Judges Opinions, — January 11, 2023 12:44 — 0 Comments

Jenny Thierwechter, v. Carl Thierwechter, Jr.

Jenny Thierwechter, v. Carl Thierwechter, Jr.,

 

Civil Action-Family Law-Spousal Support-Alimony Pendente Lite-Distinct Remedies-Financial Need-Deviation

 

Defendant Carl Thierwechter, Jr., (“Husband”) filed Exceptions to the Order of Court adopting the Report and Recommendation of the Domestic Relations Master awarding alimony pendente lite (“APL”) to Plaintiff Jenny Thierwechter (“Wife”).  Husband argues that the Domestic Relations Master erred by failing to deviate from the Pennsylvania Support Guidelines recommended monthly amount on the basis of the short duration of the marriage and Wife’s current residence with another person who pays the household expenses.

 

  1. APL is awarded to allow for an obligor spouse to maintain the financial resources necessary to litigate on a par with the other spouse.

 

  1. The primary purpose of spousal support is to ensure that a financially dependent spouse retains a reasonable living allowance during the pendency of the marriage.

 

  1. APL and spousal support have not merged in a Pennsylvania post-Support Guideline environment.

 

  1. In ruling on a claim for APL, the Court must consider the following factors: (1) the ability of the obligor party to pay; (2) the separate estate and income of the petitioning party; and (3) the character, situation and surroundings of the parties.

 

  1. If the Court finds that APL is warranted, it is required to use the factors listed in Pa.R.C.P. Rule 1910.16-5 to determine whether a basis for deviation from the recommended Guideline amount exists.

 

  1. The fact that a party lives with a companion who pays for the majority or even all of the household expenses does not disqualify a party automatically from receiving support.

 

  1. While the fact that Wife lives with a companion who may pay the household expenses does not preclude receipt of APL and evidence was presented regarding the parties’ respective incomes, Wife has failed to carry out the responsibility of establishing financial need during the pendency of the divorce action to warrant an award of APL.

 

  1. On remand, the Domestic Relations Master must articulate findings pertaining to Wife’s financial need for support to pursue divorce litigation fairly without being at a material disadvantage and must determine whether a deviation is warranted pursuant to Rule 1910-16.5 if APL is awarded.

 

L.C.C.C.P. No. 2021-50229, Opinion by Bradford H. Charles, Judge, April 5, 2022.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

            JENNY THIERWECHTER,                      :           NO. 2021-5-0229

Plaintiff                                                           :           PACSES NO. 895300683
:

  1. :

:

CARL THIERWECHTER, JR.,     :

Defendant                                                         :

:

:

 

ORDER OF COURT

 

AND NOW, this 5th day of April, 2022, upon consideration of the Exceptions filed by Defendant, and in accordance with the attached Opinion, the Order of this Court is as follows:

  1. This case is to be remanded to the Domestic Relations Master (DRM) for another hearing to be scheduled as promptly as possible.
  2. At the hearing on remand, the DRM is to consider the traditional standards governing the award of Alimony Pendente Lite and is to render factual findings regarding the need of Plaintiff for financial support during the pendency of the parties’ divorce dispute.  Of necessity, this will require the DRM to consider the income of the Plaintiff’s paramour and his contributions toward Plaintiff’s current living situation.  In addition, the DRM is to render specific factual findings with respect to the need of Plaintiff to receive Alimony Pendente Lite so that she can fairly litigate the divorce dispute.
  3. Pending the hearing before the DRM on remand, Defendant is to pay to Plaintiff temporary Alimony Pendente Lite in the amount of $500.00 per month.  This amount is determined without prejudice to the ability of both parties to argue for a greater or lesser amount of Alimony Pendente Lite.  It also rendered without prejudice to the ability of the DRM to determine an appropriate amount of Alimony Pendente Lite retroactive to the date on which Plaintiff filed her request.

 

 

 

 

 

 

 

BY THE COURT:

 

 

 

BRADFORD H. CHARLES

BHC/oeh

 

cc:        Domestic Relations

Jenny Thierwechter//

Carl Thierwechter, Jr.// 127 N Monroe St., Lebanon PA  17046

Katherine Rightmyer O’Brien, Esq.// PO Box 435 Hamburg, PA 19526

Timothy Engler, Esq.// 36 W Main St. Myerstown, PA 17067

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

            JENNY THIERWECHTER,                      :           NO. 2021-5-0229

Plaintiff                                                           :           PACSES NO. 895300683
:

  1. :

:

CARL THIERWECHTER, JR.,     :

Defendant                                                         :

:

:

APPEARANCES

 

Katherine Rightmyer O’Brien, Esq.                       For Jenny Thierwechter

 

Timothy Engler, Esq.                                                          For Carl Thierwechter, Jr.

STEINER & SANDOE

 

OPINION BY CHARLES, J., April 5, 2022

Before us are the Defendant’s exceptions to the findings of the Domestic Relations Master (hereafter, “DRM”). The Defendant avers that the DRM inappropriately conflated different forms of relief, and that downward deviation from the support guidelines is warranted. We will consider the merits of these exceptions.

  1. FACTS

Jenny Thierwechter (hereafter, “WIFE”) and Carl Thierwechter Jr. (hereafter, “HUSBAND”) married in July, 2018 and separated in April, 2020. Altogether, the parties cohabitated for approximately twenty months. The parties have no children in common. On or about August 13, 2021, WIFE filed a Complaint for Support. A hearing was held before the DRM on December 2, 2021.

WIFE is not employed. She currently resides with her two children—unrelated to HUSBAND—ages fifteen and nineteen, as well as a male companion. She last worked in 2006, and testified that she has tried to work on a limited basis since then, but her physician told her that she was unable to work.

HUSBAND has worked full time at Sherwin-Williams since January, 2021, earning $24 per hour. His net income is $3,893.60 per month.

The DRM issued her findings on December 29, 2021. The DRM recommended that HUSBAND pay $1,284.89 per month in alimony pendente lite (hereafter, “APL”) to WIFE. This $1,284.89 figure is derived without deviation from the support guidelines per Pa.R.C.P. 1910.16-3.

In response to the DRM’s findings, HUSBAND filed timely exceptions on December 29, 2021. HUSBAND averred that the DRM failed to deviate from the support guidelines in determining WIFE’s APL award. HUSBAND argues that the DRM failed to consider that the parties were married for less than two years and that the DRM failed to consider that WIFE resides with a male companion who purportedly pays for all of the household expenses. As such, HUSBAND contends that the support amount is unjust in light of the circumstances, and that the APL amount should be reduced.

This matter was scheduled for Oral Argument on March 8, 2022. HUSBAND timely filed a brief in support of his stance that the APL award should be reduced.[1] During Oral Argument, HUSBAND contended that WIFE did not articulate a need for APL, and that the DRM had essentially conflated APL with spousal support. We author this Opinion to give guidance to Lebanon County with respect to the differences between APL and spousal support, and hold that APL and spousal support remain separate legal constructs in a post-guideline environment.

 

  1. DISCUSSION

At the forefront of the issue before us is HUSBAND’s contention that the DRM conflated APL and spousal support.  Indeed, before we determine whether the DRM erred in failing to deviate from the support guidelines in awarding WIFE APL, we must first establish whether APL and spousal support remain distinct legal remedies.

We will begin by discussing the history and policies behind the two forms of marital support.   Thereafter, we will review whether an APL award is warranted under the present circumstances.

  1. Legal Principles

Historically, spousal support and APL are distinct concepts. Horn v. Horn, 564 A.2d 995 (Pa. Super. 1989); Prozzoly v. Prozzoly, 475 A.2d 820 (Pa. Super. 1984); Wargo v. Wargo, 136 A.2d 163 (Pa. Super. 1957).  APL is awarded to allow for an obligor spouse to maintain the financial resources necessary to litigate “on a par” with the other spouse. See, Litmans v. Litmans, 673 A.2d 382, 388 (Pa. Super. 1996) (holding that the purpose behind APL is to give the parties equal footing while litigating a divorce); see also, DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa. Super. 1991) (“APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare.”).

While similar, spousal support is historically derived from the notion that both partners to a marriage owe duties to one another that are derived from the nature of the marital relationship.  One such duty requires a spouse with greater financial resources to provide monetary assistance to a spouse who has less.  See¸ White v. White, 313 A.2d 776, 778 (Pa. Super. 1973).  Spousal support arises from the marital relationship itself and it terminates when the marriage ends.  Remick v. Remick, 456 A.2d 163 (Pa. Super. 1983).  The primary purpose of spousal support is to ensure that a financially dependent spouse retains a reasonable living allowance during the pendency of the marriage.  Levine v. Levine, 520  A.2d 466 (Pa. Super. 1987).  Spousal support is completely independent of a divorce proceeding and can be awarded even when the parties are not litigating the dissolution of their marriage.  See, Larkin v. Larkin, 396 A.2d 761 (Pa. Super. 1978).

In 1989, the Pennsylvania Supreme Court enacted the Uniform Support Guidelines. See Pa.R.C.P. 1910.16-1 – 1910.16-5. The new Rules mandated that spousal support and child support be determined in accordance with these new guidelines, unless one or more of the specified bases for deviation from the guidelines applied. The policy underlying the support guidelines was to do away with individual, case-by-case determinations of support awards, and instead ensure that persons similarly situated be treated similarly. Pa.R.C.P. No. 1910.16-1 (explanatory comment – 2010). In 1993, the Supreme Court amended the support guidelines to include their application to APL.

After our Supreme Court enacted the support guidelines, the distinction between APL and spousal support began to blur. Indeed, the Superior Court noted that the difference between APL and spousal support is now “negligible.” Calibeo v. Calibeo, 663 A.2d 184, 185 (Pa. Super. 1995); accord, Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996).

While Courts of Common Pleas in this Commonwealth interpreted this language to mean that APL and spousal support are indistinguishable from a financial standpoint, see Prud’homme v. Prud’homme, 48 Pa. D. & C.4th 182, 195–96 (Lehigh Co. 2000) (en banc); Frerotte v. Frerotte, 74 Pa. D. & C.4th 298 (Armstrong Co. 2005), this Court did not believe that to be the intention of our higher courts. As such, we undertook the task of determining the differences between APL and spousal support in Susan v. Smith, No. 2013-20491 (December 19, 2014), aff’d, 2017 WL 3912700 (Pa. Super. 2017). There, we departed from our colleagues in other Courts of Common Pleas, and held that the historical distinctions between APL and spousal support, as well as the plain language of the official comment to the new support guidelines, indicated our appellate courts’ continued recognition that the two forms of support remain distinct:

In spite of these new APL rules—or perhaps because of them—the official comment to the Support Guidelines was amended to state: “Nothing in this Rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.”

Our appellate courts have always recognized that APL and spousal support “differ in character.” Spousal support has always been predicated upon the existence of a martial relationship and is designed to enable a dependent spouse to pay all of his/her necessary expenses. In contrast, alimony pendente lite has historically been designed to enable a dependent spouse to prosecute or defend a divorce proceeding. To our knowledge, no statute, rule of court, or appellate decision has ever equated APL and spousal support as did Prud’homme.

We place significant emphasis on the official comment to the support guidelines amendments that incorporated APL. That comment states: “Nothing in this Rule should be interpreted to eliminate the distinctions between spousal support and alimony pendente lite which are established by case law.” Why would this language have been included if the Supreme Court intended to morph APL into “mere spousal support in a divorce case?”

Susan, supra (internal citations omitted; emphasis applied).

The Superior Court has not precisely examined whether APL and spousal support have effectively merged in the post-guideline environment since affirming our holding in Susan, supra. On one occasion, the Superior Court stated, “[a]lthough the policies and rules regarding the various forms of support are unquestionably distinct, on the issue of the application of the support guidelines, the courts have not distinguished among them.” Ileiwat v. Labadi, 233 A.3d 853, 860-61 (Pa. Super. 2020) (footnote omitted). Given the lack of any contrary appellate precedent since Susan, supra, and given that Susan remains governing precedent here in Lebanon County, we reiterate today that APL and spousal support have not merged in a post-guideline environment.

  1. Analysis

In ruling on a claim for APL, we are instructed to consider the following factors: (1) the ability of the obligor party to pay; (2) the separate estate and income of the petitioning party; and (3) the character, situation, and surroundings of the parties. Ileiwat, supra at 860 citing Childress v. Bogosian, 12 A.3d 448, 463 (Pa. Super. 2011). If we find that APL is warranted, we are to use the factors listed in Pa.R.C.P. 1910-16.5(b) to determine whether deviation is necessary. Ileiwat, supra.

First, HUSBAND’s monthly net income is $3,893.60. He has been employed by Sherwin-Williams for over one year, earning more than three times the state minimum wage. The DRM further noted that HUSBAND has the opportunity for seasonal overtime in the amount of $36 per hour. There is nothing in the record to contradict that HUSBAND has a stable, well-paying job. We will thus weigh this factor in favor of WIFE.

Second, there is no evidence before us to suggest that either party has a significant estate, so we will direct our attention to the income of the petitioning party. WIFE’s net income is $0. The DRM found credible WIFE’s testimony that she experiences health problems so severe that she is unable to work. This answers only part of our analysis, however, as WIFE’s companion purportedly pays for her household expenses. The DRM did not address the financial resources of WIFE’s paramour, nor did she set forth any finding about his income. We cannot reach any conclusion regarding this factor, as we lack the requisite information to determine the household income of WIFE and her “need” for support from HUSBAND.

HUSBAND would have us believe that WIFE living with a companion who pays for all of her expenses disqualifies her from receiving support. However, the fact that WIFE lives with a male companion who presumably pays for the majority or even all of the household expenses does not automatically disqualify her from receiving such an award. See Schenk v. Schenk, 880 A.2d at 633, 644 (Pa. Super. 2005) (APL may not be denied on the basis that the dependent spouse is cohabitating with another.). Indeed, APL focuses on “providing [the nonpaying spouse] with an income during pendency of the action in order that she may not be put at a disadvantage financially by reason of her having brought the action or being required to defend it.” Orr v. Orr, 461 A.2d 850, 852 (Pa. Super. 1983). Even if WIFE does not pay for any of her household expenses, her individual monthly net income remains $0. We cannot and will not ignore this fact.  Moreover, we cannot expect WIFE’s paramour to pay WIFE’s costs pertaining to this litigation. Accordingly, we uphold the notion that WIFE’s cohabitation status alone does not preclude her from receiving APL.

Despite this finding, we cannot end our discussion.  While the Schenk court found that cohabitation does not per se disqualify an APL award, the Superior Court denied APL on the basis that the petitioner failed to demonstrate a need for the support when presented an opportunity to do so:

… wife petitioned for APL but provided no testimony as to her difficulty in defending the case. The court gave her an additional opportunity to do so, in filing a motion for reconsideration, but she again failed to come forth with such proof… Wife failed to demonstrate her need.

Schenk, supra at 646.

This case is analogous to Schenk.  As in Schenk, the obligee spouse in this case is not disqualified from APL simply because she co-habits with a paramour.  However, as emphasized in Schenk, the obligee spouse remains responsible for establishing financial need during the pendency of the divorce action.  Without proof of financial need, no amount of APL can be awarded.  By logical extension, this precept also means that a spouse with only limited financial need should not receive the same amount of APL as a spouse whose need is great.

In this case, the DRM focused exclusively upon the parties’ income.  No Findings of Fact were submitted with respect to the income and contributions of WIFE’s paramour and her financial need.  To make matter worse, WIFE did not focus her presentation on the contributions she received or the need she purportedly has.  Indeed, WIFE did not even file a legal brief in this matter that could have assisted the Court in determining her need.  It appears as though both WIFE and the DRM focused almost myopically on income and application of the Spousal Support Guideline formula.  We hold today that this approach does not pass legal muster in an APL proceeding.

WIFE’s financial need must be considered on remand.  The DRM must articulate findings about whether WIFE has at least some financial need for support so that she can fairly pursue divorce litigation without being at a material disadvantage.  In addition, even once the DRM applies the Spousal Support Guideline formula, she must still determine whether deviation is warranted under Pa.R.C.P. 1910.16-5.   Such deviation analysis requires the DRM to conduct an analysis of whether and to what extent WIFE’s financial needs have been or are subsidized by a third party such as her paramour.

 

III.       CONCLUSION

In this case, the DRM treated WIFE’s request for APL as a de facto request for spousal support.[2]  By doing so, the DRM erred.  As outlined above, APL retains its position in domestic relations jurisprudence as an independent form of relief.  As such, a DRM hearing on an APL dispute must make findings of fact regarding the need of the petitioning party for temporary monetary support so that he/she is not at an unfair disadvantage when litigating the divorce.[3]  In this case, the DRM did not conduct such an analysis.  Therefore, we will remand this case to the DRM for another Factual Hearing.

Without question, once a DRM considers the threshold question of whether and to what extent a petitioner needs APL during the pendency of a divorce dispute, then Pennsylvania’s Spousal Support Guidelines can and should be considered.  However, one of the Guideline provisions affords a DRM with the ability to deviate from the formula amount, especially when one of the litigants has unusually low expenses due to the financial contributions to that spouse made by third parties.  Here, WIFE lives with a gentleman who has chosen to voluntarily provide financial support for her.  We reach no decision today about whether the financial support provided by WIFE’s paramour rises to the level of requiring deviation.  However, the DRM should have at least considered a deviation analysis.  By failing to do so, the DRM erred.

We will be returning this case to the DRM for another Factual Hearing and for a de novo evaluation of whether and to what extent WIFE should receive APL during the pendency of the parties’ divorce.  An Order to accomplish this remand will be entered today’s date.

 

 

 

 

[1] WIFE did not file a brief in this matter.

[2] Although the DRM considered WIFE’s claim using the spousal support formula set forth in Pennsylvania’s Support Guidelines, she did not consider the issue of entitlement that often is a component of any spousal support dispute.

[3] As an example of how this dynamic could play out in the real world, suppose that a spouse is from a very wealthy family.  Suppose that the spouse’s wealthy family has decided to pay all of his/her counsel fees and living expenses during the pendency of the divorce.  Under that circumstance, the subsidized spouse would not have a need for APL.  Under this scenario, awarding APL based solely upon the Spousal Support Guideline formula would be in direct contravention to the historical purpose of APL.  So long as APL maintains its historical foundation and purpose, it would be error under this scenario to award APL based upon nothing more than the Spousal Support Guideline formula.  See, Schenk v. Schenk, 830 A.2d 633 (Pa. Super. 1983).

 

About the author

Ben has written 972 articles for Lebanon County Legal Journal

Search