Speaker, M. v. Speaker, P. , 183 A.3d 411 ( 2018 )

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2018 PA Super 58MICHELLE M. SPEAKER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PETER J. SPEAKER : No. 468 MDA 2017
Appeal from the Order Entered February 16, 2017
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 06-5433
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
OPINION BY DUBOW, J.: FILED MARCH 16, 2018
Appellant, Michelle M. Speaker (“Wife”), appeals from the February 16,
2017 Order entered in the Cumberland County Court of Common Pleas that
granted the Petition to Terminate Order for Alimony filed by Appellee, Peter
J. Speaker (“Husband”), effective January 1, 2020, and ordered a yearly
decrease in alimony payments leading up to that date. Upon careful review,
we vacate the Order.
Husband and Wife were married on April 9, 1988, and divorced on
December 11, 2008. They are parents to four children. Husband is an
attorney who has worked at Thomas, Thomas & Hafer, LLP, since 1986,
serving as a managing partner since 1995 and the chief managing partner
since 2011. Wife, whose highest educational degree is a high school
diploma, was a homemaker after the birth of parties’ first child in 1988.
Prior to that, Wife worked in a secretarial and administrative capacity. Wife
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* Retired Senior Judge assigned to the Superior Court.
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obtained her real estate license in 2005, one month prior to the parties’
separation. At the time of the parties’ separation in December 2005, all four
children were minors and resided primarily with Wife; at the time of the
divorce, the oldest child was attending college and living primarily with
Father.
The parties entered into a Marital Settlement Agreement
(“Agreement”) on November 4, 2008, which was incorporated into the
December 11, 2008 Divorce Decree. The Agreement relied, in part, on
Husband’s 2007 income, which was $286,165. Husband’s Exhibit 6,
Husband’s Social Security Statement.
On December 11, 2008, the trial court issued an Alimony Order that
ordered Husband to pay $4,500 per month in alimony to Wife. The Alimony
Order also provided, pursuant to the Agreement:
[Husband]’s alimony obligation will be modifiable based upon the
terms and provisions as contained in the Divorce Code of the
Commonwealth of Pennsylvania, 23 Pa.C.S. § 3101, et. seq., but
in any event, shall be reviewable on or after January 1, 2017.
Alimony Order, dated 12/11/08.
On September 14, 2016, Husband filed a Petition to Terminate Order
for Alimony (“Petition”) requesting a modification or termination of the
alimony award based on “substantial changes in the economic circumstances
of both parties.” Petition to Terminate Order for Alimony, dated 9/14/16.
On October 19, 2016, Wife filed an Answer to [Husband]’s Petition to
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Terminate Order for Alimony and Counterclaim (“Counterclaim”) requesting
an upward modification in the alimony award.
On January 9, 2017, the trial court held a hearing on the Petition and
Counterclaim. The trial court heard testimony from Husband, Husband’s
treating physician, Ian Roy Schreibman, M.D., and Wife.
Husband testified that he is 59 years old and currently employed as a
chief managing partner at a law firm where he works 60 to 80 hours per
week and earned approximately $450,000 in 2016. N.T. Alimony Hearing,
1/9/17, at 15, 16; Trial Court Opinion, filed 7/7/17, at 2. Husband
explained that the partners in the firm elect the managing partners to a
three-year term and once he turns 60 years of age, he will no longer be
eligible to serve a new three-year term. Id. at 17-18. Husband testified
that when he is no longer managing partner, his salary will decrease, there
was “no formula” for his compensation, and his pay is dependent on “how
hard you work, how many hours you put in, and how much money comes in
because of your work.” Id. at 18.
Husband further testified that he is a recovering alcoholic, and has
been sober since October 10, 2003. Id. at 26. He also stated that his
current medical conditions include hepatitis C, cardiac arrhythmia, acid
reflux, and arthritis. Id. at 19-20. Husband clarified that he has had
hepatitis C for 20 years, and in the past 3 years, has started to experience
some symptoms, including fatigue, headaches, joint and muscle aches, and
nausea. Id. at 21-22. Husband testified that in December 2016 he started
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an eighty-day course of treatment for his hepatitis C with a medication
called HARVONI, which he described as “kind of a wonder drug” that can
cure hepatitis C. Id. at 23, 25.
Husband testified that his doctor recently advised him to cut back on
his workload, and as a result, he would like to start working less and
eventually retire at age 65. Id. at 25, 29-30. Husband acknowledged that
his retirement account had a balance of $957,382. Id. at 35.
Husband’s treating physician, Ian Roy Schreibman, M.D., who is a
specialist in liver diseases and hepatitis C, testified via deposition. N.T.
Deposition, 12/19/16, at 3. The deposition took place on December 19,
2016, prior to Husband beginning his course of treatment with HARVONI.
Dr. Schreibman testified that he has been treating Husband for hepatitis C
for the past three years and examines him on an annual basis. Id. at 13-
14. Dr. Schreibman confirmed that Husband’s symptoms include
“debilitating fatigue, joint pains, muscle pains, intermittent episodes of
nausea, increased lethargy.” Id. at 6.
Dr. Schreibman testified that he prescribed HARVONI for Husband, but
Husband’s insurance company denied coverage twice. Id. at 7, 16. The
insurance company denied the treatment because it lacked documentation
regarding Husband’s METAVIR scores and documentation that Husband had
been abstinent from alcohol and illicit drugs for at least six months. Id. at
16. Dr. Schreibman testified that HARVONI has a cure rate of 93% and 80%
of patients experience improvement in symptoms. Id. at 7, 16.
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Given Husband’s history of liver and heart disease, Dr. Schreibman
recommended that Husband reduce his workload over the next few years.
Id. at 12. Alternatively, if Husband completed the HARVONI treatment,
became cured, had improvement in his symptoms, and a biopsy showed
stability in his liver, Dr. Schreibman testified that continuing his current
workload would be “reasonable.” Id. at 18-19.
Wife is 55 years old and has been self-employed as a real estate
agent since November 2005, a few weeks before Husband moved out of the
house. N.T. Alimony Hearing, 1/9/17, at 63. Wife testified that her
commissions in 2014, 2015, and 2016 were approximately $35,000,
$31,000, and $34,000, respectively. Id. at 67-68. Wife considers her
employment to be full-time and she is available to her clients “24/7.” Id. at
66. Wife has worked seasonal jobs at various department stores to
supplement her real estate income. Id. at 68-69. Wife also recently applied
for two school district jobs, one as a substitute secretary and one in the
cafeteria. Id. at 69, 93. She testified that she applied for the jobs because
“I’m worried about how I’m going to pay my health insurance[.]” Id. at 93.
Wife received retirement funds through equitable distribution, which
totaled approximately $100,459 in 2016. Id. at 70; Wife’s Exhibits 19, 20,
Wife’s AXA Account Statements. Wife further testified that she has not been
able to contribute to her retirement account. Id. at 71.
Wife resides in the marital home, which carries a mortgage balance of
approximately $190,000. Id. at 59, 73. Wife testified that she has not been
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able to make her monthly expenses with her income, alimony, and child
support. Id. at 81. She explained, “I mean, I pay my bills. I do pay my
bills. But I’ve had to at different times borrow money. I juggle things pretty
well, I guess, except I have a lot of debt.” Id. Wife does not have plans to
retire and testified, “I don’t know how I would retire ever.” Id.
Wife testified that her health is “pretty good most of the time.” Id. at
76. She has high blood pressure, high cholesterol, arthritis in her knees and
fingers, and suspicion of lung disease. Id. 76-77. Wife also has hepatitis C,
and underwent a year-long interferon treatment in early 2000. Id. at 76-77.
On February 11, 2017, the trial court issued an Order, which granted
Husband’s Petition, effective January 1, 2020, denied Wife’s Counterclaim,
and ordered Husband to pay alimony in the amount of $4,500 per month in
2017, $3,000 per month in 2018, and $1,500 per month in 2019.
Wife timely appealed. Both Wife and the trial court complied with
Pa.R.A.P. 1925.
Wife raises the following issues on appeal:
1. Whether the trial court abused its discretion by failing to
examine the parties’ current financial and economic
circumstances and instead, relied on evidence regarding
Husband’s desire to retire at an unknown date in the future,
which was speculative and carried no probative value at trial.
2. Whether the trial court abused its discretion by arbitrarily
decreasing Husband’s alimony obligation in 2018 and again in
2019, by terminating Husband’s alimony obligation
prospectively effective January 1, 2020, and by denying
Wife’s request for an increase in the alimony order, when the
clear and unambiguous language of the parties’ Marital
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Settlement Agreement provides for a “review” and not an
automatic modification or termination of alimony.
3. Whether the trial court erred as a matter of law by failing to
consider and set forth on the record all relevant alimony
factors enumerated in Section 3701(b) of the Divorce Code
prior to the deadline for the filing of an appeal, as the trial
court’s consideration of all seventeen factors is mandatory
and should be available to the parties so that either party
may pursue an appeal if they choose.
4. Assuming arguendo that the trial court properly considered all
relevant factors pursuant to Section 3701(b) of the Divorce
Code, the trial court abused its discretion by entering an
Order in contravention of the competent evidence presented
at trial regarding the economic circumstances of each party.
5. Whether the trial court abused its discretion by relying on
U.S. Bureau of Labor Statistics to determine Wife’s earning
capacity without considering Wife’s education, age, training,
health, earnings history, and contribution as a homemaker
and primary custodian of four (4) minor children for over 17
years during the marriage.
6. Whether the trial court abused its discretion by terminating
Wife’s alimony as a result of a personal bias against indefinite
alimony despite the clear and unambiguous language of
Section 3701(c) of the Divorce Code.
Wife’s Brief at 4-5 (reordered for ease of disposition).
Our standard of review in spousal support cases is well settled: this
Court must determine whether the trial court has abused its discretion.
Dudas v. Pietrzykowski, 849 A.2d 582, 585 (Pa. Super. 2004). “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)
(citation omitted). An abuse of discretion is not merely an error of
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judgment, but rather a determination that the trial court has “misapplied the
law, or has exercised judgment which is manifestly unreasonable, or is the
product of partiality, prejudice, bias or ill will as demonstrated by the
evidence of record.” Dudas, supra at 585 (citation and quotation omitted).
In her first issue, Wife avers that the trial court abused its discretion
when it relied on evidence regarding Husband’s desire to retire at an
unknown date in the future rather than on evidence of the parties’ current
financial and economic circumstances. Wife’s Brief at 32. Wife argues that
Husband’s desire to retire in the future does not constitute a substantial and
continuing change in circumstances that would warrant a downward
modification or termination of the alimony order and his request is,
therefore, premature. Wife’s Brief at 14-15. We agree.
Section 3701(e) of the Divorce Code permits modification and
termination of an alimony award upon a showing of a substantial and
continuing change of circumstances. 23 Pa.C.S. § 3701(e). It provides:
An order entered pursuant to this section is subject to further
order of the court upon changed circumstances of either party of
a substantial and continuing nature whereupon the order may be
modified, suspended, terminated or reinstituted or a new order
made. Any further order shall apply only to payments accruing
subsequent to the petition for the requested relief. Remarriage
of the party receiving alimony shall terminate the award of
alimony.
Id.
This Court has continually held that changed financial circumstances
resulting from retirement can serve as a basis for a substantial and
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continuing change necessary to modify an alimony award. In McFadden v.
McFadden, 563 A.2d 180 (Pa. Super. 1989), we held that the “changed
financial circumstances of the appellant brought about by voluntary
retirement” was a substantial and continuing change in circumstances
sufficient to allow a modification of the alimony award. Id. at 183. In
Lee v. Lee, 507 A.2d 862 (Pa. Super. 1986), this Court found that the
trial court erred when it refused to consider the changed financial
circumstances of an appellant brought about by forced, early retirement.
Id. at 865. In McKernan v. McKernan, 135 A.3d 1116 (Pa. Super.
2016), we held that a change in a party’s income based upon retirement
benefits is a substantial change of circumstances upon which a
modification of alimony may be based. Id. at 1118.
Here, the trial court found Husband’s desire to retire and poor health
to be a substantial and continuing change of circumstances and opined:
Under Pennsylvania law, voluntary retirement may constitute a
changed circumstance of a substantial and continuing nature
that may warrant a modification of alimony. [Husband] is
approaching retirement age, and is in poor health. Moreover,
[Husband] testified that he does not wish to die at his desk like
his father did. He indicated that he wishes to retire at the age of
65, which we found to be reasonable.
Trial Court Opinion, filed 7/7/17, at 3 (citation and footnote omitted).
However, in the instant case, Husband has not yet retired and has
not set a definitive retirement date. Rather, Husband wishes to retire at
the age of 65, in approximately 6 years. Because Husband has yet to
retire or set an imminent date for retirement, he is unable to show any
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changed financial circumstances to serve as a basis for a substantial and
continuing change necessary to modify his alimony award downward. In
fact, Husband’s income has increased significantly since the entry of the
original alimony order.
Likewise, Husband did not present any evidence to show that his “poor
health” has affected his financial circumstances, his ability to work, or that it
is of a “continuing” nature. As stated above, Husband’s income has
increased significantly since the entry of the original alimony order.
Moreover, at the time of trial, Husband had just started an eighty-day
treatment regimen for hepatitis C that has a 93% cure rate. While Dr.
Schreibman recommended that Husband reduce his workload given his
current symptoms, he also testified that it would be “reasonable” for
Husband to continue working at his current rate if the treatment were
successful.
Without an imminent retirement date, without results of Husband’s
treatment regimen, and absent any evidence of an unfavorable change in
Husband’s current financial circumstance, Husband’s request for alimony
modification is, at best, premature.
Our review of the record and application of relevant law indicates that
Husband failed to produce evidence of a substantial and continuing change
of circumstances necessary to modify his alimony award. We, therefore,
conclude that the trial court abused its discretion in granting his Petition.
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Insofar as Wife alleges the trial court abused its discretion by denying
her Counterclaim, in which she requested an increase in alimony, she has
failed to develop this issue beyond one phrase within one sentence. See
Wife’s Brief at 19. Accordingly, Wife waived this issue for failing to develop
it in a meaningful fashion capable of review. See Commonwealth v.
Walter, 966 A.2d 560, 566 (Pa. 2009) (holding claims waived for failure to
develop them). In light of our disposition, we decline to address Wife’s
remaining issues.
Order vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2018
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