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HomeMy WebLinkAbout96-634 civilJOAN F. GWIRTZ, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 96-634 CIVIL TERM STEVEN E. GWIRTZ, : Defendant : CIVIL ACTION IN RE: DEFENDANT'S APPEAL OF SPOUSAL SUPPORT ORDER OF THE COURT AND NOW, ~ I ~ ,1998, after careful consideration of both parties' briefs, Defendant's appeals am denied. By the Court Jacqueline M. Vemey, Esquire 44 South Hanover Street Carlisle, PA 17013 Attorney for the Plaintiff Robert L. O'Brien, Esquire 17 West South Street Carlisle, PA 17013 Attorney for the Defendant JOAN F. GWIRTZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 96-634 CIVIL TERM STEVEN E. GWIRTZ, : Defendant : CIVIL ACTION IN RE: DEFENDANT'S APPEAL OF SPOUSAL SUPPORT OPINION OF THE COURT HOFFER, P.J.: Joan F. Gwirtz ("Wife" or "Plaintiff") separated from her husband, Steven E. Gwirtz ("Husband" or "Defendant"). Plaintiff filed for spousal support during this separation. On July 10, 1996, a temporary order was entered by agreement that Defendant must pay her $300.00 per week, pending a final heating. On August 7, 1996, a final order was entered finding Plaintiff's monthly earning caPacity to be $866 per month, and Defendant was required to pay her $370.00 per week in spousal support. In mid-October, Defendant had a heart attack which prevented him from maintaining a second job which he held on the weekends. In order to account for this change, a third order was entered on December 10, 1996, ordering the Defendant to pay 'the Plaintiff $292.00 per week in support. Defendant appealed that final order.. Because of various procedural delays initiated by one side or the other, the hearing de novo (started in Court on January 7, 1997), was not finally concluded until March 1998. Defendant presents two issues for our review. First, Defendant claims that Plaintiff has an eaming capacity over the amount stated by the conference officer. 96-634 CIVIL TERM Second, Defendant claims that his income has been overstated by the conference officer for the latter two orders. We now address these issues. Under Pennsylvania law, the moving party has the burden to prove entitlement to spousal support. Strawn v. Strawn, 664 A.2d 129 (1995). The standard for setting earning capacity is found in Pa. Rules of Civil Procedure: Income Potential. Ordinarily, a party who wilfully fails to obtain appropriate employment will be considered to have an income equal to the party's earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. Pa. R. Civ. Pro. 1910-16(c)(5). Furthermore, the courts have found that a person's eaming capacity is "not an amount which the person could theoretically eam, but that amount which the person could realistically earn under the circumstances considering his or her age, health, mental and physical condition and training.' Adams v. Adams, 563 A.2d 913 (1989). The Plaintiff is a licensed practical nurse and has also worked in a day care center and as a managed care representative. Plaintiff currently claims that she has little eaming capacity because she is under the care of both a psychiatrist and a psychologist and on depression medication. Additionally, Plaintiff claims she was told by a doctor that she should not lift heavy objects. 96-634 CIVIL TERM Plaintiff is 52 years old, has an education and training along with a great deal of work experience. She has worked in the past and has no child care responsibilities since her children have all reached the age of maturity. Although Plaintiff may not be able to work as a licensed practical nurse due to her medical conditions, nevertheless, there is nothing preventing Plaintiff from obtaining a job which would pay at least minimum wage. There are many job opportunities which would not require Plaintiff to lift heavy objects or to twist and turn her back. Additionally, Plaintiff's education and work experience will help her in finding employment. Furthermore, based on the deposition given by her nephew, Stephen Bartosic, Plaintiff has had the opportunity to work but simply chooses to stay at home. Based upon the above reasons, the Court finds that Plaintiff has ample ability to eam minimum wage and therefore has the earning capacity appropriate as to what DRO assigned her. The second issue which Defendant presents is that his income was incorrectly determined by the Conference Officer. In reviewing the record, we determine that the conference officer did correctly determine the appropriate incomes for the pedods in question and defendant's appeals are dismissed. 3