Nothstein v. Nothstein

13 Pa. D. & C.4th 55, 1991 Pa. Dist. & Cnty. Dec. LEXIS 45
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedDecember 10, 1991
Docketno. 90-2115
StatusPublished

This text of 13 Pa. D. & C.4th 55 (Nothstein v. Nothstein) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nothstein v. Nothstein, 13 Pa. D. & C.4th 55, 1991 Pa. Dist. & Cnty. Dec. LEXIS 45 (Pa. Super. Ct. 1991).

Opinion

LAVELLE, P.J.,

Plaintiff,

Margaret A. Nothstein has petitioned, in her divorce complaint, for an order of alimony pendente lite, counsel fees and costs to be entered against her husband, Richard L. Nothstein, during the pendency of the divorce. Wife commenced the divorce action against husband on September 10, 1990.

We will only consider and dispose of the claim for alimony pendente lite. We will consider counsel fees and costs once we are able to make a full determination pending final disposition of this case. See Rule 1920.52(c), Pa.R.C.P.

FACTS OF CASE

The parties were married on September 23, 1978, and lived together as husband and wife until on or about the middle of September of 1990.

Husband is currently residing at the marital home with two of his children by a prior marriage at 526 Harvard Court, Palmerton, Carbon County. Wife currently resides in Massachusetts with a male companion.

Husband is 53 years old. He is employed as the manager of an IGA market. He owns a one-third interest and holds the position of director and secretary/treasurer in Golden Key KL Inc. which owns two IGA markets. His weekly salary is $1,040. Golden Key KL Inc. pays husband $650 per month as secretary-treasurer and $500 per month in directors fees. Husband was paid a bonus of $15,000 in 1990. In addition, husband received approximately [57]*57$8,000 in dividends in 1990. Husband’s 1989 federal tax return showed adjusted gross income of $66,956.

Wife is 53 years old and is presently unemployed. Prior to the commencement of the divorce proceedings, she worked between 25 and 32 hours per week at the IGA market of husband and earned $7.90 per hour. Before working at the IGA market, wife was employed as a long-term substitute teacher. Wife has a B.S. in Education from Bloomsburg University, has a teaching certificate in New Jersey and is two credits short of receiving her teaching certificate in Pennsylvania.

Wife has no income and does not receive unemployment compensation, disability income or welfare from the government. Wife has not received any monetary support from husband since filing of the complaint. Wife is insured under husband’s Blue Cross/Blue Shield. Wife received $218.75 per year from dividends in Blue Ridge Cable bonds.

Wife and husband have joint title to the Palmerton residence with a market value of $210,000 as of August 1, 1991. Husband has title to a Bahamas condominium, acquired in November 1985, with an estimated market value of $275,000. On July 31, 1989, husband acquired an interest in a condominium along with four other individuals (known as “Cinco Amigos”) located in Istapa, Mexico.

In 1990, husband sold a lot located in Palmerton and took back a mortgage. He receives $180 a month as mortgagee. This money is placed into a Scutter AARP tax fund in husband’s and wife’s name.

DISCUSSION

The Divorce Code of 1990, 23 Pa.C.S. §3101, et seq., provides that “[i]n proper cases, upon petition, the court may allow a. spouse reasonable alimony pendente lite. . . 23 Pa.C.S. §3702. Ali[58]*58mony pendente lite is defined as “[a]n order for temporary support granted to á spouse during the pendency of a divorce or annulment proceeding. 23 Pa.C.S. §3103.

The Superior Court in Dyer v. Dyer, 370 Pa. Super. 377, 536 A.2d 453 (1988) stated:

“Alimony pendente lite is awarded after commencement of a divorce action to enable the dependent -spouse to maintain or defend the divorce litigation. Prozzoly v. Prozzoly, 327 Pa. Super. 326, 475 A.2d 820 (1984); Orr v. Orr, 315 Pa. Super. 168, 461 A.2d 850 (1983); Remick v. Remick, 310 Pa. Super. 23, 456 A.2d 163 (1983). In determining whether the dependent spouse is placed at a disadvantage in pursuing the divorce litigation, the court should look to the ability to pay of the financially independent spouse, the separate estate and income of the dependent spouse, and the character, situation and surroundings of the parties. See Orrv. Orr, supra. A court may also take into account the considerations set forth in 23 P.S. §501 ‘Alimony.’

Alimony pendente lite is also designed to help the dependent spouse maintain the standard of living enjoyed while living with the dependent spouse. DeMasi v. DeMasi, 366 Pa. Super. 19, 530 A.2d 871 (1987)

Furthermore, the award of alimony pendente lite is within the sound discretion of the trial court. Miller v. Miller, 352 Pa. Super. 432, 508 A.2d 550 (1986)

In the instant case, the record persuades us that the wife is unable to maintain or defend the present divorce litigation. The wife’s current income is [59]*59negligible. She is currently living in Massachusetts with her boyfriend and is unable to procure employment.

Wife testified that she was employed ás a substitute school teacher prior to and during the marriage. In 1982, husband and wife agreed that wife would begin employment at the IGA store managed by husband. From 1982 until their separation in 1990 the wife worked at the IGA store for $7.90 per hour. Wife became dependent on husband during this eight-year period for her employment and income.

This arrangement benefited both parties. Husband and wife were able to acquire a beautiful four bedroom home with a swimming pool; properties in the Bahamas and Mexico; and extensive household furnishings and other luxuries.

When the marriage dissolved, wife found herself eight years out of the teaching profession at the age of 53.

Husband raises three reasons for denying wife alimony pendente lite. We will discuss each seriatim.

First, husband states that his legitimate expenses exceed his income. Husband argues that his mortgage payments on the marital home is $1,400 a month; taxes on the home are $5,000 a year; and maintenance and fuel expenses exceed $5,000 a year. Husband further argues that the expenses on the Bahamas and Mexico properties exceed the income generated. He states that the loss on the Bahamas property was $25,000 and his loss on the Mexican property was $1,600. ,

In DeMasi v. DeMasi, supra, the court addressed this same argument and held that the wife’s absence from the marital residence should not affect her right to husband’s maintenance of the house until equitable distribution. The court went on to say that [60]*60“[h]usband overlooks the fact that he resided in the home for two years following wife’s departure. Therefore, his payment of the mortgage, taxes and insurance was not entirely for wife’s benefit; he enjoyed the house for two years as he had shelter and preserved a valuable asset for equitable distribution.” Id.

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Related

DeMasi v. DeMasi
530 A.2d 871 (Supreme Court of Pennsylvania, 1987)
McNulty v. McNulty
500 A.2d 876 (Supreme Court of Pennsylvania, 1985)
Remick v. Remick
456 A.2d 163 (Superior Court of Pennsylvania, 1983)
Miller v. Miller
508 A.2d 550 (Supreme Court of Pennsylvania, 1986)
Prozzoly v. Prozzoly
475 A.2d 820 (Supreme Court of Pennsylvania, 1984)
Dyer v. Dyer
536 A.2d 453 (Supreme Court of Pennsylvania, 1988)
Orr v. Orr
461 A.2d 850 (Supreme Court of Pennsylvania, 1983)
Commonwealth ex rel. Gitman v. Gitman
237 A.2d 181 (Supreme Court of Pennsylvania, 1967)

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Bluebook (online)
13 Pa. D. & C.4th 55, 1991 Pa. Dist. & Cnty. Dec. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nothstein-v-nothstein-pactcomplcarbon-1991.