In Pennsylvania, when spouses separate, there are two forms of monthly payments one spouse may seek from the other. The two forms are spousal support and alimony pendente lite. Spousal support and alimony pendente lite are calculated in the same fashion. However, a spouse cannot receive both. Further, alimony pendente lite is only available if a divorce action is pending. A major difference between spousal support and alimony pendente lite is that the payor spouse may claim an entitlement defense when a party seeks spousal support. Entitlement defenses are not available to defend against an alimony pendente lite claim. Because of this, when a divorce action is pending, it is common that the party earning less income will seek alimony pendente lite.
Recently, the state Superior Court published an opinion in the case of S.M.C. v. W.P.C ., 44 A.3d. 1181 (Pa. Super. 2012). The S.M.C. case analyzed entitlement defenses to spousal support. This case is important for new practitioners as it provides an education in the area of entitlement defenses and provides a refresher for practicing attorneys who have not seen the issue for quite some time.
The pertinent facts of S.M.C. are as follows: The husband (W.P.C.) and wife (S.M.C.) had a 16-year marriage. The parties were also the parents of one child. According to the opinion, S.M.C. attended marriage counseling for three years prior to the parties' separation and her husband did not attend the marriage counseling sessions. The "boiling point," as described by the husband at the hearing, was when his wife went on a cruise with girlfriends over his objection. According to the opinion, during the cruise, he sent her mean messages that caused her to be afraid to return home. W.P.C. also repeatedly called his wife a whore and was emotionally abusive and bullied her upon her return from the cruise, the opinion said. She testified that she and her daughter were fearful whenever he would come home. After the wife moved out of the marital residence, she began seeing another man. Approximately four months after she vacated the marital residence, a support hearing was held. According to the opinion, W.P.C. learned of her relationship with her boyfriend several weeks prior to the master's hearing. At the support hearing, the master sustained S.M.C.'s objections to his questions concerning her conduct with her boyfriend after separation. The master ruled that post-separation conduct was not relevant to an entitlement defense.
Following the support master's hearing, the support master entered an order of spousal support and child support against W.P.C. She also ordered that he pay a $30,000 lump sum toward the retroactive arrears, as well as a $3,500 attorney fee award. W.P.C. filed exceptions to the master's recommendation and, after oral argument, the trial court denied those exceptions and converted the interim order to a final order.
W.P.C. filed a timely appeal and raised five issues. Generally, his issues on appeal pertained to whether post-separation misconduct constitutes an entitlement defense to an award of spousal support; whether the trial court erred and abused its discretion in directing W.P.C. to make a lump-sum payment of $30,000 toward arrears; and, whether the trial court erred and abused its discretion in awarding attorney fees.
According to the opinion, W.P.C.'s entitlement defense focuses on indignities and desertion. In Pennsylvania, statutory law provides: "Married persons are liable for the support of each other according to their respective abilities to provide support as provided by law." However, with regard to spousal support, there is an exception to the obligation to pay spousal support, according to case law, "where the recipient spouse conducts him or herself in a manner that would constitute grounds for a fault-based divorce." A fault divorce may be granted to an innocent and injured spouse where the other spouse has, inter alia, committed willful and malicious desertion, committed adultery and/or "offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome."
According to the opinion, W.P.C. "asserts that it was error for the trial court to award spousal support in this case because of [S.M.C.'s] voluntary departure from the marital residence, and her exposure of husband to indignities by going on a cruise with her friends prior to separation and engaging in an extramarital affair post-separation." In generally analyzing W.P.C.'s entitlement defense, the Superior Court focused on the case of Jayne v. Jayne, 663 A.2d 169 (Pa. Super. 1995). The Jayne case pertained to whether indignities existed that would warrant a fault divorce. The Superior Court in Jayne held that marital misconduct with regard to a divorce based upon indignities must occur prior to the right to divorce accruing. In that case, the Superior Court stated: "As a result, any misconduct in which husband may have engaged after the separation is not to be considered unless it goes to support misconduct occurring prior to the accrual of the right to divorce. In other words, husband's conduct after wife's filing of the complaint for divorce should not be considered in deciding the sufficiency of the allegations ... unless it is related to or supports similar conduct prior to the accrual of the right to divorce."
In the present case, the Superior Court reiterated that the holding in the Jayne case precludes the consideration of post-separation conduct in determining whether S.M.C. is entitled to spousal support. The Superior Court, in the opinion, acknowledged that the Jayne case did not address spousal support, but reiterated that spousal support can only be denied if "the recipient spouse exhibits conduct that would constitute a ground for fault-based divorce." Likewise, the Superior Court stated: "If there is no evidence of conduct that would constitute grounds for fault-based divorce, then a spouse is entitled to support." Therefore, the Superior Court held that S.M.C.'s relationship with her boyfriend that occurred after the parties separated is irrelevant and does not constitute a ground for fault-based divorce based on indignities or adultery and does not qualify for an entitlement defense.
In specifically analyzing W.P.C.'s indignities claim, the Superior Court reiterated that there is no clear definition for indignities. However, according to the opinion: "A single act by a spouse, however, will not give rise to a finding of indignities. Rather, 'indignities must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome ... a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse.'" Considering the court's understanding of indignities, the Superior Court held that S.M.C.'s attending a single vacation with friends without her husband's consent coupled with his testimony that he was "angry" and "insulted" by her going on the cruise was insufficient "to show that her travel rendered his condition intolerable or his life burdensome." Therefore, the Superior Court held that the trial court did not abuse its discretion by granting her spousal support in light of his entitlement defense based on indignities.
With regard to W.P.C.'s entitlement defense based on desertion, the Superior Court stated in the opinion: "In order to overcome a claim of desertion, the trial court must find that the departing spouse presented evidence of 'adequate legal cause for leaving.'" It must also be found that the departing spouse did "not depart maliciously or casually on a whim or caprice." The Superior Court stated that the phrase "adequate legal cause for leaving" is not subject to an exact definition. Because of this, the Superior Court analyzed prior case law regarding desertion. Examples of a departing spouse presenting evidence of an adequate legal cause for leaving are as follows: (1) where the one spouse yelled, beat his cane on the table and demanded that the wife conduct herself in accordance with his wishes; (2) where a husband pushed a wife once, yelled at her and was very controlling of the couple's finances; and (3) where a husband severely curtailed his wife's access to money. In the present case, according to the opinion, W.P.C. was emotionally abusive, did not attend marriage counseling for the three years before separation, sent S.M.C. mean messages and called her a whore, all of which caused her to be afraid to return to her home. Considering these facts, the court found there was sufficient evidence for the trial court to conclude that S.M.C. had adequate legal cause to leave the marital home and that she did "not depart maliciously or causally on a whim or caprice." Therefore, the Superior Court held that the trial court did not abuse its discretion by granting S.M.C. spousal support over W.P.C.'s entitlement defense based on desertion.
With regard to his issue on appeal pertaining to attorney fees, the Superior Court found that the trial court did not err. In a spousal support action, an award of attorney fees is governed by statute. Under the statute, "if an obligee prevails in a proceeding ... to obtain a support order, the court may assess against the obligor filing fees, reasonable attorney fees, and necessary travel and other reasonable costs and expenses incurred by the obligee and the obligee's witnesses." In the opinion, the Superior Court reiterated that the Supreme Court has stated that the analysis for attorney fees is a totality of the circumstances analysis. In the S.M.C. case, there was a large disparity between the parties' incomes. W.P.C. earned $21,972 net per month and S.M.C.'s monthly net income was $1,189. Primarily, because of the significant disparity in the parties' financial positions, the Superior Court found that the trial court acted appropriately in ordering attorney fees.
The Superior Court also found that the trial court did not err in directing W.P.C. to pay $30,000 toward retroactive arrears and found that he waived his argument on appeal pertaining to his sale of stock from his company business (not discussed in this article).
The S.M.C. case is important for family law practitioners as it provides an analysis of entitlement defenses to spousal support claims. It also provides useful definitions and explanations regarding indignities and desertion claims. The case also reminds practitioners that in order for conduct that would constitute a ground for fault-based divorce to be a viable defense against a spousal support claim, the conduct must have occurred prior to the parties' separation or must be related to or support similar conduct prior to the parties' separation.
Michael E. Bertin is a partner at the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book Pennsylvania Child Custody Law, Practice and Procedure. Bertin is chair-elect of the family law section of the Philadelphia Bar Association, co-chairman of its custody committee and a past member of council and the executive committee of the family law section of the Pennsylvania Bar Association.
This article is reprinted with permission from the August 14, 2012, issue of The Legal Intelligencer. © 2012 ALM Media LLC. Further duplication without permission is prohibited. All rights reserved.
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