McClymonds v. McClymonds

19 Pa. D. & C.5th 491
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedDecember 21, 2010
Docketnos. 10547 of 2009, C.A. and 251 of 2009, D.R.
StatusPublished

This text of 19 Pa. D. & C.5th 491 (McClymonds v. McClymonds) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClymonds v. McClymonds, 19 Pa. D. & C.5th 491 (Pa. Super. Ct. 2010).

Opinion

HODGE, J.,

This case was before the court on September 3, 2010 for a complex support hearing and a hearing on a petition for contempt filed on behalf of the plaintiff, Robert G. McClymonds (hereinafter “husband”).

The parties have been married since November 18, 1961. However, on April 3, 2009, husband filed a complaint in divorce, alleging that the marriage was irretrievably broken. Subsequent to the complaint in divorce being filed, the defendant, Janice L. McClymonds (hereinafter “wife”), filed a petition raising economic claims, which specifically requested this court to: 1) effectuate an equitable distribution of marital property, pursuant to 23 Pa.C.S.A. §3502; 2) enter an award of spousal support and/ or alimony pendent elite; 3) enter an award of alimony; [493]*4934) require husband to maintain all insurance contracts/ policies for the benefit of wife and the parties’ children; 5) grant wife exclusive possession of the marital residence; and 6) require husband to reimburse wife for any attorney’s fees incurred as a result of the ongoing litigation.

On May 12, 2009, the domestic relations section of Lawrence County determined that husband pay wife monthly support in the amount of $1,044.40 and that the total arrearages due, equaling $569.79 were due immediately. Thereafter, on January 7, 2010, husband filed a motion to modify support order in which husband requested to receive credit towards his support obligation for making several payments on the home equity loan. This court issued a rule to show cause why the support order dated May 12, 2009 should not be modified to provide that if husband makes the home equity payments, then he shall receive a credit towards his support obligation. Wife was required to answer by rule returnable within 20 days of service.

On March 4, 2010 wife also filed a motion to modify support order, claiming she was entitled to an increase in support as husband’s income had increased and requesting that the domestic relations section also address the mortgage and order expenses in the support order. Husband responded on March 8, 2010 by filing a petition for contempt alleging that wife failed to modify the support order. A hearing was scheduled for March 31, 2010 on husband’s petition for contempt.

Shortly thereafter, on March 16, 2010 wife filed a motion to declare case complex, which this court granted [494]*494and rescheduled a hearing for June 11, 2010. Wife also filed a petition to invade marital assets to protect the marital estate. In her petition, wife alleged that the support order entered on May 12, 2009 failed to include income earned by husband in a machine shop that he operated in the garage of the marital property. Wife additionally requested this court to permit her to use marital funds to pay for property taxes and homeowner’s insurance, for an appraisal of the aforementioned machine shop and remaining marital property, and to generally maintain the marital property until a final equitable resolution. This court granted wife’s requests, in part, by allowing marital funds to pay for appraisals and listing the marital residence for sale. A conciliation conference was also scheduled for May 3, 2010.

The conciliation conference took place as scheduled, whereby the parties agreed that marital funds pay the property taxes on the marital residence and that that said expense would be credited to wife at the time of equitable distribution. The remaining issues are of whether or not marital funds should be used: 1) to pay homeowner’s insurance; 2) to maintain the marital residence; 3) for snow removal; and 4) to repair a mobile home located on the marital property so that it may be rented and generate income.

At the request of the parties, the above stated issues as well as husband’s petition for contempt were consolidated and eventually heard before this court on August 3, 2010.

The first issue before the court for disposition is husband’s petition for contempt. In his petition for [495]*495contempt, husband is seeking to have any payments he personally made towards the parties’ home equitable loan be credited to him, as wife has failed since April of 2009 to make said payments. The May 12, 2009 support order required wife to make the home equity loan payments, however, wife was unable to so husband has assumed the responsibility of making the payment to avoid threats of foreclosure on the martial residence.

In any civil contempt proceeding, the complaining party must prove by a preponderance of the evidence that the other party has violated an order of court. Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366 (Pa. Super. 2002). A party will be found in civil contempt if it is shown that the contemnor’s failure to comply with the support order is willful and there is a present ability to pay. Likewise, a contempt may not be found where the contemnor has demonstrated a good faith attempt to comply with the order, and does not have the present ability to pay. Pa.R.C.P. Rule 1910.251(b); Godfrey v. Godfrey, 894 A.2d 776 (Pa. Super. 2006).

Although the evidence and testimony presented at the September 3, 2010 hearing support a finding that wife did in fact fail to comply with the support order dated May 12, 2009, the court also determines that wife did not willfully disobey the order as does she have the present ability to comply. In making such a determination, the court considers the fact that in addition to wife being responsible for the home equity payments, wife is also responsible for providing daily care and financial stability of the parties’ two adult children, who for independent reasons, are not capable of caring and providing for [496]*496themselves.

Wife continues to assume this responsibility regardless of the financial hardship it may cause her, while living on a limited income provided by spousal support and social security income. Accordingly, the court finds that wife did not possess the willful intent to disobey the May 12,2009 support order that is necessary for a finding of contempt.

The court does acknowledge that husband did provide the payments for the home equity loan, which were previously calculated into the spousal support order as a deviation against husband. The court will credit the total amount paid towards his monthly support obligation.

The next issue put before the court is a determination of the parties’ net earnings capacity. Wife’s earning capacity is relatively straight forward. Wife currently receives social security income in the amount of $983.00 per month. Wife is unable to actively seek employment due to injuries relating to a driving accident occurring several years ago, and her responsibility to care for her two adult children.

Husband currently receives social security benefits in the amount of $1,825.00 per month and a monthly annuity payment equaling $834.96. Wife contends that husband consistently earned additional income working part time as a machinist, and believes that husband continues to do so. Husband refutes wife’s assertion, arguing that he is no longer able to work in his machine shop as a result of a protection from abuse order entered against him by wife barring him from the marital residence. The court agrees with husband and finds that there is insufficient evidence [497]

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Related

Hanson v. Hanson
625 A.2d 1212 (Superior Court of Pennsylvania, 1993)
Godfrey v. Godfrey
894 A.2d 776 (Superior Court of Pennsylvania, 2006)
Chrysczanavicz v. Chrysczanavicz
796 A.2d 366 (Superior Court of Pennsylvania, 2002)

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Bluebook (online)
19 Pa. D. & C.5th 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclymonds-v-mcclymonds-pactcompllawren-2010.