Kent v. Kent

• Decision Date: 18 March 2011
• Citation: 2011 PA Super 55,16 A.3d 1158
• Parties: Barry P. KENT, Appelleev.Louise E. KENT, Appellant.Barry P. Kent, Appelleev.Louise E. Kent, Appellant.
• Court: Pennsylvania Superior Court

16 A.3d 1158

2011 PA Super 55

Barry P. KENT, Appellee

v.Louise E. KENT, Appellant.Barry P. Kent, Appellee

v.Louise E. Kent, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 15, 2010.Filed March 18, 2011.

Deborah L. Lesko, Pittsburgh, for appellant.Avram Y. Rosen, Mt. Lebanon, for appellee.BEFORE: FORD ELLIOTT, P.J., BOWES, and FREEDBERG, JJ.OPINION BY BOWES, J.:

In this appeal, Louise E. Kent (“Wife”) challenges the trial court's award of alimony in the divorce proceedings between the parties. After careful review, we affirm in part and reverse in part and remand for proceedings consistent with this opinion.

The trial court aptly delineated the pertinent facts as follows.

Wife and Barry Kent (Husband) were married for over 17 years and had two minor children—a daughter born in 1996 and a son born in 2003. In 2001, when their daughter reached school age, Wife stopped working at her job as a public school teacher to stay home and home-school the parties' children. The parties made changes in their financial lifestyle to try to accommodate the reduced income. Wife, having worked as a teacher for ten years, opted to receive her PSERS pension early to supplement Husband's salary. The family lived frugally, using equity in the house to allay financial burdens unmet by [H]usband's salary.

The marriage deteriorated over the years. Wife testified Husband had alcohol and pornography issues and indulged in extramarital affairs. In 2005, Husband announced he wanted a divorce. Wife, however, did not want a divorce, despite the couple's problems. The parties did separate on August 21, 2005.

At the time of trial, Wife and children were living in the marital residence and Husband was living in a one-bedroom apartment. Wife was continuing to home-school the parties' daughter. Wife asked to receive alimony because she wanted to remain at home to home-school both children through graduation from high school. She requested that Husband pay alimony of $700.00 until 2022 to accomplish this goal.

This Court entered its Order on August 20, 2008, dividing the marital estate 60/40 in Wife's favor and providing Wife with $100.00 more in monthly alimony than she requested to total $800.00, inter alia. The Court did not provide for alimony until the year 2022, finding instead that Wife needed to return to the workforce and become self-supporting.

A Decree in Divorce was entered on August 18, 2009. Wife filed three separate Notices of Appeal in this matter on September 3, 2009. On September 11, 2009, Husband filed a Motion for Reconsideration, which the Court granted, the result of which was merely a clarification of the time frame of the three years of alimony. Husband then filed a Notice of Appeal. Wife filed another Notice of Appeal on September 18, 2009. Husband's appeal was discontinued. Two of Wife's appeals were dismissed and two consolidated at this number and term.

Trial Court Opinion, 2/3/10, at 2–3. (citations to record omitted).

Both Wife and the trial court have complied with Pa.R.A.P. 1925. Wife now raises the following issues for our consideration.

A. Did the trial court abuse its discretion in failing to award Wife alimony for a time period to allow Wife to home-school the parties' children through high school?

B. Did the trial court abuse its discretion in failing to direct Husband to maintain the children as sole beneficiaries on his life insurance?

C. Did the trial court abuse its discretion in failing to award Wife a greater amount of attorney fees and costs?

D. Did the trial court abuse its discretion in failing to find that Husband had additional income in the form of dividends?

Wife's brief at 19.

Preliminarily, we note that both the parties and the trial court agree as to Wife's second issue and acknowledge that the court erred in neglecting to order Husband to maintain the parties' children as the sole beneficiaries on his life insurance policy. Accordingly, we remand for the trial court to correct this error. Further, we are cognizant that Husband, Wife, and the trial court agree that Wife's award of attorney's fees should be increased to $7,528.50, i.e., fifty percent of her attorney's fees. Therefore, we remand to the trial court to enter an appropriate order.

Having disposed of the matters that are not subject to dispute, we now address Wife's first contention that the trial court abused its discretion in failing to award Wife alimony through 2022, which would permit her to home school the parties' children through high school. Wife maintains that the trial court's decision to increase the amount of alimony but reduce the number of years she would receive alimony was inconsistent with its findings of fact. Further, she contends that the trial court's rationale, that Wife could not sustain herself on the child support and alimony requested, was not supported by the evidence. Finally, Wife repeatedly assails the trial court for purportedly substituting its own judgment on home schooling in determining that Wife should re-enter the workforce. According to Wife, the trial court should have determined that she has no earning capacity since she home schools the parties' oldest child. Wife submits that the decision to home school was a joint decision by her and Husband during their marriage and that their daughter has benefited from that schooling.

Husband counters that the parties did not make a joint decision to home school their daughter past elementary school and made no decision relative to their young son, who at the time was not old enough to attend school. However, Husband does acknowledge that he originally acquiesced in home schooling their daughter, but maintains that this initial agreement should not bind the parties “to an economically-unviable situation.” Husband's brief at 10. Husband also argues that home schooling does not bar Wife from re-entering the workforce. According to Husband, Wife must teach 180 days a year for five hours on each of those days, leaving additional time throughout the year to maintain employment of some kind. Additionally, Husband suggests that continued home schooling will prove a detriment to the children's development since the children will not be exposed to a more rigorous study of science and are less likely to develop socially.

In reaching its decision, the trial court concluded that although the parties jointly decided to home school during their marriage, “that decision had been premised and necessarily conditioned on an intact marriage and all of the economic benefit that inures to said condition.” Trial Court Opinion, 2/3/10, at 4. Thus, the court reasoned that Husband should not have to support two households with his income following divorce. While acknowledging that Wife was a dedicated teacher, the court determined that Wife's request to remain unemployed and rely on Husband's income was unrealistic and inequitable.

As a panel of this Court recently stated:

Following divorce, alimony provides 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. Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa.Super.2004) (citation 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. Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa.Super.2005). “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.” Miller v. Miller, 744 A.2d 778, 788 (Pa.Super.1999) (citation omitted).

“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.” Teodorski, 857 A.2d at 200 (citation omitted). An award of alimony may be reversed where there is an apparent abuse of discretion or there is insufficient evidence to support the award. Jayne v. Jayne, 443 Pa.Super. 664, 663 A.2d 169 (1995).

Balicki v. Balicki, 4 A.3d 654, 659 (Pa.2010).

In determining whether alimony is necessary, the trial court must consider the enumerated factors set forth in 23 Pa.C.S. § 3701. That statute provides:

(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.

(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....