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HomeMy WebLinkAbout93-229 civil (candiello)VINCENT 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: OPINION OF COURT PURSUANT TO PA. R. A. P. 1925 HOFFER, P.J.: This case arises out of the petitions to modify child support and alimony filed by Wife, Susan K. Candiello and Husband, Vincent Candiello. In an order dated July 31, 2000, the Superior Court of Pennsylvania remanded this case to us for further discussion of the issues raised on appeal that were not addressed in our original opinion. Both parties filed statements of matters complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Specifically, Wife expresses the matters complained of on appeal as follows: 1. Whether the trial court erred for failure to award Wife retroactive arrearages for the period of January 1, 1996 through September 17, 1998 pursuant to 23 Pa.C.S.A. §4352(a). 2. Whether the trial court erred for failure to award Wife counsel fees for litigating and uncovering Husband's unreported income pursuant to 23 Pa.C.S.A. §4351.4 Specifically, Husband expresses the matters complained of on appeal as follows: 1. Whether the trial court erred, as a matter of law, by not deducting Husband's child support obligation to his daughter, Katelyn R. Candiello, from his monthly gross income to arrive at his net income in computing the proper amount of spousal support (alimony) to be paid to Wife. 2. Whether the trial court's use of the Pa.R.C.P. 1910.16-4 formula to calculate spousal support or APL violated the equal protection clause of the Constitution of the United States and of the Commonwealth of Pennsylvania where it only deducts from obligor's net monthly income, the amount of obligor's child support obligation to the children of the spouse in question and not obligor's child support obligation to other children. 3. Whether the trial court violated the United States and Pennsylvania's constitutional requirements of equal protection in its application of Pa.R.C.P. 1910.16-4 when it calculated child support without taking into consideration Husband's child support obligation owed to the child of his intact family. 4. Whether the trial court erred, as a matter of law, in its calculation of Husband's monthly net income for both child and spousal support, by not giving credit for the income taxes actually paid by him. 5. Whether the trial court erred, as a matter of law, in its calculation of Husband's monthly net income for both child support and spousal support, by not giving credit for the income taxes he would be required to pay when his 401K contributions were added back into his income. 6. Whether the trial court erred, as a matter of law, in its calculation of Husband's monthly net income for both child support and Statement of Matters Complained of on Appeal, Pursuant to Pa. R.A.P. 1925(b), filed September 28, 999 2 spousal support, by not treating Husband's fluctuating education income of an average annual basis. 7. Whether the trial court erred, as a matter of law, in its calculation of Wife's monthly net income for both child support-and-spousal support, given that it reduced her income from that amount which was the subject of an earlier final order and from which there was no petition filed alleging any change in circumstances or material or substantial nature. 8. Whether there was substantial evidence in the record justifying the trial court's calculation of Wife's monthly net income as if she were fully employed. 9. Whether the trial court erred, as a matter of law, by not giving credit to Husband for the premiums he paid for medical expenses for the children covered by the suP2POrt order in its calculation of child support and spousal support. Wife's Statement of Matters Complained of On Appeal With respect to Wife's request for retroactive arrearages, we have addressed this issue in our original opinion; thus, we need not discuss it further. Additionally, although we briefly referred to our denial of Wife's counsel fees, we will further address the issue below. Wife's claim for an award of counsel fees In regard to Wife's request for entitlement of award of counsel fees, the general rule regarding counsel fees in support actions is when it appears that either party or both parties are financially able to pay costs and fees, the court may impose the costs and fees on either party or both parties. 23 Pa.C.S.A §4351(a). There is no specific statutory authorization for the imposition of 2 Statement of Matters Complained of on Appeal, Pursuant to Pa. R.A.P. 1925(b), filed October 15, 1999. 3 attorneys' fees in support cases, neither is there specific statutory prohibition of such awards when sanctions in the nature of counsel fees may be imposed for inappropriate behavior. See O'Connell v. O' Connell, 409 Pa. Super-. 25, 33, 5,97 A.2d 643, 647 (1991). Additionally, courts have discretion to grant attorney's fees where appropriate. 23 Pa.C.S.A. §4551(a). It is the decision of this Court not to grant Wife attorneys' fees. There has been no showing that Wife's attorney's fees have been out of the ordinary in seeking to modify child support and/or alimony. In addition to her employment income, Wife has received, and is continuing to receive, sufficient child support and alimony from Husband to be able to pay her attorney without undue hardship, and there is no basis for this court to exercise any discretion in granting attorneys' fees. Husbands Statement of Matters Complained of On Appeal Husband's claim of a child support obligation to the dauqhter of his current wife Although we discussed this matter in our original opinion, we will further discuss the issue. Husband contends that his obligation to his daughter, Katelyn R. Candiello, should be deducted from his monthly gross income to arrive at his net income. However, pursuant to uniform statewide guidelines, an obligation to support daughter of current intact marriage is not a permissible deduction of monthly gross income to arrive at net income. Pa. R.C.P. 1910.16-2(c). Additionally, Husband is not separated from his second wife. In 1996 and 1997 Husband's current wife earned in excess of $60,000.00 and is obviously capable 4 of providing support for one minor child. 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. Moreovero:,.he a.nd Katelyn's mother are married, live together, and share her support without court interference. Husband claims calculation of the Pa.R.C.P. 1910.16-4 violates equal protection Husband claims that the use of the Pa.R.C.P. 1910.16-4 formula to calculate spousal support or APL violates the equal protection clause of the Constitution of the United States and of the Commonwealth of Pennsylvania. This claim is without merit in law or fact. The case cited by Husband, Curtis v. Kline, 542 Pa 249, 666 A.2d 265 (1995), specifically states that the equal protection clause does not prohibit the Commonwealth from classifying individuals for the purposes of receiving different treatment. Additionally, a classification, though discriminatory, is not arbitrarily in violation of the equal protection clause if facts reasonably can be conceived to sustain the classification. In the present case, Husband seeks to be treated as though he were separated and paying child support to his second wife, as well as paying alimony and child support to Wife, his first wife. This is patently illogical since he is not separated nor is he paying child support to his second wife. Obviously, the Commonwealth has the right to classify a man differently if his second family is intact. 5 Husband claims a credit for income taxes paid by him This claim is without merit. In determining his 1998 monthly net income, $46,169.53 in withholdings and taxes has been deducted from his-1998 gross income. In 1999, he received a gross monthly pay raise of $583.33. Accordingly, this raise was taxed at the appropriate marginal tax rate of 36%. Upon payment of taxes, his net monthly raise was $373.33. Thus, in calculating his monthly net income, he has been given an additional $210.00 credit each month in determining his 1999 monthly net income. With this determination, it is clear that Husband was given credit for the income taxes actually paid by him in 1998 and 1999. With respect to Husband's 401K contributions in the calculation of his monthly net income, he claims he should be given credit for the income taxes he would be required to pay when his 401K contributions were added back into his income when calculating net monthly income. It is well-settled that support guidelines systematically determine what items the court shall deduct from monthly gross income to arrive at net income. Pa.R.C.P 1910.16-2(c). Monthly net income is determined by deducting federal, state, and local income taxes, social security taxes, and non-voluntary retirement payments, union dues, and alimony paid to the other party from monthly gross income. Pa. R.C.P. 1910.16- 2(c)(1). It is obvious that an income tax deduction on a 401K contribution, as a voluntary retirement fund contribution, is not a permitted deduction under the support guidelines. 6 Husband claims educational monthly income be based on averaqe annual basis With respect to Husband's request for his lecturing to be termed seasonal, and therefore be based upon a yearly average, we have addressed-this.issue, in our original opinion, thus we need not discuss it further. Husband claims miscalculation of Wife's monthly net income Husband claims that the Court erred in its calculation of Wife's monthly net income, given that it reduced her income from the amount which was the subject of an earlier final order. Additionally he argues that there was substantial evidence justifying the calculation Wife's monthly net income as if she were fully employed. Under Pa.R.C.P 1910.16.2(d): Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to a 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. The record shows that Wife is a practicing attorney who is employed full time with Lowell Gates and Associates and earns over $40,000.00 annually. Her employment with Lowell Gates and Associates has an annual billing requirement, which she exceeds. She is also in the process of starting a mediation business. Because of these factors, it is the decision of this Court that Wife is meeting her earning capacity requirement and is fully employed for the purpose of calculating her monthly net income. 7 Husband claims credit for medical expenses Husband claims the court erred by not giving credit to him for the premiums he paid for medical expenses for the children covered by-th.e._suppo, rt order in its calculation of child support and spousal support. It is well settled that a party's payment of a premium to provide health insurance coverage on behalf of the other party or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it. Pa.R.C.P 1910.16(b)(1). Therefore, Husband is not entitled to a credit. 8