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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
No(s): FD 19-001936-017
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MARCH 8, 2022
Appellant, Carola Van Eck (“Wife”), appeals from the June 4, 2021
decree in divorce that, inter alia, awarded Jeffrey Dunn, Sr. (“Husband”)
alimony pendente lite. We affirm.
The trial court summarized the factual and procedural history as follows:
The relevant litigation commenced in this case in November
2019[,] when Wife filed a protection from abuse [(“PFA”)] petition
in which she alleged that she and Husband had been discussing
her leaving the marital residence when he picked up a gun,
pointed it at himself, and threatened to shoot himself if she left.
Wife alleged that she told Husband that she was going to call the
police, at which point he left the room with the gun. According to
Wife, the police initially responded but then left, and only returned
after she called them again upon learning the garage was on fire.
When police arrived back to the [marital residence] they found
Husband in the garage with the car running[.] Husband required
[cardiopulmonary resuscitation] and was taken to the hospital.
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* Retired Senior Judge assigned to the Superior Court.
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Wife alleged that Husband had been tracking her phone, tracking
her car via the [global positioning] system, and had installed
multiple cameras in the [marital residence]. Wife averred that
Husband was much stronger than she and that she feared for her
safety.
A temporary [PFA] order was granted and remained in place
through several continuances. On March 11, 2020, following a
final hearing, [the trial] court granted Wife a three-year final PFA
order [] and evicted Husband from the [marital] residence.
During the pendency of the PFA action, Husband filed a complaint
for support on December 30, 2019, and then a six-count complaint
in divorce on February 10, 2020, which included a claim for
alimony. On February 11, 2020, Wife filed preliminary objections
[] to Husband's divorce complaint based on the parties' prenuptial
agreement[. In an April 20, 2020 order, the trial] court sustained
Wife's [preliminary objections] and dismissed several of
Husband's divorce counts.
The support hearing on Husband's complaint was delayed until
August 27, 2020, mainly due to the COVID-19 [global] pandemic.
During the remote hearing, Wife argued that Husband was not
entitled to support because she was a victim of his abuse, as
evidenced by the three-year final PFA order[.] Following the
hearing, the hearing officer [] calculated Wife's monthly net
income to be $19,949.78 and Husband's [] monthly [net] income
to be $0[.00]. The [hearing officer] recommended that Husband's
claim for spousal support, from December 30, 2019[, through]
February 10, 2020, be denied, based on Wife's entitlement
defense, but that his claim for [alimony pendente lite] be granted
and that Wife be ordered to pay Husband $6,566.79 [per] month
beginning February 10, 202[0].
On [] September [17], 2020, Wife timely filed exceptions to the
hearing officer's temporary order [] dated September 3, 2020[.]
In her exceptions, Wife claimed the following:
The [hearing officer] erred [] or committed an abuse of
discretion by failing to make a downward deviation of
[Wife’s alimony pendente lite] obligation. Wife was the
victim of documented stalking, harassment[,] and abuse by
Husband. On March 11, 2020, following a lengthy hearing,
the [trial] court entered an adjudicated [three]-year PFA
[order] against Husband. The failure to make a downward
deviation after proof of domestic violence resulting in a PFA
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[order] is contrary to the facts, the law, and public policy
inasmuch as it orders an abuse victim to pay money to her
abuser to fund divorce litigation which she has sought as a
result of his wrongful conduct. This [order to pay alimony
pendente lite] re-victimizes [the abusee] and provides a
financial windfall to the abuser.
In her brief in support of exceptions[,] Wife opined that although
Husband might argue that there is no entitlement defense to
[alimony pendente lite] like there is for spousal support, there is
nothing that states an abusive spouse must receive [alimony
pendente lite]. Wife argued that the personal injury crime
exception to [alimony pendente lite,] set forth in 23 Pa.C.S.A.
§ 3702(b)[,] was "clearly designed to prevent the abhorrent
possibility of a [‘]physically[’] abusive spouse . . . receiving
[alimony pendente lite] from that abused spouse," and that the
fact that Wife's PFA [order] was adjudicated through family court
as opposed to criminal court should be of no importance.
In her brief, Wife set forth several reasons why she should not be
forced to pay a "guideline" amount of [alimony pendente lite].
First, she received a full three-year PFA order[,] the maximum
allowable by law, not just a “‘cooling-off’ short-term PFA [order]."
Second, "Wife sustained tangible economic losses as a result of
Husband's abusive conduct," which resulted in Husband being
ordered to pay her approximately $7,000[.00]. The [alimony
pendente lite] order created the possibility "that Wife will be paid
back by Husband for his abusive conduct with her own money."
Third, Wife argued the "catch-all" deviation set forth in
Pa.R.C[iv].P. 1910.16-5(b)(9) permits adjustments to support
orders to avoid creating an unjust result, which was the result of
the [hearing officer’s] award in this case.
By order [] dated November 13, 2020, [the trial] court denied
Wife's exception regarding the [alimony pendente lite] issue, but
granted Wife's exception regarding Husband's earning capacity.
The case was remanded to the [hearing officer] to set an earning
capacity for Husband and recalculate Wife's [alimony pendente
lite] obligation. By order [] dated December 14, 2020, the
[hearing officer] set Husband's earning capacity at $5,000[.00
per] month gross [income], for a monthly net income of
$3,889.17, and adjusted Wife's [alimony pendente lite] obligation
to $5,008.91 [per] month. For the next six months, the parties
continued to engage in litigation for both support and divorce
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matters, until the decree in divorce was ultimately [entered] on
June [4], 2021[.]
Trial Court Opinion, 8/23/21, at 2-6 (extraneous capitalization and footnote
omitted). This appeal followed.1
Wife raises the following issues for our review:
[1.] Whether the trial court erred as a matter of law and abused
its discretion by dismissing Wife's exception that the hearing
officer should have deviated in determining Wife's alimony
pendente lite obligation to Husband given the abuse inflicted
by Husband against Wife which resulted in a final
three[-]year [PFA] order?
[2.] Whether the trial court erred and committed an abuse of
discretion by affirming an alimony pendente lite award paid
by an abused spouse to her abuser, thus as a matter of
public policy, failing to find that individuals who are
adjudicated as abusers should not receive alimony pendente
lite from their victims, as this perpetuates the abuse and
frustrates the purpose and intent of the [PFA] statute?
Wife’s Brief at 9 (extraneous capitalization omitted).
Wife’s issues, in toto, challenge the trial court’s order awarding Husband
alimony pendente lite for which our standard of review is well-settled.
We review [alimony pendente lite] awards under an abuse of
discretion standard. Haentjens v. Haentjens, 860 A.2d 1056,
1062 (Pa. Super. 2004). [An order awarding alimony pendente
lite] is “an order for temporary support granted to a spouse during
the pendency of a divorce or annulment proceeding.” 23
Pa.C.S.A. § 3103. [Alimony pendente lite] “is designed to help
the dependent spouse maintain the standard of living enjoyed
while living with the independent spouse.” Litmans v. Litmans,
[] 673 A.2d 382, 389 ([Pa. Super.] 1996). Also, and perhaps
more importantly, “[alimony pendente lite] is based on the need
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1 Both Wife and the trial court complied with Pa.R.A.P. 1925.
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of one party to have equal financial resources to pursue a divorce
proceeding when, in theory, the other party has major assets
which are the financial sinews of domestic warfare.” Id. at 388.
[Alimony pendente lite] is thus not dependent on the status of the
party as being a spouse or being remarried but is based, rather,
on the state of the litigation.
Carney v. Carney, 167 A.3d 127, 134 (Pa. Super. 2017).
Section 3702 of the Pennsylvania Divorce Code states as follows:
§ 3702. Alimony pendente lite, counsel fees and expenses
(a) General rule.--In proper cases, upon petition, the [trial]
court may allow a spouse reasonable alimony pendente lite,
spousal support[,] and reasonable counsel fees and expenses.
Reasonable counsel fees and expenses may be allowed pendente
lite, and the [trial] court shall also have authority to direct that
adequate health and hospitalization insurance coverage be
maintained for the dependent spouse pendente lite.
(b) Exception.--Except where the [trial] court finds that an order
for alimony pendente lite or spousal support is necessary to
prevent manifest injustice, a party who has been convicted of
committing a personal injury crime against the other party shall
not be entitled to spousal support or alimony pendente lite. Any
amount paid by the injured party after the commission of the
offense but before the conviction of the other party shall be
recoverable by the injured party upon petition.
23 Pa.C.S.A. § 3702. Section 11.103 of the Pennsylvania Crime Victims Act
defines “personal injury crime” as
[a]n act, attempt[,] or threat to commit an act which would
constitute a misdemeanor or felony under the following: 18
Pa.C.S.[A.] Ch. 25 (relating to criminal homicide)[;] 18
Pa.C.S.[A.] Ch. 27 (relating to assault)[;] 18 Pa.C.S.[A.] Ch. 29
(relating to kidnapping)[;] 18 Pa.C.S.[A.] Ch. 31 (relating to
sexual offenses)[;] 18 Pa.C.S.[A.] § 3301 (relating to arson and
related offenses)[;] 18 Pa.C.S.[A.] Ch. 37 (relating to robbery)[;]
18 Pa.C.S.[A] Ch. 49 Subch. B (relating to victim and witness
intimidation)[;] 30 Pa.C.S.[A.] § 5502.1 (relating to homicide by
watercraft while operating under influence)[; t]he former 75
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Pa.C.S.[A.] § 3731 (relating to driving under influence of alcohol
or controlled substance) in cases involving bodily injury[;] 75
Pa.C.S.[A.] § 3732 (relating to homicide by vehicle)[;] 75
Pa.C.S.[A.] § 3735 (relating to homicide by vehicle while driving
under influence)[;] 75 Pa.C.S.[A.] § 3735.1 (relating to
aggravated assault by vehicle while driving under the influence)[;]
75 Pa.C.S.[A.] § 3742 (relating to accidents involving death or
personal injury)[; and] 75 Pa.C.S.[A.] Ch. 38 (relating to driving
after imbibing alcohol or utilizing drugs) in cases involving bodily
injury.
18 P.S. § 11.103 (formatting modified). “The term includes violations of any
protective order issued as a result of an act related to domestic violence.” Id.
(emphasis added). Of note, is that while a personal injury crime includes a
violation of a PFA order, it does not include the issuance of a PFA order.2
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2 The inclusion of a violation of a protective order in the “personal injury crime”
definition logically flows from the fact that a protective order by its mere name
indicates that it is issued for the benefit of the victim and is designed to protect
a victim from, inter alia, future physical and verbal abuse from the abuser.
Commonwealth v. Felder, 176 A.3d 331, 334 (Pa. Super. 2017) (stating
that “the purpose of the PFA Act is to protect victims of domestic violence from
those who perpetrate such abuse, with the primary goal of advance prevention
of physical and sexual abuse” (brackets, original quotation marks and citation
omitted)). To receive a protective order, the victim must prove the allegations
of the petition seeking a protective order by a preponderance of the evidence.
23 Pa.C.S.A. § 6107(a). The abuser is not guilty of a crime simply upon the
issuance of a protective order (although the abuser may be found guilty of
crimes which led to the issuance of the protective order). Rather, an abuser
may be found guilty of a crime if he, or she, violates the protective order. In
order words, the protective order makes it a crime for the abuser to abuse the
victim physically or verbally in the future because these subsequent actions
of abuse constitute a violation of a court-directed protective order. See,
generally, Felder, 176 A.3d at 334. Specifically, “an indirect criminal
contempt charge is designed to seek punishment for [a] violation of the
protective order.” To convict the abuser of an indirect criminal contempt
charge, the Commonwealth must prove beyond a reasonable doubt that “1)
the order was sufficiently definite, clear, and specific to the contemnor as to
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In awarding alimony pendente lite, courts are mindful that
[t]he purpose of alimony pendente lite is to provide the dependent
spouse equal standing during the course of the divorce
proceeding. Alimony pendente lite focuses on the ability of the
individual who receives the alimony pendente lite during the
course of the litigation to defend [herself, or himself], and the
only issue is whether the amount is reasonable for the
purpose, which turns on the economic resources available
to the spouse.
Cook v. Cook, 186 A.3d 1015, 1022-1023 (Pa. Super. 2018) (citation,
original brackets, and ellipsis omitted; emphasis added). The Pennsylvania
Rules of Civil Procedure governing actions for support, including alimony
pendente lite, are set forth at Rules 1910.1 through 1910.50. See Pa.R.Civ.P.
1910.1 - 1910.50. Rules 1910.16-1 through 1910.16-7 set forth the
guidelines for awarding, inter alia, alimony pendente lite. See, generally,
Pa.R.Civ.P. 1910.16-1 through 1910.16-7. In general, the award of alimony
pendente lite is based upon the parties’ economic circumstances and focuses
on each party’s monthly gross income less certain deductions, as enumerated
in Rule 1910.16-2(c). See Pa.R.Civ.P. 1910.16-2 (stating that, the “alimony
pendente lite obligation is based on the parties’ monthly net income”); see
also Pa.R.Civ.P. 1910.16-2(c) (listing certain deductions used to calculate
monthly net income, including deductions for, inter alia, federal, state, and
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leave no doubt of the conduct prohibited; 2) the contemnor had notice of the
order; 3) the act constituting the violation must have been volitional; and 4)
the contemnor must have acted with wrongful intent.” Id. at 333-334
(citation omitted).
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local income taxes). Rule 1910.16-4(a)(1)3 sets forth a formula used to
calculate the guideline amount of the obligor’s total monthly support
obligation. See Pa.R.Civ.P. 1910.16-4(a)(1).
Although the calculation of potential support under Rule
1910.16-4(a)(1) is a straight-forward calculation, the trial court has discretion
to deviate from this guideline-calculation pursuant to Rule 1910.16-5(a)(1).
See Pa.R.Civ.P. 1910.16-5(a)(1) (stating that, “[t]he trier-of-fact may deviate
from the basic . . . alimony pendente lite obligation”); see also Pa.R.Civ.P.
1910.16-1(d) (stating that, “[i]f the trier-of-fact determines that a party has
a duty to pay support, there is a rebuttable presumption that the
guideline-calculated support obligation is the correct support obligation”). In
deciding whether to deviate from the guideline-calculated alimony pendente
lite obligation, the trier-of-fact may consider the following factors:
(1) unusual needs and unusual fixed obligations;
(2) a party's other support obligations;
(3) other household income;
(4) the child's age;
(5) the parties' relative assets and liabilities;
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3 The formula set forth in Rule 1910.16-4(a)(1) is appliable in the case sub
judice because the order awarding alimony pendente lite was entered after
January 1, 2019. See Pa.R.Civ.P. 1910.16-4(a)(1) (stating that, the formula
applies to an award for support entered on or after January 1, 2019). By
comparison, the formula set forth in Rule 1910.16-4(a)(2) would be appliable
to awards for support entered before January 1, 2019. See Pa.R.Civ.P.
1910.16-4(a)(2).
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(6) medical expenses not covered by insurance;
(7) the parties' and the child's standard of living;
(8) in a spousal support or alimony pendente lite case, the
duration of the marriage from the date of marriage to the date of
final separation; and
(9) other relevant and appropriate factors, including the child's
best interest.
Pa.R.Civ.P. 1910.16-5(b)(1-9).
Here, Wife’s argument turns on two alternate claims. The first asserts
that the trial court erred in awarding Husband alimony pendente lite because
“[i]t simply cannot be the case that” an attempt to cause personal injury would
preclude an award of alimony pendente lite pursuant to 23 Pa.C.S.A. § 3103,
while an abuser can receive an award of alimony pendente lite despite the
issuance of a protective order. Wife’s Brief at 29. Alternatively, if alimony
pendente lite is not precluded by Section 3103, Wife contends, the trial court
erred by failing to deviate downward from the guideline-calculated alimony
pendente lite obligation based upon consideration of “other relevant and
appropriate factors,” pursuant to Rule 1910.16-5(b)(9). Id. at 18-25. Wife
asserts that Husband’s abusive behavior and the issuance of a final,
three-year PFA order in favor of Wife are relevant and appropriate factors that
necessitate a downward deviation of her alimony pendente lite obligation. Id.
at 24.
In awarding alimony pendente lite, the trial court explained,
[the trial] court was unable to find any cases interpreting the
meaning of the exception set forth in 23 Pa.C.S.A. § 3702(b), and
Wife cited to none in her brief [in support of her exceptions to the
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hearing officer’s September 3, 2020 support order]. However,
from the plain language of the exception, [the trial] court
determined that [the issuance of] a PFA order did not amount to
a "personal injury crime." Husband was not "convicted" of any
"crime," which obviously would have had to occur in a criminal
proceeding with a different burden of proof than that required in
a PFA proceeding in family court. Although Wife claimed in her
brief that she was not asking [the trial] court to create new law,
[the trial] court was of the opinion that to put a PFA order on the
same level as the conviction of a personal injury crime would do
just that, and would be an inappropriate expansion of the
application of the exception beyond the legislative intent.
Second, without the clear application of the personal injury crime
exception to the case at hand, the [hearing officer] was required
to exercise her discretion in applying the [] deviation [factor] set
forth in Pa.R.C[iv].P. 1910.16-5(b)(9). [The trial] court
determined that the [hearing officer’s] refusal to apply [this]
deviation [factor] was not an abuse of discretion because to do so
would have thwarted the purpose of [alimony pendente lite]. As
stated above, [alimony pendente lite] focuses on the economic
resources available to the parties, the ability of the recipient to
engage in litigation, and to maintain his[, or her,] standard of
living. In fashioning an award of [alimony pendente lite], the
[trial] court should consider the ability of the obligor to pay, any
separate estate or income of the obligee, as well as the character,
situation, and surroundings of the parties.
...
In affirming the [hearing officer’s] recommendation, [the trial]
court considered the fact that Husband was not employed at the
time of the hearing, had not been employed outside the home
since 2016, and had no separate estate upon which to [rely].
And[,] although [the trial] court [] awarded Wife with a PFA order,
Husband's conduct upon which it was based was an isolated event,
was non-violent in nature, and caused Wife no physical harm.
That is not to say that the PFA order is of no importance. The PFA
order is but one of the factors to consider in making an award of
[alimony pendente lite]; it is not the only factor to consider. And
in this case, after analyzing, all of the factors, [the trial] court
could not find that the [hearing officer] abused her discretion in
awarding [alimony pendente lite] to Husband.
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Trial Court Opinion, 8/23/21, at 9, 11 (extraneous capitalization omitted).
Upon our review of the record, we concur with the trial court that a
plain-reading of Section 3702, in conjunction with the definition of a “personal
injury crime,” does not exclude Husband from being considered for an award
of alimony pendente lite solely because Wife obtained a final PFA order against
him. Consequently, we find no error or abuse of discretion in the trial court’s
order awarding Husband alimony pendente lite based upon the argument that
such an award is prohibited by Section 3702.
Wife does not argue that her guideline-calculated alimony pendente lite
obligation was incorrect but, rather, challenges the trial court’s failure to
deviate downward based upon the issuance of a final PFA order in her favor,
and against Husband, pursuant to the deviation factor enumerated at Rule
1910.16-5(b)(9). We are mindful that the objective of alimony pendente lite
is grounded in the economics of the two parties and an award of alimony
pendente lite serves to equalize each party’s ability to participate effectively
in a divorce proceeding. 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. We
are unpersuaded by the case law relied on by Wife to suggest that the
deviation factor enumerated at Rule 1910.16-5(b)(9) encompasses the
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consideration of a PFA order, an order which is not based upon the economics
of the parties but rather their behaviors.4 Moreover, we have found no case
law, on point, to support Wife’s argument. Consequently, we discern no
misapplication of law or other abuse of discretion in the trial court’s decision
to award alimony pendente lite in accordance with the guidelines and without
deviation.5
Decree affirmed.
Judge Pellegrini joins.
Judge Murray files a Dissenting Memorandum.
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4 In support of her argument, Wife relies on Humphreys v. DeRoss, 790
A.2d 281 (Pa. 2002) for the position that our Supreme Court used the Rule
1910.16-5(b)(9) factor to adjust a support award as the result of an
inheritance received by one of the parties. Wife also cites L.M.L. v. W.K.L.,
203 A.2d 319 (Pa. Super. Filed December 14, 2018) (unpublished
memorandum) in which this Court, Wife asserts, “affirmed the [Rule
1910.16-5(b)(9) factor] to reduce support orders in a case where mother's
income was greater than father's income; father's expenses for the children
increased with the custody schedule; and, in consideration of the best interest
of the children.” Wife’s Brief at 24. We find both cases unpersuasive because
they relied upon consideration of economic factors to justify a deviation.
5 Moreover, although we do not find support for consideration of a PFA order
as a ground for deviating from a guideline-calculated alimony pendente lite
obligation, the trial court, nonetheless, considered the PFA order, in its
discretion, as a factor under Rule 1910.16-5(b)(9), and found that it did not
warrant a deviation. See Trial Court Opinion, 8/23/21, at 11. In so finding,
the trial court focused on the purpose of alimony pendente lite in balancing
the economic resources available to the parties in order that they may engage
as equals in the divorce proceedings while still maintaining their standards of
living. Id. at 9. We do not find the trial court’s consideration of the PFA order,
in the case sub judice, to be an abuse of discretion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2022
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