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HomeMy WebLinkAbout272 S 1996 LINDAM. KESSLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO. - 272-S-96 MICHAEL L. BUFFINGTON, Defendant PACSES CASE NO. 370000056 IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT AND RECOMMENDA TIONS BEFORE EBERT. J. ORDER OF COURT AND NOW, this 15th day of March, 2007, upon consideration of Defendant's Exceptions to the Support Master's Report and Recommendations, and for the reasons stated in the accompanying opinion, IT IS ORDERED: (1) The Exceptions of Michael L. Buffington are DISMISSED. (2) The interim order entered on December 5, 2006, IS MADE FINAL. BY THE COURT, M. L. Ebert, Jr. 1. Michael R. Rundle, Esquire Support Master Linda M. Kessler 19 Willow Street Marysvi1le, P A 17053 Darrell C. Dethlefs, Esquire Attorney for Defendant J.D. 58805 2132 Market Street Camp Hill, P A 17011 LINDAM. KESSLER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO. - 272-S-96 MICHAEL L. BUFFINGTON, Defendant PACSES CASE NO. 370000056 IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT AND RECOMMENDA TIONS BEFORE EBERT. J. OPINION and ORDER OF COURT Ebert, J., March 15,2007-- In this child support case, Defendant Michael L. Buffington filed a petition for modification of an existing support order entered September 27, 2005. A hearing was held before the Support Master and an Interim Order was entered based upon the Master's Report and Recommendations. 1 Defendant filed exceptions to the Support Master's Report and Recommendations.2 For the reasons stated in this opinion, Defendant's exceptions to the Master's Report and Recommendations are dismissed. STATEMENT OF FACTS Plaintiff Linda M. Kessler and Defendant Michael L. Buffington are the parents of Mitchell L. Buffington, born May 20, 1993? The parties have a shared custody arrangement whereby Defendant has physical custody of his son 43% of the time. By order dated September 27, 2005, Defendant was responsible for providing $480.00 per month in child support. At the time of the entry of the September 2005 support order, Defendant was employed as a mortgage 1 Notes of Testimony 1 Hr' g., Dec. 4, 2006, (hereinafter NT _); Interim Order of Court, Dec. 5, 2006. 2 See Plaintiff's Support Exceptions, filed Dec. 20, 2006. 3 NT 3 loan officer for American Home Mortgage ("AHM")4 and had a net monthly income of $3,474.60.5 ARM terminated Defendant's employment in September 2005 due to lack of production.6 Defendant received unemployment compensation in the amount of$478.00 per week through April 2006.7 Defendant made good faith effort to obtain alternative employment in the mortgage lending business,8 a field in which he has worked for approximately 17 years,9 but was unable to secure a new position until October 1, 2006. Defendant is currently employed by Chase Bank. 10 He lives with his wife, who is a waitress,11 and they annually file a joint marital tax return. 12 Plaintiff Linda M. Kessler, has also remarried, and, in addition, to her son with Buffington, has two minor children with her current husband (ages 3 1Iz and 7 months). Plaintiff was previously employed as a waitress, 13 but left the position voluntarily and is now a stay-at- home mother to her young children. 14 Plaintiff and her husband file a joint marital income tax return claiming three children as dependents. Plaintiff s husband produces a net income of $80,000-$100,000 annually. 15 After hearing the testimony of the two parties and evaluating all submitted evidence, the Support Master issued his Report and Recommendation 16 which the Court then accepted in issuing the following order: 17 4 NT 4 5 NY 7 6 NT 4 7 NT 5 8 NT 8 9 NT 4 10 NT 5 11 NT 10 12 See Tax Detail Report. Master's Ex. A. 13 NT 11-12 14 NT 13 15 NT 14 16 See Support Master's Report and Recommendation, filed Dec. 4,2006. 17 See Interim Order of Court, filed Dec. 5, 2006. 2 A. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his child, Mitchell L. Buffington, born May 20, 1993, the sum of$363.00. B. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of$22.00 per month on arrearages. C. Both parties shall attempt to provide health insurance coverage for the benefit of said child as is available through employment or other group coverage at a reasonable cost. D. The Defendant shall pay 75% of the unreimbursed medical expenses incurred by said child as that term is defined in Pa. RC.P. 1910. 16-6(c). E. The effective date of this order is May 5, 2006. Defendant has now timely filed exceptions to the Support Master's Report and Recommendations. Defendant's exceptions are summarized as follows: 18 1. Defendant objects to the Interim Order of the Court issued December 5, 2006. 2. Defendant objects to the reasoning employed in the Discussion section of the aforementioned Interim Order. 3. Defendant objects to the characterization that he only sought a reduction in his child support obligation once his unemployment compensation benefits had expired. 4. Defendant objects to the Support Master's finding that Pa. RC.P. 1910.16-2(d)(2) does not entitle Defendant, at this time, to an appropriate downward adjustment of his support obligations. DISCUSSION Scope of Review As a general rule, unless the testimony and evidence provide grounds upon which the Master's finding of credibility can be impeached, the Court will give his conclusions the fullest consideration. Foca v. Foca, 97 Dauph. 302 Pa.Com.Pl. (1975); See also Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988). However, the reviewing Court is not bound to the Master's Report and Recommendation, Tagnani v. Tagnani, 439 Pa. Super. 596, 18 See Defendant's Exceptions to the December 5, 2006 Interim Order of Court; filed Dec. 20,2006. 3 600, 654 A.2d 1136, 1138 (1995), and has the duty to make a complete and independent review of all the evidence in establishing whether the Master's evaluation of the testimony and evidence was credible, Gomez v. Gomez, 11 Phila. Co. Rptr. 22, 226-27 (1984). Exceptions to the Master's Report and Recommendation The law is clear that both parents must contribute to the support of their children in concordance with their respective incomes and abilities. Depp v. Holland, 636 A.2d 204 (Pa. Super. 1994). The determination of a parent's ability to pay focuses, not on the actual earnings of the parent, but rather on the parent's earning capacity. Mooney v. Doutt, 1776 A.2d 1271 (Pa. Super. 2001). The earning capacity of a party is the amount that an individual can realistically be expected to earn based upon that individual's age, health, physical and mental condition, and training. Riley v. Foley, 783 A.2d 807 (Pa. Super. 2001). Considering the substantial income previously generated in his position as a mortgage loan officer, it is clear that Defendant has significant earning capacity. Defendant was seeking employment as a mortgage loan officer, but having no luck in obtaining a position at that time, when he filed the Petition for Modification on May 5,2006. Since he was generating no income, the Defendant could not be held to the earning capacity of a mortgage loan officer as there were no positions available to him in that field. However, this setback did not totally diminish Defendant's earning capacity. The Master reasonably estimated that Defendant could earn $12 an hour in a temporary position utilizing his 18 years of experience in the workplace. In light of such other factors as Plaintiffs earning capacity as a stay-at-home parent, Plaintiffs husband's income, the fact that both parties file joint marital tax returns and the aspect of shared custody of the child, the Master found that Defendant should receive a downward adjustment to $360.00 per month in child 4 support obligations. This Court agrees with this assessment as a credible reflection of the parties' earning capacities and abilities to support their child. Defendant's argument regarding the applicability ofPa. RC.P. 1910. 16-2(d)(2) is untimely. The Master admitted that Defendant's previous unemployment would have warranted a downward adjustment in his support obligations pursuant to Pa. RC.P. 1910. 16-2(d)(2). However, the Defendant did not previously attempt to modify his support obligations, despite his reduced income; and now in light of his newfound employment, the downward adjustment provided in Pa. RC.P. 1910. 16-2(d)(2) is no longer applicable. At the time of the hearing on December 4,2006, the Defendant had only been in his new position for approximately 9 weeks. It appears clear from the record that the Defendant was working regularly at this new employment, and was anticipating earnings as a mortgage loan officer. The mere fact that the Defendant had not earned a commission in his first nine weeks of employment does not negate the Master's conclusion that the Defendant has a realistic earning capacity of$12.00 per hour based on his age, health, training, and physical and mental condition. For the Defendant to accept the new job with Chase Bank in his chosen field supports the fact that even the Defendant recognizes that he has "earning capacity". The Defendant did receive a downward adjustment to $360.00 per month in child support. The Defendant has now obtained employment as a mortgage loan officer, a field he has worked in for over 17 years, and it must be presumed that he did so with the anticipation that he would earn an income commensurate to his skills. It cannot, therefore, be said that the Master erred in determining that the current $363.00 per month support obligation should remain in effect at this time pending future modification at the request of either party. Should his reduced income situation not improve over time, he may then present such evidence to the Master. 5 CONCLUSION Having considered the testimony and evidence presented by both parties, this Court finds that the Master's Findings of Fact and Recommendations are credible and should be awarded the fullest consideration. Defendant's exceptions to the Master's Report and Recommendations will be dismissed and the current Interim Order of Court shall be made final. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 15th day of March, 2007, upon consideration of Defendant's Exceptions to the Support Master's Report and Recommendations, and for the reasons stated in the accompanying opinion, IT IS ORDERED: (1) The Exceptions of Michael L. Buffington are DISMISSED. (2) The interim order entered on December 5, 2006, IS MADE FINAL. BY THE COURT, M. L. Ebert, Jr. 1. Michael R. Rundle, Esquire Support Master Linda M. Kessler 19 Willow Street Marysvi1le, P A 17053 Darrell C. Dethlefs, Esquire Attorney for Defendant J.D. 58805 2132 Market Street Camp Hill, P A 17011 6