183 A.3d 411
Pa. Super. Ct.2018Background
- Parties divorced in 2008 after a 20-year marriage; Husband (attorney) was ordered to pay $4,500/month alimony under a Marital Settlement Agreement incorporated into the divorce decree.
- Agreement provided alimony was modifiable and specifically reviewable on or after January 1, 2017.
- Husband (born ~1957) filed a Petition in 2016 seeking modification/termination based on anticipated retirement, increased health problems (hepatitis C) and desire to reduce workload; he earned about $450,000 in 2016 and had a substantial retirement account.
- Wife (55) worked as a real estate agent with annual commissions around $30–35k, lives in the marital home with mortgage debt, received about $100k in retirement distribution, and sought an increase in alimony by counterclaim.
- At the January 2017 hearing, testimony included Husband, his hepatologist (who recommended workload reduction but said successful treatment could allow continued work), and Wife; trial court ordered step-down alimony (2017: $4,500; 2018: $3,000; 2019: $1,500) and termination effective Jan 1, 2020.
- Superior Court vacated the trial court’s order, holding Husband failed to prove a substantial and continuing change in circumstances warranting downward modification at that time.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Whether trial court erred by relying on speculative future retirement and health concerns rather than present finances to modify alimony | Trial court relied on speculative future retirement/health, not current finances; modification premature | Retirement and deteriorating health constitute substantial and continuing change justifying modification | Vacated trial court order; Husband did not prove a present substantial and continuing change—modification was premature |
| Whether trial court properly decreased alimony in steps and terminated prospectively | Agreement provided for a "review" (not automatic termination); court should not arbitrarily step-down/terminate | Step-down/termination appropriate given anticipated retirement and health | Not reached on merits because primary basis (changed circumstances) failed; order vacated |
| Whether trial court must state consideration of all §3701(b) factors on record | Court must consider statutory factors and make findings to allow appellate review | Court adequately considered factors | Superior Court found trial court abused discretion by decision, and declined to reach this issue further given disposition |
| Whether trial court improperly used Bureau of Labor Statistics data to assess Wife's earning capacity | Wife’s age, education, homemaker role, health and earnings history not adequately considered | Statistical data supports finding of earning capacity | Not decided due to vacatur of order; Superior Court declined to address remaining issues |
Key Cases Cited
- McFadden v. McFadden, 563 A.2d 180 (Pa. Super. 1989) (voluntary retirement may constitute a substantial and continuing change allowing modification)
- Lee v. Lee, 507 A.2d 862 (Pa. Super. 1986) (forced, early retirement’s financial effects may justify modification)
- McKernan v. McKernan, 135 A.3d 1116 (Pa. Super. 2016) (change in income from retirement benefits can be a substantial change justifying modification)