AN IMPORTANT ALIMONY CASE IF WE HAD THE FACTS
Friday, October 4 brought us what should have been an important case analyzing how alimony should be granted. It is non-precedential yet the topic is one of vital importance. Once again, we have 32 pages of discussion (including a dissent) that fails to provide many salient facts.
The case turns on the fact that the parties have a 7 year old child with what are termed “profound” disabilities. Father’s involvement with this child (one of two) is minimal. We don’t know the nature of the disabilities but there is in-home care provided by an outside source and a reference to testing for seizures. Perhaps, the magnitude of the problem is best captured by testimony that during the two years preceding the economic trial, Mother attended an average of 60 medical appointments per year.
What makes this case important is that the Center for Disease Control reports that one in eleven children today has a development disability. CDC Finds ‘Significant Increase’ In Kids With Developmental Disabilities – Disability Scoop. In 2014 another study reported that between 2004 and 2014 there was a 16% rise in the number of children facing “disability” in a more broadly defined sense. What’s Behind The Stark Rise In Children’s Disabilities : NPR. So, this issue is not going away and, as here, it is front and center in claims for child support and/or alimony where one parent shoulders the laboring oar of care.
In Buffenmeyer v. Buffermeyer we have parents who are each age 35. Mom/wife is a cosmetologist who is self employed and indicates that because of her 7 year old’s needs, she is making roughly $15,000 a year. She works from her parents’ house but we don’t know what commercial rent, if any, she pays for that privilege; a fact that should have been explored.
Husband works for Penn Power & Light (PP&L) in a job that seems to be one where overtime is a significant component (he fixes power lines). We are told only that he is paid $50/hour based on a 40 hour week and that he provides insurance for the two children (cost unknown) and contributes to a retirement plan. So, we start with $15,000 versus $104,000 gross income. We are then told husband has rental properties but nothing is mentioned about rental income. The order in effect at the time of trial was $2,400 child support $1,200 in spousal support, These numbers seem high in a guideline calculation but we have no data about overtime and rental income for father. What seems strange is that the opinion discusses $4,200 in private school tuition that mother is covering along with unreimbursed medical but no reference is made to any contribution on father’s part or whether private school was an approved “need” or an extra mother provided at her own expense.
Part of the appeal involves equitable distribution. The marital residence was sold, and the proceeds were awarded to mother in the amount of $77,000. Then there was $210,000 in retirement value split between two PP&L plans, one defined benefit and one defined contribution. The equitable distribution award was 60% in favor of wife and the value of that award was $257,000. Thus we infer that this was a $430,000 marital estate. Part of the appeal was a claim that instead of awarding her the entire defined benefit pension, she should have received a small portion of that and a piece of the 401K plan since it is better accessible if needed. The trial and appellate courts rejected that probably because she did receive $130,000 in cash. Another curiosity is that no reference is made to the potential interest income on the cash element of the award in a day when interest rates now are back to normal historic levels. That would/could be $500 a month in income to address needs.
Alimony is a secondary remedy in Pennsylvania; to be awarded where the property distribution does not satisfy reasonable needs. Some counties address this by employing a formula. Others use a formula while professing not to and still others want to see expense lists for both parties to assess need on a case by case basis. While it appears that the Lebanon County court “considered” expenses that actual alimony award was the same as the spousal support award. Wife presented $4,500 a month in needs of which housing was less than 15% because she lives with her parents. What we got from husband is the usual complaint by the payor that the alimony award leaves him penniless. But, again, we can’t reconcile the child support award which was almost $1,000 a month more than the guideline amount given the data provided in the opinion. The Superior Court remands the case to address husband’s concerns about deficit spending but observes in a footnote that this is not an invitation to re-open the record.
The core of the controversy here was the duration of the alimony. A ten year marriage begot an eleven year alimony award. Husband is complaining not just about the amount but because this is an extraordinary payout period. Wife notes that the alimony should be indefinite because the disabilities that the one child has will continue long after he attains majority at age 18.
This is a crucial issue that merited some careful attention, especially in a world where it appears that husband/father has demonstrated no interest in providing for the care of the child who is disabled. And, as we noted above, we live in a world where more and more families are having to cope with various aspects of child disabilities, some of which will endure into adulthood. In the end both the bench and bar need guidance on this topic.
Equally concerning and meriting no less attention in cases like this is the interplay between child support and alimony. This case puts a lot of attention on child needs and expenses. To the extent that a child’s disabilities limit earning capacity of a parent, this is an important topic. But that issue was largely unaddressed aside from reference to frequent medical visits and one extended stay at the Hershey Medical Center. There is in-home care, but we don’t really understand how and when it comes into play as an expense or as a means to allow mother to work.
Meanwhile, the opinion suggests that father does not contribute to school or medical expenses. How are these not part of the child support order? Yet, when this writer runs guidelines on a father grossing $105,000 and a mother earning $15,000, the after alimony child support for two children comes up on my calculator as $1,400 a month. So, if father is paying $2,400 in child support, it would seem, his income is either much higher than the opinion suggests (a fact not supported by the spousal support/alimony calculations) or his support was upwardly adjusted either to include extraordinary expenses or because he does not spend time with the child.
The last elephant in the alimony room is the bar of 23 Pa.C.S. 3706. In its own right, it really should have nothing to do with the Buffenmeyer case. It says:
§ 3706. Bar to alimony. No petitioner is entitled to receive an award of alimony where the petitioner, subsequent to the divorce pursuant to which alimony is being sought, has entered into cohabitation with a person of the opposite sex who is not a member of the family of the petitioner within the degrees of consanguinity.
In this case wife lives with her parents who are “family.” But suppose wife did find someone she loved and wanted to live with. Alimony is over. Yet this case is talking about needs and associated expenses of the disabled child as well as their duration. In short, the case is comingling two different aspects of need. The needs of the children need to be addressed by the child support order, and order than can be outside the guidelines. Those child expenses are unrelated to the needs of an otherwise healthy 35 year old woman. What the disabled child does affect is the capacity of the primary caretaker to earn a living on her own while juggling a child who is seeing physicians 5x a month. The better remedy in this case may have been to award alimony indefinitely with a hearing to take place at such time as the child reaches adulthood to see if independent living is possible. What we have instead is a remand to consider whether the combined child support and alimony are causing “deficit” spending on the part of husband; a father who appears to have largely abdicated his custodial responsibilities for one of his kids.
We need clarity here both in terms of thinking and factual analysis. Lots of Pennsylvanians are facing this issue.