Richard Rolon, v. Melanie Rolon

Richard Rolon, v. Melanie Rolon

 

Civil Action-Family Law-Divorce-Alimony Pendente Lite-Financial Need-Litigation of Divorce-Active Pursuit of Divorce-Abandonment of Claim

 

Following a hearing before a Domestic Relations Master, an Order was entered awarding alimony pendente lite (“APL”) to Plaintiff.  Defendant filed Exceptions on the basis that an award of APL is inappropriate because Plaintiff is not actively participating in the divorce litigation.

 

1. In order for APL to be awarded, the seeking spouse first must demonstrate that he or she is in need of the award for the purposes of litigating the divorce with the other spouse.

 

2. APL should not be awarded to a spouse who is not actively pursuing the divorce litigation.

 

3. An APL award is not intended to be a permanent form of support.

 

4. A spouse receiving APL who fails to move a divorce forward for six (6) consecutive months effectively abandons his or her claim for APL thereafter until he or she actively pursues the divorce.

 

5. Where Plaintiff has failed to take any steps to prosecute or defend the divorce action that has been dormant for one (1) year, he will not be permitted to continue to receive APL, which will be terminated six (6) months after the initial Order.

 

L.C.C.C.P. No. 2012-50710, Opinion by Bradford H. Charles, Judge, January 24, 2023.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

            RICHARD ROLON,                        :           NO. 2012-5-0710

Plaintiff                                                           :           PACSES NO. 861301372
:

:

1. :

MELANIE ROLON,                        :

Defendant                                                         :

:

:

 

ORDER OF COURT

AND NOW, this 24^th day of January, 2023, upon consideration of the exceptions filed, and in accordance with the attached Opinion, the Order of this Court is as follows:

1. The Defendant’s exceptions to the Domestic Relations Master’s finding and recommendation are DENIED.

the Order of this Court is as follows:

2022. This Order shall be effective in two tiers: (1) From March 9, 2022 to September 9, 2022 and (2) From September 10, 2022.
2023. The amount of support to be paid by Defendant is:
      1. From March 9, 2022 to September 9, 2022, $691.56 per month for alimony pendente lite for Richard Rolon, plus $69.16 in arrears for Richard Rolon.
      2. Effective September 10, 2022, the Order shall be terminated, $0.00 per month for alimony pendente lite for Richard Rolon. Any arrears owing shall be paid at the rate of $100.00 per month until arrears for Richard Rolon are paid in full.

AMOUNT/FREQUENCY     OBLIGATION TYPE            BENEFICIARY

03/09/2022 – 09/09/2022

_$691.56_/_month_         _APL_                               ________Richard Rolon___ _$69.16_/_month_           _arrears_                      ________Richard Rolon ___

09/10/2022 and forward

_$0.00_/_month_             _APL_                               ________Richard Rolon___ _$100.00_/_month_         _arrears_                      ________Richard Rolon ___

Arrears are due in full IMMEDIATELY.  All terms of this Order are subject to collection and/or enforcement by contempt proceedings, credit bureau reporting, tax refund offset certification, driver’s license revocation, and the freeze and seizure of financial assets.  These enforcement/collection mechanisms will not be initiated so long as Obligor does not owe overdue support.  Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all the means listed above.

The monthly support obligation includes cash medical support in the amount of $250 annually for un-reimbursed medical expenses incurred for each child and/or spouse.  Un-reimbursed medical expenses of Obligee or children that exceed $250 annually shall be allocated between the parties.  The party seeking allocation of the un-reimbursed medical expenses must provide documentation of the expenses to the other party no later than March 31^st of the following calendar year in which the final medical bill to be allocated was received.  The un-reimbursed medical expenses are to be paid as follows:  _58_% by Defendant and _42_% by Plaintiff.  Defendant’s support obligations reduce income to self-support reserve. ____Defendant ___ Plaintiff ____Neither party is to provide dental coverage if it continues to be available at no additional cost for the children.   Each party is responsible for providing his or her own insurance.

IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

___The defendant is ordered to cover the dependent(s) with health care coverage whenever it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of defendant’s net monthly income and does not exceed 50% of defendants net monthly income when added to the basic child support plus additional expenses.

___Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered to apply for/continue government-sponsored coverage, such as Children’s Health Insurance Program (CHIP).  The cost of said coverage shall not exceed 5% of plaintiff’s net monthly income.

____Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered to cover the dependent(s) with health care coverage if it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of plaintiff’s net income.

IT IS FURTHER ORDERED:

Within 30 days after the entry of this order, the party ordered to provide health care  coverage shall provide written proof to the Lebanon County Domestic Relations Office and the other party that medical insurance has been obtained, including insurance cards and any other material necessary to utilize the coverage.

If Health Insurance is currently unavailable to the party/parties ordered to provide it, such proof shall be provided to Lebanon County Domestic Relations within 7 days of the date of this order.

If Health Insurance coverage is now available or becomes available to the party/parties ordered to provide it, the party/parties shall provide proof of the cost to Lebanon County Domestic Relations within 7 days of the date of availability.

1. _X__DEFENDANT _____PLAINTIFF SHALL PAY THE FOLLOWING FEES:

FEE TOTAL   FEE DESCRIPTION             PAYMENT FREQUENCY

__40.25______/___    __Judicial Fee___       ___PER ONE TIME__

________/___ __________________            _________PER __________

ADDITIONAL RECOMMENDATIONS:

___All other provisions from the court order dated ________________ not affected by this order, shall remain in full force and effect.

Any money collected pursuant to this Order shall be paid by Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court.  Said money to be turned over by the Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court.

Within thirty (30) days after the entry of this Order, the party or parties providing insurance shall submit to the person having custody of the child(ren) written proof that medical insurance coverage has been obtained or that application for coverage has been made.  Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms.

Payments must be made by check or money order.  All checks and money orders must be made payable to Pennsylvania State Collection & Disbursement Unit and mailed to P.O. Box 69110, Harrisburg, PA 17106-9110.  Each payment must bear your social security number and member number in order to be processed.

IMPORTANT LEGAL NOTICE

PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING, BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN CONTEMPT OF COURT, AND MAY BE FINED OR IMPRISONED.

 

PENNSYLVANIA LAW PROVIDES THAT ALL SUPPORT ORDERS SHALL BE REVIEWED AT LEAST ONCE EVERY THREE (3) YEARS IF SUCH REVIEW IS REQUESTED BY ONE OF THE PARTIES. IF YOU WISH TO REQUEST A REVIEW AND ADJUSTMENT OF YOUR ORDER, YOU MUST DO THE FOLLOWING: CALL YOUR ATTORNEY. AN UNREPRESENTED PERSON WHO WANTS TO MODIFY (ADJUST) A SUPPORT ORDER SHOULD CONTACT THE DOMESTIC RELATIONS SECTION.

 

ALL CHARGING ORDERS FOR SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE, INCLUDING UNALLOCATED ORDERS FOR CHILD AND SPOUSAL SUPPORT OR CHILD SUPPORT AND ALIMONY PENDENTE LITE, SHALL TERMINATE UPON DEATH OF THE PAYEE.

 

A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO OR GREATER THAN ONE MONTH’S SUPPORT OBLIGATION AND (1) THE COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE ARRANGEMENT.

 

UNPAID ARREARS BALANCES MAY BE REPORTED TO CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID SUPPORT PAYMENT SHALL CONSTITUTE, BY OPERATION OF LAW, A JUDGEMENT AGAINST YOU, AS WELL AS A LIEN AGAINST REAL PROPERTY.

 

IT IS FURTHER ORDERED that, upon payer’s failure to comply with this order, payer may be arrested and brought before the Court for a Contempt hearing; payer’s wages, salary, commissions, and/or income may be attached in accordance with law; this Order will be increased without further hearing by 10 % a month until all arrearages are paid in full.  Defendant is responsible for court costs and fees.

 

 

 

 

BY THE COURT:

 

BRADFORD H. CHARLES

BHC/oeh

 

cc:        Domestic Relations

Melanie Rolon// 224 S 5^th St. Lebanon, PA 17042

Richard Rolon// 425 N 12^th St. Lebanon, PA 17046

Heather Eggert, Esq. C/O Henry Beaver LLP// 937 Willow St. PO Box 1140 Lebanon, PA 17042

Loreen Burkett, Esq. C/O Weiss Burkett// 802 Walnut St. Lebanon, PA 17042

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

            RICHARD ROLON,                        :           NO. 2012-5-0710

Plaintiff                                                           :           PACSES NO. 861301372
:

:

1. :

MELANIE ROLON,                        :

Defendant                                                         :

:

:

:

APPEARANCES

 

Loreen Burkett, Esquire                                          For Richard Rolon

 

Heather Eggert, Esquire                                          For Melanie Rolon

 

 

 

OPINION BY CHARLES, J. January 24, 2023

 

The purpose of an Alimony Pendente Lite (APL) award is to provide a party who demonstrates financial need with the monetary support necessary to prosecute/defend a divorce action. In recent Opinions, this Court has articulated what is necessary for a party to prove that he/she has demonstrated a financial need for support. In today’s Opinion, we articulate what is necessary to prove that a party is prosecuting/defending a divorce action.

 

 

 

1. FACTS

Richard Rolon (hereafter, “HUSBAND”) and Melanie Rolon (hereafter, “WIFE”) married in 1998 and have lived separate and apart since December, 2021. The parties have no minor children.

HUSBAND works as a laborer at Royal Green, where he earns $18 per hour. He resides with his mother and brother. WIFE is a Licensed Practical Nurse (LPN). In 2021, she earned $98,000. WIFE resides with her adult son and paramour in the parties’ marital residence.

HUSBAND filed a Complaint for Support on August 12, 2012. The parties signed a Consent Order on September 6, 2012, and the Complaint for Support was dismissed.

On March 9, 2022, HUSBAND filed for APL. A hearing was held on June 30, 2022. On July 15, 2022, the Domestic Relations Master (DRM) issued findings and a recommendation. The DRM recommended APL be awarded to HUSBAND. WIFE filed exceptions on August 8, 2022. WIFE argues that an APL award is inappropriate because HUSBAND is not actively participating in the divorce litigation. The case was listed for Oral Argument. In preparation for Oral Argument, HUSBAND filed a transcript request for the June 30, 2022 hearing. This transcript has been received by the Court. The parties participated in Oral Argument on October 18, 2022.

We author this Opinion to reinforce our position that APL is to be awarded only in the event that the recipient spouse is actively participating in the divorce litigation. For the reasons that follow, the APL award will be suspended as of September 10, 2022.

 

1. DISCUSSION

Our standard of review to be employed when a transcript of the DRM hearing has been prepared is well established. When a transcript of the DRM hearing is available, we have stated:

Our Superior Court has provided guidance with respect to the scope of review that we should ordinarily employ. In reviewing a DRM’s report, we must give “fullest consideration” to the credibility findings of the DRM, who was present to observe the demeanor of witnesses and hear their testimony. Schuback v. Schuback, 603 A.2d 194 (Pa. Super. 1992); Dukmen v. Dukmen, 420 A.2d 667 (Pa. Super. 1980). A DRM’s report should not be lightly disregarded. Pasternak v. Pasternak, 204 A.2d 290 (Pa. Super. 1964). However, the DRM’s report is only advisory, and we are not bound by its considerations. When we have a transcribed record to review, we must consider all of the evidence de novo and make an independent determination of the amount of support due and owing. Id. citing Rankin v. Rankin, 124 A.2d 689 (Pa. Super. 1956).

Lippi v. Lippi, C.P.Leb.Co. No. 2007-5-0676 (May 7, 2013).

With this in mind, we turn to the exception at hand. WIFE argues that the potential recipient of APL must demonstrate, inter alia, that he or she is actively pursuing the divorce litigation. The case of Thierwechter v. Thierwechter, C.P.Leb.Co., No. 2021-5-0229 (2022) is the controlling authority in Lebanon County as it relates to an APL award. In Thierwechter, we articulated the policy behind APL, as well as what a party must demonstrate to receive an APL award:

… APL retains its position in domestic relations jurisprudence as an independent form of relief.  As such, a DRM hearing an APL dispute must make findings of fact regarding the need of the petitioning party for temporary monetary support so that he/she can litigate the divorce dispute “on a par” with the other spouse.

Thierwechter, supra at 12. In the case of Baltimore v. Baltimore, C.P.Leb.Co., No. 2021-5-0228 (2022), we reinforced our holding in Thierwechter. Specifically, we held that in order for APL to be awarded, a potential obligee, “… must first demonstrate that he/she is in need of the monies for the purpose of litigating the divorce with the other spouse.” Baltimore, supra at 8.

Our Appellate Courts have always resisted in awarding APL to a spouse who is collecting the awarded funds without actively pursuing the divorce litigation. See e.g., Orr v. Orr, 461 A.2d 850, n.2 (Pa. Super. 1983)(“It is to be noted that the purpose of an award of alimony pendente lite is to ‘maintain the wife’ during the pendency of her divorce action and her receiving this award should not cause her to delay the divorce proceedings.”); Koehler v. Koehler, 73 Pa. Super. 41, 43 (1919)(“The provision [of APL] should be a reasonable one, not so large as to present a temptation to the wife, who is the libellant, to delay the proceeding, while continuing to live apart from her husband.”).

The DRM in this case articulated the factors set forth in Thierwechter and concluded that an APL award is appropriate in this case. Given that WIFE earns nearly three (3) times as much as HUSBAND, given that no significant assets are in HUSBAND’s name and given that HUSBAND has and will continue to accrue legal expenses[1], the DRM did not err by recommending that some form of monetary support be awarded to HUSBAND during the pendency of the litigation.

That said, an APL award is not intended to be a permanent form of support. A review of the parties’ divorce docket reveals that HUSBAND has failed to take any steps to prosecute or defend in the divorce action. See Rolon v. Rolon, C.P.Leb.Co., No. 2012-2-0710. WIFE filed a Complaint in divorce on January 28, 2022. Counsel for HUSBAND entered her appearance on March 3, 2022. No further action has been taken in the divorce docket.

As articulated in Thierwechter, the policy of an APL award is to provide a party who demonstrates financial need with the monetary support necessary to prosecute/defend him/herself in an action of divorce. When a party otherwise entitled to APL fails to take any action on a case, we cannot and will not permit the obligee to continue to receive funds. Indeed, if a receiving spouse collects financial support but does not use these funds as intended, the purpose of the APL becomes frustrated.  While we agree with the DRM that HUSBAND has demonstrated a financial need for APL, we will not permit him to continue to receive an award while failing to take any action to move the divorce action forward.

In this case, the parties’ divorce action has been sitting dormant for one year.  That is far too long.  We understand the exigencies of separation and domestic litigation, and we realize that it may not always be possible to move a divorce forward in weeks or sometimes even months.  However, if nothing is done for more than six months, we will be forced to conclude that neither party wants the divorce to proceed.  In that event, continuing payment of APL would frustrate its purpose.

We will affirm the DRM’s award of APL…for six months.  The Petition was filed on March 9, 2022.  Because HUSBAND did nothing to pursue the divorce for six months thereafter, we will terminate APL effective September, 2022.  If HUSBAND again moves forward with the divorce, then he can re-file a request for APL.

 

III.       CONCLUSION

An APL award is designed to aid a  spouse in prosecuting/defending a divorce action when that spouse demonstrates a financial need. Our Appellate Courts have long expressed a “loathing” to fashion an APL award that would tempt the receiving spouse to delay the divorce proceedings.  Thus, we declare today that an obligee who fails to move a divorce forward for six consecutive months effectively abandons his/her claim for APL thereafter, at least until he/she again actively pursues the divorce.[2]

In the case before us, the income disparity between the parties is significant. Additionally, HUSBAND has demonstrated to the DRM that his income cannot cover his mounting legal fees. While we agree with the DRM that an APL award is warranted, we must balance the APL award with the fact that HUSBAND has not used the funds awarded to him for its intended purpose—to pursue or defend the divorce action.

We will affirm the decision of the DRM regarding APL.  However, we will not continue the APL award indefinitely or without condition.  Had HUSBAND taken action to move the divorce forward, we would have continued the APL beyond September of 2022.  As it is, we will terminate APL on September 9, 2022, which is six months following the initial Order.  We do so without prejudice to the ability of HUSBAND to refile for APL if/when he decides to actively litigate the divorce.

 

[1] See Finding of Fact dated July 20, 2022 at p. 6.

[2] Although the issue is not specifically before us today, we note as dicta that if an APL obligee unreasonably delays a divorce using suspect tactic, that also could serve as a forfeit of APL.