J-S72032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    FREDERICK FLOECK                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRENDA LEE FLOECK                          :   No. 1505 EDA 2017

                      Appeal from the Order May 1, 2017
    In the Court of Common Pleas of Chester County Domestic Relations at
                            No(s): No. 11-09083


BEFORE:      BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED NOVEMBER 30, 2017

       Frederick Floeck (“Husband”) appeals from the May 1, 2017, order

entered in the Court of Common Pleas of Chester County, Domestic Relations,

denying his Petition to Terminate Alimony.1 After a careful review, we affirm.

       The trial court has exhaustively set forth the facts and procedural history

underlying this appeal as follows:

             Husband and Wife were married on September 18, 1983.
       They separated in July of 2011 and [a final decree in divorce was
       entered] on August 11, 2015. Husband is 68-years-old. His
       employment background is in sales management. He worked for
       Mid-Atlantic Medical where he increased growth from $800,000 to
       $5 million in two years. N.T. 11/29/16 at 79-80.


____________________________________________


1 In addition to denying Husband’s Petition to Terminate Alimony, the trial
court’s May 1, 2017, order granted Brenda Lee Floeck’s (“Wife”) petition for
contempt and counsel fees. On appeal, Husband indicates that he is not
challenging this portion of the trial court’s order. See Husband’s Brief at 9.
____________________________________
* Former Justice specially assigned to the Superior Court.
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              In 1994, Husband started his own company, Patient Care
        Systems, later renamed Ergo Sciences, then renamed Ergo
        Midwest. Id. at 13. Ergo Midwest (“Ergo”) provides medical
        equipment for rent to nursing homes and hospitals in the Midwest.
        The equipment includes beds, wheelchairs, lifts, commodes,
        mattresses, and pressure wound therapy devices. Id. at 14, 17.
        Ergo has distribution centers in St. Louis and Kansas City. Id. at
        15. Husband operated the business from his Pennsylvania home
        and traveled to St. Louis and Kansas City once every two weeks.
               Regarding the parties’ divorce, an Arbitration Award[2] dated
        May 26, 2015, was incorporated, but not merged, into the August
        11, 2015, Decree in Divorcee [sic]. Pursuant to the Arbitration
        Award, Husband is required to pay $7000 per month in alimony
        until the death of either party, Wife’s marriage/cohabitation, or
        May 1, 2022.
              Of particular relevance to these proceedings, the Arbitration
        Award stated that alimony shall not be subject to modification,
        except in the event of Husband’s medical disability or a decrease
        in Husband’s gross annual earned income as a result of
        circumstances beyond his control in excess of twenty-five percent
        (25%) of Husband’s gross annual earned income for calendar year
        2013.
              On May 3, 2016, Husband filed a Petition to Terminate
        Alimony.[3] He claimed that he sold Ergo on May 2, 2016, and
        since the sale of the business, he receives no earned income.4
        Husband testified that[,] in 2015, the company struggled
        financially, specifically with cash flow problems. Husband testified
        that Ergo had cash flow issues in 2013, 2014[,] and 2015. Id. at
        17. He stated that the cost to provide health insurance for his
        employees increased. Id. at 18.

____________________________________________


2 The parties executed an agreement to arbitrate the economic claims
pertaining to their divorce, and on May 26, 2015, the arbitrator entered his
conclusions/award with regard thereto.

3  Thereafter, upon Husband’s failure to pay alimony, on July 8, 2016, Wife
filed a petition for contempt and counsel fees. Further, on August 26, 2016,
she filed a petition for special relief for counsel fees under 42 Pa.C.S.A. §
2503.

4   Husband receives Social Security payments.

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              Ergo had fifteen employees. Husband testified that his
       insurance rates increased when some of his employees filed for
       Workers’ Compensation benefits. Id. at 75. [Specifically, he
       testified that] “[o]ur health insurance increased 43 percent in two
       years, and our Workmen’s Comp went up, I think 25 percent in
       one year.” Id. at 76.
              Husband testified that Ergo spent a lot of money getting into
       the hospice market. Id. at 29. Husband stated that, in 2014 and
       2015, some manufacturers of medical equipment sold directly to
       Ergo’s customers, eliminating the need to rent the equipment. Id.
       at 30. Husband stated that the sales/gross revenue of Ergo
       increased between 2014 [to] 2016 because the company rented
       negative pressure wound therapy devices. Id. at 137. The pumps
       rented for $40 per day. [Husband testified] “that was our highest
       revenue per diem equipment type.” Id. at 27. The company had
       to buy more equipment as the sales increased, which increased
       the debt. Id. at 152-53. Husband stated that his employees’
       salaries also increased. Id. at 153-54.
              Jennifer Gallagher began working in Husband’s business as
       a receptionist seventeen years ago and advanced to the position
       of office manager. Id. at 200.5 Ms. Gallagher was responsible for
       overseeing the day-to-day operation of the business, including
       accounts payables and accounts receivables, supervising the
       drivers, and placing orders for equipment and repair parts. Id. at
       201. Ms. Gallagher and Husband spoke daily by telephone and
       they corresponded daily via email. Husband also traveled to the
       office in Missouri a couple of times a month. Id. at 202.
              Ms. Gallagher testified that, in 2014, Ergo [ ] experienced
       increasing expenses. [She specifically testified that] “[t]he cost
       of fuel and healthcare, cost to maintain our medical equipment,
       all of those things had increased cost. So, you know, we were
       having a tough time. We had a lot of customers that paid slowly
       or did not pay, and we would have to chase after them. So it was
       a good juggle to keep things going.” Id. at 202-03. [She further
       testified that] “[w]e were always trying to expand the business.
       He was always pushing to drive the sales team. There were some
       opportunities that we had hoped to take advantage of going back
       into the hospice foray for one of our customers, for the HSI Group,

____________________________________________


5Ms. Gallagher works for the current owners of Ergo in the same capacity as
office manager.

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     providing hospice for them and their nursing home and hospice
     services.” Id. at 205.
           Ms. Gallagher stated that, in 2015, some suppliers and
     vendors threatened legal action against Ergo. Health insurance
     increased and workers’ compensation insurance increased. Id. at
     206. [She testified that] “[w]e had an employee at one of our
     sites who was injured…it drove our [insurance] policy up.” Id. at
     207. She stated that the cost of fuel and equipment increased.
     Id. [She indicated that] “[i]t was very difficult and we were
     having a problem making payroll. And there were times when we
     had to defer direct deposits and issue employees paper checks
     instead because we simply did not have the funds in place at the
     time that they needed to be in place for the direct deposits into
     the employee accounts.” Id. at 207-08.
           Ms. Gallagher stated that vendors wanted to be paid within
     30 days but the average time to collect accounts receivables was
     75 to 100 days. When Ergo failed to pay vendors within 30 days,
     some vendors refused to provide additional supplies and [Ms.
     Gallagher testified that] “one or two vendors took legal action
     against us.” Id. at 209. Ms. Gallagher testified that at times
     Husband deposited his personal funds into the company “because
     we were not able to run independently on what we were making.”
     Id. at 219.
           Tony Coladonato, C.P.A., provided business and personal
     accounting services to Husband. He testified that Husband put his
     own funds into the company in 2013, 2014, and 2015. He stated
     that Husband would have to put money back into the company at
     the end of the year, sometimes to buy more equipment,
     sometimes to make payroll.
            Since 2005, Husband borrowed from Penn Liberty Bank,
     receiving business loans and lines of credit. The loans were
     secured by business assets and marketable securities. Id. at 163.
     Husband testified that, after the divorce in 2015, he had no equity
     to borrow for the business. [He testified that] “[w]ith the alimony
     allocation of [$]7,000 a month, which was hurting our cash flow
     even more and the continued decline of our revenue stream, I was
     no longer able to effectively borrow from the bank for these
     equipment types, and our drive to build the business was being
     stymied by that.” Id. at 20. Husband stated that Penn Liberty,
     his only lender since 2005, would not approve a loan without the
     joint assets as collateral. Id. at 21-22. [He indicated] “I didn’t
     have the relationship with any other bank. I had always gone to


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     Penn Liberty…But I had no assets to borrow against. Everything
     was pledged to Penn Liberty.” Id. at 24. Mr. Coladonato testified
     that, in 2016, Penn Liberty denied Husband’s request for a
     $50,000 line of credit. He was given a $15,000 loan in March
     2016, nonetheless.
            James Danna was the manager of commercial industrial
     lending at Penn Liberty (now WSFS Bank) when Husband
     requested loans from 2009 to 2016. Mr. Danna testified that Penn
     Liberty gave Husband two business loans, a line of credit, and a
     personal loan. Husband received new loans after he paid in full
     the outstanding loans. Id. at 162. In 2016, Husband requested
     a loan of $50,000 to $75,000. Mr. Danna told Husband that Penn
     Liberty was not willing to give Husband a loan of that amount
     based on the financial condition of Ergo. He stated that Husband
     didn’t have the liquid assets he had prior to the divorce, and
     Husband had a credit score under 600. Id. at 164-65. Husband
     testified the reason for the low credit score was because he had
     been a victim of identity theft.
            Husband testified that, on February 11, 2016, he made an
     offer to Health Systems, Inc. (“HSI”) to provide rental equipment
     for HSI’s twenty-three nursing homes in Springfield, Missouri. Id.
     at 36-38. [Husband indicated] “I was going to have to have at
     least another 200 to $300,000 available to provide this
     equipment.” Id. at 39. Husband stated that HSI rejected Ergo[’s]
     offer to provide equipment; instead, HSI offered to buy the
     company. Id. at 41.
           [Husband testified that] “[n]ursing home chains don’t buy
     the distributors that provide equipment to them. It just isn’t
     done.” Id.     [Further,] “[t]hat [this] very large, very wealthy
     nursing home chain would buy a distributorship, keep all my
     employees, I could pay my debt down and come out of it with
     some money, not to worry about making payroll anymore, which
     was becoming more and more difficult.” Id. at 149. [He
     indicated] “it was a complete surprise to see that this nursing
     chain would want to buy their distributor or a distributor.” Id. at
     152.
            Husband stated that he had prior offers to sell the business.
     In 2013, Freedom Medical offered to purchase Ergo [ ] for 1.2
     million. Id. at 32. Husband stated that it wasn’t a good deal. In
     2014, Freedom Medical offered $900,000 for the inventory.
     Husband stated that he was not actively seeking to sell the
     business. Id. at 33. [He indicated that] “then came this possible


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     terrific deal to gain 23 nursing homes in the greater Springfield
     area through HSI, which is the largest nursing home chain in
     Missouri.” Id. at 20-21.
            HSI purchased the business and retained his employees.
     Husband testified that HSI was his biggest customer, and without
     the sale to HSI, his business would experience a 25% [to] 30%
     loss of revenue (loss of HSI’s business). Id. at 34, 42. [Husband
     stated that] “[t]o lose HSI, I would have had to reduce staff for
     sure.” Id. at 43. [Further, he indicated] “[o]ur revenues would
     have reduced by 30 percent, at least.” Id. at 44. Husband stated
     that at the time that he accepted the offer in February of 2016 he
     was not trying to sell the business. He was trying to grow it. Id.
     at 41.
           Husband denied that he sold the business to avoid paying
     alimony. Id. at 44, 78. He stated that he sold [the business]
     because he was afraid that he would lose HSI as a customer, and
     he was pleased that HSI retained all of his employees. Id. at 47.
     Husband offered to stay on with Ergo for a time after the sale. He
     was not retained as an employee or as an independent contractor.
     Id. at 45-46.
            Systems Leasing, owner of HSI, bought Ergo [ ] on May 2,
     2016[,] for 1.3 million plus $220,000 accounts receivable. The
     total sales price was 1.52 million. Id. at 46-47. Husband netted
     about $600,000 from the sale of Ergo ($1,500,000- $300,000
     accounts payable- $500,000 payment to Penn Liberty- $70,000
     payment of credit card debt- $39,000 payment of legal fees).
     [Husband stated] “[w]hen I sold the business, Penn Liberty got
     $500,000 to pay off the debts.” Id. at 99. [Further] “I was given
     a final debt load by Penn Liberty of $500,000…and any and all of
     the proceeds from the sale, [$]1.3 million plus the accounts
     receivables, minus that [$]500,000, minus the $300,000 for
     accounts payable, that’s what—that’s what I retained;
     approximately $600,000.” Id. at 100-01.
           Although Husband stated that he was compelled to sell the
     business, the evidence shows that the sales of the business
     increased in 2013, 2014, and 2015. Husband testified that, in
     2015, Ergo had gross revenue of over $1.7 million. Id. at 81. Mr.
     Coladonato testified that the total sales increased from
     $1,547,000 in 2013, to $1,783,684 in 2015. He stated that the
     costs of goods sold also increased: $690,000 in 2013; $770,000
     in 2014; and $900,000 in 2015. Mr. Coladonato prepared the
     corporate tax return for 2015 using the GAAT accounting method.


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     He stated that if he added back the depreciation into the income
     of the company, it would have offset any loss, resulting in net
     income for the company in 2015.
            Wife called as her expert James B. Griffin, Esquire, C.P.A.,
     who reviewed the Ergo [ ] financials for 2009 to 2016. [Mr. Griffin]
     stated that sales continued to grow from 2013 to 2015, and Ergo
     had its best year in sales in 2015. Mr. Griffin stated that buying
     equipment and hiring additional employees to maintain the
     equipment is part of funding growth to get sales. [Mr. Griffin
     testified that] “[a]s businesses grow they need to provide and
     purchase equipment and have employees to install and sell the
     product.” Mr. Griffin agreed that Ergo’s expenses increased as the
     sales increased. He stated that the growth gets funded by bank
     loans, owner finances, factoring accounts, and investors.
           Husband stated that one of the reasons he sold the company
     was because Penn Liberty denied him further loans to keep the
     company afloat in 2016. In March of 2015, Husband secured a
     $100,000 loan for Ergo from Penn Liberty. On March 21, 2016,
     Penn Liberty loaned Husband $15,000. Id. at 112. He wanted a
     loan of at least $50,000.
            Husband had a personal Merrill Lynch account with a value
     of $156,309.82 as of October 31, 2016. Id. at 121-22. Husband
     testified that he believed the value of the Merrill Lynch account
     was $50,000. Id. at 70. He did not offer the funds in the account
     to Penn Liberty as collateral when he asked for the $50,000 loan.
            Mr. Danna testified that Husband did not tell him about the
     personal funds he had in the Merrill Lynch account. Mr. Danna
     stated that if he had known that there was $156,000 in another
     investment account, he might have approved a loan. Id. at 177.
     [He indicated] “[t]hat would have helped.” Id. at 176. [He
     specifically asserted that] “[i]t would have helped him very much.
     And I asked him several times if he had more.” Id. Mr. Danna
     testified that had he known about Husband’s $156,000 Merrill
     Lynch funds, he “probably” would have approved a $75,000 loan.
     Id. at 179. Mr. Coladonato testified at the March 1, 2017, hearing
     that he recently became aware of the $156,000 funds in the Merrill
     Lynch account.
           Mr. Griffin testified that the net income of Ergo would have
     been positive if accrual basis accounting had been presented to
     Penn Liberty when Husband requested another loan. He stated
     the accrual method of accounting would show how the billings of
     the bank were growing. An accrual statement would have shown

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      greater net income because depreciation would be much slower
      over longer time. The financial picture would have been more
      positive.
             Mr. Griffin believed Husband would have qualified for a loan
      from the Small Business Administration (“SBA”) if Ergo’s
      accounting used accrual based financial statements as an
      alternative to using the $156,000 account as collateral. The
      inventory could be used as collateral. Husband had a previous
      offer to sell the inventory for $900,000. The SBA allows a longer
      payment schedule. Husband never applied for a loan at any other
      bank, and he never applied for a SBA loan. Id. at 83-84.
             Mr. Griffin believed that Husband could have secured
      funding from another bank. He stated that it is common today for
      a business owner to go to more than one bank for funding. For a
      business loan, Husband’s guarantee would be required, and he
      would have to explain the identity theft that lowered his credit
      score. Mr. Griffin stated that the bank would look at the
      relationship Husband had with prior loans. He always paid; that
      would outweigh the bad credit score. Mr. Griffin is chairman of
      the board of First Resource Bank in Exton and West Chester. He
      sits on a loan committee.
            Husband testified that he would have lost HSI’s business if
      he did not sell Ergo to HSI. Id. at 84. In argument, his counsel
      described HSI’s offer to buy Ergo as a “hostile takeover in which
      Husband had no control.” Wife argued that Husband voluntarily
      chose not to seek additional funding for the business, but instead
      voluntarily chose to sell the business.

Trial Court Opinion, filed 5/1/17, at 1-11 (footnotes in original) (footnote

omitted and footnotes added).

      By order entered on May 1, 2017, the trial court denied Husband’s

Petition to Terminate Alimony. Further, the trial court granted Wife’s petition

for contempt and request for counsel fees, thereby directing Husband to pay

Wife $15,418.00 in counsel fees. Husband filed this timely notice of appeal,

and all Pa.R.A.P. 1925 requirements have been met.



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      On appeal, Husband sets forth the following issues in his Statement of

Questions Involved:

      1. Did the trial court err in denying Husband’s Petition to
         Terminate Alimony?
      2. Did the trial court err in ordering Husband to pay Wife the sum
         of $77,000 representing monthly alimony payments from May
         2016 to March 2017?
      3. Did the trial court err in its determination that Husband had
         options to continue to operate his business, Ergo, that he chose
         not to pursue?
      4. Did the trial court err in its determination that Husband had the
         option of seeking a loan at another bank?
      5. Did the trial court err in its determination that Husband had the
         option of attempting to continue to grow his business, Ergo?
      6. Did the trial court err in its determination that Husband chose
         to sell his business, Ergo, and chose to stop performing his
         contractual obligation to pay Wife alimony?
      7. Did the trial court err in its determination that Husband was
         not forced to sell his business, Ergo?
      8. Did the trial court err in its determination that it was Husband’s
         choice to sell the business and not a circumstance beyond his
         control?
      9. Did the trial court err in its determination that there was no
         evidence that HSI would have withdrawn its current business
         from Ergo if Husband turned down the sale offer?
      10. Did the trial court err in its determination that the parties
         could have enumerated other conditions terminating alimony if
         they so choose?

Husband’s Brief at 5-6.

      Despite setting forth ten separate issues, Husband indicates on appeal

that the overarching issue is his first issue, namely, whether the trial court

erred in denying Husband’s Petition to Terminate Alimony. Id. at 12. In this

vein, Husband’s appellate brief contains a single argument section, indicating


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that all of his issues may be addressed under the umbrella of his first issue.

Id.

      A close examination of Husband’s appellate argument reveals that

Husband contends he presented competent evidence demonstrating a change

of circumstances as it related to his gross annual earned income, and thus,

the trial court abused its discretion in denying his Petition to Terminate

Alimony. Specifically, he argues he presented competent evidence that his

sale of Ergo was involuntary and constituted a “substantial change of

circumstances beyond the control of [Husband].” Husband’s Brief at 10. He

claims that the evidence reveals he “was faced with a hostile takeover of his

business, Ergo, requiring him to sell the business or risk the loss of significant

sales from his customer, HSI, [which was] ultimately the purchaser of Ergo[.]”

Id. at 10, 13. Further, he argues the evidence reveals that he “did not have

a choice in selling his business[,]…[he] was not actively seeking to sell the

business but was without personal funds to continue the business,…[and he]

did not sell his business to avoid his alimony obligation.” Id.     Moreover, he

suggests that “the record shows that Husband paid his alimony obligation

every month until such time as Ergo [ ] was sold in a hostile bid and he became

unemployed without income.”        Id. at 18. Husband argues that “[l]oss of

employment may be considered an example of circumstances beyond one’s

control…[and the competent evidence demonstrates] Husband has suffered a




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job loss caused by circumstances beyond his control as set forth above.” Id.

at 19.

         Initially, we note that Section 3701(e) of the Divorce Code permits

modification and termination of an award for alimony. See 23 Pa.C.S.A. §

3701(e). Specifically, the Divorce Code provides that:

         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.

Id.

         An award of alimony may be terminated by a change in circumstances

beyond a party’s control; however, it is the burden of the party seeking to

terminate an order of alimony to show by competent evidence that a change

of circumstances justifies the termination. Litmans v. Litmans, 673 A.2d

382, 388 (Pa.Super. 1996).

         In reviewing orders granting or denying a request to terminate alimony,

our standard of review is limited to considering whether the trial court abused

its discretion or committed an error of law. Simmons v. Simmons, 723 A.2d

221, 223 (Pa.Super. 1998). While it is not this Court’s duty to create the

record or assess credibility, we must nevertheless examine the record to

determine whether there is competent evidence supporting the trial court’s

order. Jayne v. Jayne, 663 A.2d 169, 176 (Pa.Super. 1995).


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       In rejecting Husband’s claim, the trial court relevantly indicated the

following:

             Was Husband forced to sell the business? Was the sale of
       the business that resulted in a greater than 25% decrease in
       Husband’s gross annual earned income as compared to 20136 a
       circumstance beyond his control?
             There was no evidence that Ergo would have lost HSI’s
       business if Husband turned down the offer of sale; there was only
       Husband’s testimony that he feared losing HSI’s business if he did
       not sell. On the other hand, we cannot know [whether] Ergo
       would have survived the cash flow crisis in 2016 because Husband
       sold the business in May of that year.
             It is undisputed that Ergo’s accounts receivables continued
       to grow in 2015 with the addition of pressure wound therapy
       devices (pumps) to the list of rental medical equipment. In a
       letter dated March 17, 2016, to Ergo’s potential buyer, Mr.
       Coladonato stated: “As such, during 2015, the monthly billings for
       Ergo [ ] have been increasing due to various agreements secured
       during the year, and has resulted in increased monthly sales, as
       noted with December sales collected to be approximately $148K.”
       [The trial court] credit[ed] the testimony of Ms. Gallagher that the
       cost of fuel and healthcare increased as well as the cost to
       maintain the medical equipment. She also stated that the average
       time to collect accounts receivables was 75 to 100 days, causing
       problems when Ergo’s venders wanted to be paid within 30 days.
       Despite the rising costs associate[d] with the business, Husband
       managed to purchase a truck for Ergo for $23,425 in August of
       2015, and a second truck for Ergo for $26,025 in November of
       2015. As stated, Penn Liberty loaned Husband $100,000 in March
       of 2015.
            Regarding the missed electronic payroll, Ergo paid the
       employees with paper checks on time. The company never missed
       making payroll.
            Husband had options that he chose not to pursue. He had
       the option of using the $156,000 funds in his Merrill Lynch
       [account] as collateral for a loan. He chose not to do that. He
____________________________________________


6Husband received a salary of $100,000 as Ergo’s sole officer. N.T. 11/29/16
at 50. Ergo’s 2013 Corporate Tax Return shows officer compensation of
$126,460.

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      had the option of seeking a loan at another bank. He chose not
      to do that. He had the option of attempting to continue to grow
      the business, as he had done for years. He chose not to do it.
      Instead, he chose to sell the business and he chose to stop
      performing his…obligation to pay Wife alimony.
             In Stamerro v. Stamerro, 889 A.2d 1251 (Pa.Super.
      2005), the parties entered into a property settlement agreement
      whereby the husband paid the wife $1200 per week in alimony.
      Per the agreement, alimony was non-modifiable unless the
      husband’s income was greater than $600,000 or less than
      $200,000 in any given year. The husband voluntarily left his
      employment and filed a petition to reduce alimony payments,
      claiming he earned less than $200,000. The trial court denied his
      petition, finding that the husband failed to establish that his
      income was less than $200,000. The Superior Court affirmed the
      trial court on the issue of the amount of the husband’s income.
      The Court noted [the] purpose of alimony, and stated: “[T]he
      parties’ contract imposed a duty of good faith to perform
      contractual obligations diligently and honestly….Husband should
      not be allowed to evade the spirit or abuse the terms of the
      agreement by unilaterally and voluntarily reducing his income. To
      do so would destroy Wife’s right to receive the fruits of her
      bargained-for agreement.” Id. at 1261-62.
            [In the case sub judice,] [t]here was nothing in the
      Arbitration Agreement specifying what would constitute a
      circumstance beyond Husband’s control that would cause his
      income to be reduced. Certainly there is no mention of the impact
      on Husband’s income if he sold his business. See McMahon v.
      McMahon, 612 A.2d 1360 (Pa.Super. 1992) [(en banc)].
            [The trial court] find[s] that it was Husband’s choice to sell
      Ergo [ ] to HSI. He was not forced to sell the business; there is
      no evidence that HSI would have withdrawn its current business
      from Ergo if Husband turned down the sale offer.            It was
      Husband’s choice to sell; not a circumstance beyond his control.
            Thus, Husband’s Petition to Terminate Alimony is denied.

Trial Court Opinion, filed 5/1/17, at 12-14 (italics and footnote in original)

(citations to record and underline omitted).




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      We conclude the trial court’s order is supported by competent evidence,

and the trial court has not abused its discretion or committed an error of law.

See Jayne, supra. Accordingly, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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