J-A01021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

REED J. DAVIS,                           : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellant              :
                                         :
           v.                            :
                                         :
JOANN M. DAVIS,                          :
                                         :
                  Appellee               : No. 670 WDA 2014

                   Appeal from the Order April 4, 2014,
                Court of Common Pleas, Allegheny County,
       Family Court at No. FD 85-006357-008 Pacses No. 624002798

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED MARCH 04, 2015

     Reed J. Davis (“Husband”) appeals from the order entered on April 4,

2014, by the Court of Common Pleas, Allegheny County, reducing his

alimony payment to his ex-wife, Joann M. Davis (“Wife”), from $2,000 to

$1,000. For the reasons set forth herein, we affirm.

     A summary of the relevant facts and procedural history is as follows:

           Husband and Wife were married in 1963, separated
           in 1983 and divorced in 1986. Both Husband and
           Wife were approximately 60 years old at the time of
           the divorce. They have four adult children. At the
           time of the divorce, Husband was a practicing
           attorney earning over $200,000 per year. Judge
           Eugene Strassburger entered an Order in the matter,
           in which Husband was to pay $2,000 a month in
           permanent alimony to Wife. Husband filed an appeal
           and Judge Strassburger’s Order was affirmed on
           January 27, 1994.

           Husband remarried in 1986 after he and Wife
           divorced. A child was born of that second marriage
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          who is now 26 years old. In 2004, Husband filed a
          petition to modify alimony. At the time of that
          hearing, Husband was still living in Pittsburgh and
          practicing law.    His income was found to be
          $9,598.00 per month and Wife was found to have an
          income of $1,788.00.          Husband’s petition for
          modification was denied.[FN1]

          Husband retired and ceased practicing law in 2011.
          He receives $2,600.00 monthly from Social Security.
          He and his second spouse moved to Florida where
          they purchased a home in a gated community. Soon
          after that, they separated, with Husband remaining
          in the home and being responsible for the mortgage
          and fees. On June 26, 2013, he filed a petition to
          modify alimony, asserting his circumstances had
          changed and his obligation should be terminated.

          A hearing was held on November 20, 2013 before a
          Special Master.     At the hearing, evidence was
          introduced to demonstrate that Husband has paid
          and continues to pay his adult child’s education loans
          and continuing schooling, including law school
          tuition, primarily from his retirement assets.
          Husband testified that he recently filed for divorce
          [from] his second [w]ife in Florida. Evidence was
          introduced that Husband and Wife’s marital home in
          Pittsburgh had been sold to their son, with each
          party    receiving   one-half   of    the   proceeds.
          Additionally, Husband had recently sold rental
          properties which had been a source of income. Wife
          testified that her monthly income is $809.00 from
          Social Security and that she receives $1,450.00 per
          month in gross rents.

          Husband also presented evidence of his retirement
          and significantly reduced income. His expert, David
          Kaplan, testified that Husband[] has no earned
          income and that his disposable income is $2,769.00
          to $3,454.00 per month depending on his income tax
          filing status. Husband testified that he receives no
          funds from his previous law practice which he turned
          over to his son in 2011, although he is still a co-



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            owner of the business entity. He testified that he
            owes significant capital gains tax on the sale of the
            rental property. He also testified that he expects his
            assets to be diminished by his pending divorce.

            On December 5, 2013, the Hearing Officer issued her
            Recommendation which reduced Husband’s alimony
            obligation to Wife from $2,000.00 to $300.00 per
            month and provided for that obligation to be
            suspended pending recoupment of overpayment in
            the amount of $8,240.00, which recoupment would
            take more than two years.

            On March 27, 2014[FN2], [the trial court] granted
            Wife’s exceptions in part and set Husband’s monthly
            obligation at $1,000 a month, finding that Husband
            had demonstrated a change in circumstances
            entitling him to a modification, but that Wife was still
            entitled to receive alimony pursuant to the original
            award. Husband filed the instant appeal and timely
            filed his 1925(b) Statement.
            _____________________
            [FN1]
                   Wife’s counsel insisted there was a subsequent
            modification request by Husband which was also
            denied in 2009, but the only evidence of activity in
            2009 on the record is an enforcement/compliance
            hearing.
            [FN2]
                 [The trial court] amended [the] Order on April
            4, 2014 to modify the timing of recoupment of any
            overpayment due to Husband.

Trial Court Opinion, 7/24/14, at 1-4 (footnotes included in original) (citations

to transcript omitted).

      On appeal, Husband raises the following issues for our review:

            1. Was the trial court’s attribution of rental income to
            Husband in excess of his actual receipt and
            retirement income requiring Husband to invade
            principal an abuse of discretion?




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           2. Whether it was an abuse of discretion to fail to
           consider that Wife’s net worth was substantially
           greater than Husband’s in the review of alimony?

           3. Whether it was an abuse of discretion not to
           consider the duration of the marriage and the length
           of time Husband has been paying Wife support and
           alimony?

Husband’s Brief at 5.

     Our standard of review is well settled:

           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 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). “An abuse

of discretion is more than an error in judgment; it occurs if the judgment is

manifestly unreasonable or is the result of prejudice, bias or ill-will.”

Willoughby v. Willoughby, 862 A.2d 654, 656 (Pa. Super. 2004) (citing

Jayne v. Jayne, 663 A.2d 169, 174 (Pa. Super. 1995)).

     For his first issue on appeal, Husband claims that the trial court

abused its discretion by calculating his monthly net income to be $5,000.

Husband’s Brief at 10.      Husband specifically assails the trial court’s

attribution of $15,000 of rental income and $16,000 of retirement assets to

his monthly net income. Id. To this end, Husband challenges the precise

mathematical computation of his net monthly income, raising claims that the




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trial court erred by failing to consider ownership interests in the building, tax

implications, services provided in exchange for discounted rent, and that the

trial court erroneously considered the corpus of his assets.      Id. at 12-17.

Husband’s focus on establishing that the trial court erred in its mathematical

computation of his net monthly income is misplaced however, as this Court

has established that alimony is based upon “the payor’s ability to pay.” See

Kent v. Kent, 16 A.3d 1158, 1161 (Pa. Super. 2011) (“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.”) (citation omitted).

      In this case, the trial court determined that Husband receives more

income than both he and his expert witness claimed at the modification

hearing. At the modification hearing, Husband presented the testimony of

an expert witness to establish his income. The Special Master deemed the

expert witness credible and adopted his calculations, which set Husband’s

disposable income at $2,769 per month. N.T., 11/20/13, at 260-62; Special

Master’s Report, 12/5/13, at 1. Wife filed exceptions and a brief in support

of her exceptions, arguing, in part, that the Special Master ignored in her

calculation of Husband’s net income that Husband provided discounted rent

to his son and failed to include funds from Husband’s retirement assets that

he voluntarily withdrew for his own living expenses and to support his adult

son. Wife’s Brief in Support of Exceptions, 2/19/14, at 4-5. The trial court



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granted Wife’s exceptions in part, concluding that Husband kept his income

artificially low and calculated Husband’s net monthly income to be $5,000.

Trial Court Order, 3/27/14, at 1.

      The record reflects that the trial court considered the evidence

presented by Husband and Wife regarding their financial positions, took into

consideration “Husband’s diminishing sources of income as well as Wife’s

sources of income[,] and modified the payment accordingly.”         Trial Court

Opinion, 7/21/14, at 7. After considering the financial positions of Husband

and Wife, and concluding that Husband kept his income artificially low, the

trial court determined that Husband’s circumstances warranted a reduction

from his obligation to pay $2,000 per month, and concluded that Husband

has the ability to pay $1,000 per month.       After reviewing the record, we

conclude that the record contains adequate support for the trial court’s

determination that Husband has more income than he claims and has the

ability to pay $1,000 per month.

      First, the record supports the trial court’s determination “that Husband

has kept his income artificially low by, among other methods, offering

preferential rents to his son’s law firm.”   Trial Court Order, 3/27/14, at 1.

Husband testified at trial that while his son’s law firm paid ten dollars a

square foot in rent, the remaining tenants paid fifteen to eighteen dollars a

square foot. N.T., 11/20/13, at 122-23. Husband further testified that the

target rent for tenants in the building was fifteen dollars a square foot. Id.



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         The record also supports the trial court’s determination that Husband

has the ability to pay $1,000 a month as Husband has voluntarily withdrawn

funds from his retirement assets to pay for expenses that “are subordinate

to his principal court-ordered alimony.” Trial Court Opinion, 7/21/14, at 8.

Husband testified that he made regular monthly payments on his adult son’s

student loans and withdrew approximately $16,000 from his retirement

assets to pay off the loans in 2013.     N.T., 11/20/13 at 157-59.    The trial

court factored this into its determination of Husband’s ability to make

alimony payments, finding that his voluntary payment of his adult son’s

loans were “equal to more than [eight] months of alimony payments.” Id.

After our review, we conclude that the record supports the trial court’s

finding that “[i]f Husband has the ability to pay the expenses of a third party

to whom he has no legal obligation, he cannot reasonably argue he does not

have the ability to pay this priority obligation.” Id.

         In conclusion, the trial court’s finding that Husband has more income

than he and his expert claimed at the modification hearing, and therefore,

has the ability to pay $1,000 per month, is supported by the record.

Husband failed to present any argument or evidence to establish the

contrary to be true, as Husband does not argue that he does not have the

ability to pay $1,000 per month.      Accordingly, we conclude that the trial

court acted within its discretion.   Husband is not entitled to relief on this

issue.



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         For his second issue on appeal, Husband claims that the trial court

abused its discretion by requiring Husband to continue to pay alimony to

Wife because Wife has a higher net worth. Husband’s Brief at 17. Husband

states that Wife’s net worth on the date of the modification hearing was

$548,229 and Husband’s net worth was $378,000, which is offset by

liabilities, including $80,000 due in capital gains taxes.     Id. at 17-18.

Husband does not claim that the trial court failed to consider the

discrepancies between his net worth and Wife’s net worth.             Instead,

Husband’s argument goes to the weight of the evidence that the trial court

ascribed to Wife’s net worth. See Husband’s Brief at 17-19.

         It is well established that “with regard to issues of credibility and

weight of the evidence, this Court must defer to the trial judge who presided

over the proceedings and thus viewed the witnesses first hand.” Mackay v.

Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (quoting Hogrelius v.

Martin, 950 A.2d 345, 348 (Pa. Super. 2008)). Moreover, after our review

of the record, we are unable to discern any abuse of discretion by the trial

court.

         Citing to Ressler v. Ressler, 644 A.2d 753 (Pa. Super. 1994),

Husband argues that “it is an abuse of discretion to award alimony to a

payee whose net worth is higher than the payor’s net worth.”        Husband’s

Brief at 18.     In Ressler, this Court held that the trial court abused its

discretion in awarding alimony to the wife, such that she would have twice



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the annual income than husband and would “enjoy a better theoretical

standard of living than during the parties’ marriage.” Ressler, 644 A.2d at

758-59. We held that the award “was an abuse of discretion since it failed

to ‘effectuate economic justice between parties who are divorced or

separated and grant or withhold alimony according to the actual need and

ability to pay of the parties … [.]’” Id. at 759.

      In this case, the record reflects that the trial court considered the

evidence presented by Husband and Wife regarding their financial positions.

The trial court stated that it took into consideration “Husband’s diminishing

sources of income as well as Wife’s sources of income and modified the

payment accordingly.” Trial Court Opinion, 7/21/14, at 7. In reaching its

decision to modify the payment, the trial court determined that it was

unreasonable for Wife not to take any draws from her retirement assets or

capital accounts, and therefore, factored that into its consideration of her

need for alimony. Id. at 8. The trial court further provided that its finding

that “Husband’s income was substantially reduced from its 2004 level and

that Wife had an untapped source of income in her retirement assets, []

resulted in [its] decision to, essentially, halve the alimony payment.” Id. at

7. The record therefore reveals that after considering the financial positions

of Husband and Wife, the trial court determined that reducing Husband’s

obligation from $2,000 to $1,000 a month, rather than terminating his

obligation, adequately addressed Husband’s reduction in income and



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diminution of assets while also taking into consideration Wife’s need for

alimony. We find that the record supports this determination. Thus, unlike

Ressler, the trial court’s determination appropriately considered the parties’

circumstances and awarded alimony in a manner to effectuate economic

justice between Husband and Wife. Husband is not entitled to relief on this

issue.

         For his third and final issue on appeal, Husband assails the trial court’s

denial of his request to terminate his ongoing alimony obligations.

Husband’s Brief at 19.        Husband argues that the trial court abused its

discretion by requiring him to pay alimony for a term longer than the

marriage lasted, which he claims is manifestly unreasonable.            Husband’s

Brief at 19-20.

         The trial court denied Husband’s request, holding that “Husband

ignores the fact that his obligation to pay Wife permanent alimony ‘until

death, remarriage or cohabitation’ has already been adjudicated, upheld,

and is not subject to challenge.”      Trial Court Opinion, 7/21/14, at 6.     The

trial court concluded:

               None of the requisite events for termination has
               occurred. How long Husband has been paying or
               how much he has already paid, therefore, is
               immaterial to my analysis. The only decision before
               me was whether modification, (including possible
               termination) was appropriate due to a change in
               circumstances, and, if so, what modification was
               appropriate.   Alimony is based upon reasonable
               needs in accordance with the lifestyle and standard



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              of living established by the parties during the
              marriage, as well as the payor’s ability to pay.

Id. at 6 (emphasis in original) (citation omitted).

         Our review of the record discerns no abuse of discretion by the trial

court.     This Court previously established, “a party may not attempt to

relitigate matters adjudicated in the existing support order; a petition to

modify an order of support cannot be a substitute for an appeal.” Florian v.

Florian, 689 A.2d 968, 971-72 (Pa. Super. 1997) (citing Crawford v.

Crawford, 633 A.2d 155, 164 (Pa. Super. 1993)). Thus, as the trial court

previously awarded Wife lifetime alimony, which this Court subsequently

affirmed, Husband may not challenge the validity of a lifetime alimony award

in his current appeal.      Husband is not entitled to relief on this issue.

Accordingly, we do not disturb the trial court’s order.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2015




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