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HomeMy WebLinkAbout90-1158 supportHOLLY DONSBACH, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. KEVlN P. SHARY, DEFENDANT 1158 SUPPORT 1990 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., April 25, 2000:-- Plaintiff, Holly L. Donsbach, single and age 28, instituted a support action against defendant, Kevin P. Shary, single and age 38, for the support of their daughter, Alana Shary, age 9, born May 31, 1990. Hearings were conducted in this court on January 10 and February 7, 2000. An order was entered on February 14, 2000, with support guideline computations, requiring defendant to pay child support for Alana of $225.43 per month between July 15, 1999 and December 31, 1999, and $224.64 per month from January 1, 2000.4 Defendant filed a direct appeal to the Superior Court of Pennsylvania. He has filed a concise statement of matters complained of on appeal for which we will review his assignments of error seriatim. I. The trial court abused its discretion by making an award of support to appellee. For defendant, as the father of Alana, to claim that he has no duty to support his ~ A copy of the court order and support guideline computations are attached to this opinion and made a part hereof. 1158 SUPPORT 1990 child is frivolous. Under Pa. Rule of Civil Procedure 1910.16-4(c), based on the amount of time he has Alana pursuant to a custody order, an appropriate adjustment was made to his support obligation. Defendant does not have to contribute toward medical insurance for Alana because such insurance is provided at no charge to the mother by her employer. II. The trial court abused its discretion by calculating the amount of support to be paid by appellant based on appellant's earning capacity. Defendant testified that he started a business in Harrisburg, Harman's Coins, in 1998. Before that he had operated an upholstery and drapery business for approximately twelve years. He testified, without any supporting documentation, that "1 think the best Year I had I made $15,000 or something." When defendant appeared at the hearing on January 10, 2000, he did not bring any business records supporting what he said were his earnings of approximately $1,000 a month. Defendant was ordered to appear at a second hearing with documentation as to his income. When he appeared on February 7, he brought a draft of a proposed federal 1040 schedule C, Profit or Loss From Business, for Harman's Coins for 1999. That document lists gross receipts of $233,536.99, gross profit of $26,776.71 and net profit before taxes of $10,132.44. He further testified that for the month of January, 2000, he estimated his income at "probably any where's" from $800 to $1,000. Defendant lives in a townhouse that he owns for which he has a mortgage of $530 per month and approximately $100 in utilities for a total of $630 per month. He -2- 1158 SUPPORT 1990 purchased a second car, a 1990 Jaguar, in 1999 for $11,000 in cash. He testified that approximately three-fourth of that money came from his business and one-fourth came from his father. He testified that he paid $2,000 in cash for a custody evaluation in 1999, of which about three-fourth came from his business and one-fourth from his father. He testified that his general expenses amount to about $125 per month, and that he is getting financial help from his father. However, he did not call his father as a witness to support his testimony. Where actual earnings do not reflect earning capacity a court shall set a support obligation based on earning capacity. Commonwealth ex tel. Maier v. Maier, 274 Pa. Super. 580 (1980). To operate a cash generating business with gross receipts of $233,536.99 and report a net profit of $10,132.44, or $844.37 before taxes, yet purchase a Jaguar automobile for $11,000 in cash, three-fourth of which he says was his money, and pay for a custody evaluation for $2,000 in cash, three-fourth of which he says was his money, and have $630 per month in expenses for his townhouse excluding his personal expenses all on an income of close to a minimum wage, is not credible.2 We are free to believe all of part of or none of a witness's testimony. Smith v. Penbrid~le Associates, Inc., 440 Pa. Super. 410 (1995). Defendant's lifestyle, his large cash generating business, and his expenditures support an inference that he is taking more money out of his business than he has chosen, without supporting records, 2 A minimum wage of $5.15 per hour for a 40-hour week provides a gross monthly income of $892 and net monthly income of $745. -3- 1158 SUPPORT 1990 to disclose. See United States v. Mounkes, 204 F.3d 1024 (2000). Under these circumstances, weighing all of the evidence and the reasonable inferences to be drawn therefrom, we are satisfied that we appropriately ascribed a monthly net earning capacity to defendant of $1,500. III. The trial court abused its discretion by making an award of support based on appellant's earning capacity without setting forth on the record an explanation as to how it was determined. Pa. Rule of Civil Procedure 1910.16-5(a) provides: If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation. The amount of support did not deviate from the support guidelines. There was no error in entering an order with supporting guideline computations. IV. The trial court abused its discretion by making an award of support without consideration of appellee's earning capacity. The mother works full-time as a nurse/counselor at Gaudenzia. From July 15, 1999 to December 31, 1999, she was netting $1,794 per month. She received a raise at the beginning of the year to a net of $1,816 per month. The evidence is that she is working to her earning capacity. V. The trial court abused its discretion in failing to consider as part of appellee's income monthly financial assistance from others. -4- 1158 SUPPORT 1990 The father and the mother, not "others" have a duty to support Alana. There was no evidence of any income to mother, other than from her employment at Gaudenzia, that under the law woul6 require inclusion in the calculation of her duty to support Alana. VI. The trial court abused its discretion in failing to order appellee to share in the cost of parochial school tuition. Not a single word regarding parochial school or any costs for such schooling was uttered at either of the hearings on January 10 or February 7, 2000. The court cannot abuse its discretion in failing to consider something that it knows nothing about. Defendant's failure to raise such an issue at trial constitutes a w~e~, ? Date Edgar B. B~yl(~, ~ _ Michael R. Rundle, Esquire Special Counsel for DRO Kevin P. Shary, Pro se 2442 Duke Street Harrisburg, PA 17104 :saa -5-