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HomeMy WebLinkAbout02-0097 SUPPORTHELEN M. MCCURDY, Plaintiff VS. ROBERT L. MCCURDY, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-0097 SUPPORTS PASCES NO. 979104228 DOMESTIC RELATIONS SECTION IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S INTERIM ORDER OF COURT OPINION AND ORDER This matter is before the court on the appeal of the defendant, Robert L. McCurdy, Jr. (hereinafter "father"), from the interim order of court entered on recommendation of the Support Master on May 28, 2002. The father raises two issues: (1) Whether the Support Master erred in applying the methodology set forth in Pa.R.C.P. 1910.16-4(c)(1), rather than (c)(2), to the facts of this case; and (2) whether the Support Master erred in failing to conclude that the amount of time the children spend with their father is equal to or greater than the amount of time they spend with their mother. The father and the plaintiff, Helen M. McCurdy (hereinafter "mother"), were married on September 29, 1989. They separated on December 23, 2000. There were three children born of the marriage: Brittany A. McCurdy, Amanda R. McCurdy, and Benjamin R. McCurdy. On February 13,2001, this court entered a custody order which provided that the parents were to share physical custody of the children. On February 2, 2002, the mother filed for spousal and child support. After a conference on March 21, 2002, the Domestic Relations Officer concluded that the mother was not entitled to the requested support. However, at the Support Master's hearing, on May 15, 2002, the Master determined that the mother, while not entitled to spousal support, was entitled to child support. The father thereafter filed the instant exceptions. 02-0097 SUPPORTS Initially, we should address the weight which the court will accord the Master's findings of fact and his legal conclusions. The reviewing court is not obligated to accept the Master's findings without question: The report of the master is entitled to great consideration in that he has heard and seen the witnesses, and it should not be lightly disregarded. It is advisory only, however, and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome. Acure v. Acure_, 219 Pa. Super. 415,281 A.2d 694, 695 (Pa. Super. 1971). The reviewing court must consider the evidence, its weight and the credibility of the witnesses, de novo. Id. The Master's report is not controlling, either on the lower court or on the appellate court. Id. Rothrock v. Rothrock, 2000 Pa. Super. 412, 415,765 A.2d 400, 404 (2000). At the Support Master's hearing, the father contended that he had custody of the children more than 50% of the time. He made this contention notwithstanding his admission that he only had the children 43% of the overnights. By his computation, the father claimed that, while he had the children for fewer overnights, he has custody of the children for 70.3% of their "waking hours." Based upon this computation, he denies having responsibility for child support. This case requires the application of Pa. R.C.P. 1910.16-4(c). The rule pertains to scenarios in which a "non-custodial" parent has physical custody of the children for a substantial period of time. It provides, in pertinent part: (c) Substantial or Shared Physical Custody (1) The support guidelines contemplate that the obligor has regular contact, including vacation time, with his or her children, and that he or she makes direct expenditures on behalf of the children. When, however, the children spend 40% or more of their time during the year with the obligor, a rebuttable presumption exists that the obligor is entitled to a reduction in the basic support obligation to reflect this additional time. Except as provided in subsections (2) and (3) below, 2 02-0097 SUPPORTS the reduction shall be calculated pursuant to the formula set fort in Part II of subdivision (a) of this Rule. For purposes of this provision, the time spent with the children shall be determined by the number of overnights' they spend during the year with obligor. [Emphasis added.] (2) Without regard to which parent initiated the support action, when the children spend equal time with both parents, the Part II formula cannot be applied unless the obligor is the parent with the higher income. In no event shall an order be entered requiring the parent with the lower income to pay basic child support to the parent with the higher income. However, nothing in this subdivision shall prevent the entry of an order requiring the parent with less income to contribute to additional expenses pursuant to Rule 1910.16-6. Pursuant to either party' s initiating a support action, the trier of fact may enter an order against either party based upon the evidence presented without regard to which party initiated the action. If application of the formula in Part II results in the obligee receiving a larger share of the parties' combined income in cases in which the parties share custody equally, then the Court shall adjust the support obligation so that the combined income is allocated equally between the two households. As the Support Master pointed out, the parties agree that the custody order provides that the father has the children for 156 nights per year (42.74% of the total overnights, to be exact). Based upon this percentage, the Master concluded that subsection (c)(1) applies to the arrangement. The father disagrees. In support of his contention, the father cites Colonna v. Colonna, 788 A.2d 430 (Pa. Super. 2001), wherein the court stated that "[w]hile the support law does not define the term custodial parent, it is commonly understood to mean a parent who acts as the primary caregiver on a regular basis for a proportionately greater period of time... [i]n most instances the Court can easily determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of the time." 788 A.2d at 438-439. Because the court used the phrase "majority of the time," rather than "majority of overnights," the father concludes that he is an equal custodial parent with the mother. According to the custody order, the father has the children on alternate weeks during the school year, aside from Wednesday night which they spend with the mother. The children spend 02-0097 SUPPORTS approximately four hours with the father Monday through Friday--two hours before and after school--during the mother's custodial week. The father claims that this balances out the Wednesday overnight spent with the mother during his custodial week. During the summer, the father has the children for 30 continuous days and the mother has the children for 14 continuous days. During the remaining six weeks of the summer, the parents share weekends equally while, from Monday through Friday, the children are with the father from 7:00 a.m. until 5:30 p.m. and spend the evenings and overnights with the mother. In the end, the fact remains that the mother has the children for 209 overnights out of the year, compared to 156 nights spent with the father. The father contends that Colonna_, Id., stands for the proposition that it is the total hours spent with each parent and not the number of overnights that should be utilized to determine which parent is the custodial parent. Even if we accept his interpretation, the result of this case would not be different. As the Master noted: Even, assuming arguendo, that the father is legally correct that total hours spent with each parent and not the number of overnights spent with each parent should be utilized to determine which parent is the custodial parent or obligee for support purposes, the father has the children in this case a fewer number of hours in his custody than does the mother. The mother has custody of the children not only more overnights per year but also more hours per year. ~ Consequently, the methodology of computing the father's support obligation as set forth in Rule 1910.16-4(c)(1) must be used. ~Plaintif/'s Exhibit 4 correctly shows that during a calendax year of 365 days, or 8,760 hours, the children spend more than half of the total hours in a year with the mother. The father axgues that he has the children more hours that they are awake. However, there is no legal authority that only hours spent awake by the children should count as custodial hours. Support Master's Report and Recommendation, p. 5. 4 02-0097 SUPPORTS While not determinative for the master we note that mother produced evidence that she is the one who pays the recurring and special expenses of the children. It appears only appropriate that she be assisted in this financial undertaking. In conclusion, we accept the Support Master's recommendation that: (1) the plaintiff's claim for spousal support is denied; (2) the defendant shall pay support for his children in the amount of $465.00 per month; (3) the defendant shall pay 45% of unreimbursed medical expenses incurred by the children which exceed $250.00 per year, per child; and, (4) the defendant shall pay $35.00 per month on arrearages. ORDER AND NOW, this day of September, 2002, the exceptions of the defendant to the report of the Support Master in this case are OVERRULED and the interim order of court of May 28, 2002, is herewith made a permanent order of court. BY THE COURT, Steven Howell, Esquire For the Plaintiff J. Paul Helvy, Esquire For the Defendant DRO :rlm Kevin A. Hess, J. HELEN M. MCCURDY, Plaintiff VS. ROBERT L. MCCURDY, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-0097 SUPPORTS PASCES NO. 979104228 DOMESTIC RELATIONS SECTION IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S INTERIM ORDER OF COURT ORDER AND NOW, this day of September, 2002, the exceptions of the defendant to the report of the Support Master in this case are OVERRULED and the interim order of court of May 28, 2002, is herewith made a permanent order of court. BY THE COURT, Steven Howell, Esquire For the Plaintiff J. Paul Helvy, Esquire For the Defendant DRO :tim Kevin A. Hess, J.