McNulty v. McNulty

• Decision Date: 08 November 1985
• Parties: Robert J. McNULTY, Appellant, v. Joan E. McNULTY. 377 Harrisburg 1984
• Court: Pennsylvania Superior Court

Page 876

500 A.2d 876

347 Pa.Super. 363

Robert J. McNULTY, Appellant, v. Joan E. McNULTY.

377 Harrisburg 1984

Superior Court of Pennsylvania.

Argued May 2, 1985.

Filed Nov. 8, 1985.

J. Ross McGinnis, York, for appellant.

Keith R. Nonemaker, Hanover, for appellee.

Before TAMILIA, MONTGOMERY and ROBERTS, JJ.

TAMILIA, Judge:

This appeal lies from an Order awarding appellee alimony pendente lite, counsel fees and all expenses, including Master's and stenographer's costs.

The parties were married in 1979 and after chronic marital discord, separated in 1982. There were no children. In 1979, appellee, who had been working as a full time phlebotomist in a local hospital at a salary approximately one-half that of appellant's, reduced her hours to part time in order to return to school for her B.S. in nursing. Her eventual goal was to undergo two years graduate training as well, in order to become a nurse anesthetist. Because of appellant's disapproval of this ambition, it was agreed that appellee should undertake to satisfy her educational expenses, car payments, and medical bills out of her part time income. At the time of separation, two years after she entered training, appellee had nineteen credits to complete at a local (York) college. Appellant's refusal to supply any financial assistance subsequent to his filing of the divorce complaint necessitated appellee's return to the home of her parents in Milwaukee, Wisconsin, for which she incurred moving expenses. Her attendance at a college there resulted in considerable increase in expenditure for tuition, since the school required her to complete an additional 40 credits for graduation, at a greater cost per credit.

The parties lived together until May, 1982, when appellant filed for divorce alleging indignities to the person under section 201(a)(6) of the Divorce Code. In her answer, the appellee requested alimony pendente lite, alimony, counsel fees, costs, and equitable distribution of marital property pursuant to section 401 of the Code. Ultimately, the parties agreed to sign the consents necessary to obtain a 201(c) no-fault divorce and to have all matters regarding support and property determined by a court-appointed master.

In reviewing awards or denials of alimony pendente lite, counsel fees and expenses, we are limited to a determination of whether the trial court abused its discretion. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984). Appellant has raised four issues, a separate challenge to each provision of the ordered award on abuse of discretion grounds.

It is first alleged that because the court ordered payment of alimony pendente lite on the basis of guidelines provided in section 501 ¹ of the Divorce Code when section 502, ² provides none, the award order should be reversed and remanded for determination under the latter section. We agree that there is a problem concerning the order, but it is one of semantics alone, a point overlooked entirely by appellant and in part by the lower court.

The trial judge awarded alimony pendente lite as opposed to alimony, following the recommendations of the master, who divided the order between support, alimony and alimony pendente lite, presumably because the parties were not yet at the point wherein a divorce decree could be entered. There was no difference in the amount ordered for the period payable except as to designation. A support order was previously entered in the amount of $108 per week, but was suspended with all amounts collected being placed in escrow, pending the outcome of the divorce. This amount formed the basis, subsequently, for the alimony award. By stipulation, the parties agreed that all matters would be heard and determined by the Master, including support, alimony pendente lite, alimony, costs and counsel fees, and distribution of marital property. Those determinations were made by the Master, and after denial of exceptions, affirmed by the court as to the amount. While the Master failed to delineate the support and alimony categories under distinct headings as required by Pa.R.C.P. 1920.54, as properly determined by the trial court, the findings were made and adequately supported by the record. The court then combined the categories into alimony pendente lite. We do not agree with the award of costs, as will be discussed below. Since the Master's award provided for $108 per week support from August 8, 1982 until November 15, 1982, and $108 per week alimony pendente lite until the divorce and $108 per week alimony from the divorce until August, 1983, the date of completion of appellee's schooling, the result was that alimony pendente lite was in effect until August, 1983, as the divorce did not occur until much later, and therefore, no actual "alimony" became payable. This was recognized by the court and resulted in the award being limited to alimony pendente lite. Support could have been awarded but as alimony pendente lite was requested, it more realistically applied to the divorce proceeding. "The obligation of support arises out of the marital relationship itself while alimony pendente lite is awarded only to enable the dependant spouse to maintain or defend the divorce litigation." Id. at 331, 475 A.2d at 823 (citations omitted). This does not mean, however, that alimony is not support and therefore not governed by the same considerations relevant to a support order.

A brief discussion of the relationship between support, alimony and the legislative intent of the Divorce Code of 1980, will serve to clarify the issues raised in this case. There are five procedural means provided by statute by which obligations to pay support are determined and enforced: 1) Support Proceedings, 42 Pa.C.S.A. § 6701 et seq., suspended by Actions for Support, Pa.R.C.P. 1910.1 et seq.; 2) The willful separation or nonsupport section of the Crimes Code, 18 Pa.C.S. § 4321; 3) Alimony pendente lite, counsel fees and expenses, 23 P.S. § 502; 4) Alimony, 23 P.S. § 501. The fifth procedure, which the support rules have not suspended, is an in rem procedure against real property under the provisions of Actions for Support and Maintenance, 48 P.S. § 131-141. None of the above affect private agreements between parties not incorporated into the divorce decree pursuant to 23 P.S. § 501(f), which are enforced pursuant to the laws of contract in an assumpsit action. See Hollman v. Hollman, --- Pa.Super. ---, 500 A.2d 837 (1985).

The substantive law which creates the support obligation pursuant to statute is found in the Support Law, 62 P.S. § 1971 et seq.; Nonsupport, 18 Pa.C.S. § 4321 et seq.; Actions for Support and Maintenance, 48 P.S. § 132; Alimony, 23 P.S. § 501; Alimony pendente lite, 23 P.S. § 502; Definitions, 23 P.S. § 104. There is one unique characteristic of all of these statutory provisions in that they provide for enforcement of a duty of support arising at common law as an incidence of marriage. The duty to support is an incident of the marriage which is enforceable by operation of law. Commonwealth ex rel. Smith v. Smith, 260 Pa.Super. 203, 393 A.2d 1224 (1978). Alimony is a species of support and is defined at 23 P.S. § 104:

"Alimony."

An order for support granted by this or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.

Alimony pendente lite is, likewise, by definition, support as defined in 23 P.S. § 104:

"Alimony pendente lite"

An order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.

It has in common with "support" and "alimony" that it is a duty which is an incident of marriage. Smith, supra. It likewise is in common with "support" in that it terminates with marriage. "Alimony" has in common with "support" and "alimony pendente lite" that it is a duty arising out of marriage but is distinguished in that it continues after divorce when fixed in conjunction with a divorce or annulment decree. Its purpose is not to reward one party and to punish the other, but rather to ensure that reasonable needs of the person who is unable to support himself or herself through appropriate employment, are met. Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984).

Thus, all three are species of support and as such, the relevant considerations in arriving at the amount are those elemental to any support order: duty of the obligor, need of the obligee, and ability to pay on the part of the obligor. The section on alimony (23 P.S. § 501) provides an extensive, though not exclusive, list of considerations the court may review in arriving at an alimony order. These same considerations most certainly are appropriate, with others, to be taken into account when considering any spousal support order, and since 23 P.S. § 502, Alimony Pendente Lite, is silent as to relevant considerations other than it being temporary in nature, there is no reason not to have these matters considered. Orders of support and alimony pendente lite, while not exclusive of each other, must be considered in conjunction with each other as they relate to the obligor's ability to pay, when both procedures are utilized. Prozzoly, supra; Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). Likewise, while the rules, Actions for Support, Pa.R.C.P. 1910.1 et seq., apply to enforcement of support proceedings and 23 P.S. §§ 501, 502, 503 and 504 apply to alimony and alimony pendente lite, the enforcement procedures are identical. Also, pursuant to Pa.R.C.P. 1920.31(b)(1) relating to divorce or annulment actions, orders of alimony or alimony pendente lite may be enforced by the practice and procedure in actions for support (Pa.R.C.P. 1910.1 et seq.) and in the Divorce Code. The major differences in procedure are tactical; when child support and/or spousal support is desired, and divorce is not contemplated, the support proceeding under Rule 1910.1 et seq. is the preferred procedure. When spousal...