J-S45028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LENWARD MCMILLAN, SR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROSA L. MCMILLAN : No. 556 MDA 2018
Appeal from the Decree Entered March 20, 2018 In the Court of Common Pleas of York County Civil Division at No(s): 2013-FC-001003-02
LENWARD MCMILLAN, SR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROSA L. MCMILLAN : No. 557 MDA 2018
Appeal from the Order Entered December 22, 2017 In the Court of Common Pleas of York County Civil Division at No(s): 2013-FC-001003-15
BEFORE: PANELLA, J., OTT, J., and PLATT*, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 02, 2018
Lenward McMillan, Sr., (“Husband”) appeals from the decree entered
March 20, 2018, in the Court of Common Pleas of York County at Docket No.
2013-FC-001003-02 that divorced him and Rosa L. McMillan (“Wife”) from the
bonds of matrimony. Husband also appeals from an earlier order entered on
December 22, 2017, in the same court at Docket No. 2013-FC-001003-15,
which was finalized by the divorce decree and granted Wife’s exceptions to
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S45028-18
the Master’s report and awarded alimony to her, in the amount of $200.00
per month.1 Husband now challenges the alimony award. We affirm.
Husband was born in 1946 and suffers from renal disease requiring
dialysis. See Exs. D-1, D-4; Trial Court Opinion, 12/22/2017, at 2-3, 5. He
receives a monthly Social Security benefit of $2,120.00 and a monthly pension
payment of $920.00.
Wife was born in 1943 and “is in fair health but suffers from diabetes,
takes blood pressure and cholesterol medicine, has her kidneys checked, and
sees a neurologist every two to three months, the eye doctor every three
months, and the ‘foot doctor’ for problems with her feet.” Id. at 2. Her only
source of income is her monthly Social Security benefit of $782.00; she has
no pension and a tenth grade education. See Ex. D-5; Trial Court Opinion,
12/22/2017, at 3.
The parties married in 1991 and separated in February 2013. Id. at 2.
Husband filed a complaint in divorce in June 2013. Wife subsequently filed a
petition for alimony pedente lite (“APL”), which the trial court awarded in the
amount of $839.00 per month. Id. at 3. The trial court appointed a divorce
____________________________________________
1 Husband originally filed notices of appeal from both the December 22, 2017, distribution order that disposed of the parties’ property and the March 20, 2018, divorce decree. “Orders of property distribution are not appealable until entry of a final divorce Decree[.]” Schenk v. Schenk, 880 A.2d 633, 638 (Pa. Super. 2005). Here, the December 22, 2017, order did not become final – and, consequently, ripe for our review -- until the final divorce decree was entered on March 20, 2018. See Pa.R.A.P. 341(a).
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master (“the Master”) to hear the parties’ economic issues. Id. at 2. The
Master recommended Wife receive the entirety of the marital portion of
Husband’s pension, $312.00 per month, and no alimony. Id. at 4.2 On
August 15, 2017, Wife filed exceptions to the Master’s report. Id. On
December 22, 2017, the trial court granted Wife’s exceptions and awarded
alimony to her, in the amount of $200.00 per month, in addition to receiving
the $312.00 per month from Husband’s pension. On March 20, 2018, the trial
court entered the final divorce decree.
On March 29, 2018, Husband filed two notices of appeal,3 both stating
that they were “from the Divorce Decree entered in this matter on March 20,
2018, and more specifically to the Order entered on December 22, 2017,
docketed same date.” Notices of Appeal, 3/29/2018. As it was unclear
whether the two appeals were duplicative, on May 14, 2018, this Court
directed Husband to show cause why one of the appeals should not be
dismissed. On May 23, 2018, Husband filed an application for consolidation.
On June 5, 2018, this Court granted the application.
2 The parties stipulated the marital portion of the pension was the only marital asset. See N.T., 7/7/2017, at 50. 3 Husband simultaneously filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 18, 2018, the trial court entered a statement that its opinion attached to the property distribution order of December 22, 2017, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).
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Husband raises the following issues on appeal:
I. Whether the trial court erred as a matter of law and/or abused its discretion in awarding Wife alimony and contrary to the factors set forth in [§] 3701(b) of the Divorce Code[4], as amended, particularly as the trial court awarded Wife 100% of the parties’ net marital estate and failed to consider Husband’s ability to pay alimony?
II. Whether the trial court’s award of alimony is contrary to the Divorce Code’s fundamental policy to effectuate economic justice between the parties as set forth in § 3102(a)(6)[5] of the Divorce Code, as amended?
Husband’s Brief at 4.
With respect to both issues, we are guided by the following:
Awards of alimony . . . are within the sound discretion of the trial court and will not be disturbed absent an error of law or abuse of discretion.
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. 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.
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.
Cook v. Cook, 186 A.3d 1015, 1019-1020 (Pa. Super. 2018) (internal
citations and quotation marks omitted).
4 The Divorce Code is codified at 23 Pa.C.S. §§ 3101-3904. See below for the full text of 23 Pa.C.S. § 3701(b). 5 See below for the full text of 23 Pa.C.S. § 3012(a)(6).
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An award of alimony is determined pursuant to the statutory factors set
forth in 23 Pa.C.S. § 3701(b):
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
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alimony, except that the court shall consider the abuse of one party by the other party. As used in this paragraph, “abuse” shall have the meaning given to it under section 6102 (relating to definitions).
(15) The Federal, State and local tax ramifications of the alimony award.
(16) Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs.
(17) Whether the party seeking alimony is incapable of self- support through appropriate employment.
Id. “In determining whether alimony is necessary and to establish the
appropriate nature, amount, and duration of any alimony payments, the court
is required to consider all relevant factors, including the 17 factors that are
expressly mandated by statute.” Cook, 186 A.3d at 1020 (emphasis in
original) (citation and internal quotation marks omitted).
Additionally, “[o]ne of the overarching purposes of the Divorce Code is
to work economic justice between the parties.” Dean v. Dean, 98 A.3d 637,
642 (Pa. Super. 2014). According to 23 Pa.C.S. § 3012(a)(6):
The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is the policy of the Commonwealth to . . . [e]ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
Id.
Here, Husband contends the alimony award was contrary to the factors
set forth in 23 Pa.C.S. § 3701(b), particularly as Wife is also receiving a
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portion of his pension. See Husband’s Brief at 12. Husband states “[t]he
factors within Section 3701(b) relevant to the instant matter are subsections
(1) relative earnings of the parties, (2) the ages and physical condition of the
parties, (3) sources of income, (10) the relative assets and liabilities of the
parties, and (14) the relative needs of the parties.” Id. at 13-14.6 However,
Husband does not specify what facts or parts of his analysis apply to which
statutory factor. See id. at 12-18. Nevertheless, we discern from his
statement that, at the time of the Master’s hearing, he was seventy years old
and his “health is poor[,]” id. at 14, which would align with factor (2), “[t]he
ages and the physical, mental and emotional conditions of the parties.” His
remaining argument, that the trial court “failed to consider [his] ability to pay
alimony[,]” id. at 12, would align with his remaining listed factors. See also
Cook, 186 A.3d at 1020.
While Husband emphasizes his own age and health issues,7 factor (2)
states that the trial court must consider “[t]he ages and the physical, mental
and emotional conditions of the parties.” 23 Pa.C.S. § 3701(b)(2) (emphasis
added). Nowhere in his brief does Husband acknowledge Wife’s age and
physical condition or recognize that the trial court must consider her needs as
well. As the trial court explains, Wife is three years older than Husband, has
6 Husband concedes that “the parties had a relatively long-term marriage, of twenty-two (22) years.” Husband’s Brief at 14. This fact applies to factor (5), “[t]he duration of the marriage.” 23 Pa.C.S. § 3701(b). 7 See Husband’s Brief at 14.
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diabetes and problems with her feet, needs blood pressure and cholesterol
medicine, and has regular appointments with a nephrologist, a neurologist,
and an eye doctor. See Trial Court Opinion, 12/22/2017, at 2. In determining
the need for and amount of alimony, the trial court was required by the
statutory factors to consider Wife’s age and physical condition in addition to
Husband’s medical concerns. See 23 Pa.C.S. § 3701(b)(2).
As for Husband’s claim that the trial court failed to consider his ability
to pay alimony, we conclude this challenge merits no relief, and the trial
court’s opinion comprehensively discusses and properly disposes of this claim,
Both Husband and Wife acknowledge that the Divorce Master erred in calculating Husband’s income. On Page 12 of the Master’s Report and Recommendation, the [M]aster indicated that Husband’s income, prior to paying any APL or alimony, is $2,006 per month. The Master arrived at this number by adding $1,086, which is Husband’s net Social Security income after payment of APL to Wife, and $920, which is Husband’s gross monthly pension benefit. In actuality, in considering the parties’ incomes after divorce, the Master should have added the $839.00 per month deduction for APL back into Husband’s income since the APL payment will terminate once the divorce becomes final. Thus, Husband concedes that the Divorce Master erred in calculating his monthly gross income; however, he argues that, despite the miscalculation, his regular recurring expenses would still equal or exceed his monthly income once corrected. Husband specifically argues that the Divorce Master incorrectly identified his monthly out-of-pocket expenses for dialysis as $800.00 per month when it is actually $875.00 per month.
Wife argues that, upon correcting Husband’s income, Husband would receive a monthly income of $2,929.00 per month which exceeds his monthly expenses of $2,717.00 per month. Even when the $312.00 per month that the Master awarded to Wife is subtracted from Husband’s income, his monthly income would still be $2,617.00, which is approximately equal to his monthly expenses and would exceed his monthly expenses if the [c]able
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TV and newspaper subscriptions, which the Master admits are arguably unessential, are removed from Husband’s expenses.
On the other hand, based on the Master’s decision, Wife’s sole sources of income pursuant to the Master’s decision would be her net monthly Social Security benefit in the amount of $676.00 per month and the monthly pension benefit she was awarded by the Master in the amount of $312.00 per month, for a total of $988.54 [sic] per month. This is well short of Wife’s monthly expenses as calculated by the Master of $1,362.00 per month. Consequently, because the Master failed to add the monthly APL payment back into Husband’s income, the Master reached a decision which results in Husband’s necessary monthly expenses being met, but leaves Wife well short of sufficient income to meet her necessary monthly expenses.
****
The Master’s rationale in failing to award Wife post-divorce alimony is that Husband has no ability to pay alimony in light of the significant shortfall in terms of Husband’s income when compared to his expenses, citing the Teodorski[8] case (Master’s Report and Recommendation Page 13). However, the Master’s reasoning is based on her incorrect calculation of Husband’s income and expenses.
Husband contends that Wife’s second exception is without merit upon consideration of the income/expense rationale. Husband argues that neither party can meet his/her recurring expenses and are both deficient on a monthly basis. Husband’s income totals approximately $2,617.00 after subtracting out Wife’s $312.00 share of Husband’s pension. Husband’s expenses total approximately $2,669.00 after adding in an additional $75.00 per month for his dialysis treatment but subtracting out $123.00 per month for the non-essential expenses of cable television, newspapers, and magazine subscriptions. Husband’s net shortfall each month is therefore about $52.00. Wife, on the other hand, has an approximate $374.00 per month shortfall in terms of her net monthly income and her net monthly expenses, and this deficit includes necessities such as rent, utilities, and groceries.
8 Teodorski v. Teodorski, 857 A.2d 194 (Pa.Super. 2004).
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When Husband’s income and expenses are corrected, the Court finds that both Husband and Wife have financial shortfalls but Wife’s shortfall is more than seven (7) times greater than Husband’s shortfall. As a result, the Court finds that requiring Husband to pay two hundred and 00/100 dollars ($200.00) per month to Wife in alimony payments is fair and equitable and necessary for Wife to obtain the necessities of life.
Trial Court Opinion, 12/22/2017, at 5-8.
We only add that the trial court must consider both parties, including
“[t]he relative earnings and earning capacities of the parties” and “[t]he
sources of income of both parties, including, but not limited to, medical,
retirement, insurance or other benefits.” 23 Pa.C.S. § 3701(b)(1), (3)
(emphasis added). While Husband receives both a monthly Social Security
benefit and a pension payment, Wife only receives a significantly smaller
monthly Social Security benefit and no pension. See Trial Court Opinion,
Furthermore, the trial court must concern itself with “all relevant
factors, including the 17 factors that are expressly mandated by statute,”
Cook, 186 A.3d at 1020, not just those that Husband has chosen to highlight
in his brief. Husband’s Brief at 13-14. Factor (5) is “[t]he duration of the
marriage,” 23 Pa.C.S. § 3701(b)(5), which, in this case, was lengthy – twenty-
two years between marriage and separation. Trial Court Opinion, 12/22/2017,
at 2. Factor (9) is the “[t]he relative education of the parties.” 23 Pa.C.S.
§ 3701(b)(9). Wife only has a tenth grade education and, at her advanced
age, is unlikely to acquire more education. Trial Court Opinion, 12/22/2017,
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at 2-3. These additional factors also weigh in Wife’s favor when determining
whether an award of alimony is necessary. See 23 Pa.C.S. § 3701(b).
Accordingly, based upon the parties’ ages, health, earnings and sources
of income, education, and respective negative net incomes and upon the
length of the marriage, we conclude the trial court did not abuse its discretion
by ordering an award of $200.00 per month in alimony from Husband to Wife,
thereby achieving economic justice between the parties. See 23 Pa.C.S.
§§ 3701(b)(1)-(3), (5), (9) & 3012(a)(6); Cook, 186 A.3d at 1019; Dean, 98
A.3d at 642. We agree with the trial court’s assessment that “requiring
Husband to pay two hundred and 00/100 dollars ($200.00) per month to Wife
in alimony payments is fair and equitable and necessary for Wife to obtain the
necessities of life.” Trial Court Opinion, 12/22/2017, at 8.
Accordingly, we affirm the December 22, 2017, order and the March 20,
2018, divorce decree. The parties are instructed to attach a copy of the trial
court’s opinion of December 22, 2017, and of the trial court’s statement of
April 18, 2018, to any future filing that references this Court’s decision.
December 22, 2017 order and March 20, 2018 divorce decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/02/2018
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2017 DEC 22 PM 3: 05 JUOlCIAL CENTER YORK PA
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
ROSA L. MCMILLAN, No. 2013-FC-001003-15 Plaintiff
v.
LENWARD MCMILLAN, Action in Divorce Defendant
APPEARANCES:
For Plaintiff: Patrick J. Schaeffer, Esquire For Defendant: Leslie S. Arzt, Esquire
OPINION GRANTING PLAINTIFF'S EXCEPTIONS TO l\1ASTER'S REPORT AND RECOMMENDATION
This matter is before the Court on the Plaintiffs Exceptions to the Report and
Recommendation of the Divorce Master issued on July 24, 2017. For the reasons stated
below, we GRANT Plaintiffs Exceptions to the Divorce Master's Report and
Recommendations.
Factual and Procedural Background
The Plaintiff is Rosa L. McMillan (hereinafter "Wife") and the Defendant is
Lenward McMillan (hereinafter "Husband"). Husband filed a Complaint in Divorce on
June 6, 2013. Husband filed his 3301(d) Affidavit on January 5, 2017 and then Wife
filed her 3301(d) Counter-Affidavit thus establishing grounds for divorce on January 25,
2017. Sharla Robinson Coughlin, Esq., was appointed Divorce Master on February 9,
2017 to hear the economic issues of equitable distribution, alimony, counsel fees, costs
and expenses. A preliminary conference was held on March 16, 2017 and Settlement
Conference was held on May 2, 2017. A Hearing was then held on July 7, 2017 after the
parties were unable to reach a settlement. The parties entered certain stipulations of fact
which were presented to the Master at the hearing but did not resolve the economic issues
in the case, namely, equitable distribution of Husband's pension, if any, and a potential
alimony award for Wife.
The Master's Report and Recommendation includes the following findings of
fact. The Husband was born in 1946, was seventy (70) years old at the time of the
hearing, in poor health, and resides in a rental property in York, Pennsylvania. The Wife
was born in 1943, was seventy-four (74) years old at the time of the hearing, and resides
in a rental property in York, Pennsylvania. Husband suffers from stage 5 (end-stage)
renal disease, high blood pressure, high cholesterol, diabetes, varicose veins, sleep apnea,
diverticulosis, blood clots and glaucoma. As such, Husband has many regular out-of-
pocket daily, weekly and monthly medical expenses. Wife is in fair health but suffers
from diabetes, takes blood pressure and cholesterol medicine, has her kidneys checked,
and sees a neurologist every two to three months, the eye doctor every three months, and
the "foot doctor" for problems with her feet.
The parties were married on February 4, 1991 and separated on February 13,
2013. The marriage between Husband and Wife was Wife's third marriage and
2 Husband's second marriage. Wife does not receive any income from her prior spouses
but should Husband predecease her, she would receive his net Social Security payment in
full. Husband and Wife do not have any children from the marriage.
Husband has a GED. He worked at Johnson Controls for thirty (30) years and
receives a Pension of $920.00 per month from Johnson Controls. (Exhibit D-1 ). The
marital portion of the pension, which the parties stipulated is the only marital asset, is
$312.00 per month (N.T. Page 50, Line 12). Husband receives a monthly Social Security
payment in the gross amount of $2,120.00 per month with $111.00 per month deducted
forhis Medicare Part B premium. (Exhibit D-4). $839.00 per month is currently
deducted from Husband's Social Security for Wife's monthly APL payment by Order
dated July 2, 2013. (Exhibits D--3 and D-4, N.T. Page 21, Lines 11-20, Page 29 Lines 17-
22).
Wife has a 10111 grade education level. She has done elder care in the past and
worked for Graham Engineering prior to the marriage but she receives no pension income
from these positions. Wife has very limited income. Other than the APL in the amount
of $839.00 per month, Wife's only source of income is her Social Security benefit in the
gross amount of $782 .00 per month with $106.00 per month deducted for her Medicare
Part B Premium. (Exhibit D-5).
After consideration of the eleven (11) factors required by Section 3502(a) of the
Divorce Code, the Master made a recommendation with respect to equitable distribution.
Again, the only marital asset subject to distribution in this case is the marital component
3 of Husband's Johnson Controls pension which is $312.00 per month. The Master
recommended that Wife receive 100% of the marital portion of Husband's pension.
The Master also considered the seventeen (17) factors required by Section
3701(b) of the Divorce Code prior to making a recommendation with regard to alimony.
The Master did not recommend an award of alimony in this case because Husband does
not have the ability to pay alimony given the deterioration of his health and his own
current living expenses. Both Husband and Wife are financially in the red on a monthly
basis and neither is capable of supporting him/herself in a manner that is relatively
consistent with even the marital standard of living, which was "working class." Although
the Master noted that Wife lacks sufficient property to provide for her reasonable needs
and is incapable of self-support through appropriate employment, the Master noted that
Husband lacks sufficient property as well and is simply unable to provide any support.
After the issuance of the Report and Recommendation, Wife filed her Exceptions
on August 15, 2017. Wife filed a Brief in support of the Exceptions on August 29, 2017,
and Husband filed a Brief in opposition to the Exceptions on September 13, 2017. Wife
filed a Praecipe to List Case for One-Judge Disposition on October 4, 2017, and the
matter was submitted to the undersigned on October 4, 2017.
Plaintiff's Exceptions to the Master's Report and Recommendation
1. The Divorce Master erred in calculating Hus band's income and expenses on Page 12 o[the Report and Recommendation because site failed to add the APL payment to Wife 0($839.00 per month, which will terminate upon the finalization oftlte divorce, back into Husband's income, and site inaccurately identified Husband's
4 monthly out-of-pocket expenses for dialysis as being $800.00 per month instead of $875.00 per month.
Both Husband and Wife acknowledge that the Divorce Master erred in calculating
Husband's income. On Page 12 of the Master's Report and Recommendation, the master
indicated that Husband's income, prior to paying any APL or alimony, is $2,006 per
month. The Master arrived at this number by adding $1,086, which is Husband's net
Social Security income after payment of APL to Wife, and $920, which is Husband's
gross monthly pension benefit. In actuality, in considering the parties' incomes after
divorce, the Master should have added the $839.00 per month deduction for APL back
into Husband's income since the APL payment will terminate once the divorce becomes
final. Thus, Husband concedes that the Divorce Master erred in calculating his monthly
gross income; however, he argues that, despite the miscalculation, his regular recurring
expenses would still equal or exceed his monthly income once corrected. Husband
specifically argues that the Divorce Master incorrectly identified his monthly out-of-
pocket expenses for dialysis as $800.00 per month when it is actually $875.00 per month.
Wife argues that, upon correcting Husband's income, Husband would receive a
monthly income of $2,929.00 per month which exceeds his monthly expenses of
$2,717.00 per month. Even when the $312.00 per month that the Master awarded to
Wife is subtracted from Husband's income, his monthly income would still be $2,617.00,
which is approximately equal to his monthly expenses and would exceed his monthly
5 expenses if the Cable TV and newspaper subscriptions, which the Master admits are
arguably unessential, are removed from Husband's expenses.
On the other hand, based on the Master's decision, Wife's sole sources of income
pursuant to the Master's decision would be her net monthly Social Security benefit in the
amount of $676.00 per month and the monthly pension benefit she was awarded by the
Master in the amount of $312.00 per month, for a total of $988.54 per month. This is
well short of Wife's monthly expenses as calculated by the Master of $1,362.00 per
month. Consequently, because the Master failed to add the monthly APL payment back
into Husband's income, the Master reached a decision which results in Husband's
necessary monthly expenses being met, but leaves Wife well short of sufficient income to
meet her necessary monthly expenses.
2. The Divorce Master erred in failing to award Wife alimony because Husbaml would have the ability to pay alimony when the error in calculating his post-divorce income reference,! in Exception 1 is corrected.
Alimony is "available only where economic justice and the reasonable needs of
the parties cannot be achieved by way of an equitable distribution award and
development of an appropriate employable skill." Moran v. Moran, 83 9 A.2d 1091, 1097.
As stated by the Pennsylvania Superior Court, "the purpose of alimony is not to reward
one party and to punish the other, but rather to ensure that the reasonable needs of the
person who is unable to support himself or herself through appropriate employment are
met. Alimony is based upon reasonable needs in accordance with lifestyle and standard
ofliving established by the parties during the marriage, as well as the payor's ability to
6 pay." Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa.Super.2004) (citations 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). Furthermore,
alimony in general is to be awarded for a sufficient period of time to enable the party
receiving it to become self-supporting. Pacella v. Pacella, 492 A.2d 707, 713 (Pa. Super.
1985). Section 370l(b) of the Divorce Code sets forth seventeen (17) factors that must
be considered in making a recommendation for alimony.
The Master's rationale in failing to award Wife post-divorce alimony is that
Husband has no ability to pay alimony in light of the significant shortfall in terms of
Husband's income when compared to his expenses, citing the Teodorski case (Master's
Report and Recommendation Page 13). However, the Master's reasoning is based on her
incorrect calculation of Husband's income and expenses.
Husband contends that Wife's second exception is without merit upon
consideration of the income/expense rationale. Husband argues that neither party can
meet his/her recurring expenses and are both deficient on a monthly basis. Husband's
income totals approximately $2,617.00 after subtracting out Wife's $312.00 share of
Husband's pension. Husband's expenses total approximately $2,669.00 after adding in
an additional $75.00 per month for his dialysis treatment but subtracting out $123.00 per
month for the non-essential expenses of cable television, newspapers, and magazine
subscriptions. Husband's net shortfall each month is therefore about $52.00. Wife, on
7 the other hand, has an approximate $374.00 per month shortfall in terms of her net
monthly income and her net monthly expenses, and this deficit includes necessities such
as rent, utilities, and groceries.
When Husband's income and expenses are corrected, the Court finds that both
Husband and Wife have :financial shortfalls but Wife's shortfall is more than seven (7)
times greater than Husband's shortfall. As a result, the Court finds that requiring
Husband to pay two hundred and 00/100 dollars ($200.00) per month to Wife in alimony
payments is fair and equitable and necessary for Wife to obtain the necessities of life.
Conclusion
Based upon the foregoing, the Court issues the Order that accompanies this
Opinion GRANTING Wife's Exceptions. The Court orders Husband to pay Wife
alimony payments in the amount of two hundred and 00/100 dollars ($200.00) per month.
BY THE COURT:
ODD R. PLATTS, JUDGE
8 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
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STATEMENT OF LOWER COURT PURSUANT TO RULE 1925(a)(2)(ii) OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE
AND NOW, this 1 ih day of April, 2018, this Court is in receipt of notice that an appeal
has been filed in the above matter. The undersigned states that the basis for the Order subject to
appeal can be found in the Opinion filed regarding said matter. This Court cannot offer anything
more direct or clear than the statements therein which the Court feels appropriately explain its
reasoning.
This Court notes that the Order and Opinion subject to appeal in this matter mistakenly
reversed the Plaintiffs and Defendant's names in the captions and the Order and Opinion titles.
Len ward McMillan, Sr. is the Plaintiff, and Rosa L. McMillan is the Defendant in the underlying
matter. The Order should read "Order Granting Defendant's Exceptions to Master's Report and
Recommendation." The Opinion should read, "Opinion Granting Defendant's Exceptions to
Master's Report and Recommendation."