Hodge v. Hodge

HUTCHINSON, Justice,

concurring and dissenting.

I concur in the result Mr. Justice Zappala reaches in Part I of his opinion, which states that a medical license acquired during a marriage and the increased earning capacity arising therefrom do not constitute marital property or an otherwise divisible asset of the marriage subject to equitable distribution. Analysis of Chapters 4 (Property Rights) and 5 (Alimony and Support) of our Divorce Code1 convinces me that the legislature did not intend a medical license or resultant increased earning capacity to be considered such an asset. Instead, the legislature provided that “[t]he contribution by one party to the education, training, or increased earning power of the other party” should be a factor considered in the equitable distribution of marital property, 23 P.S. § 401(d)(4), and in the determination of the necessity for, and the nature and duration of, alimony, 23 P.S. § 501(b)(6). The inclusion of this factor in both of these chapters makes it clear that the legislature intended to give our trial courts the flexibility needed to fashion a fair and just economic resolution when the parties acquire substantial assets subject to distribution, and when, as here, they have few such assets at the time of divorce.2 Thus, the lower courts properly rejected the claim that Dr. *274Hodge’s medical license constitutes marital property subject to equitable distribution.

I dissent, however, from the reasoning in Part II of Mr. Justice Zappala’s opinion and his conclusion that the lower courts incorrectly applied Section 501 of the Divorce Code in determining and reviewing the alimony award. Precisely because the parties had few assets subject to distribution, the courts correctly considered Mrs. Hodge’s contributions to her husband’s professional education and resultant increased earning power in awarding her alimony of $100 per week for fourteen years under Section 501. The propriety of this award is the issue raised in appellant’s cross-appeal by allowance.

I would begin by noting that the scope of appellate review in questions of alimony is limited to a determination of whether the lower court abused its discretion. Remick v. Remick, 310 Pa.Superior Ct. 23, 456 A.2d 163 (1983). I find no indication here that Common Pleas abused its discretion in awarding Mrs. Hodge alimony for fourteen years.

In analyzing Chapter 5 of the Divorce Code, Mr. Justice Zappala has construed Subsections (a) and (b) of Section 501 in a manner that invites the application of the two conditions in Section 501(a) as threshold requirements for entitlement to alimony. I believe this construction is erroneous. Section 501(a) provides:

(a) The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.

23 P.S. § 501(a).

At first blush, the use of the word “only” in Section 501(a) along with the word “and” as a connector between 501(a)(1) and 501(a)(2) would seem to support Mr. Justice *275Zappala’s position. However, Section 501(b) of the Divorce Code provides:

(b) 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: ....3

23 P.S. § 501(b). Thus, Section 501(b) requires a consideration of all relevant factors in making the determination of whether alimony is “necessary”. Obviously, if it is necessary a court “may allow” alimony in an amount it “deems reasonable”. See Section 501(a), supra.

Mr. Justice Zappala states that the analysis in Part II of his opinion is in accord with Hess v. Hess, 327 Pa.Superior Ct. 279, 475 A.2d 796 (1984) and Bickley v. Bickley, 301 Pa.Superior Ct. 396, 447 A.2d 1025 (1982), in which Superior Court held that the two conditions set forth in Section 501(a) do not establish threshold requirements for entitlement to *276alimony. However, in reading Section 501(a) as embodying the purpose of alimony and then requiring the master and trial court to apply the factors enumerated in Section 501(b) only in light of this purpose, Mr. Justice Zappala accords paramount status to Section 501(a). As applied to this record, his reasoning recreates a threshold for entitlement to alimony. I believe that reading is contrary to sound principles of statutory construction and is out of line with the legislative intent expressed generally in Section 102 of the Divorce Code4 and specifically in Subsection (a)(6), which reads:

(a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the *277parties and insure a fair and just determination and settlement of their property rights.

23 P.S. § 102(a)(6) (emphasis added).

The object of all statutory interpretation is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S. § 1921(a). Section 102(b) of our Divorce Code explicitly states that the objectives set forth in Subsection (a) shall be regarded as expressing the legislative intent and shall be considered in construing provisions of the Code. 23 P.S. § 102(b). Further, the language of a statute shall be construed, if possible, so as to give effect to all of the statute’s provisions. 1 Pa.C.S. § 1921(a). Commonwealth ex rel. Bagnoni v. Klemm, 499 Pa. 566, 574, 454 A.2d 531, 535 (1982); Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 513, 454 A.2d 1, 4 (1982). Therefore, Section 501 of the Divorce Code must be construed, if possible, in a way that gives effect to all of its subsections and Section 102(a) must be considered in giving effect to these subsections.

In its introductory language, Section 501(b) states that all relevant enumerated factors shall be considered “[i]n determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony.” 23 P.S. § 501(b) (emphasis added). This wording acknowledges the relationship between Sections 501(a) and (b); the only way to determine what is a “reasonable need” under Section 501(a)(1) or “appropriate employment” under Section 501(a)(2) is to refer to the specific facts of each case as they compare with the factors listed in Section 501(b)(1)-(14). I agree with Mr. Justice Zappala that certain of these factors are more relevant to a determination of entitlement to alimony than others which go primarily to the nature, duration, amount and manner of payment of alimony. I cannot agree with Mr. Justice Zappala’s discussion of the manner in which trial courts should evaluate Section 501(b) factors, however, because it provides little guidance to these courts and invites application of the Section 501(a) conditions as threshold requirements.

*278I believe instead that all the 501(b) factors (except factors 5, 14 and possibly 7, which are unrelated to either need, ability to pay or the parties’ current economic situation) should be used to decide whether the spouse seeking alimony is able to “provide for his or her reasonable needs” and is “unable to support himself or herself through appropriate employment”, as required by Section 501(a). After need, ability and relative wealth are so determined, all of the other 501(b) factors, including (5), (7) and (14), should be considered in determining the nature, amount, duration and manner of payment of alimony. This analysis is largely in accord with Judge Beck’s reasoning in Hess v. Hess, 327 Pa.Superior Ct. 279, 289, 475 A.2d 796, 801 (1984). Since factor (6), “[t]he contribution by one party to the education, training or increased earning power of the other party”, is clearly an economic factor, such contributions are properly considered -in deciding whether an award of alimony is necessary. 23 P.S. § 501(b)(6).

In the fact situation this record presents, it is not possible to effectuate economic justice if Section 501(a) is read as imposing conditions on entitlement to alimony which must be met before the factors set out in 501(b) can be considered. This is apparent when we consider: this wife’s contribution to her husband’s education, the couple’s lack of tangible assets to divide, the interpretive and practical problems precluding consideration of the medical license as property and the resultant lifetime income benefit this husband will enjoy from that license without recompense to the spouse who sacrificed to provide the means of his obtaining that benefit. That injustice is ably shown by Mr. Justice Larsen’s factual recital in his dissenting opinion.

Sections 501(a) and (b) must be read together, therefore, in determining whether alimony is necessary, keeping in mind that the purpose of the Divorce Code, as stated by the legislature and affirmed by this Court, goes beyond the granting of alimony according to the actual need and ability to pay of the parties and includes:

dealing] effectively with the ‘realities of the matrimonial experience’ by giving ‘primary consideration to the wel*279fare of the family/ ‘mitigating] the harm to spouses and their children caused by the legal dissolution of the marriage/ and effectuating ‘economic justice’ as well as ‘a fair and just determination and settlement of ... property rights.’ 23 P.S. § 102(a).

Bacchetta v. Bacchetta, 498 Pa. 227, 231, 445 A.2d 1194, 1196 (1982).

I believe Mr. Justice Zappala errs in applying his modified threshold analysis to the question of whether the alimony award was excessive. Although Mr. Justice Zappala’s reasoning is not entirely clear to me on this point, it would appear that his objection is to the duration of the alimony award (fourteen years) and not to the amount periodically due. Of course, $100 per week for fourteen years, or $72,800 undiscounted, is more than $100 per week for some lesser period and, thus, duration and amount are woven together in a very real sense.

I believe, however, that the nature, amount, duration and manner of payment of alimony are matters to be determined by the trial court in accordance with Sections 501(b) and (c) of the Divorce Code, which must be read together and applied in light of the particular facts of each case. Section 501(c) provides:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.

23 P.S. § 501(c).

As the record indicates, Mrs. Hodge is now forty-six years old. For the past ten years, she has been a homemak*280er and primary caretaker of the parties’ three children, two of whom are still minors; Mrs. Hodge has not worked in her profession during this time. Further, she presented evidence that employers where she resides now require a four-year degree in medical technology rather than the two-year associate degree that she possesses. As noted by Superior Court, these “impediment[s] to gainful employment” exempt Mrs. Hodge from the general rule set forth in Section 501(c) that alimony shall be limited to a period of time that reasonably allows the party to obtain appropriate employment or develop an appropriate employable skill. 23 P.S. § 501(c). Hodge v. Hodge, 337 Pa.Superior Ct. 151, 158, 486 A.2d 951, 954 (1984).

The trial court must consider all relevant 501(b) factors in determining the duration of alimony. On the facts of this case, the relative earning capacities of the parties (factor 1), the ages of the parties (factor 2), the contribution by one party to the other’s increased earning capacity (factor 6), the relative education of the parties and the time necessary to acquire sufficient education to enable the party seeking alimony to find appropriate employment (factor 8) and the contribution of a spouse as a homemaker (factor 12) are relevant in determining the duration of the alimony award. Moreover, factor 7, the extent to which it would be inappropriate for a party to seek employment outside the home because that party has custody of a minor child, seems especially relevant. Considering these relevant factors in light of this record, I cannot agree with Mr. Justice Zappala that Common Pleas abused its discretion in ordering alimony of $100 per week for fourteen years, the period during which the Hodge’s two youngest children remain minors.

Finally, I would note that this alimony award may be modified, pursuant to Section 501(e) of the Code, if the circumstances of the parties should change. That Section provides:

(e) Any 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 *281whereupon such order may be modified, suspended, terminated, reinstituted, or a new order made. Any such further order shall apply only to payment accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.

23 P.S. § 501(e). While two of his three children remain minors, I believe it entirely appropriate and fair to place the burden of pursuing such a modification upon Dr. Hodge, given the relative economic positions of these parties. To do otherwise would be contrary to the policy of this Commonwealth, which is to give primary consideration to the welfare of the family and to mitigate the harm to spouses and their children caused by the legal dissolution of a marriage. 23 P.S. § 102(a)(3) and (4), supra note 4 (emphasis added).

Reading this statute as a whole, it seems obvious to me that the legislature intended to give the trial courts of this Commonwealth broad discretion in tailoring alimony awards and property distribution to the myriad fact situations which modern marriage presents. That being so, it seems to me the absence of assets necessarily affects the alimony award if economic justice is to be done. The ruling that a medical license is not property affects this wife’s right to alimony. Under all the circumstances of this case, I am at a loss to see how the trial court abused the broad discretion the legislature gave it in awarding fourteen years of alimony to Mrs. Hodge.

Accordingly, I would affirm the order of Superior Court in its entirety.

Mr. Justice PAPADAKOS joins in this concurring and dissenting opinion.

. Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. §§ 101-801 (Supp.1986).

. We do not today have before us the third possible situation, where the parties have acquired few assets but alimony is not available to the spouse who contributed toward the other’s education because he or she is self-supporting and rehabilitation into the work place is not necessary. Such a case has been before Superior Court, which approved a remedy under Section 401(c) of the Divorce Code. That Section provides, in relevant part: “In all matrimonial causes, the court shall have full equity power ... to protect the interests of the parties ... and may grant such other relief or remedy as equity and justice require against either party____” 23 P.S. § 401(c). See Lehmicke v. Lehmicke, 339 Pa.Superior Ct. 559, 489 A.2d 782 (1985).

. The factors to be considered by the court include:

(1) The relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance of 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 it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(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; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

23 P.S. § 501(b).

. Section 102 of the Divorce Code provides:

(a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
(5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
(6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
(b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.

23 P.S. § 102.