Opinion
J-S45028-18 No. 556 MDA 2018 No. 557 MDA 2018
10-02-2018
LENWARD MCMILLAN, SR. Appellant v. ROSA L. MCMILLAN
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered March 20, 2018
In the Court of Common Pleas of York County
Civil Division at No(s): 2013-FC-001003-02 Appeal from the Order Entered December 22, 2017
In the Court of Common Pleas of York County
Civil Division at No(s): 2013-FC-001003-15 BEFORE: PANELLA, J., OTT, J., and PLATT, J. MEMORANDUM BY OTT, J.:
Retired Senior Judge assigned to the Superior Court.
Lenward McMillan, Sr., ("Husband") appeals from the decree entered March 20, 2018, in the Court of Common Pleas of York County at Docket No. 2013-FC-001003-02 that divorced him and Rosa L. McMillan ("Wife") from the bonds of matrimony. Husband also appeals from an earlier order entered on December 22, 2017, in the same court at Docket No. 2013-FC-001003-15, which was finalized by the divorce decree and granted Wife's exceptions to the Master's report and awarded alimony to her, in the amount of $200.00 per month. Husband now challenges the alimony award. We affirm.
Husband originally filed notices of appeal from both the December 22, 2017, distribution order that disposed of the parties' property and the March 20, 2018, divorce decree. "Orders of property distribution are not appealable until entry of a final divorce Decree[.]" Schenk v. Schenk , 880 A.2d 633, 638 (Pa. Super. 2005). Here, the December 22, 2017, order did not become final - and, consequently, ripe for our review -- until the final divorce decree was entered on March 20, 2018. See Pa.R.A.P. 341(a).
Husband was born in 1946 and suffers from renal disease requiring dialysis. See Exs. D-1, D-4; Trial Court Opinion, 12/22/2017, at 2-3, 5. He receives a monthly Social Security benefit of $2,120.00 and a monthly pension payment of $920.00.
Wife was born in 1943 and "is in fair health but suffers from diabetes, takes blood pressure and cholesterol medicine, has her kidneys checked, and sees a neurologist every two to three months, the eye doctor every three months, and the 'foot doctor' for problems with her feet." Id. at 2. Her only source of income is her monthly Social Security benefit of $782.00; she has no pension and a tenth grade education. See Ex. D-5; Trial Court Opinion, 12/22/2017, at 3.
The parties married in 1991 and separated in February 2013. Id. at 2. Husband filed a complaint in divorce in June 2013. Wife subsequently filed a petition for alimony pedente lite ("APL"), which the trial court awarded in the amount of $839.00 per month. Id. at 3. The trial court appointed a divorce master ("the Master") to hear the parties' economic issues. Id. at 2. The Master recommended Wife receive the entirety of the marital portion of Husband's pension, $312.00 per month, and no alimony. Id. at 4. On August 15, 2017, Wife filed exceptions to the Master's report. Id. On December 22, 2017, the trial court granted Wife's exceptions and awarded alimony to her, in the amount of $200.00 per month, in addition to receiving the $312.00 per month from Husband's pension. On March 20, 2018, the trial court entered the final divorce decree.
The parties stipulated the marital portion of the pension was the only marital asset. See N.T., 7/7/2017, at 50.
On March 29, 2018, Husband filed two notices of appeal, both stating that they were "from the Divorce Decree entered in this matter on March 20, 2018, and more specifically to the Order entered on December 22, 2017, docketed same date." Notices of Appeal, 3/29/2018. As it was unclear whether the two appeals were duplicative, on May 14, 2018, this Court directed Husband to show cause why one of the appeals should not be dismissed. On May 23, 2018, Husband filed an application for consolidation. On June 5, 2018, this Court granted the application.
Husband simultaneously filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18, 2018, the trial court entered a statement that its opinion attached to the property distribution order of December 22, 2017, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).
Husband raises the following issues on appeal:
I. Whether the trial court erred as a matter of law and/or abused its discretion in awarding Wife alimony and contrary to the factors set forth in [§] 3701(b) of the Divorce Code[], as amended, particularly as the trial court awarded Wife 100% of the parties' net marital estate and failed to consider Husband's ability to pay alimony?Husband's Brief at 4.
II. Whether the trial court's award of alimony is contrary to the Divorce Code's fundamental policy to effectuate economic justice between the parties as set forth in § 3102(a)(6)[] of the Divorce Code, as amended?
The Divorce Code is codified at 23 Pa.C.S. §§ 3101-3904. See below for the full text of 23 Pa.C.S. § 3701(b).
See below for the full text of 23 Pa.C.S. § 3012(a)(6).
With respect to both issues, we are guided by the following:
Awards of alimony . . . are within the sound discretion of the trial court and will not be disturbed absent an error of law or abuse of discretion.Cook v. Cook , 186 A.3d 1015, 1019-1020 (Pa. Super. 2018) (internal citations and quotation marks omitted).
An award of alimony should be made to either party only if the trial court finds that it is necessary to provide the receiving spouse with sufficient income to obtain the necessities of life. The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonable needs of the person who is unable to support 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.
An award of alimony is determined pursuant to the statutory factors set forth in 23 Pa.C.S. § 3701(b):
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.
(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
Id. "In determining 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." Cook , 186 A.3d at 1020 (emphasis in original) (citation and internal quotation marks omitted).alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, "abuse" shall have the meaning given to it under section 6102 (relating to definitions).
(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.
Additionally, "[o]ne of the overarching purposes of the Divorce Code is to work economic justice between the parties." Dean v. Dean , 98 A.3d 637, 642 (Pa. Super. 2014). According to 23 Pa.C.S. § 3012(a)(6):
The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to . . . [e]ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.Id.
Here, Husband contends the alimony award was contrary to the factors set forth in 23 Pa.C.S. § 3701(b), particularly as Wife is also receiving a portion of his pension. See Husband's Brief at 12. Husband states "[t]he factors within Section 3701(b) relevant to the instant matter are subsections (1) relative earnings of the parties, (2) the ages and physical condition of the parties, (3) sources of income, (10) the relative assets and liabilities of the parties, and (14) the relative needs of the parties." Id. at 13-14. However, Husband does not specify what facts or parts of his analysis apply to which statutory factor. See id. at 12-18. Nevertheless, we discern from his statement that, at the time of the Master's hearing, he was seventy years old and his "health is poor[,]" id. at 14, which would align with factor (2), "[t]he ages and the physical, mental and emotional conditions of the parties." His remaining argument, that the trial court "failed to consider [his] ability to pay alimony[,]" id. at 12, would align with his remaining listed factors. See also Cook , 186 A.3d at 1020.
Husband concedes that "the parties had a relatively long-term marriage, of twenty-two (22) years." Husband's Brief at 14. This fact applies to factor (5), "[t]he duration of the marriage." 23 Pa.C.S. § 3701(b).
While Husband emphasizes his own age and health issues, factor (2) states that the trial court must consider "[t]he ages and the physical, mental and emotional conditions of the parties." 23 Pa.C.S. § 3701(b)(2) (emphasis added). Nowhere in his brief does Husband acknowledge Wife's age and physical condition or recognize that the trial court must consider her needs as well. As the trial court explains, Wife is three years older than Husband, has diabetes and problems with her feet, needs blood pressure and cholesterol medicine, and has regular appointments with a nephrologist, a neurologist, and an eye doctor. See Trial Court Opinion, 12/22/2017, at 2. In determining the need for and amount of alimony, the trial court was required by the statutory factors to consider Wife's age and physical condition in addition to Husband's medical concerns. See 23 Pa.C.S. § 3701(b)(2).
See Husband's Brief at 14.
As for Husband's claim that the trial court failed to consider his ability to pay alimony, we conclude this challenge merits no relief, and the trial court's opinion comprehensively discusses and properly disposes of this claim,
Both Husband and Wife acknowledge that the Divorce Master erred in calculating Husband's income. On Page 12 of the Master's Report and Recommendation, the [M]aster indicated that Husband's income, prior to paying any APL or alimony, is $2,006 per month. The Master arrived at this number by adding $1,086, which is Husband's net Social Security income after payment of APL to Wife, and $920, which is Husband's gross monthly pension benefit. In actuality, in considering the parties' incomes after divorce, the Master should have added the $839.00 per month deduction for APL back into Husband's income since the APL payment will terminate once the divorce becomes final. Thus, Husband concedes that the Divorce Master erred in calculating his monthly gross income; however, he argues that, despite the miscalculation, his regular recurring expenses would still equal or exceed his monthly income once corrected. Husband specifically argues that the Divorce Master incorrectly identified his monthly out-of-pocket expenses for dialysis as $800.00 per month when it is actually $875.00 per month.
Wife argues that, upon correcting Husband's income, Husband would receive a monthly income of $2,929.00 per month which exceeds his monthly expenses of $2,717.00 per month. Even when the $312.00 per month that the Master awarded to Wife is subtracted from Husband's income, his monthly income would still be $2,617.00, which is approximately equal to his monthly expenses and would exceed his monthly expenses if the [c]able
TV and newspaper subscriptions, which the Master admits are arguably unessential, are removed from Husband's expenses.
On the other hand, based on the Master's decision, Wife's sole sources of income pursuant to the Master's decision would be her net monthly Social Security benefit in the amount of $676.00 per month and the monthly pension benefit she was awarded by the Master in the amount of $312.00 per month, for a total of $988.54 [sic] per month. This is well short of Wife's monthly expenses as calculated by the Master of $1,362.00 per month. Consequently, because the Master failed to add the monthly APL payment back into Husband's income, the Master reached a decision which results in Husband's necessary monthly expenses being met, but leaves Wife well short of sufficient income to meet her necessary monthly expenses.
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The Master's rationale in failing to award Wife post-divorce alimony is that Husband has no ability to pay alimony in light of the significant shortfall in terms of Husband's income when compared to his expenses, citing the Teodorski case (Master's Report and Recommendation Page 13). However, the Master's reasoning is based on her incorrect calculation of Husband's income and expenses.
Husband contends that Wife's second exception is without merit upon consideration of the income/expense rationale. Husband argues that neither party can meet his/her recurring expenses and are both deficient on a monthly basis. Husband's income totals approximately $2,617.00 after subtracting out Wife's $312.00 share of Husband's pension. Husband's expenses total approximately $2,669.00 after adding in an additional $75.00 per month for his dialysis treatment but subtracting out $123.00 per month for the non-essential expenses of cable television, newspapers, and magazine subscriptions. Husband's net shortfall each month is therefore about $52.00. Wife, on the other hand, has an approximate $374.00 per month shortfall in terms of her net monthly income and her net monthly expenses, and this deficit includes necessities such as rent, utilities, and groceries.
When Husband's income and expenses are corrected, the Court finds that both Husband and Wife have financial shortfalls but Wife's shortfall is more than seven (7) times greater than Husband's shortfall. As a result, the Court finds that requiring Husband to pay two hundred and 00/100 dollars ($200.00) per month to Wife in alimony payments is fair and equitable and necessary for Wife to obtain the necessities of life.Trial Court Opinion, 12/22/2017, at 5-8.
Teodorski v. Teodorski , 857 A.2d 194 (Pa.Super. 2004).
We only add that the trial court must consider both parties, including "[t]he relative earnings and earning capacities of the parties" and "[t]he sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits." 23 Pa.C.S. § 3701(b)(1), (3) (emphasis added). While Husband receives both a monthly Social Security benefit and a pension payment, Wife only receives a significantly smaller monthly Social Security benefit and no pension. See Trial Court Opinion, 12/22/2017, at 3.
Furthermore, the trial court must concern itself with "all relevant factors, including the 17 factors that are expressly mandated by statute," Cook , 186 A.3d at 1020, not just those that Husband has chosen to highlight in his brief. Husband's Brief at 13-14. Factor (5) is "[t]he duration of the marriage," 23 Pa.C.S. § 3701(b)(5), which, in this case, was lengthy - twenty-two years between marriage and separation. Trial Court Opinion, 12/22/2017, at 2. Factor (9) is the "[t]he relative education of the parties." 23 Pa.C.S. § 3701(b)(9). Wife only has a tenth grade education and, at her advanced age, is unlikely to acquire more education. Trial Court Opinion, 12/22/2017, at 2-3. These additional factors also weigh in Wife's favor when determining whether an award of alimony is necessary. See 23 Pa.C.S. § 3701(b).
Accordingly, based upon the parties' ages, health, earnings and sources of income, education, and respective negative net incomes and upon the length of the marriage, we conclude the trial court did not abuse its discretion by ordering an award of $200.00 per month in alimony from Husband to Wife, thereby achieving economic justice between the parties. See 23 Pa.C.S. §§ 3701(b)(1)-(3), (5), (9) & 3012(a)(6); Cook , 186 A.3d at 1019; Dean , 98 A.3d at 642. We agree with the trial court's assessment that "requiring Husband to pay two hundred and 00/100 dollars ($200.00) per month to Wife in alimony payments is fair and equitable and necessary for Wife to obtain the necessities of life." Trial Court Opinion, 12/22/2017, at 8.
Accordingly, we affirm the December 22, 2017, order and the March 20, 2018, divorce decree. The parties are instructed to attach a copy of the trial court's opinion of December 22, 2017, and of the trial court's statement of April 18, 2018, to any future filing that references this Court's decision.
December 22, 2017 order and March 20, 2018 divorce decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/02/2018
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