Miller v. Miller

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LESLIE S. MILLER Appellant v. MICHAEL K. MILLER

No. 599 WDA 2023

No. J-A29040-23

Superior Court of Pennsylvania

January 16, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Decree Entered May 2, 2023 In the Court of Common Pleas of Mercer County Civil Division at No. 2020-1655

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Leslie S. Miller (Appellant) appeals from the decree divorcing her and Michael K. Miller (Miller) and resolving the parties' outstanding economic issues. Specifically, Appellant challenges the trial court's award of alimony to Miller. Upon careful review, we affirm.

Appellant and Miller married on October 26, 1993, and separated on January 26, 2020. They resided at 1703 Park Lane, Greenville Pennsylvania (the marital residence). Upon separation Appellant continued to live in the marital residence; Miller resided in an apartment at 4002 Hermitage Hills Boulevard, Hermitage, Pennsylvania. The parties have no minor children.

On June 1, 2020, Appellant filed her complaint in divorce. The economic issues between the parties were the subject of a master's report and recommendation filed on July 18, 2022. Appellant and Miller filed exceptions to the master's report. Following oral argument on May 2, 2023, the trial court denied the parties' exceptions. That same date, the trial court entered the divorce decree and directed the equitable distribution of the parties' marital assets. The trial court further awarded alimony to Miller:

The current Order for spousal support, through Mercer County Domestic Relations … shall be converted to post-divorce alimony effective this date, … with said payments being made, by [Appellant] to [Miller], as follows:

a. The sum of $400.00 per month shall be paid for the first 18 consecutive months.

b. For the next 18 consecutive months thereafter, the sum of $350.00 per month shall be paid.

c. For the following 18 consecutive months thereafter, the sum of $250.00 per month shall be paid.

d. Thereafter, the sum of $200.00 shall be paid per month until Miller attains normal, full retirement age for social security benefits.

It is noted should [Miller] receive social security benefits earlier than the normal full retirement age, the alimony payments, as set forth herein, shall immediately terminate. Except as set forth herein, said alimony is non-modifiable as to term and amount except as provided for in the Divorce Code, which would provide for termination of alimony upon death, remarriage or co-habitation with another individual as defined in the Divorce Code.

Divorce Decree, 5/2/23, ¶ 4 (emphasis added).

Appellant filed a timely appeal. The trial court did not direct compliance with Pa.R.A.P. 1925, and has relied on its previously filed opinions and orders.

Appellant presents two issues for review:

1. Did the trial court, without any evidence that alimony is necessary, abuse its discretion by requiring a 62-year-old wife to pay six years of alimony to a 61-year-old husband who is gainfully employed with a steady income and benefits, $200,000 in liquid assets, no marital debt and no limiting health conditions?

2. Did the trial court commit an error of law by declaring its award of alimony to [Miller] to be nonmodifiable, when Section 3701(e) of the Divorce Code states that an order "is subject" to modification upon changed circumstances of either party of a substantial and continuing nature?

Appellant's Brief at 7 (paragraph numbers added, punctuation modified).

Appellant first argues that the trial court's alimony award is not supported by the record. Id. at 13. Appellant directs our attention to the trial court's equitable distribution of assets to Miller, including:

(1) [Miller's] Ameriprise IRA in the amount of $117,905 on the date of separation;

(2) a rollover in the amount of $34,342 from [Appellant's] retirement account to [Miller's] retirement account;

(3) cash in the amount of $41,348 from [Appellant's] refinance of the mortgage as [Miller's] equitable share of the marital residence; and

(4) cash from [Appellant] in the amount of $6,362 to balance the distribution of non-retirement personal property.

Id. at 14. Appellant points out that these "liquid assets" total $199,957. Id.

Appellant states that Miller was assigned no marital debt and paid no taxes or expenses on the marital residence since the parties' separation. Id. at 14-15. By contrast, Appellant incurred new debt when she refinanced the marital residence, as required by the divorce decree. Id. at 15. Further, Appellant points out that she previously paid spousal support to Miller totaling $12,799.08. Id.

Appellant directs our attention to evidence that Miller was a highly trained registered nurse. Id. at 16. She acknowledges that Miller's nursing license was revoked due to substance abuse. Id. Nevertheless, Appellant claims Miller is gainfully employed at a steel processing foundry, earning $22.79 per hour, and works 40 hours per week. Id. Appellant argues that Miller offered no evidence he "is unable to meet his reasonable needs on his current income." Id. at 17. Appellant weighs each of the 17 factors set forth in Section 3701(b), and argues the trial court improperly failed to consider the assets awarded to Miller in its alimony analysis. Id. at 24.

Miller counters that the trial court effectuated a 50-50 equitable distribution of the parties' marital assets. Appellee's Brief at 16. Miller explains that Appellant's $34,342.42 payment to him was related to the parties' retirement account values; $6,362.94 was "an adjustment for and representing [Miller's] share of all other intangible and tangible items of personal property, so as to effectuate the fifty-fifty (50/50) equitable division." Id. at 16-17. Miller contends the award of alimony was supported by the evidence. Id. at 16.

We recognize that an alimony award "may be reversed where there is an apparent abuse of discretion or there is insufficient evidence to support the award." Crocker-Fasulo v. Fasulo, 292 A.3d 591, 596 (Pa. Super. 2023) (citation omitted).

As this Court has explained,

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 the lifestyle and standard of living established by the parties during the marriage, as well as the payor's ability to pay. Moreover, alimony following a divorce is a secondary remedy and 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.

In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties' earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.

Leicht v. Leicht, 164 A.3d 1246, 1248 (Pa. Super. 2017) (citation omitted).

In ascertaining "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 [23 Pa.C.S.A. § 3701(b)]." Cook v. Cook, 186 A.3d 1015, 1020 (Pa. Super. 2018) (citation omitted). Notably, "the factors in Section 3701(b) do not create an exhaustive list." Conner v. Conner, 217 A.3d 301, 316 (Pa. Super. 2019) (citation omitted).

Section 3701 requires consideration of

(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 alimony except that the court shall consider the abuse of one party by the other party.

….

(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.

23 Pa.C.S.A. § 3701(b).

Our review discloses that at the October 22, 2021, master's hearing, Miller testified about his economic...