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HomeMy WebLinkAbout97-685 SUPPORTROBERTA A. WOLFGANG, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - SUPPORT NO. 685 S 1997 KENNETH K. HOY, Defendant PACSES NO. 647000074 IN RE: EXCEPTIONS TO INTERIM ORDER OF COURT MEMORANDUM AND ORDER This matter came before the support master on the plaintiff' s "Petition for Modification of an Existing Support Order." An increase in the order was sought following "review of the obligation pursuant to new guidelines." At the hearing, the following testimony was elicited by counsel for the plaintiff. Q. Roberta, can you tell me why in February you filed for the modification? A. Okay. The main reason was that Kenneth made me aware that he had won a lawsuit for a personal injury case. Q. Did he tell you how much that lawsuit was, the settlement was that he received? A. Not exactly he didn't. He told me that it was at least $10,000. N.T. 5. During the hearing, the plaintiff adduced testimony concerning the defendant' s income. During that testimony, it became clear that the defendant currently works thirty hours a week at $10.00 an hour. At the very end of the testimony, it was observed, in passing, that the defendant had at one time worked forty hours a week. The plaintiff has filed exceptions to the master' s report contending that it was error for the support master to rely on testimony concerning the defendant's income, which testimony had 685 S 1997 been adduced by the plaintiff. For the plaintiff to now except concerning the very testimony which she adduced is at best disingenuous. The master addressed the issue which the plaintiff had framed; namely, whether an adjustment in the order was warranted based upon a personal injury settlement which the defendant had received. The master, in his order of June 3, 2002, in fact, ably dealt with this matter and there were no exceptions filed in that regard. It is true that the plaintiff also adduced testimony that the defendant had, at least at one point, worked a forty-hour work week. No further discussion of Mr. Hoy's income potential appears in the transcript of the master's hearing. Nor is there any indication that if he were working for forty hours a week it would be at a job which paid him $10.00 an hour. In fact, the record is devoid of any evidence suggesting that if he worked forty hours per week he would be making more money than he is making now. The master may not base his conclusion about earning potential on mere speculation. Neither should this court. The plaintiff also excepts to that portion of the interim order which permits the defendant to claim the child, Alexis J. Hoy, as an exemption for federal income tax purposes. The testimony at the hearing was that Ms. Wolfgang's income consisted of tax-free social security benefits. To the extent that Mr. Hoy received a tax refund, it was added to his income for the purpose of computing his support obligation. Thus, permitting Mr. Hoy to increase his tax refund by claiming the child who is the subject of the order inures to the benefit of the plaintiff. Pa.R. Civ. P. 1910.16-2(f) ["Dependency Tax Exemption"] provides that "in order to maximize the total income available to the parties and children, the court may, as justice and fairness require, award the federal child dependency tax exemption to the non-custodial parent or to either parent in cases of equally shared custody, and order the other party to execute the waiver required by the Internal Revenue Code .... "The master's proposed order in this case clearly maximizes "the total income available" to the parties and the child. 2 685 S 1997 ORDER AND NOW, this day of December, 2002, the interim order of court of June 3, 2002, is affirmed in its entirety and herewith made a final order of court. BY THE COURT, Kevin A. Hess, J. DRO Support Master Family Law Clinic For the Plaintiff Kenneth K. Hoy ROBERTA A. WOLFGANG, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - SUPPORT NO. 685 S 1997 KENNETH K. HOY, Defendant PACSES NO. 647000074 IN RE: EXCEPTIONS TO INTERIM ORDER OF COURT ORDER AND NOW, this day of December, 2002, the interim order of court of June 3, 2002, is affirmed in its entirety and herewith made a final order of court. BY THE COURT, Kevin A. Hess, J. DRO Support Master Family Law Clinic For the Plaintiff Kenneth K. Hoy P. O. Box 356 York Haven, PA 17370