J-S09017-16


                               2016 PA Super 60

GERALD F. MCKERNAN                             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

TERESA M. MCKERNAN,

                         Appellee                  No. 1057 MDA 2015


                    Appeal from the Order May 5, 2015
              In the Court of Common Pleas of Clinton County
                      Civil Division at No(s): 521-2003


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                            FILED MARCH 09, 2016

      Gerald McKernan (“Husband”) appeals from the order of the Court of

Common Pleas of Clinton County, denying his request to modify or eliminate

his alimony obligation of $750.00 per month to Teresa McKernan (“Wife”).

After our review, we affirm.

      Husband raises two issues for our review:

            1. Whether the lower court committed an error of
               law/abuse of discretion by allowing Wife to choose
               whether she wanted to utilize her available Social
               Security Benefits?

            2. Whether the lower court committed an error of
               law/abuse of discretion by failing to credit Wife with
               income that was available to her through Social Security
               Benefits to which Wife was entitled, but simply does not
               choose to obtain?

      The parties, married for twenty-four years, were divorced on February

24, 2004. On October 3, 2005, the court entered an order distributing the
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parties’ marital property and ordering Husband to pay Wife alimony of

$1,106.77 per month.

        On March 19, 2012, Husband filed a request for modification, alleging

his income had significantly decreased since the prior order. At that time,

Wife’s income was $18,213.00. The court assigned Husband, who had a

degree in biology and had worked for the Pennsylvania Department of

Environmental Protection for 31 years, an earning capacity of $50,000.       On

April 16, 2012, the court entered an order reducing Husband’s alimony

obligation to $750.00 per month.

        On February 10, 2015, Husband again sought modification of his

alimony obligation. In his petition, Husband alleged the following changed

circumstances: (1) Husband is collecting Social Security benefits in the

amount of $1,721.00 per month, having elected to take early retirement at

the age of 62 (Husband does not reach full retirement age (66) until

September 2018);1 (2) Wife, who is 63½, is employed at Keystone Central

School District, has been employed there for 27 years, and is eligible for

early retirement (although she has no intention of taking early retirement);

and (3) Husband’s rental income has decreased and this loss should offset




____________________________________________


1
    See 20 C.F.R. §404.409 (listing full retirement age based on year of birth).



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his pension income ($4,374.25 per month/State Employee Retirement

System) and his Social Security income.2

       The court held a hearing on Husband’s petition for modification on

March 24, 2015.3 On May 5, 2015, the court denied Husband’s request for

modification.    On appeal, Husband argues the trial court erred in refusing to

compel Wife to apply for Social Security benefits for which she is eligible

and, in the alternative, the court erred in refusing to include as part of Wife’s

income the benefit amount for which she is eligible. We find no support for

these arguments.

       In sum, Husband has decreased his monthly Social Security benefit by

24%, from $2,276.00 to $1,721.00, by electing to retire before he reached

full retirement age.4 As such, and as the Honorable Michael J. Salisbury has

clearly explained, Husband has decreased the monthly benefit Wife may
____________________________________________


2
 We do not address Husband’s claim that his rental income has decreased
and should offset his Social Security benefits and pension income, as he has
not argued this on appeal.
3
  Husband has failed to include a transcript of the hearing in the certified
record on appeal. See Pa.R.A.P. 1911(a); see also Commonwealth v.
Griffin, 65 A.3d 932 (Pa. Super. 2013). Further, Husband failed to serve a
copy of the notice of appeal on the trial judge, the court reporter and the
district court administrator, in violation of Pa.R.A.P. 906(a)(2)-(4). Although
we caution Husband that his failure to comply with the rules of court would
justify dismissal of his appeal, we do not find our appellate review hampered
here as the facts are not in dispute and the trial court addressed the issues
raised in its opinion in support of denial of the modification petition.
4
  See 20 C.F.R. § 404.410(a)(explaining reduction in benefits when
entitlement begins before full retirement age).



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ultimately collect because she is entitled to apply for 50% of Husband’s

benefit amount since their marriage lasted for a period of at least ten years.5

Thus, since Husband has reduced his benefit by 24%, Wife’s benefit will be

reduced proportionately as well.           The court reasoned that Husband has

already penalized Wife with respect to decreasing her available spousal

benefit when she does reach full retirement age, and he now seeks to

penalize her again by asking the court to include in her earning capacity the

early Social Security benefit she elects not to take. We agree with the trial

court’s assessment.          Husband cannot be permitted to dictate Wife’s

economic future.

        Section 3701(e) of the Divorce Code provides:

        Modification and termination.- An order entered pursuant to
        this section is subject to further order of the court upon changed
        circumstances of either party of a substantial and continuing
        nature whereupon the order may be modified, suspended,
        terminated or reinstituted or a new order made. Any further
        order shall apply only to payments accruing subsequent to the
        petition for the requested relief. Remarriage of the party
        receiving alimony shall terminate the award of alimony.

23 Pa.C.S.A. § 3710(e)(emphasis added).            This Court has explained the

applicable standard of review as follows:

        The role of an appellate court in reviewing alimony orders is
        limited; we review only to determine whether there has been an
        error of law or abuse of discretion by the trial court. Absent an
        abuse of discretion or insufficient evidence to sustain the support
____________________________________________


5
    See 20 CFR § 404.331; see generally https://www.socialsecurity.gov.



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      order, this Court will not interfere with the broad discretion
      afforded the trial court.

Dalrymple v. Kilishek, 920 A.2d 1275, 1278 (Pa. Super. 2007) (quoting

Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2006)). To reverse the trial

court's decision based on an abuse of discretion, we must find that the trial

court has “committed not merely an error of judgment, but has overridden

or misapplied the law, or has exercised judgment which is manifestly

unreasonable, or the product of partiality, prejudice, bias or ill will as

demonstrated by the evidence of record.” S.M.C. v. W.P.C., 44 A.3d 1181,

1185 (Pa. Super. 2012) (quoting Dudas v. Pietrzykowski, 849 A.2d 582,

585 (Pa. 2004)).

      A change in a party’s income based upon retirement benefits is a

“substantial change of circumstances” upon which a modification of alimony

may be based. 23 Pa.C.S.A. § 3701(e). In Lee v. Lee, 507 A.2d 862 (Pa.

Super. 1986), we found that the trial court erred when it refused to consider

the changed financial circumstances of the appellant brought about by

forced, early retirement. 507 A.2d at 865. However, the statutory language

regarding modification is discretionary, not mandatory. See 23 Pa.C.S.A. §

3701(e).   There is no authority empowering a trial court to order Wife to

apply for and obtain Social Security Retirement benefits prior to reaching full

retirement age. See 23 Pa.C.S.A. § 3701(b). We know of no provision in

the Divorce Code that requires a party to apply for early reduced Social




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Security benefits, or requires that a party be assessed “retirement income

capacity” based solely upon eligibility for Social Security benefits.

      Accordingly, we find no error or abuse of discretion in the court’s

conclusion in this case that Wife’s eligibility for Social Security benefits does

not establish substantial and changed circumstances under section 3701(e)

warranting further modification of Husband’s alimony obligation.         S.M.C.,

supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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