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HomeMy WebLinkAbout93-229 CivilVINCENT CANDIELLO, · IN THE COURT OF COMMON PLEAS OF Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA NO. 93-229 CIVIL SUSAN K. CANDIELLO, Defendant IN DIVORCE SUSAN K. CANDIELLO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. · NO. 215 S 92 - CIVIL DR 19,828 VINCENT. CANDIELLO, · PA CASES 610000026 Defendant · IN SUPPORT IN RE: PETITIONS TO MODIFY ALIMONY AND CHILD SUPPORT ORDER OF COURT AND NOW,~~~--~~~~'~~'s 1999, after careful consideration and pul Opinion date, Wife Susan K. Candiello's petitions to modify child support and alimony are granted. By the Court, Steven Howell, Esquire Thomas J. Williams, Esquire 619 Bridge Street Martson, Deardorff, Williams & Otto New Cumberland, PA 17070 10 East High Street For Wife Susan K. Candiello Carlisle, PA 17013 For Husband Vincent Candiello VINCENT CANDIELLO, IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V, NO. 93-229 CIVIL SUSAN K. CANDIELLO, Defendant IN DIVORCE SUSAN K. CANDIELLO, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 215 S 92 - CIVIL DR 19,828 VINCENT CANDIELLO, : PA CASES 610000026 Defendant :IN SUPPORT IN RE: PETITIONS TO MODIFY ALIMONY AND CHILD SUPPORT OPINION HOFFER, P.J.: In this opinion, we address the petitions to modify child support and alimony filed by Wife, Susan K. Candiello. Husband, Vincent Candiello, and Wife were married in 1971. They are both practicing attorneys. Husband and Wife had four children during the marriage. Two children, Robert and Catherine, are currently over the age of eighteen. Catherine turned eighteen on December 18, 1998. She is a full-time student at Penn State. Prior to that she resided with Husband. The other two minor children, Noele and Michael, live with Wife. The parties were divorced August 15, 1994. Husband has since remarried. He and his current wife have one child, Katelyn. Starting in 1992, the parties have followed numerous support orders issued by this Court. On August 12, 1994, the parties entered into a marital settlement agreement that provided for child support and alimony. Modifications to the agreement were agreed to be pursuant to the support guidelines. In June of 1998 the parties returned to the Cumberland County Domestic Relations Office (hereinafter "DRO") to settle a dispute over child support. Robert, the oldest child, was already emancipated and Wife had petioned the Court to remove Catherine from the support order because she had graduated from high school. At the time, Husband was paying $816.00 per month in child support. After the conference, DRO entered a recommended order of $1241.00 monthly child support to be paid by Husband, effective January 1, 1999, after Catherine turned eighteen. The $816.00 per month payment was to continue until the new order took effect in January. Neither party appealed this order. On September 17, 1998, Wife petitioned the Court for an increase in child support based solely upon Husband's failure to report increases in his regular salary and income that he earned from speaking engagements and lectures from 1996 to the present. Wife asked that the increase be retroactive to 1996. On December 10, 1998, DRO entered a revised child support order, increasing Husband's monthly payment to $1,316.00, retroactive to the filing date of September 17, 1998. The order also provided that Husband's child support obligation would increase to $1,774.00 per month on December 18, 1998, 2 Catherine's eighteenth birthday. Both parties appealed this order. The Court now addresses Wife's petition to modify child support de novo. On January 11, 1999, Wife petitioned this Court to modify alimony paid by Husband. Husband had been paying $1,100.00 per month since August 12, 1994, pursuant to the marital settlement agreement. Wife's petition to modify alimony was consolidated with her petition to modify child support on January 12, 1999. A hearing on both petitions was held before this Court on April 12, 1999. Discussion In this case, Wife is requesting a recalculation of both child support and alimony based upon Husband's alleged failure to report increases in income from his primary employer, Morgan, Lewis & Bockius LLP, and income earned lecturing and speaking. Although Wife filed for modification of child support on September 17, 1998 and modification of alimony on January 11, 1999, she requests that the recalculation be applied retroactive to 1996 due to Husband's willful failure to report his income. Wife also requests attorney's fees and costs for pursuing these modifications. Wife asks that the new support guidelines, effective April 1, 1999, be applied to any orders in effect after April 1, 1999 and that the old guidelines be applied to any amounts due attributable to dates prior to April1, 1999. Husband requests that no recalculation of child support or alimony be applied retroactively beyond the dates Wife filed her petitions. He claims that, although he did not report increases in his Morgan, Lewis & Bockius LLP salary, 3 Wife did not voluntarily report increases in her salary. Also, he claims that his income from lecturing did not constitute a material change of circumstances, allowing the Court to reach back beyond Wife's filing dates. Husband characterizes his lecture income as fluctuating income and claims therefore that the Court should only use the 1998 lecture income (dramatically larger than previous years) to determine a 1999 support order. Husband asserts that any recalculated alimony order should reflect his "child support obligation" due to his youngest child, Katelyn, whose mother is Husband's current wife. He also claims that Wife has an obligation to share in the cost of Catherine's first semester of college, completed before she was eighteen and still under a support order. The law in this case is quite clear. Prior to April 1, 1999, support shall be calculated using Pa. R. Civ. P. 1910.16-5(a). When parties monthly net income exceeds $10,000, the Court may apply the presumptive minimum for support purposes orthe formula set out in Melzer. Pa. R. Civ. P. 1910.16-5(a). The new guidelines, effectiVe April 1, 1999, will be applied to any support awarded starting April 1. Parties are required to accurately report their income, including any material changes in circumstances, to DRO, pursuant to Pa. R. Civ. P. 1910.17(b). If Husband's lecture income is characterized as fluctuating or seasonal income, a yearly average is used to calculate support. Pa. R. Civ. P. 1910.16-5(c)(3). Spousal support will be calculated based upon the obligor's net income less all child support owed all spouses. Pa. R. Civ. P. 1910.16-5(o). If 4 an obligor commits fraud or makes a material misrepresentation of fact, the court may make support orders retroactive beyond an obligee's filing date. Simmons v. Simmons, 1999 WL 16559 (Pa. Super. 1998). Courts have discretion to grant attorney's fees where appropriate. 23 Pa. C.S.A. §4551(a). Upon a thorough reading of the record and all information gathered at the April 12, 1999 hearing, the Court is prepared to set new child support and alimony orders. The Court shall increase both alimony and support due to Husband's failure to report his lecture income. Any increases in income since the last orders were entered shall be taken into account. The new order shall not be retroactive beyond Wife's filing dates of September 17, 1998 and January 11, 1999. Although Husband failed to report both increases in his Morgan, Lewis and Bockius LLP salary and income earned through lecturing, the Court shall not exercise its discretion to apply the changes retroactive beyond Wife's filing dates. The parties have operated under the supervision of DRO since 1992. Any time a modification was made new income figures were provided. During the time Wife claims Husband failed to report salary increases, Wife's income increased and there is no record of her voluntarily reporting the increases. Regarding the lecture income, prior to the dissolution of the marriage, the parties filed joint tax returns that reflected income earned by Husband from lecturing. Wife knew or should have known at an earlier date that Husband earned money lecturing. Also, this Court will not characterize Husband's omission as a misrepresentation of material fact. 5 The Court shall determine both Husband's and Wife's income using W-2s and 1099 forms which reflect gross pay and subtract all withholdings and any additional taxes paid, attributable to the parties. The Court will not apply the Melzer formula to support ordered under the old guidelines because both parties agree that the presumptive minimum will provide a satisfactory result. The yearly total of Husband's 1998 lecture income will be applied to both 1998 and 1999 support because Husband suffers no prejudice in applying the 1998 income to 1998 support because the actual income figures are available. Husband shall be credited with $1200.00 in expenses for both 1998 and 1999, incurred in earning his lecture income. Husband's "child support obligation", he claims he owes Katelyn, will not be included to reduce his spousal support. Husband is under no child support order for Katelyn. He and her mother are married, live together and share the support of Katelyn without court interference. Calculations Child support and alimony shall be recalculated in the following manner, for the following periods: (1) Using the old guidelines, child support shall be determined for the period September 17, 1998 through December 18, 1998. Two minor children resided with Wife and one child resided with Husband. (2) Using the old guidelines, child support shall be determined for the period December 19, 1998 through March 31, 1999. Two minor children resided with Wife and no children with Husband. 6 (3) Using the new guidelines, a child support order will be calculated based upon two minor children residing with Wife and be effective April 1, 1999 until any subsequent order takes effect. (4) Using the old guidelines, alimony will be calculated for the period January 11, 1999 through March 31, 1999. (5) Using the new guidelines, alimony will be determined, become effective April 1, 1999 and remain in effect until a subsequent order is entered or alimony expires, pursuant to the parties' marital settlement agreement. The calculations can be demonstrated as follows (in calculating child support and alimony, all income determinations will be rounded to the dollar and all totals awarded have been pro-rated according to the number of days in each applicable time period): (1) Husband's 1998 Monthly Net Income 1998 gross income: $164,687.98 1998 withholdings and taxes paid: $46,169.53 1998 lecture expenses: $1200.00 1998 net income: $117,318.45 1998 monthly net income: $9776.54 (2) Husband's 1999 Monthly Net Income 1999 Morgan, Lewis & Bockius LLP gross pay raise: $7000.00 1999 gross monthly pay raise: $583.33 7 1999 net monthly raise (gross reduced by 36% tax rate): $373.33 1998 net monthly income: $9776.54 1999 net monthly income: $10,149.87 (3) Wife's 1998 Monthly Net Income 1998 gross income: $44,600.95 (includes contingent bonus) 1998 withholdings and taxes paid: $8014.47 1998 net income: $36,586.48 1998 monthly net income: $3048.87 (4) Wife's 1999 Monthly Net Income 1999 year to date gross income (January, February and March 1999): $11,039.41 1999 year to date withholdings: $2348.58 1999 net earnings: $8690.83 1999 monthly net income: $2896.94 (5) Child Support for September 17 throu.qh December 18, 1998 Husband's monthly net income: $9776.00 Wife's monthly net income: $3048.00 Child support using presumptive minimum for two children residing with Wife: $1576.00 Credit to Husband for one child residing with him: $420.00 Total monthly child support owed Wife: $1156.00 Total child support owed Wife for period: $3522.64 8 (6) Child Support for December 19, 1998 through March 31, 1999 Husband's monthly net income: 1998 :$9776.00-1999:$10,149.00 Wife's monthly net income: 1998:$3048.00-1999:$2896 Total monthly child support owed Wife, using presumptive minimum for two children residing with Wife: $1576.00 Total child support owed Wife for period: $5388.92 (7) Child Support Effective April 1, 1999 Husband's monthly net income: $10,149.00 Wife's monthlY net income: $2896.00 Combined net income: $13,045.00 Basic child support: '$2718.00 Net income as a percentage for Husband: 78% Net income as a percentage for Wife: 22% Husband's share of child support: $2115.00 Wife's share of child support: $603.00 Total child support owed Wife per month: $2115.00 (8) Alimony for January 11, 1999 through March 31, 1999 Husband's monthly net income: $10,149.00 Wife's monthly net income: $2896.00 Difference between monthly net incomes: $7253.00 Husband's child support obligation: $1576.00 Amount used to calculate alimony: $5677.00 9 Multiply $5677.00 by 30% to set alimony Total monthly alimony due Wife: $1703.00 Total alimony due Wife for period: $4559.74 (9) Alimony Effective April 1, 1999 Husband's monthly net income: $10,149.00 Wife's monthly net income: $2896.00 Difference between monthly net incomes: $7253.00 Husband's child support obligation: $2115.00 Amount used to calculate alimony: $5138.00 Multiply $5138 by 30% to set alimony Total alimony due Wife per month: $1541.00 Husband is to receive credit for all amounts already paid to Wife under old orders and agreements. Husband requested that Wife share in the first semester expenses of their daughter, Catherine, while a student at Penn State. Because Catherine was still under a support order because she had not yet turned eighteen, Husband's reqdest is reasonable. Since Husband earned 76% of the parties net monthly income yet paid 100% of Catherine's expenses, he is entitled to a credit from Wife equal to 24% of Catherine's first semester expenses, or $819.00. Any amounts due under the present calculations and order are due immediately.