Dunn, J. v. Van Eck, C. ( 2022 )

J-A02007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEFFREY DUNN, SR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAROLA VAN ECK :
:
Appellant : No. 710 WDA 2021
Appeal from the Decree Entered June 4, 2021
In the Court of Common Pleas of Allegheny County
Family Court at FD 19-001936-017
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY MURRAY, J.: FILED: MARCH 8, 2022
I respectfully dissent. Under the unique circumstances of this case, I
would conclude Wife rebutted the presumption that the guideline APL amount
of approximately $5,000 per month to Husband was appropriate. See
Pa.R.C.P. 1910.16-1(d)(1) and (d)(2) (stating, respectively: “The
presumption is rebutted if … the guideline support obligation is unjust or
inappropriate,” and the “trier-of-fact shall … apply the Pa.R.C.P. No. 1910.16-
5 deviation factors, as appropriate.”); see also Ball v. Minnick, 648 A.2d
1192, 1196 (Pa. 1994) (“Deviation will be permitted only where special needs
and/or circumstances are present such as to render [a support] award in the
amount of the guideline figure unjust or inappropriate.”).
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* Retired Senior Judge assigned to the Superior Court.
J-A02007-22
“A grant of APL by the trial court is not a matter of right to either party.”
Nemoto v. Nemoto, 620 A.2d 1216, 1221 (Pa. Super. 1993). Rather, a court
“may allow a spouse reasonable alimony pendente lite” in “proper cases.” 23
Pa.C.S.A. § 3702(a) (emphasis added)).
Upon review, I would conclude the trial court abused its discretion by
disregarding Husband’s abusive behavior toward Wife and the issuance of a
three-year PFA order.1 See Pa.R.C.P. 1910.16-5(b)(9) (“In determining
whether to deviate from the guidelines, the trier of fact must consider … other
relevant and appropriate factors”); see also Trial Court Opinion, 8/23/21, at
9 (“refusal to apply the [Rule 1910.16-5(b)(9)] ‘catch-all’ deviation was not
an abuse of discretion because to do so would have thwarted the purpose of
APL.”).
The Majority states:
As the guidelines used to calculate a potential award of alimony
pendente lite are based upon the parties’ economic circumstances
and available resources, we find the factors the trial court
may consider when deviating from the guidelines to be
based on economic considerations because, to hold otherwise,
would thwart the purpose of alimony pendente lite in balancing
the parties’ financial resources in a divorce proceeding.
Majority at 11 (emphasis added); see also id. at 12 (rejecting claim that “the
deviation factor enumerated at Rule 1910.16-5(b)(9) encompasses the
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1Three years is the statutory maximum, as a PFA order “shall be for a fixed
period of time not to exceed three years.” 23 Pa.C.S.A. § 6108(d).
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J-A02007-22
consideration of a PFA order, an order which is not based upon the economics
of the parties but rather their behaviors.” (footnote omitted)).
Rule 1910.16-5(b), in addition to the “catch-all” provision at (b)(9),
specifically enumerates non-economic considerations. See, e.g., Pa.R.C.P.
1910.16-5(b)(8) (the duration of the parties’ marriage). Further, our
legislature drafted 23 Pa.C.S.A. § 3702(b) (i.e., exception for APL), to address
non-economic considerations – convictions for “personal injury crimes.”2
Finally, we have repeatedly stated: “In ruling on a claim for [APL], the court
should consider the following factors: the ability of the other party to pay; the
separate estate and income of the petitioning party; and the character,
situation, and surroundings of the parties.” Childress v. Bogosian, 12 A.3d
448, 463 (Pa. Super. 2011) (emphasis added) (quoting Busse v. Busse, 921
A.2d 1248, 1255 (Pa. Super. 2007)).
Accordingly, I would conclude the trial court abused its discretion by
failing to deviate downward from the guideline amount of APL. Therefore, I
respectfully dissent.
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2I agree with the Majority that the subsection 3702(b) exception does not
apply, as Husband was not convicted of a “personal injury crime.”
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