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HomeMy WebLinkAbout97-00195 3 '~.: d 3 .~ ,i IN TIC COURT OF COMMON PLEAS OF CUMBERLAND COUN'T'Y CIVIL DIVISION D. Keith Webb Karen Webb 1121 Latimore Creek Road York Springs PA 17372 V James Swett Jr 1264 Hillside Drive Mechanicsburg PA 17055 File No. `/ ~ ~ (~ ~ ~ ~ `` `e Civil Action - PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above case. ~_Writ of Summons shall be issued and forwarded to Sheriff E. Iv4artin, Esquire Date: 1/10/97 Supreme Court ID Number 38894 s s ~ ~ s SUMMONS IN CIVIL ACTION TO: lames B Swett Jr 1264 Hillside Drive Mechanicsbur~PA 17055 YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. T 1 ,. Prathonotarvl~k, Civil Division Date: 1. ~. J. ~ ~ ~ by i~ I` i : ~ lL ~ l r . De uty ~- P 1 ?. C: L 1-, ~' Cr. 1 j N ~ 1 ~ T C i. - ~ _ i. i ~ t LLB' . j.j ~ ,..r~ ( ._.1 ~ h ~7 ', ti r ~_~ u~ u ~ ^n v ~~~ ~T ~ ~~ ~ ~~ ~ ^` ~/ «~_: SHERIFF'S RETURN - REGULAR CA5R NOs 199'7-00195 P COMMONWEALTH OF PENN5YLVANIAs COUNTY OF CUMBERLAND Wf_HB .D K_F.ITH ET AL. __ _____ .._ .. _ VS. 5WETT JAMF_S JR___________-_ _. -, TIM_OTIIY REITZ,__ -_____. ___._..._~_._._._ __., Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, rho being duly scorn according to lac, says, the within ~~' s~_,`~~~LQH~_____ roe served upon SWF.TT JAM_F.S JR ____- _ the defendsnt, at _12.4~1.~~ HOURS, on the 14th day of Januarv 1997 at 1264 _NILLSIDF _DRIVF_ _ . __-_ ______________~_._ _._____-- MEgHANICSBURG~_PA 17035 ___-____ ____-___-____- . CUMBERLAND County, Pennsylvania, by handing to IAMF9 SWFTT JR a true and attested copy of the _WRIT_OF SUMMONS together rith PLAINTIFF'4-_INTF.RROGATORIES and at the same time directing Hie attention to the contents thereof. Sheriff's Coates Sa ansrerss ,~ ,y" ,1~~~ Docketing 16.00 _ ,;''~/'?'~•.•,:`'~'~ ~ .<--~ Service 5.36 •.' Affidavit .00 Surcharge 2.00 omas ne, eri 8Z5-5S'~ALE ANSTINE ~- 01/15/1997 ~ /~ b y its-~~~ LG u y eri Scorn an~i suberribed Ito beforr_ me t~ this _L7____ day of~. _----- 19__2'_, A. D. ~~ - ~~ i l <._ 1.... ~,. ~Lt<<C..~ a9t~5 rotnonotary REBECCA S. RUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOMESTIC RELATIONS SECTION LARRY J. RUNK II, :PACSES NO. 064108971 Defendant DOCKET NO. 131 SUPPORT 2007 REBECCA S. RUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOMESTIC RELATIONS SECTION LARRY J. RUNK II, :PACSES NO. 895108976 Defendant :DOCKET NO. 97-195 CIVIL INDEX OF EXHIBITS Plaintiff's Exhibit No. I -Income and expense statement Plaintiffs Exhibit No. 2 -Tax return Defendant's 1 through 3 -Not introduced Defendant's Exhibit No. 4 -Prescription expenses Defendant's Exhibit No. 5 - 2004 tax return Defendant's Exhibit No. 6 - 2005 tax return Defendant's Exhibit No. 7 - 2006 tax return C~ r~ ~' ` ~ -s~ ~ _' .-~ 4~.. -~, ~. ~ ~ ~~ .::.. ~ ~ ~';~ ~~ ~. :~`# . ~~~ Yv.1 REBECCA S. RUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOMESTIC RELATIONS SECTION LARRY J. RUNK II, PACSE5 N0.054108971 Defendant :DOCKET NO. 131 SUPPORT 2007 REBECCA 5. RUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOMESTIC RELATIONS SECTION LARRY J. RUNK II, PACSES NO. 895108976 Defendant :DOCKET NO. 97-195 CIVIL INTERIM ORDER OF COURT AND NOW, this 7th day of June, 2007, upon consideration of the Support Master's Report and Recommendation, acopy of which is attached hereto as Exhibit "A", it is ordered and decreed as follows: A. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for the support of his children, Sarah E. Runk, born February 20, 1993, and Larry J. Runk III, born July 4, 1994, the sum of $544.00 per month. B. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as alimony pendente lite the sum of $150.00 per month. C. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit on arrearages the additional sum of $25.00 per month. D. The Defendant shall provide health insurance coverage for the benefit of his wife and children as is available through employment or other group coverage at a reasonable cost. E. The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for each child and spouse. Unreimbursed medical expenses of the obligee or children that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide documentation of expenses to the other party no later than March 31 S` of the year following the calendar year in which the final medical hill to be allocated was received. The unreimbursed medical expenses are to be paid as follows: 100% by Defendant and 0% by Plaintiff. F. The Defendant shall be entitled to claim said children as dependency exemptions for federal income tax purposes commencing with tax year 2007, and the Plaintiff shall execute and deliver to the Defendant in a timely manner any and all documents required by the Internal Revenue Code to effectuate said exemption. G. The effective date of this order is February 20, 2007. IMPORTANT LEGAL NOTICE PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING, BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN CONTEMPT OF COURT, AND MAY BE FINED OR IMPRISONED. PENNSYLVANIA LAW PROVIDES THAT ALL SUPPORT ORDERS SHALL BE REVIEWED AT LEAST ONCE EVERY THREE (3) YEARS IF SUCH REVIEW IS REQUESTED BY ONE OF THE PARTIES. IF YOU WISH TO REQUEST A REVIEW AND ADJUSTMENT OF YOUR ORDER, YOU MUST DO THE FOLLOWING: CALL YOUR ATTORNEY. AN UNREPRESENTED PERSON WHO WANTS TO MODIFY (ADJUST) A SUPPORT ORDER SHOULD CONTACT THE DOMESTIC RELATIONS SECTION. ALL CHARGING ORDERS FOR SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE, INCLUDING UNALLOCATED ORDERS FOR CHILD AND SPOUSAL SUPPORT OR CHILD SUPPORT AND ALIMONY PENDENTE LITE, SHALL TERMINATE UPON DEATH OF THE PAYEE. A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO OR GREATER THAN ONE MONTH'S SUPPORT OBLIGATION AND (1) THE COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE ARRANGEMENT. UNPAID ARREARAGE BALANCES MAY BE REPORTED TO CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID SUPPORT PAYMENT SHALL CONSTITUTE, BY OPERATION OF LAW, A JUDGMENT AGAINST YOU, AS WELL AS A LIEN AGAINST REAL PROPERTY. IT IS FURTHER ORDERED THAT, UPON PAYOR'S FAILURE TO COMPLY WITH THIS ORDER, PAYOR MAY BE ARRESTED AND BROUGHT BEFORE THE COURT FOR A CONTEMPT HEARING; PAYOR'S WAGES, SALARY, COMMISSIONS, AND/OR INCOME MAY BE ATTACHED IN ACCORDANCE WITH LAW. PAYOR IS RESPONSIBLE FOR COURT COSTS AND FEES. The parties are hereby advised that they may file written exceptions to the Support Master's Report and Recommendation within twenty (20) days of this order. Exceptions shall conform with the requirements of Rule 1910.12(f}, Pa. R.C.P. If written exceptions are filed by any party, the other party may file exceptions within twenty (20) days of the date of service of the original exceptions. If no exceptions are filed within twenty (20) days of this interim order, this order shall then constitute a final order. By the Court, /'~ /~ Kevin A. Hess, J. Cc: Rebecca S. Runk Larry J. Runk II Michael A. Scherer, Esquire For the Plaintiff Jason P. Kutulakis, Esquire For the Defendant DRO REBECCA S. RUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOMESTIC RELATIONS SECTION LARRY J. RUNK II, :PACSES NO. 064108971 Defendant DOCKET NO. 131 SUPPORT 2007 REBECCA 5. RUNK, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. :DOMESTIC RELATIONS SECTION LARRY ,1. RUNK II, :PACSES NO. 895108976 Defendant :DOCKET NO. 97-195 CIVIL SUPPORT MASTER'S REPORT AND RECOMMENDATION Following a hearing held before the undersigned Support Master on June 4, 2007, the following report and recommendation are made: FINDINGS OF FACT 1. The Plaintiff is Rebecca S. Runk, who resides at 42 Clay Road, Carlisle, Pennsylvania. 2. The Defendant is Larry J. Runk II, who resides at 32 George Brown Road, Millerstown, Pennsylvania. 3. The parties were married on April 5, 1942. 4. The parties are the parents of two minor children, Sarah E. Runk, born February 20, 1993, and Larry J. Runk, III, born July 4, 1994. 5. The parties separated in October, 2005 when the Plaintiff and children moved from the marital residence. 6. On January 11, 2007 the Plaintiff filed a complaint for divorce in which she raised a claim for alimony pendente lite. EXHIBIT " A" 7. On February 20, 2007 the Plaintiff tiled a complaint for spousal support and child support. ~ 8. The Plaintiff and children reside with the Plaintiff s parents. 9. The Plaintiff is not gainfully employed outside the home. 10. The Plaintiff last worked outside the home as a payroll clerk in 1993. 11. The Plaintiff was astay-at-home mother from the birth of the first child until the separation. 12. The Plaintiff began attending Harrisburg Area Community College in 2003 initially to pursue a nursing degree. 13. The Plaintiff has attended Harrisburg Area Community College continuously since 2003 on both apart-time and afull-time basis. 14. The Plaintiff will complete her coursework for a degree as a medical laboratory technician in August, 2007. 15. The Plaintiff will begin her clinical hospital rotation in September, 2007 and will complete all requirements for her degree in May, 2008. 16. Sarah suffers from anorexia depression. 17. The Plaintiff takes Sarah to Hershey Medical Center for therapy on a weekly basis, currently Friday mornings. 18. A Protection from Abuse order was entered against the Defendant in November, 2006. 19. The Plaintiff and children receive family therapy two days per week, currently on Monday and Wednesday afternoons from 3:30 p.m. to 5:30 p.m. 20. The Plaintiff attends individual counseling one day per week, currently on Friday. 21. The Plaintiff has received grants and loans to pursue her education. 22. The repayment of the Plaintiff s educational loans is deferred until after her graduation. 23. The Plaintiff receives food stamps in the amount of $408.00 per month. At the hearing the Plaintiff withdrew the claim for spousal support and elected to proceed on a claim for alimony pendente lite. 2 24. The Defendant is the sole proprietor of Bill's Mechanical & Welding, a business located at 500 East North Street, Carlisle, Pennsylvania. 25. The Defendant had open heart surgery in June, 2005 and again in February, 2006. 26. As a result of an automobile accident which occurred in 2002 the Defendant suffers from herniated disks in his neck. 27. Because of the injury to his neck and his heart problem the Defendant is not performing the manual labor required by his business. 28. The Defendant continues to operate his business utilizing contract labor. 29. In 2006 the Defendant's business had gross income of $68,048.00. 30. The Defendant claimed depreciation expenses in 2006 of $14,842.00. 31. The Defendant claimed mortgage expenses on a home equity loan on his residence as business expenses. 32. The Defendant owns a commercial property at 242 East North Street, Carlisle which he leased in August, 2006. 33. The Defendant is currently attempting to evict his tenants for failure to pay rent. 34. The Defendant leased a portion of his business property at 500 East North Street to Lear Corporation in 2006. 35. Lear Corporation was sold in 2007, and the new owner is not occupying the property. 36. The Defendant leases a portion of 500 East North Street to Pizza Queen. 37. For tax accounting purposes the Defendant includes all rents received from 242 East North Street and 500 East North Street as gross receipts in Bill's Mechanical & Welding. 38. The Defendant pays $293.00 per month in health insurance premiums covering the family. 39. The Plaintiff has secondary health insurance coverage on the children through Gateway. DISCUSSION Both parents have an obligation to support their children in accordance with their relative incomes and ability to pay. Deep v. Holland, 636 A.2d 204 (Pa. Super. 1994). In determining a parent's ability to support his or her children, the focus is on earning capacity, not on actual earnings. Mooney v. Doutt, 766 A.2d 1271 (Pa. Super. 2001). A party's earning capacity is that amount he or she can realistically be expected to earn under the circumstances considering his or her age, health, physical and mental condition, education and training. Riley v. Foley, 783 A.2d 807 (Pa. Super. 2001). The Plaintiff is not employed outside the home. She has not been gainfully employed since the birth of her first child in 1993. She had five years experience as a payroll clerk earning approximately $8.00 per hour before becoming astay-at-home mother. In 2003, while the parties were residing together, the Plaintiff decided to pursue a college education at Harrisburg Area Community College. She was afull-time student when the parties separated in 2005. She has continued to pursue her education to become a medical laboratory technician since the separation. Additionally she is responsible for taking the parties' daughter to Hershey Medical Center for counseling therapy each Friday morning and participates in family counseling two afternoons per week. She begins her clinical hospital rotation in September and will complete her education on requirements in May, 2008. The clinical rotation will involve a Monday through Friday 40 hour per week schedule. Because the Plaintiff's educational pursuit began before the separation of the parties at a time when the Plaintiff was not gainfully employed outside the home and will be completed in approximately one year, no earning capacity is imputed to her for support purposes. The Defendant is the sole proprietor of a welding business. Because of injuries to his neck sustained in a motor vehicle accident and because of a heart condition he is no longer engaged in the physical labor involved in the business. In 2006 he contracted the labor. Although claiming a loss for tax purposes, a review of the Defendant's tax return reveals that he claimed a depreciation expense of $14,842.00 and a mortgage interest expense of $5,455.00. When there is no showing of an actual reduction in income, a depreciation expense, although allowable under federal income tax law, is not a permitted deduction from gross income for support purposes. Cunningham v. Cunningham, 548 A.2d 611 (Pa. Super. 1988) allocator denied 559 A.2d 37 (Pa. 1989). The mortgage expense involves a home equity loan on the marital residence. As such, this is a personal expense, not a business expense. Both claimed deductions will be added back to the Defendant's income for support purposes resulting in a net annual profit of $20,059.00, or $1,672.00 per month. The Defendant also has interest income of $3,241.00, or $270.00 per month. His total gross monthly income for support purposes is $1,942.00. Filing his federal income tax return as married/separate and claiming both children as dependency exemptions, the Defendant has net monthly income for support purposes of $1,630.00.2 The Defendant is paying $293.00 per month for health insurance coverage on the family. In cases where the obligor is paying for the insurance, and the obligee has no income, the trier of fact, as fairness requires, may deduct part or all of the premium actually paid by the obligor from his gross income to determine net income for support purposes.3 `' With no income the Plaintiff cannot benefit financially from a dependency exemption for the children. When doing so is in their best interest, the dependency exemption may be awarded to the non-custodial parent. Piso v. Piso, 761 A.2d 1215 (Pa. Super. 2000). See Exhibit "A" for the tax deductions from gross income. See Pa. R.C.P. 1910.16-6(b)(4). 4 In the opinion of this Master, fairness requires a deduction of half of the monthly premium, or $146.00 per month. Doing so results in the Defendant having net monthly income for support purposes of $1,484.00. With combined net monthly income of $1,484.00 the basic requirement for the support of two children is $544.00 per month.4 This is the Defendant's child support obligation. The Plaintiff has petitioned for an award of alimony pendente lite. Alimony pendente lite is alimony or maintenance during the pendency of a divorce proceeding so as to enable a dependent spouse to proceed with or defend against the action. Jame v. Jayne, 663 A.2d 169 (Pa. Super. 1995). Factors to consider in determining entitlement to an award of alimony pendente lite include the separate estate and income of the claimant, the ability of the other party to pay, and the character, situation and surroundings of the parties. Litmans v. Litmans, 673 A.2d 382 (Pa. Super. 1996). If a claimant establishes entitlement to an award of alimony pendente lite, the amount of the award is calculated utilizing the support guidelines. Little v. Little, 47 Cumberland L.J. (1998). The Plaintiff clearly has established a need for support during the pendency of the divorce action. However, the Defendant, after payment of his child support obligation as established herein, will be left with only $940.00 per month with which to support himself. The Defendant has significant out-of-pocket expenses for various medications he takes for both his neck and heart problems.5 His ability to pay an award of alimony pendente lite is clearly hampered by these expenses. The Plaintiff has been residing with her parents since October, 2005 and most of her expenses are being met by their generosity. The amount of alimony pendente lite payable in this case calculated under the guidelines would be $282.00 per month.6 Under the circumstances of this case, a downward deviation to $150.00 per month is recommended. RECOMMENDATION A. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for the support of his children, Sarah E. Runk, born February 20, 1993, and Larry J. Runk III, born July 4, 1994, the sum of $544.00 per month. B. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as alimony pendente lite the sum of $150.00 per month. C. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit on arrearages the additional sum of $25.00 per month. a See Pa. R.C.P. 1910.16-3. s See Defendant's Exhibit 4. `' See Exhibit "B" for the calculation. D. The Defendant shall provide health insurance coverage for the benefit of his wife and children as is available through employment or other group coverage at a reasonable cost. E. The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for each child and spouse. Unreimbursed medical expenses of the obligee or children that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide documentation of expenses to the other party no later than March 31St of the year following the calendar year in which the final medical bill to be allocated was received. The unreimbursed medical expenses are to be paid as follows: 100% by Defendant and 0% by Plaintiff. F. The Defendant shall be entitled to claim said children as dependency exemptions for federal income tax purposes commencing with tax year 2007, and the Plaintiff shall execute and deliver to the Defendant in a timely manner any and all documents required by the Internal Revenue Code to effectuate said exemption. G. The effective date of this order is February 20, 2007. Date Michael R. Rundle Support Master 6 In the Court of Common Pleas of Cumberland County, Pennsylvania Tax Detail Report Plaintiff Name: Rebecca S. Runk Defendant Name: Larry J. Runk II Docket Number: 131 S 2007 PACSES Case Number: 064108971 Other State ID Number: Tax Year: Current: 2007 ©ofendant Plaintiff 1. Tax Method 1040 ES 1040 ES 2. Fling Status Married Filing Se aratel Single 3. Who Claims the Exem tions Obl i or 4. Number of Exemptions 3 1 5. Monthl Taxable Income $1,941.70 - 6: Deductions Method 7. Deduction Amount $445.83 $445.83 8. Exem tion Amount $849.99 $283.33 9. Income MINUS Deductions and Exem tions $645.88 -$729.16 10. Tax on Income $64.59 - 11.Child Tax Credit $64.59 - 12. Manual Ad'ustments to Taxes _ _ 13. Federal Income Taxes _ _ 13 a. Earned Income Credit _ _ 14. State Income Taxes $61.36 - 15. FICA Pa ments $234.03 - 16. City Where Taxes Apply 17. Local Income Taxes $16.72 - TOTAL Taxes $312.11 - SupportCalc 2007 EXHIBIT "A" In the Court of Common Pleas of Cumberland County, Pennsylvania Spousal Support Calculation Rule 1910.16 (PACSES fORMAT) Plaintiff Name: Rebecca S. Runk Defendant Name: Larry J. Runk II Docket Number: 131 S 2007 PACSES Case Number: 064108971 Other State ID Number: 1. Obli or's Monthl Net Income 2. Less All Other Su ort 3. Less Obligee's Monthly Net Income 4. Difference 5. Less Child Support Obligation for Current Case 6. Difference 7. Multiply by 30% or 40% 8. Income Available for Spousal Support 9. Adjustment for Other Expenses 10. AMOUNT OF MONTHLY SPOUSAL SUPPORT OR APL Prepared by: mrr SupportCa/c 2007 1,483.59 1,483.59 $939.59 30.00% $281.88 1.88 Date: 6/ 5/2007 EXHIBIT "B" N ~ c `L -r~ ~ ;~t ~ .; --~ _ -r: ~ -p ; - ~ ~ ~_ ' _.~ .--