Brenner, B. v. Brenner, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARBARA A. BRENNER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. BRENNER
Appellant No. 2017 MDA 2016
Appeal from the Order Entered November 15, 2016
In the Court of Common Pleas of Lancaster County
Civil Division at No: CI-16-04938
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 15, 2017
Michael J. Brenner (“Husband”) appeals from the November 15, 2016
order entered in the Court of Common Pleas of Lancaster County (“trial
court”) denying his petition to terminate alimony. Upon review, we affirm.
Barbara A. Brenner (“Wife”) filed for divorce in November 26, 2007,
and a divorce decree was issued on November 9, 2009. On June 24, 2016,
Husband filed a petition to terminate alimony. Wife filed a response on July
14, 2016. The trial court held a hearing on September 16, 2016, on
Husband’s petition. Following briefs by the parties, the trial court denied
Husband’s petition on November 15, 2016. Husband filed a timely notice of
appeal on December 8, 2016. On December 13, 2016, the trial court
ordered Husband to file a concise statement of errors complained of on
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appeal, which Husband complied with on January 3, 2017. The trial court
issued a Pa.R.A.P. 1925(a) opinion on February 3, 2017.
The trial court summarized the factual history of the matter as follows.
The parties were married on July 10, 1976, and separated
around August 2007. They entered into a Postnuptial Agreement
(“Agreement”) on October 19, 2009, pursuant to which
[Husband] agreed to pay to [Wife] seven thousand seven
hundred ninety-one dollars and fifty-eight cents ($7,791.58) per
month in alimony (subsequently modified by the parties to seven
thousand seven hundred seventy-nine dollars and eleven cents
($7,779.11) per month). [Wife’s] attorney drafted the
Agreement. [Husband], a sophisticated, successful and self-
employed businessman with a college degree, chose to represent
himself. [Husband] acknowledges that he had the opportunity to
hire his own attorney before executing the Agreement but did
not do so. He admitted that he understood what he signed. The
Agreement, specifically section seven, permits either party to
modify and/or terminate an alimony order if either party has
changed circumstances of a substantial and continuing nature
citing 23 Pa.C.S.A. § 3701 et seq. No specific date to terminate
alimony based upon [H]usband’s retirement is identified in the
agreement.
[Husband] is sixty-three years old and wishes to retire
sometime in the year 2017. In 2013, he married his business
(Elite Staffing Services, Inc.) office manager. His income for
2015 was approximately three hundred and fifty thousand
dollars ($350,000) which consisted of his net profit from the
business, approximately twenty-five thousand dollars ($25,000)
in rental income, and approximately forty thousand to fifty
thousand dollars ($40,000 - $50,000) that his wife earned. In
2007, the years of separation, [Husband] earned approximately
four hundred eleven thousand dollars ($411,000). [Husband]
has faithfully paid [Wife] approximately ninety-six thousand
dollars ($96,000) per year in alimony since separation.
[Wife] is sixty-two years old and a college graduate. In
addition to alimony payments, she receives a total of
approximately twenty-one thousand dollars ($21,000) from a
part-time receptionist position at Interiors Home and her pension
as a retired Hempfield School District reading tutor. In 2015,
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[Wife] received one hundred fourteen thousand three hundred
sixty-six dollars ($114,366) of which ninety-three thousand
three hundred forty-nine dollars ($93,349) was alimony. As a
reading tutor, [Wife] usually earned between twenty-two
thousand to twenty-five thousand dollars ($22,000-$25,000) a
year. Consequently, [Wife’s] earnings as a reading tutor roughly
equals her current income from part time receptionist work and
her pension.
[Husband’s] petition seeks to terminate his contracted
alimony payments when he retires. He argues that with reduced
income in retirement along with the obligation to support his
new wife he will be unable to continue his alimony payments.
[Husband] asserts that there is no date to terminate alimony in
the Agreement because he did not when know [(sic)] he would
retire. [Husband] contends that he believed the Agreement
would allow him to retire and cease his alimony obligations as it
was discussed by the parties prior to the execution of the
Agreement.
[Wife] on the other hand asserts that the parties never
discussed [Husband’s] future retirement or its impact on his
alimony obligations. [Wife] testified that she would have
pursued more of the marital assets when she entered into the
Agreement if alimony payments had been limited in duration.
She expected, and bargained for, perpetual alimony which would
terminate only if she remarried or cohabitated. She contends
neither she nor [Husband] has had a substantial change in
circumstances since entering into the Agreement. She has been
able to secure employment which together with her pension and
alimony provides her with an income comparable to her pre-
separation position and his income similarly has not changed.
Trial Court Opinion, 2/3/17, at 2-4 (capitalization and citations omitted).
Husband asserts four claims on appeal, including multiple subparts,
which we quote verbatim.
I. Whether the trial court committed an abuse of discretion
and erred in denying the petition to terminate alimony by
finding that the [Agreement] in fact “specifically, permits a
party to modify and/or terminate an alimony order if either
party has changed circumstances of a substantial and
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continuing nature citing 23 Pa.C.S.A. § 3701(e)” and failed
to consider that:
a. The Agreement itself only cites the Divorce Code;
b. The [trial court] construed the Agreement against
[Husband] in requiring that [Husband] must have the
only substantial and continuing change in circumstances
to warrant a modification or termination of alimony,
while ignoring [Wife’s] substantial and continuing
change in circumstances, namely her voluntary
retirement/reduction in income;
c. Failing to consider the testimony of the parties that
neither party knew what circumstances would warrant a
modification or termination in alimony, nor that neither
party knew what the duration of the alimony would be,
nor what the effect either party’s retirement would have
on the alimony clause, making that term of the contract
ambiguous;
d. That the [trial] court failed to consider parole [(sic)]
evidence to interpret the ambiguous term nor did the
[trial] court consider the mutual mistake of the parties;
e. That the [trial] court failed to consider that [Wife] was
the drafter of the Agreement and that any ambiguous
term should be construed against her?
II. Whether the trial court committed an abuse of discretion
and erred in finding that “[Husband] asserts his desire to
voluntarily retire next year and his remarriage three years
ago are substantial and continuing changes in
circumstances warranting the termination of his alimony
payments” in that the [trial court] ignored evidence that:
a. [Husband] is of age to retire and should not be forced
to continue to work simply to provide alimony to [Wife];
b. [Husband] will have difficulty saving for retirement
while [Wife] continues to collect alimony, thereby
preventing [Husband] from ever retiring; and
c. [Wife’s] voluntary retirement is a change in
circumstance that warrants termination or modification
of alimony?
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III. Whether the trial court committed an abuse of discretion
and erred in noting that “the Agreement is silent as to the
duration of the alimony payments as well as the possibility
of [Husband] retiring (voluntarily or involuntarily) and/or
remarrying” but entered an order that has the unfair effect
of interpreting the Agreement as containing a term of
perpetual and indefinite alimony, which is unwarranted,
unjust, and punitive against [Husband]?
IV. Whether the trial court committed an abuse of discretion
and erred in failing to consider the alimony factors under
Pa.C.S.A. [§] 3701(b), particularly in light of the fact that
alimony is a secondary remedy that should only continue
where economic justice requires because the needs of the
receiving party have not been met, and the facts
presented in this case show that [Wife] is financially
stable, able to support herself and receive more than the
total value of the marital estate at settlement, far beyond
any distribution she would have receive [(sic)] without
[Husband’s] alimony obligation?
Appellant’s Brief at 3-4.
Preliminarily we note that Husband’s brief fails to comply with
Pa.R.A.P. 2111(b), 2114, 2115, 2116, 2118, and 2119(a). “[W]hen defects
in a brief impede our ability to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to be waived.” In re R.D.,
44 A.3d 657, 574 (Pa. Super. 2012) (quoting Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) appeal denied, 940 A.2d 362 (Pa.
2008)). However, we decline to find waiver in this matter. See Pa.R.A.P.
2101.
Husband’s argument section is bereft of headings, as required by
Pa.R.A.P. 2119(a); however, Husband’s claims are intertwined and can be
summarized as the trial court abused its discretion when it denied his
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petition to terminate alimony because he remarried three years ago and
plans to retire in the near future.
Section 3701(e) of the Divorce Code permits modification and
termination of an award for alimony. See 23 Pa.C.S.A. § 3701(e).
Specifically,
An order entered pursuant to this section 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. Any further order shall apply only to payments accruing
subsequent to the petition for the requested relief. Remarriage
of the party receiving alimony shall terminate the award of
alimony.
Id. Moreover, our standard of review for an alimony order is well
established; “we review only to determine whether there has been an error
of law or abuse of discretion by the trial court.” McKernan v. McKernan,
135 A.3d 1116, 1118 (Pa. Super. 2016) (quoting Dairymple v. Killshek,
920 A.2d 1275, 1278 (Pa. Super. 2007)) (additional citation omitted).
Further, to find the trial court abused its discretion, the trial court must have
“committed not merely an error of judgment, but [. . .] overridden or
misapplied the law, or [. . .] exercised judgment which is manifestly
unreasonable, or the product of partiality, prejudice, bias, or ill will as
demonstrated by the evidence of record.” McKernan, 135 A.2d at 1118
(citations omitted).
First, Husband argues that the Agreement is ambiguous as it does not
specifically mention his remarrying or retirement as changed circumstance of
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a substantial and continuing nature. “Appellate arguments which fail to
adhere to [the Rules of Appellate Procedure] may be considered waived, and
arguments which are not appropriately developed are waived. Arguments
not appropriately developed include those where the party has failed to cite
any authority in support of a contention.” Lackner v. Glosse, 892 A.2d 21,
29-30 (Pa. Super. 2006) (citations omitted). Husband’s brief is bereft of
discussion and legal citation as to how the Agreement was ambiguous.
Thus, this argument is waived. Even if this argument was not waived, it is
meritless. The language of the Agreement provided that modification would
be available to either party in accordance with 23 Pa.C.S.A. § 3701, which
permits either party to petition to modify alimony upon the changed
circumstances of either party. 23 Pa.C.S.A. § 3701(e). “In cases of a
written contract, the intent of the parties is the writing itself. If left
undefined, the words of a contract are to be given their ordinary meaning.
When the terms of a contract are clear and unambiguous, the intent of the
parties is to be ascertained from the document itself.” W.A.M. v. S.P.C., 95
A.3d 349, 353 (Pa. Super. 2014) (quoting Kripp v. Kripp, 849 A.2d 1159,
1163 (Pa. 2004)). The trial court properly found that the Agreement was
unambiguous, as it clearly provides for any modifications or termination that
would be permissible under the Divorce Code. Thus, Husband’s claim fails.
Next, we address the heart of Husband’s claim, namely that his new
marriage and potential future retirement constitute changed circumstances
of a substantial and continuing nature. “Alimony is based upon reasonable
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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.”
Balicki v. Balicki, 4 A.3d 654, 659 (Pa. Super. 2010) (quoting Teodorski
v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004). It should be noted
that “case law clearly establishes that retirement can serve as the basis for
the changed circumstances of a substantial and continuing nature necessary
to modify an alimony award.” Commonwealth v. McFadden, 563 A.2d
180, 183 (Pa. Super. 1989) (emphasis added). However, the law does not
mandate the termination of alimony upon a party’s voluntary retirement.
In the matter sub judice, Husband has yet to retire, instead he merely
plans on retiring in the near future, and he has not set a definitive
retirement date. Thus, this matter is at best, premature. Moreover,
Husband failed to indicate a compelling reason for his future retirement,
including but not limited to, health issues, forced retirement, caring for
elderly relatives, etc.. See McFadden, 135 A.3d at 1118 (trial court did not
abuse its discretion in denying husband’s petition to terminate alimony when
husband voluntarily retired early, reducing his income, and that wife should
not be forced to apply for social security benefits); Lee v. Lee, 507 A.2d
862, 865 (Pa Super. 1986) (reversed for determining whether forced early
retirement constituted a substantial change); Com ex rel. Burns v. Burns,
331 A.2d 768, 771 (Pa. Super. 1974) (remanded for consideration of
husband’s retirement due to health reasons); see also Smedley v.
Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010) (“Voluntary retirement does
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not entitle an appellant ‘to a reduction in his support obligation’ rather ‘the
change in the appellant’s economic situation due to retirement merely allows
him an opportunity to demonstrate the need for a reduction.’”) (citation
omitted).
Further, this Court finds Husband’s argument that “Husband cannot
possibly save for retirement, support his new wife, and continue his alimony
obligation to [Wife]” disingenuous when Husband testified to an income of
$350,000 in 2015, as well as other assets. See Appellant’s Brief at 17; N.T.
Petition to Terminate Alimony Hearing, at 30. Moreover, Husband fails to
recognize that the law permits modification upon the showing of changed
circumstances of a substantial and continuing nature, it does not require a
modification. Upon review of the record and the law, we find the trial court
did not abuse its discretion when it denied Husband’s petition to terminate
alimony.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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