J-S07020-17

                                 2017 PA Super 165



DAVID LEE LEICHT                                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

PATRICIA DENISE LEICHT

                            Appellee                 No. 1088 MDA 2016


                 Appeal from the Order Entered June 2, 2016
                In the Court of Common Pleas of York County
                Civil Division at No(s): 2010 FC 000182-2015


BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.

OPINION BY LAZARUS, J.:                                FILED MAY 30, 2017

      David Leicht (Husband) appeals from the order, entered in the Court of

Common Pleas of York County, granting in part and denying in part Patricia

Leicht’s (Wife) exceptions to the master’s report and recommendation.

Husband claims the trial court order requiring him to pay alimony indefinitely

was an abuse of discretion. After our review, we affirm.

      The parties were married in 1988, and they separated in 2006. The

court entered a divorce decree on June 2, 2016.       The parties have three

adult children, one of whom lives with Wife during college breaks and

summer.

      Both parties were age 50 at the time of the hearing before the divorce

master, which was held on March 24, 2015.        We summarize the master’s

findings as follows:
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      Both parties graduated from York Technical School.        Husband has

worked in manufacturing jobs since the mid-1980s, and works as a press

operator,   earning   approximately   $44,000.00   gross   income   annually.

Husband has medical benefits through his employment, and he participates

in a 401(k) retirement plan. Husband is in good health. He lives in a two-

bedroom apartment with his girlfriend, where he pays rent of $550 each

month. Husband’s girlfriend pays utilities.

      Mother is a certified Licensed Practical Nurse.   Although she worked

until 2009, she suffered from a variety of mental issues throughout the

marriage. Her condition deteriorated in 2009, and she was hospitalized on

two occasions in 2010.    She is currently being treated by a psychiatrist,

receives counseling regularly, and takes various medications to treat

anxiety, depression and various physical conditions, including congestive

heart failure and diabetes.   Wife has been on disability for approximately

four years, and currently receives disability benefits in the amount of $1,117

per month (net of Medicare Part B premium of $105 per month). Wife also

receives $585.58 each month in spousal support. She lives in a one-

bedroom apartment and pays rent of $1,010 each month, including utilities.

      Upon separation, the parties had minimal marital property.          The

marital home went into foreclosure shortly after separation.      The master

found Wife has no earning capacity at present and that her situation was

unlikely to change in the future. The master found no marital misconduct.




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      The master recommended that Husband continue paying Wife $585.58

per month through September 30, 2016 (as alimony pendente lite, to

convert to alimony upon entry of final divorce decree on June 2, 2016). The

master also recommended Husband pay $600 towards Wife’s counsel fees,

payable in monthly installments of $50 over one year following entry of the

final divorce decree.      In the report and recommendation, the master

suggested Wife consider subsidized housing and government benefits for

low-income and disabled persons, as well as a “representative payee” to

assist her in managing financially on her budget. Wife filed exceptions.

      On August 26, 2015, the trial court granted Wife’s exceptions, in part,

and entered an order requiring Husband continue alimony payments to Wife

indefinitely.   See 23 Pa.C.S.A. § 3701(c) (“The court in ordering alimony

shall determine the duration of the order, which may be for a definite or an

indefinite period of time which is reasonable under the circumstances.”).

Husband appealed. He raises one issue for our review:

         Did the trial judge abuse his discretion in reversing the
         recommendation      of    the Divorce    Master[,]   who
         recommended a limited period of alimony[,] and instead
         imposed a lifetime obligation

Appellant’s Brief, at 2.

      An award of alimony may be reversed “where there is an apparent

abuse of discretion or there is insufficient evidence to support the award.”

Balicki v. Balicki, 4 A.3d 654, 659 (Pa. Super. 2010), citing Jayne v.

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


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     We previously have explained that 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.

Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004) (internal

citations, quotations and original emphasis omitted).

     First, we point out that, contrary to Husband’s assertion, the trial

court’s order did not impose a lifetime obligation.       The order may be

terminated or modified if “either party has a significant change in financial

circumstances.”   Order, 8/26/15.    See 23 Pa.C.S.A. § 3701(e) (alimony

award “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.”).    Additionally, although the master’s recommendations to Wife

were intended to assist her in improving her financial situation and

improving her budgetary shortfalls, we agree with the trial court that the

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J-S07020-17



recommendation is not consistent with the finding that Wife is currently, and

for the foreseeable future, disabled and unable to support herself. It is also

inconsistent with the overarching purpose of the Divorce Code, especially

with respect to alimony, which is to “effectuate economic justice between

the parties[.]”).    See 23 Pa.C.S.A. § 3102(a)(6) (“[I]t is the policy of the

Commonwealth to: . . . (6) 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 and insure a fair and just

determination and settlement of their property rights.”).    Moreover, the fact

that Wife may be eligible for government-subsidized programs does not

eliminate Husband’s responsibility.

       In Remick v. Remick, 456 A.2d 163 (Pa. Super 1983) (en banc), this

Court held that “the necessity and amount of permanent alimony should be

determined without regard to whether the dependent spouse would be

entitled to public assistance or other social welfare benefits[.]” Id. at 168.

There, husband and wife were married in 1950 and separated in 1968; the

case remained dormant until 1980, when husband amended his divorce

complaint to proceed under the new Divorce Code.1           Following a hearing

before a master, both parties filed exceptions.     The trial court entered a



____________________________________________


1
 Act of April 2, 1980, P.L. 63, No. 26. Notably, alimony did not come into
existence in Pennsylvania until the enactment of the 1980 Divorce Code.



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divorce decree and ordered husband to pay wife permanent alimony of

$80.00 per week. Id. at 165.

      On appeal, this Court, noting that wife was receiving Social Security

disability benefits and living in subsidized housing, stated:

      [Husband] argues rather unabashedly that the court erred in
      awarding permanent alimony in any amount because, as he
      asserts, [wife] does not lack sufficient property to provide for her
      needs because of “the proliferation of governmental benefits to
      which [wife] would be entitled if she were only to apply for the
      same[.]” . . . It appears, therefore, that [husband] is suggesting
      that [wife] would be eligible for public assistance benefits, and
      other social welfare benefits, and therefore, does not need
      alimony. We do not believe the Legislature enacted the alimony
      provisions of the Divorce Code with the intent that the financial
      welfare of a dependent spouse should devolve upon the
      Commonwealth following divorce. . . . The purpose of social
      welfare benefits is to subsidize whatever other resources a
      recipient may have or may be entitled to and should be a last
      resort, not a first one.

Id. at 168-69 (emphasis added).

      Remick remains the law, and its principles are applicable here.

Because the trial court properly considered and applied the statutory factors,

see 23 Pa.C.S.A. § 3701(b)(1)-(17), and because we find the award is

supported by the record, we discern no abuse of discretion. Balicki, supra.

      Order affirmed.




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J-S07020-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2017




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