McFadden v. McFadden

• Decision Date: 02 August 1989
• Citation: 563 A.2d 180,386 Pa.Super. 506
• Parties: David George McFADDEN, Appellant, v. Marjorie Marotte McFADDEN. 425 HSBG. 1988
• Court: Pennsylvania Superior Court

Page 180

563 A.2d 180

386 Pa.Super. 506

David George McFADDEN, Appellant, v. Marjorie Marotte McFADDEN.

425 HSBG. 1988

Superior Court of Pennsylvania.

Argued March 7, 1989.

Decided Aug. 2, 1989.

Lynn Y. MacBride, Chambersburg, for appellant.

Sandra L. Meilton, Harrisburg, for appellee.

Before McEWEN, OLSZEWSKI and POPOVICH, JJ.

POPOVICH, Judge:

The appellant, David McFadden, appeals from the denial of his petition to terminate or reduce his spousal support obligations. We reverse and remand for proceedings in accordance with the provisions of this opinion.

On October 1, 1981, David McFadden and Marjorie McFadden were granted a divorce. At the same time, the parties entered into a Stipulation and Agreement which was approved by the court and incorporated into the divorce decree. The Stipulation and Agreement covered the issues of alimony and equitable distribution of property. In regard to alimony, the Agreement provides that "The plaintiff [David McFadden] is to pay the defendant [Marjorie McFadden] alimony in the amount of $400.00 per month so long as she may live or until changed by order of court, ..." Concerning the equitable distribution of their property, the Agreement provided that the marital residence became property of the parties as tenants in common subject to several conditions: First, Marjorie McFadden was granted the right to possess and occupy the residence during her lifetime or until she decides to cease occupying the home permanently; second, she was obligated to maintain the property; and third, upon sale of the property, the parties are to divide the proceeds equally or David McFadden is to receive $22,5000 whichever is less. The Agreement further provided that "All other property of the plaintiff and defendant, whether marital property or not, shall become the absolute property of the party now having possession or control or ownership thereof, ..." The Agreement also provided for the payment of taxes and counsel fees.

For four and one-half years, David McFadden faithfully complied with the Stipulation and Agreement. However, on March 13, 1986, he filed a petition to terminate or reduce alimony due to his impending retirement on April 1, 1986. A Master was appointed to hear the petition. He found that the Agreement was modifiable and that the approximately 56% reduction in David McFadden's income due to his "good faith" retirement constituted a substantial change in circumstances warranting modification. After the hearing, the Master recommended a reduction in alimony from $400 per month to $320 per month. Both parties filed exceptions to the Master's Report. Upon review, the lower court found that the Agreement did not contain a specific modification clause and, consequently, held the Agreement was not modifiable. The court further opined that David McFadden's retirement was a foreseeable and expected change and did not qualify as a substantial change in circumstances which would warrant modification. This appeal followed.

On appeal, David McFadden contends: 1) The lower court erred in ruling that the Stipulation and Agreement's provision regarding alimony was not modifiable due to the absence of a modification clause; 2) The lower court erred in ruling that, even if the Agreement was modifiable, there has not been a substantial and continuing change of circumstances which would justify modification; and 3) His pension was awarded in toto to him as a part of the equitable distribution of marital property, and, consequently, it should not be included as income for the purpose of computing his alimony obligation.

When reviewing alimony orders, our review is limited to a determination of whether the lower court committed an error of law or an abuse of discretion. Lee v. Lee, 352 Pa.Super. 241, 245-46, 507 A.2d 862, 865 (1986); Mazzei v. Mazzei, 331 Pa.Super. 432, 480 A.2d 1111, 1113 (1984).

In ruling that the Stipulation and Agreement regarding alimony and property distribution which was incorporated into the divorce order was not modifiable, the lower court relied upon Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985). Therein, a panel of the Superior Court ruled that an agreement between the parties to a divorce action which addressed equitable distribution of marital property as well as alimony and which was reduced to a consent order could not be modified. However, "[t]o the extent that Stanley suggests that an agreed court order for the payment of alimony cannot be modified in the event of a substantial change in circumstances, ..., it has been overruled sub silentio by the opinion of the court en banc in Hollman v. Hollman, [347 Pa.Super. 289, 306, 500 A.2d 837, 846 (1985) ]." Lee, 507 A.2d at 865 n. 2. Thus, by relying upon Stanley, supra, and ruling the alimony award was not modifiable, the lower court committed an error of law.

In Lee, supra, the court was presented with facts similar to those at bar. By agreement, William and Virginia Lee divided their marital property and made provision for alimony. This agreement, in fact, was merely an acknowledgement of an agreed court order for permanent alimony. The Lee court, following the Hollman decision, ruled that a court order for alimony entered pursuant to an agreement of the parties is subject to modification upon proof of a continuing and substantial change in the economic circumstances of the obligor. Lee, 507 A.2d at 864; 23 Pa.S.A. § 501(e) and (f). Similarly, we find that this agreement which was specifically incorporated into the divorce decree (and did not reject merger) is modifiable as to alimony if the appellant proves that a continuous and substantial change in circumstances has occurred. ¹ See generally, Sonder v. Sonder, 378 Pa.Super. 474, 485-95, 549 A.2d 155, 161-166 (1988); Factor v. Factor, 367 Pa.Super. 128, 132-35, 532 A.2d 823, 825-826 (1987).

It follows then that we must determine whether the lower court correctly determined the appellant's retirement did not amount to a substantial change in circumstances warranting modification. The lower court expressly held: "[W]here the parties agreed upon the amount of the support, the foreseeable and expected change in employment status of one party does not qualify as a substantial change in circumstances justifying modification of the support. Com. ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983)." Trial Court Op. at 7. However, we must disagree with the trial court's reasoning that the appellant's knowledge of his retirement almost five years in the future automatically precludes a modification of the alimony order. ²

Section 501(e) of the Divorce Code expressly provides that any alimony order may be "modified, suspended, terminated, reinstated or a new order made" upon "changed circumstances." As noted in Teribery v. Teribery, 357 Pa.Super. 384, 393, 516 A.2d 33, 37-38 (1986), an alimony award need not reflect all contingencies--"Should either party die or become disabled, for example, a petition for modification can be filed to reflect changed circumstances." Thus, under the present circumstances, the alimony award did not need to reflect the contingency of voluntary retirement which was approximately five years in the offing. ³

Pennsylvania case law clearly establishes that retirement can serve as the basis for the changed circumstances of a substantial and continuing nature necessary to modify an alimony award. In Lee, supra, we found that the lower court erred when it refused to consider the changed financial circumstances of the appellant brought about by forced, early retirement. 507 A.2d at 865. In Mazzei, supra, we alluded to the fact that voluntary retirement can also constitute changed circumstances of a substantial and continuing nature. 480 A.2d at 1117 n. 6. Further, in Com. ex rel. Burns v. Burns, 232 Pa.Super. 295, 331 A.2d 768 (1974), and Com. ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135 (1965), we held that a husband's retirement must be considered, in light of the attendant circumstances, to determine the extent of a husband's responsibility to support his estranged spouse. Accordingly, we find the lower court abused its discretion in refusing to consider the changed financial circumstances of the appellant brought about by voluntary retirement. ⁴

Having determined that the alimony award was modifiable and that the appellant's voluntary retirement (and its effect on the appellant's financial status) was a sufficient change to allow modification of the alimony award, we must now address the appellant's final question: Whether his pension which was allegedly awarded to him in toto as a part of the equitable distribution of marital property should be considered as income for the purposes of determining his alimony obligation.

Under Pennsylvania law, it is clear that the appellant's pension was marital property subject to equitable distribution. Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Instantly, the appellant alleges that his pension has already been subjected to equitable distribution of marital property pursuant to the consent order whereby he retained absolute ownership of the fund. However, the record demonstrates otherwise. The appellant specifically admitted on-the-record that his pension was not even considered when the marital property was distributed. Notes of Testimony, February 3, 1987, pp. 22-23. Since his pension was not subjected to equitable distribution as it should have been, the pension must be considered when fashioning the alimony award.

Moreover, it is equally clear that income from a pension is to be considered when fashioning an alimony award, even if the pension was previously subjected to equitable distribution. See 23 Pa.S.A. § 501(b)(3), (10), (13); Pacella v. Pacella, 342 Pa.Super. 178, 190, 492 A.2d 707, 711-712 (1985) (court...