J-S31003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.F.,                                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

A.F.,

                            Appellant                  No. 1693 MDA 2015


                    Appeal from the Decree September 3, 2015
                   In the Court of Common Pleas of York County
        Civil Division at No(s): 2009-FC-001569-02, 2009-FC-001569-15


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                                FILED MAY 03, 2016

        Appellant, A.F. (“Wife”), appeals from the divorce decree entered on

September 3, 2015, which made final the July 24, 2015 order denying Wife’s
                                                                        1
exceptions to the Divorce Master’s report and recommendations.              After

careful review, we affirm.

        In its July 24, 2015 order, the trial court adopted the Master’s findings

of fact:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The entry of a divorce decree is a prerequisite to an order for alimony or
equitable distribution of property. Mensch v. Mensch, 713 A.2d 690, 691
(Pa. Super. 1998) (citations omitted). Therefore, Wife’s notice of appeal,
filed on October 1, 2015, is timely because the July 24, 2015 order was
interlocutory until the September 3, 2015 divorce decree was entered.
Uhler v. Uhler, 594 A.2d 688, 689 n.1 (Pa. Super. 1991).
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     1. [Appellee, K.F. (“Husband”) is] an adult individual presently
     residing [in] Lancaster, PA 17601. Husband was born on 1974
     and was forty years of age at the time of the hearing.

     2. Husband is in good health.

     3. [Wife] is [A.F.], an adult individual presently residing [in]
     Lancaster, PA 17603. Wife was born on 1970 and was forty-
     three years of age at the time of the hearing. She was born in
     Mexico, but is now a citizen of the United States.

     4. Wife is in good health; she recently had nodules removed
     from her thyroid, but they were benign. She does not suffer from
     any after-effects that interfere with her employment.

                  Marriage, Separation and Support

     5. The parties were married on December 30, 2004 in Arizona.
     This was the second marriage for Husband and the first marriage
     for Wife. Husband’s first marriage ended in divorce.

     6. The parties separated on September 4, 2009.

     7. Wife was served with a copy of the Complaint by certified mail
     on October 1, 2009.

     8. The parties are the parents of one minor child [(“Child”)], who
     was born in 2006. The parties share custody of [Child] equally.
     Husband has a fourteen-year-old child from a prior relationship.
     Wife also has fourteen-year-old twins from a prior relationship.

     9. Husband pays Wife $3,200 per month as unallocated support
     for Wife and [Child], effective December 18, 2009. Stipulation 7
     and Exhibit P-1. Husband pays $350 per month in support for his
     fourteen-year-old child. Wife does not receive child support for
     the twins; their father is believed to be located in Mexico.
     Stipulation 2.

                      Education and Employment

     10. Husband obtained his Bachelor of Science degree in Electrical
     Engineering Technology from Penn State University in 1996.
     Stipulation 4.


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     11. When the parties married, Husband was employed by
     Thompson Displays America in Mexico. Husband earned
     $111,064 (gross) from his employment in 2004. Exhibit P-5.

     12. The parties relocated to California in December 2005.
     Husband continued to work for the same employer until mid-
     2006.

     13. Husband and Wife started their own business in 2006
     making stone veneer for residential construction. The business
     was not successful.

     14. Husband went to work for the Imperial County School
     District to supplement income from the veneer business. He
     worked there for one year and approximately seven weeks. See
     Exhibit P-8.

     15. Husband is currently employed at Dawn Food Products, Inc.
     as an executive. He has been with the company since 2008. He
     was hired as an engineering manager at a facility in south-
     central Pennsylvania, so the parties relocated to York County.

     16. Husband currently earns $155,000 per year, not including
     his annual performance bonus. Husband’s performance bonus in
     2013 was $14,000. Stipulation 4.

     17. Wife has the equivalent of an accounting degree that she
     earned in Mexico and she recently graduated from a program at
     York Technical Institute (Y.T.I.) with a certification in medical
     coding and billing. Stipulation 4.

     18. Wife had worked as an accountant for a group of gasoline
     stations in Mexico for about five years when the parties married.

     19. Wife did not work outside the home after the parties moved
     to the United States in 2005, but assisted Husband with the
     operation of the stone veneer business.

     20. Wife found employment as a book-keeper for Shell’s Disposal
     & Recycling in 2009. She initially worked full-time, but cut back
     to about six hours per day when she started taking classes at
     Y.T.I. She earned $11 per hour with no fringe benefits.




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     21. Wife earned $11,696 (gross) from employment in 2011 and
     $19,851 (gross) in 2012. Exhibit D-5.

     22. Wife began working for Southeast Lancaster Health Services
     on March 27, 2014. She earns $11 per hour for a forty hour
     week. Health insurance is available to her through employment;
     she does not currently participate in any retirement plan.
     Stipulation 6 and Exhibit D-6.

                      Marital property and debts

     23. Neither party brought any significant asset to the marriage.

     24. The parties owned the following marital property when they
     separated:

          a. 2008 Toyota Highlander retained by Husband that
          was not valued but distributed without set-off.
          Stipulation 8. The Highlander was financed, and
          Husband has paid the loan since separation.

          b. 2009 Dodge Cirrus retained by Wife that was not
          valued but distributed without set-off. Stipulation 8.

          c. PNC Bank checking account with a minimal
          balance retained by Husband.

          d. PNC Bank savings account #4925. The balance in
          this account on the date of separation is unknown,
          but Husband acknowledged that he withdrew
          $15,000 from this account on September 1, 2009 in
          anticipation of separation. Stipulation 10.

          e. Husband’s CalPers retirement account, with
          accumulated employee contributions and interest in
          the amount of $6,950.52 as of June 30, 2012.
          Stipulation 11. This account accrues interest at the
          rate of 6% per annum. Exhibit P-8.

          f. Husband’s Prudential Roth IRA account with a
          balance of $14,639 as of September 30, 2013.
          Stipulation 12.




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           g. Wife’s Prudential Roth IRA account with a balance
           of $13,656 as of June 28, 2013. Stipulation 12.

           h. Miscellaneous household goods and other personal
           property not listed above that were distributed
           between the parties without set-off.

     25. The parties had no marital debts that were disclosed to the
     master at the time they separated, other than the automobile
     loan referenced above.

                          Post-separation events

     26. Husband made direct support payments in the aggregate
     amount of $3,566 to Wife between the date of separation and
     December 18, 2009 (the effective date of the support order).
     Exhibit P-6.

     27. Husband made additional direct payments to Wife in the
     aggregate amount of $9,444 between December 29, 2009 and
     March 15, 2010. Exhibit P-6.

     28. Husband did not receive credit against support arrears for
     the $9,444 paid directly to Wife. …

     29. Since the parties separated, Husband has begun contributing
     10% of his salary to the Dawn Foods Profit Sharing Plan (Exhibit
     P-7) and Wife has acquired a 2006 Dodge Stratus. This is the
     only non-marital property disclosed to the master.

Order, 7/24/15, at 1 (incorporating by reference the Master’s Report and

Recommendation, 9/22/14 at 2-7) (footnote omitted).

     The Master concluded that Wife should not be awarded alimony, and

Wife filed timely exceptions. On July 24, 2015, the trial court denied Wife’s

exceptions, and a final decree in divorce was entered on September 3, 2015.

This timely appeal followed.   Both Wife and the trial court have complied

with Pa.R.A.P. 1925(b).


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     On appeal, Wife argues that the trial court erred when it failed to

award alimony based on the totality of the circumstances. Wife’s Brief at 4

(unnumbered).    Our standard of review over alimony determinations is

abuse of discretion. Gates v. Gates, 933 A.2d 102, 106 (Pa. Super. 2007).

     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.

Id. (quotation marks and citation omitted).

     Additionally, there is a non-exhaustive list of factors that must be

considered when determining whether alimony is necessary:

     (a) General rule.--Where a divorce decree has been entered,
     the court may allow alimony, as it deems reasonable, to either
     party only if it finds that alimony is necessary.

     (b) Factors relevant.--In determining whether alimony is
     necessary and in determining the nature, amount, duration and
     manner of payment of alimony, the court shall consider all
     relevant factors, including:

           (1) The relative earnings and earning capacities of
           the parties.

           (2) The ages and the physical, mental and emotional
           conditions of the parties.




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          (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. As used in this paragraph, “abuse” shall
          have the meaning given to it under section 6102
          (relating to definitions).




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            (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. § 3701(a) and (b).

     Here, Wife asserts that the trial court erred and abused its discretion

because it “focused on one factor as the conclusive and deciding factor in

this matter as to whether or not to award alimony, that being the length of

the parties’ marriage” under 23 Pa.C.S. § 3701(b)(5).      Wife’s Brief at 10

(unnumbered). Wife claims that the difference in the parties’ incomes, her

financial responsibilities for her older children, and her feelings of being

“held hostage” in Pennsylvania “should have been more carefully considered

by the Divorce Master and the trial court.” Id. at 13. We are constrained to

disagree.

     The trial court addressed Wife’s argument as follows:

           Husband has worked outside the home throughout the
     marriage and has the same job now that he had before the
     parties separated. Husband earns between $155,000.00 to
     $169,000.00 per year as a corporate executive.

           Wife grew up in Mexico where she earned a post-
     secondary education degree in accounting and worked as an
     accountant for a string of gas stations for several years. During
     the marriage she helped run the parties’ fledgling business, did
     not, for the most part, work outside the home after that

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     business failed, and just recently has obtained her medical billing
     certification and employment in that field.

           Wife earns approximately $23,000.00 per year working 40
     hours per week at $11.00 per hour as a medical billing clerk.
     She also receives $3,200.00 per month ($38,400.00 per year) in
     unallocated spousal and child support from Husband. Given the
     party’s incomes and the fact that they share custody of their
     only child on a 50/50 basis, between $950.00 to $1,000.00 per
     month is a fair estimate of what Husband’s child support
     obligation alone would be to wife.

            Husband’s income and earning capacity far exceeds Wife’s
     even if her earning capacity, given her education and experience
     in accounting and running a business, is greater than her current
     income from her recently acquired employment in medical
     billing.

            In light of the post-secondary education in accounting Wife
     obtained prior to the marriage, as well as her experience
     working as an accountant for a string of gas stations in Mexico
     and thereafter helping her Husband run a business, the Court
     surmises that she should have been able to find appropriate
     employment in the area of accounting or related field without
     significant further education or training that paid more than
     $11.00 per hour and perhaps as much as $16.00 per hour. Even
     if that is not so, she has had over 4 years since the parties’
     separation to seek same, but in that time has only obtained a
     certification in the area of medical billing pursuant to a two year
     program.

           Furthermore, according to the 2015 Federal Poverty
     Guidelines, Wife’s monthly earned income of $1,916.00, plus
     monthly child support of $950.00, equals $2,866.00 monthly
     income, which is more than twice the $1,327.00 per month
     poverty guideline for a 2 person family/household. (The 2015
     U.S. Poverty Guideline for a 1 person family /household is
     $11,770.00 per year; Wife’s yearly income of $23,000.00 is
     nearly twice that guideline amount).

     REMAINING ALIMONY FACTORS

           At the time of the Master’s hearing, Husband was 40 years
     old and Wife was 43 years old. Both of them are in good health.

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            Neither Husband nor Wife has any expectancies or
     inheritances. They were married on December 30, 2004 and
     separated on September 4, 2009; thus, they spent 56 months
     living together as Husband and Wife and, as of June 2016, had
     spent 70 months married to each other, but living separate and
     apart from each other.

           The parties are the parents of a child born in 2006, They
     share custody of this child on a 50/50 basis, so their respective
     earning power, expenses and financial obligations by reason of
     their serving as the custodian of their child will be equally
     affected.

           Wife contends that because of the shared custody with
     their minor child, she cannot relocate back to either Mexico or
     Southern California where she might have a better chance at
     greater earnings. However, she failed to present any evidence
     that indicates that she would have more opportunities for
     employment in either Southern California or Mexico. Moreover,
     there was no evidence presented as to what employment Wife
     would pursue in either of those locations.

            Husband has a 14 year old child from a prior relationship
     for whom he pays support, and Mother has sole custody of 14
     year old twins from a prior relationship, but receives no support
     for them from their father and never has. While Mother is the
     sole custodian of those 14 year old twins, the support of them is
     not [Husband’s] legal obligation and, therefore, should not
     militate in favor of an award of alimony to Wife.

           Given Husband’s income at the outset of the party’s
     marriage and the time during their marriage when they
     struggled to get their business off the ground, it is reasonable to
     conclude that prior to their move to Pennsylvania they had a
     fluctuating, but essentially middle class standard of living which
     rebounded nicely shortly before their separation when Husband
     began working for his present employer.

           Wife contends that her moving with Husband from
     Southern California to York, PA so that he could take his current
     job has contributed to his increased earning power. However,
     this contention, even if true, does not outweigh the other factors
     discussed in this order that militate against an award of alimony

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     to Wife. Moreover, Husband had obtained his formal education
     and had a high-paying job prior to the parties’ marriage.

             Neither Husband nor Wife has significant assets or
     liabilities, other than the $10,900.00 lump sum payment to be
     made from Husband to Wife, and the 95% portion of the marital
     estate ($48,640.00 of $51,223.00) the Master recommended be
     awarded to Wife. Furthermore, the record does not reveal any
     specific or significant amount of property that either Husband or
     Wife brought to [the] marriage.

            Regarding the relative needs of the parties, Wife claims
     expenses of over $3,500.00 per month. However, many of those
     expenses pertain to support of Wife’s 14 year old twins. As
     previously noted, the legal duty to support those two children
     falls on their father and Wife, not on Husband.

           In regard to marital misconduct of either of the parties
     during the marriage, while Wife contends that Husband must
     have started his relationship with his paramour prior to
     separation, there is no evidence of record that supports that
     contention, making it nothing more than mere speculation.

     CONCLUSION

          The Master did not err in recommending that Wife not be
     awarded alimony.

           Wife has been receiving spousal support from Husband for
     over 5 years, which is longer than the time the parties lived
     together as Husband and Wife. Furthermore, Wife has significant
     education and work experience in accounting, and even if this
     education and experience was not sufficient to obtain
     appropriate employment after the parties separated, she has had
     over 5 years since the separation to acquire an appropriate
     employable skill.

           Wife is in her mid 40’s, is in good health and can be
     expected to continue to receive support from Husband for their
     minor child. While Wife does have sole custody of 14 year old
     twins she has from a prior relationship, Husband should not be
     ordered to pay her alimony based in whole or in part on the
     expenses she claims she incurs as a result of her being the sole
     support for her twins. Husband is not legally obligated to support

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     her children from a prior relationship, and he should not be
     indirectly required to do so via court-ordered alimony.

           Husband’s income and earning capacity are significantly
     higher than Wife’s, but alimony is a secondary remedy whose
     primary purpose is to insure that the reasonable needs of a
     spouse who cannot support himself/herself through appropriate
     employment are met. In fact, Wife is working full time, and her
     income from that job plus the child support she can be expected
     to continue to receive from Husband will amount to
     approximately $35,000.00 per year income which is more than
     twice the 2015 U.S. Poverty Guidelines for a 2 person
     family/household. (For a 4 person family/household consisting of
     Wife, the party’s Child, and Wife’s twins, the 2015 guideline is
     $24,250.00 per year which is well below Wife’s $35,000.00 per
     year income.)

           While Wife’s standard of living will be lower    than that she
     enjoyed during the four years Husband and she          were married
     and living together, that factor and the disparities   in the party’s
     incomes and earning capacities are outweighed          by the other
     factors discussed in this order.

           We also note that Wife brought no property with her into
     the marriage and whatever property Husband brought into the
     marriage was lost in the party’s ill-fated business venture.
     Moreover, the Master has recommended that Wife be awarded
     95% of the marital assets ($48,640.00) and that Husband pay
     Wife a lump sum payment of $10,900.00 to offset a pension he
     has retained. The sum of these two items is $59,540,00, which
     is equal to approximately 3 years and 8 months of spousal
     support at the rate of $1,300.00 per month.

           The Court did consider all the statutory factors regarding
     alimony, but only discussed in detail in this order those that,
     given the circumstances of the case, militated for or against an
     award of alimony to Wife.

Order, 7/24/15, at 3-7.

     After review, we cannot agree with Wife that the trial court solely

relied on the short duration of the marriage as the basis for denying


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alimony.    Moreover, we decline Wife’s invitation to reweigh the evidence

relevant to the section 3701(b) factors as that is not the role of this Court.

See Gates, 933 A.2d at 105 (stating that it is improper for this Court

reweigh the evidence when reviewing the financial aspects in a divorce

proceeding).2 Thus, the duration of the marriage was considered insofar as

Husband paid spousal support for more than five years after separation,

which was longer than the fifty-six months that the parties lived together

during the marriage. We find no error. While the duration of the marriage

was weighed, it was not the sole focus of the trial court’s decision. The trial

court thoroughly addressed all relevant factors including the seventeen

considerations enumerated in 23 Pa.C.S. § 3701(b), and we discern no

abuse of discretion.        Accordingly, we conclude that Wife is entitled to no

relief, and we affirm the divorce decree which made final the order denying

Wife’s exceptions.




____________________________________________


2
 The “reweighing” analysis in Gates was conducted regarding 23 Pa.C.S. §
3502 and equitable distribution factors. However, we conclude that it is apt
here as well.



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     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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