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Home My WebLink About94-1038 supportGREGORY R. OTTO, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA PACSES CASE NO. 291000068 SUSAN J. HARTMAN, DEFENDANT : 1038 SUPPORT 1994 IN RE: PETITION TO MODIFY CHILD SUPPORT BEFORE BAYLEY, J, ORDER OF COURT AND NOW, this. 11 ~' day of January, 2000, the Rule to show cause entered against Gregory R. Otto on November 17, 1999, IS DISMISSED. The stay of proceedings entered in the same order, IS DISMISSED. The petition for modification of the existing child support order is referred for a hearing before a Domestic Relations Officer. Edgar B. Bayley, J. Marcus McKnight, Esquire / For the Plaintiff Wayne F. Shade, Esquire For the Defendant Amy Ickes, Domestic Relations Officer :saa GREGORY R. OTTO, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. PACSES CASE NO. 291000068 SUSAN J. HARTMAN, DEFENDANT : 1038 SUPPORT 1994 IN RE: PETITION TO MODIFY CHILD SUPPORT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., January '1'1, 2000:-- Plaintiff Gregory R. Otto and his former wife, defendant Susan J. Hartman, are the parents of Trevor Otto, age sixteen, born May '11, 1983. Trevor lives with his father. Custody issues involving the child, for which there has been considerable litigation, have been contentious much to the discredit of the parents. In 1996, when the parties were separated, Trevor and his parents were consulting with a psychologist to deal with Trevor's alienation from his mother which each parent maintained was caused by the conduct of the other parent. The effort to alleviate the alienation was not successful and the intervention by the psychologist ended. Shortly thereafter a hearing was conducted on a petition by the father to increase child support paid for Trevor by the mother, which at that time was $277 per month. On October 30, '1996, the parties entered into an "Agreed Order Of Court" that reduced rather than increased the child support. The order provided in pertinent part: Plaintiff's monthly net income is $2,738.00, and Defendant's monthly net '1038 SUPPORT 1994 income is $2,405.00. It is hereby ordered that the Defendant pay to the Domestic Relations Section, Court of Common Pleas, $139.00 per month payable $32.00 per week effective October 4, 1996 .... The parties agree to reduction of current order with no additional increases throughout case provided custody arrangement remains the same. Parties agree to share orthodontic expenses equally. (Emphasis added.) On October 29, 1999, the father filed a petition to increase the $139 per month child support The mother filed a petition to dismiss the father's petition on the basis of the agreement of the parties as set forth in the order of October 30, 1996, that there would be "[n]o additional increases throughout case provided custody arrangement remains the same." A Rule was entered against the father to show cause why the relief requested by the mother should not be granted and the proceeding was stayed. At a hearing on the Rule on December 29, 1999, the mother offered to prove that the father has continued to alienate Trevor from her and that she now sees the child for fewer periods than she had been seeing him in the last few years. In her brief the mother argues that "[w]here the conduct of the father has exposed [her] to the pain of the refusal of her son to visit with her other than upon his terms she should not be doubly penalized by the imposition of a support increase; and the conduct of the father should not be correspondingly rewarded." The mother, further noting that the father in his answer to the Rule, averred that he would "[p]lace any increase in support in a separate interest bearing account for use by Trevor for college or post high school expenses," maintains that the father is not in need of additional child support and that the petition should therefore be dismissed. The father offered to prove that the mother -2- 1038 SUPPORT 1994 is the cause of her continuing estrangement with Trevor. He maintains that such estrangement, no matter what the cause, and his own gratuitous willingness to apply any increase in the amount of support toward the child's college or post high school expenses, do not constitute a legal basis to dismiss his petition to increase the child support. None of the offered testimony is relevant. Even if we were to find that the father has wrongfully interfered with the mother's contact with Trevor, his misconduct in doing so does not destroy her duty to support Trevor. Commonwealth ex tel. Mickey v. Mickey, 220 Pa. Super. 39 (1971). Although the father is obviously not a man of his word as he seeks to breach is own agreement, the law provides that, despite an agreement of parents to the contrary, a child support order may be modified upward based on the unavoidable obligation that a parent owes to meet the reasonable needs of a dependent child. See McMichael v. McMichael, 700 A.2d 1337 (Pa. Super. 1997). The mother does not cite any authority to negate the right of the father to seek a modification of the amount of child support. She does cite some general language in Oeler v. Oeler, 527 Pa. 532 (1991), to the effect that although the duty to support a minor child is absolute, in awarding child support a court must be cognizant of its purpose which is to promote the best interest of the child. In Oeler, a father paid support for a seventeen-year-old daughter who lived with the mother. With the consent of the mother, the child moved into her own apartment. The father was willing to have his daughter live with him while she completed her last year of high school but the -3- 1038 SUPPORT 1994 da',.~ht~r objected. The trial court terminated the father's child support but the Superior Court of Pennsylvania reversed. The Supreme Court of Pennsylvania reversed the Superior Court and reinstated the termination order of the trial court. The Supreme Court stated t~at the father was not refusing to support his daughter, rather he was refusing to allow her to dictate the proper allocation of support monies. Finding that the daughter offered no justifiable reason for not living with the father, the Supreme Court held that when the daughter left the parental home voluntarily, the father was under no obligation to pay child support. By contrast, in the case sub judice, Trevor is a dependent child living in the home of his father. Nothing in Oeler supports the position of the mother.' Nor does the father's avowed purpose to apply any increase in child support directly to the benefit of Trevor warrant dismissal of his petition to seek an increase in that support. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this ~ C"¢"-- day of January, 2000, the Rule to show cause entered against Gregory R. Otto on November 17, 1999, IS DISMISSED. The stay of proceedings entered in the same order, IS DISMISSED. The petition for modification of ' Pa. Rule of Civil Procedure 1910.16-4(c)(1) provides that when "[t]he children spend 40% or more of their time during the year with obligor, a rebuttal presumption exists that the obligor is entitled to a reduction in the basic support obligation to reflect this additional time .... 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." -4- 1038 SUPPORT 1994 the existing child support order is referred for a hearing before a Domestic Relations Officer. By the Court~? Edgar B."~a~/ley, Marcus McKnight, Esquire For the Plaintiff Wayne F. Shade, Esquire For the Defendant Amy Ickes, Domestic Relations Officer :saa -5-