social security benefits earlier than the normal full retirement age, the alimony payments, as set forth herein, shall immediately terminate. Except as set forth herein, said alimony is non-modifiable as to term and amount except as provided for in the Divorce Code, which would provide for termination of alimony upon death, remarriage or co-habitation with another individual as defined in the Divorce Code.
Divorce Decree, 5/2/23, ¶ 4 (emphasis added).
Appellant filed a timely appeal. The trial court did not direct compliance with Pa.R.A.P. 1925, and has relied on its previously filed opinions and orders.
Appellant presents two issues for review:
1. Did the trial court, without any evidence that alimony is necessary, abuse its discretion by requiring a 62-year-old wife to pay six years of alimony to a 61-year-old husband who is gainfully employed with a steady income and benefits, $200,000 in liquid assets, no marital debt and no limiting health conditions?
2. Did the trial court commit an error of law by declaring its award of alimony to [Miller] to be nonmodifiable, when Section 3701(e) of the Divorce Code states that an order "is subject" to modification upon changed circumstances of either party of a substantial and continuing nature?
Appellant's Brief at 7 (paragraph numbers added, punctuation modified).
Appellant first argues that the trial court's alimony award is not supported by the record. Id. at 13. Appellant directs our attention to the trial court's equitable distribution of assets to Miller, including:
(1) [Miller's] Ameriprise IRA in the amount of $117,905 on the date of separation;
(2) a rollover in the amount of $34,342 from [Appellant's] retirement account to [Miller's] retirement account;
(3) cash in the amount of $41,348 from [Appellant's] refinance of the mortgage as [Miller's] equitable share of the marital residence; and
(4) cash from [Appellant] in the amount of $6,362 to balance the distribution of non-retirement personal property.Id. at 14. Appellant points out that these "liquid assets" total $199,957. Id.
Appellant states that Miller was assigned no marital debt and paid no taxes or expenses on the marital residence since the parties' separation. Id. at 14-15. By contrast, Appellant incurred new debt when she refinanced the marital residence, as required by the divorce decree. Id. at 15. Further, Appellant points out that she previously paid spousal support to Miller totaling $12,799.08. Id.
Appellant directs our attention to evidence that Miller was a highly trained registered nurse. Id. at 16. She acknowledges that Miller's nursing license was revoked due to substance abuse. Id. Nevertheless, Appellant claims Miller is gainfully employed at a steel processing foundry, earning $22.79 per hour, and works 40 hours per week. Id. Appellant argues that Miller offered no evidence he "is unable to meet his reasonable needs on his current income." Id. at 17. Appellant weighs each of the 17 factors set forth in Section 3701(b), and argues the trial court improperly failed to consider the assets awarded to Miller in its alimony analysis. Id. at 24.
Miller counters that the trial court effectuated a 50-50 equitable distribution of the parties' marital assets. Appellee's Brief at 16. Miller explains that Appellant's $34,342.42 payment to him was related to the parties' retirement account values; $6,362.94 was "an adjustment for and representing [Miller's] share of all other intangible and tangible items of personal property, so as to effectuate the fifty-fifty (50/50) equitable division." Id. at 16-17. Miller contends the award of alimony was supported by the evidence. Id. at 16.
We recognize that an alimony award "may be reversed where there is an apparent abuse of discretion or there is insufficient evidence to support the award." Crocker-Fasulo v. Fasulo, 292 A.3d 591, 596 (Pa. Super. 2023) (citation omitted).
As this Court has explained,
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.
In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties' earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.Leicht v. Leicht, 164 A.3d 1246, 1248 (Pa. Super. 2017) (citation omitted).
In ascertaining "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 [23 Pa.C.S.A. § 3701(b)]." Cook v. Cook, 186 A.3d 1015, 1020 (Pa. Super. 2018) (citation omitted). Notably, "the factors in Section 3701(b) do not create an exhaustive list." Conner v. Conner, 217 A.3d 301, 316 (Pa. Super. 2019) (citation omitted).
Section 3701 requires consideration of
(1) The relative earnings and earning capacities of the parties.
(2) The ages and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(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.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage. The marital misconduct of either of the parties from the date of final separation shall not be considered by the court in its determinations relative to alimony except that the court shall consider the abuse of one party by the other party.
….
(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).
Our review discloses that at the October 22, 2021, master's hearing, Miller testified about his economic position. At the time of the hearing, Miller was 59 years old. N.T., 10/22/21, at 12. In 2017, Miller began working at Young Galvanizing at $22.72 per hour. Id. at 20. As of the date of separation, Miller had $7,507.10 in his National Integrated Group Pension Plan as a result of his employment at Young Galvanizing. Id. at 20-21. Miller paid for Appellant's continued health insurance coverage, at $70 per month, through August 1, 2021. Id. at 23.
Appellant has occupied the marital residence following the parties' separation and pays the mortgage. Id. at 29. Miller testified that the fair rental value of the marital residence is $1,500 a month. Id. Miller identified and presented Exhibit S, which is his Income and Expense Statement. Id. at 34-35.
Miller stated that he paid $798 per month to rent his two-bedroom apartment. Id. at 29. He explained there were no one-bedroom apartments available, and the two-bedroom apartment was similarly priced. Id. at 30. Miller's rent includes utilities, apart from electricity. Id. at 41. Miller contrasted his apartment with the marital residence, which has four bedrooms. Id. at 31. Even with spousal support of $600 per month, Miller testified that he was falling behind on his expenses. Id. at 38. Miller stated his standard of living during the marriage was "middle income." Id.
Miller further testified about his health issues: "I am a non-insulin dependent diabetic, high blood pressure, … bipolar type II[.] I am an opiate addict." Id. at 37. According to Miller, he became addicted to opiates after being injured while working at Greenville Hospital. Id. at 42. As a result of his opiate addiction, Miller was fired from his employment as a nurse from two separate facilities. Id. at 43. Miller also faced criminal charges and incurred significant counsel fees. Id. at 42-43. Miller confirmed he used the parties' savings to pay for his attorney. Id. at 44-45.
In its report and recommendation, the master found, in relevant part, as follows:
1. Relative earnings and earning capacity of the parties: Both parties, at the beginning of their marriage, obtaining [sic] the same nursing degrees from the same nursing school. Both parties were gainfully employed in the nursing profession for some time. However, due to a substance abuse issue, [Miller] left the nursing profession and is now employed at Young Galvanizing while [Appellant] continues to remain employed in the nursing profession. [Appellant] earns twice as much as [Miller] earns. The relative earnings have previously been discussed[;] however, there remains a substantial difference in the parties' earnings. Additionally, even though [Miller] was previously employed as a registered nurse, the [c]ourt, in the parties' support action, has determined that [] him leaving the nursing profession should not be factored into the economics of this matter. Therefore, [there is] no determination as to any fault on [Miller's] part and/or marital misconduct as it applies to the issue of alimony.
2. The ages. Physical, mental, and emotional condition of the parties: [Appellant] is currently 61 years of age and [Miller] is 60 years of age. [Appellant] is generally in good mental and physical health. [Miller] does have some ongoing medical and mental health issues which have previously been discussed. It does not appear that [Miller's] issues affect his employability since he is able to perform his job adequately.
3. The sources of income for both parties including, but not limited to medical retirement insurance and other benefits: At the present time, both parties are employed and do have health benefits through their employers. [Appellant] also has a retirement plan through her present employer as well as her former employer, together with two IRA's. [Miller] has a defined benefit pension through his present employer, together with an IRA. [Appellant] also has a small pension presently in pay status from a prior employment.
4. The expectations and inheritances of the parties: There is no evidence of any expectation of an inheritance by either party.
5. Duration of the marriage: The parties were married on October 16, 1993, and physically separated on January 26, 2020. Hence, the parties resided together for over 26 years....
6. The contribution by one party to the education, training, or increased earning power of the other party: There is no evidence that either party contributed to the other's education, training, or increased earning power.
7. The extent to which the earning power, expenses and financial obligations of the parties will be affected by reason of serving as custodian of minor children: The parties do not have any minor children.
8. Standard of living of the parties established during the marriage: Based on the testimony, it appears that the parties led a middle-class lifestyle. It appears, at some points, they lived paycheck to paycheck, but generally had sufficient funds to pay ordinary expenses although, there was some indication of delayed maintenance on the home or use of older vehicles.
9. The amount of education of the parties and time necessary to acquire sufficient education and training to enable the party seeking alimony to find new, appropriate employment: At this point, it appears that the parties are working to their limit of gainful employment due to their ages, medical conditions, and any other limitations that appear in the facts. It is highly unlikely that either party will avail themselves to any further education to enhance their income.
10. The relative assets and liabilities of the parties: There are some substantial assets to divide including, but not limited to, the marital residence and retirement accounts. The obvious goal is to provide enough financial support for both parties so that they can continue working and live within their means, together with having enough funds available for their retirement.
11. Property brought into the marriage by either party: There was no testimony regarding any property contribution by either party to their marriage.
12. Contributions of a spouse as homemaker: It appears that both parties performed household duties and contributed to the upkeep of their residence.
13. Relative needs of the parties: Payment of [Miller's] needs fall short of his steady income flow and benefits from employment. His income and expense budget indicates a shortfall each month with respect to his monthly expenses. It appears that there is a shortfall of approximately $350 per month, which includes his current spousal support. Some expenses, such as counsel fees[,] will not be a part of his budget in the near future.
14. Marital misconduct: None.
15. Federal tax alimony and state tax ramifications: It would appear that there is no significant tax implications other than the obvious for retirement accounts since they do hold deferred income.
16. Whether the party seeking alimony lacks any sufficient property including, but not limited to property distributed under Chapter 35 to provide for the parties' reasonable needs: Although both parties are gainfully employed as previously
stated, [Miller] will require some financial help as he approaches age 65. It is unknown when [Miller] will retire and receive social security. Perhaps [Miller] will wait until full retirement age or perhaps not.
17. Whether the party seeking alimony is incapable of self-support through appropriate employment: Neither party is totally incapable of self-support through their places of employment. [Miller] will have to work harder on his monthly budget to adapt it to the amount of alimony that will be recommended. Primarily due to the length of marriage and recommended equal equitable division of marital property, the recommendation will be for a modest amount of alimony as later set forth herein.
MRR, 7/18/22, at 19-23 (Alimony) (emphasis added).
The master found,
[d]ue to the disparity in income, the budgets of the parties, the age of the parties, and physical condition of the parties, an award of alimony from [Appellant] to [Miller] is appropriate.
At this point, [Miller's] expenses exceed his budget while [Appellant's] do not. The parties will be attaining their normal, full [S]ocial [S]ecurity retirement age in the near future. [Appellant] is 61 years of age and [Miller] is 60 years of age.
Alimony will be awarded, [from Appellant to Miller] for a period of 18 months at the rate of $400 per month, from the date of the attached order, 18 additional months at the rate of $350 per month, $250 per month for 18 additional months and $200 per month until [Miller] attains normal, full retirement age for social security benefits unless he begins to receive social security benefits earlier then, in which case, [it] will cause a termination of alimony at that point. Other than set forth herein, the alimony will be nonmodifiable as to term or amount except as provided for in the Divorce Code.Id. at 27-28. Although Appellant filed exceptions to the master's alimony recommendation, the trial court rejected those exceptions. As the trial court explained, "Evidence admitted at [the] hearing showed need for [an] award of alimony to [Miller]." Trial Court Order on Exceptions, 5/2/23, ¶ 3. The trial court opined,
[t]he Master did not commit an error of law or abuse of his discretion in finding [Miller] is unable to meet his reasonable needs without alimony from [Appellant] until [Miller] reaches his full Social Security retirement age. The [c]ourt notes that Income/Expense Exhibits of [Appellant] and [Miller] were admitted and [it heard the] testimony of the parties at [the] hearing. It is noted that [Appellant] has greater income than expenses and that [Miller] has greater expenses than income, even with the alimony awarded to [him].Id. ¶ 5.
Thus, the trial court properly considered the 17 factors articulated in Section 3701(b). As stated above, the trial court found that Miller requires alimony to sustain his standard of living, and Appellant has the ability to pay. Because we discern no abuse of the trial court's discretion in awarding Miller alimony, Appellant's first issue merits no relief. See Llaurado v. Garcia-Zapata, 223 A.3d 247, 259 (Pa. Super. 2019) (concluding trial court did not abuse its discretion in awarding alimony where it adequately addressed Section 3701(b) factors); Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003) ("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." (citation and quotation marks omitted)).
Appellant further argues that the trial court erred by declaring its alimony order to be non-modifiable. Appellant's Brief at 25. Appellant argues Section 3701(e) provides that an order is subject to modification for a change of circumstances of either party. Id.
Appellant's argument is not supported by the trial court's order or the record. In its order, the trial court specifically stated:
[A]limony is non-modifiable as to term and amount except as provided for in the Divorce Code, which would provide for termination of alimony upon death, remarriage or co-habitation with another individual as defined in the Divorce Code.
Divorce Decree, 5/2/23, ¶ 4 (emphasis added). The trial court recognized that the alimony amount and term may be modified as set forth in the Divorce Code, which provides for modification of alimony when there is a change in circumstances. 23 Pa.C.S.A. § 3701(e). No further relief is due.
Decree affirmed.
Judgment Entered.