McCane v. McCane

79 Pa. D. & C.4th 387
CourtPennsylvania Court of Common Pleas, Berks County
DecidedApril 5, 2006
Docketno. 01-11756
StatusPublished

This text of 79 Pa. D. & C.4th 387 (McCane v. McCane) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCane v. McCane, 79 Pa. D. & C.4th 387 (Pa. Super. Ct. 2006).

Opinion

LASH, J,

The matters before this court are the exceptions of defendant, Paula M. McCane (Wife), to the report and recommendation of the special master in divorce, Jeffrey J. Howell, Esquire (master). The master had issued his report on September 24, 2004, entering findings of fact, conclusions of law and a recommendation, requesting the court grant a divorce and order equitable distribution of the parties’ marital assets. The master recommended that Wife’s claims for alimony, counsel fees and costs be denied. Upon remand from this court, the master issued a supplement to his report, again requesting that this court deny alimony.

The parties are husband and wife, having been married on March 12,1976, separating on or about March 3, 2002. The parties have no children.

OnNovember 19,2001, plaintiff Michael G. McCane (Husband) filed for divorce, claiming an irretrievable breakdown of the marriage pursuant to §3301(c) of the Pennsylvania Divorce Code.1 Wife responded by filing an answer and counterclaim on December 11, 2001, alleging indignities pursuant to section 3301(a)(6) of the Divorce Code.

The case proceeded to the master, who held hearings on July 7 and August 19,2004. Subsequently, the master entered his findings, conclusions and recommendations on September 24,2004, recommending a divorce under section 3301(c) of the Divorce Code. From the marital estate of approximately $218,000, the master awarded [389]*389Wife approximately 60 percent, or $131,000, worth of assets as equitable distribution. He denied Wife’s claims for counsel fees, costs and expenses, and permanent alimony.

Wife filed exceptions to the report and recommendation on October 4,2004. In conjunction therewith, Wife filed a petition for emergency relief “in the nature of a request to reopen the special master’s proceedings.” The relief petition sought leave of court to obtain additional testimony regarding Wife’s medical condition, particularly as it related to the denial of alimony. According to the petition, additional tests had been conducted, which indicated that Wife may suffer from lupus and a lupus-related condition known as scleroderma. This condition may be permanent, debilitating, and render Wife incapable of being employed in any capacity.

The master had found that Wife was working approximately 21 hours per week as a telephone operator, earning $13.34 per hour. There was testimony regarding her medical problems, but no final diagnosis had been made. The master found that Wife suffered from medical problems including “allergies, asthma, migraine headaches, chronic myofascial pain syndrome, fibromyalgia, thoracic outlet syndrome and left foot plantar fasciitis, experiencing left-sided swelling, pain and weakness in the neck and shoulder, ankle edema, left arm numbness and difficulty in walking.2

On April 29, 2005, the court granted the petition for emergency relief and entered an order remanding the [390]*390matter back to the special master for the purpose of taking additional testimony “solely on the issue of [Wife’s] new diagnosis regarding her medical condition and how that new diagnosis impacts on her earning capacity, if at all, and how the earning capacity impacts on the legal issues relating to equitable distribution and ancillary matters, including alimony.” The court deferred disposition on Wife’s exceptions.

On October 12, 2005, the master held the hearing on remand. Subsequently, on October 20, 2005, the master issued a supplement to his report, which included the following findings:

“(5) Wife’s medical condition, previously attributed to myofascial pain syndrome resulting from a work-related injury in 1995, now has been determined to be systemic scleroderma.

“(6) Scleroderma is characterized initially by skin edema which is replaced by scar tissue causing the skin to become thick and tight.

“(7) Scleroderma symptoms suffered by Wife include hand sensitivity to cold, inflammation of joints and tendons, anemia and shortness of breath.

“(8) Scleroderma complications experienced by Wife include collagen formation which obstructs oxygenation of the blood in the lungs and progressive scarring of the lungs.

“(9) Scleroderma treatment to be provided to Wife will include administration of a chemotherapeutic drug called cyclophosphomide once monthly for a period of six months.

[391]*391“(10) At that time Wife will be re-evaluated to determine if this regimen has arrested the progression of the disease.

“(11) This treatment will be followed by intense occupational therapy which will be designed to increase hand functionality, strength and range of motion.

“(12) Presently Wife requires assistance with dressing. She cannot prepare meals for herself.

“(13) Presently Wife resides with her parents. Her mother provides any assistance which Wife needs to accomplish activities of daily living.

“(14) Presently Wife cannot work.

“(15) Efficacy ofthe treatment program developed by Wife’s doctors will affect her ability to work in the future.

“(16) Wife has applied for Social Security Disability. She anticipates a ruling on her claim in late October of 2005.”

Despite these findings, the master declined to recommend alimony. He noted that there was a dearth of evidence regarding Wife’s living expenses, a “critical component of any decision to award alimony as well as the amount in duration thereof.” He also cited Wife’s apparent squandering of her preliminary distribution in equitable distribution of over $75,000, received from the sale of the marital residence.

The matter was returned to this court for disposition of Wife’s exceptions and on Wife’s additional exceptions filed to the supplemental report. We note, initially, that exceptions 2, 3,4, 5,6,7,15A, F, G, I, K, 16,17,26 and [392]*39228 relate to Wife’s medical condition and the subsequent denial of alimony. Some of these issues have been resolved through the remand, the taking of additional testimony and the master’s filing of the supplemental report. The core issue, denial of alimony, remains, however, as raised again in Wife’s exceptions to the supplemental report.

We turn first to the master’s findings on the grounds for divorce. Wife contends that the master erred in declining to grant her a divorce on fault grounds. (Exceptions 15D and E, 21, 22 and 23.) The master recommended a divorce decree on no-fault grounds under 3301(c) of the Divorce Code, as requested in Husband’s complaint. Regarding Wife’s counterclaim, alleging indignities, the master states:

“The issue of Wife’s counterclaim for indignities also was considered. For a divorce to be granted on the grounds of indignities, wife must prove that Husband engaged in a course of conduct which was humiliating and degrading to her to the point where her condition was intolerable and her life burdensome. Ryave v. Ryave, 249 Pa. Super. 78, 375 A.2d 766 (1977). Wife must prove that Husband’s behavior destroyed the affection which previously had existed between them and that, consequently, hatred and estrangement replaced their loving relationship. Donlan v. Donlan, 194 Pa. Super. 427, 169 A.2d 121 (1961).

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Bluebook (online)
79 Pa. D. & C.4th 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccane-v-mccane-pactcomplberks-2006.