Levenson, L. v. Levenson, S. ( 2018 )

J-A06022-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LINDA LEVENSON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
STANTON LEVENSON, :
:
Appellee :
:
: No. 1139 WDA 2017
Appeal from the Order July 10, 2017
in the Court of Common Pleas of Allegheny County Family Court at No(s):
FD 99-003878-006
LINDA LEVENSON, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STANTON LEVENSON, :
:
Appellant :
:
: No. 1189 WDA 2017
Appeal from the Order July 10, 2017
in the Court of Common Pleas of Allegheny County Family Court at No(s):
FD 99-003878-006
BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*
FILED JUNE 25, 2018
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
Because the trial court determined, based upon the credibility finding of
the hearing officer, that Husband did not let the insurance policy lapse
intentionally, I agree that the trial court properly found Husband not to be in
*Retired Senior Judge assigned to the Superior Court.
J-A06022-18
contempt of Paragraph 4 of the Consent Order. However, even if Husband did
not intentionally permit the life insurance policy to lapse, such that the trial
court could have held Husband in contempt, the trial court failed to consider
Husband’s contractual obligations.
Paragraph 4 mandates that Husband shall pay all premiums necessary
to maintain Wife as a beneficiary on life insurance in an amount of $200,000
until he fully retires. There is no dispute that Husband failed to do so.
Paragraph 4 also requires the bills for the premiums to be mailed to Husband.
As the majority recognizes, Paragraph 4’s passive language is ambiguous as
to whether it was Wife’s or the insurance company’s responsibility to mail the
bills to Husband. The trial court determined that it was Husband’s obligation
to pay the premiums and Wife’s obligation to mail the bills. The trial court did
not determine, however, whether one is conditioned upon the other for
purposes of the parties’ contractual obligations. Even if Husband’s failure to
pay was not willful, Husband still may have breached the contract unless
Wife’s failure to mail the bills excused his performance. Therefore, I would
remand the case to the trial court to determine whether Husband breached
Paragraph 4 and to fashion an appropriate remedy if he is in breach.1
____________________________________________
1Of course, to the extent that Husband did breach the contract, Wife would
be entitled to additional attorneys’ fees pursuant to Paragraph 9 of the
Consent Order.
-2-
J-A06022-18
Second, the majority determines that the record does not support the
trial court’s ordering of Husband to pay $40,000 in alimony arrearages in two
lump sums. I agree with this determination, but write separately to emphasize
that the problem in this case is not the court’s exercise of its discretion to
require payment in a lump sum method, c.f. Kessler v. Helmick, 672 A.2d
1380, 1384-85 (Pa. Super. 1996), but rather that the trial court failed to
explain how it calculated the total amount and such amount is unsupported
by the record. On remand, while the trial court must recalculate an amount
derived from the evidentiary record, I believe that Husband still should have
to pay the arrearages in a lump sum. Too often courts are lenient on the
payor spouse and permit the payor spouse to pay arrearages in dribs and
drabs. Doing so essentially requires the dependent spouse to provide an
interest-free loan to the payor spouse. I see no reason why Wife should have
to provide Husband with an interest-free loan in this case, especially when
Husband has not taken precautions to account for his fluctuating income by
saving in lush times in preparation for the lean times.
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