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HomeMy WebLinkAbout888 S 2006 CONSTANCE C. SALVATORE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOMESTIC RELATIONS SECTION PACSES NO. 168108673 RAYMOND D. BOGARDUS, JR, Defendant NO. 06-888 SUPPORT IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 22nd day of March, 2007, upon consideration of Defendant's exceptions to the Support Master's Report, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order of court dated February 2, 2007, is entered as a final order. BY THE COURT, 1. Wesley Oler, Jr., 1. Michael R Rundle, Esq. Support Master Constance C. Salvatore Suite 102 810 Charlotte Way Enola, P A 17025 Plaintiff, pro Se Raymond D. Bogardus, Jr. 214 Bailey Street New Cumberland, PA 17070 Defendant, pro Se CONSTANCE C. SALVATORE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOMESTIC RELATIONS SECTION PACSES NO. 168108673 RAYMOND D. BOGARDUS, JR, Defendant NO. 06-888 SUPPORT IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., March 22,2007. In this child support case involving one child in the custody of his maternal grandmother, the grandmother filed a complaint for child support against the father. Following a hearing held by Michael R Rundle, Esq., Cumberland County Support Master, the Master issued a report recommending that Defendant's support obligation for the child be set at $387.00 per month, plus $23.00 per month for arrearages.1 An interim order to this effect was thereafter entered.2 For disposition at this time are exceptions to the Support Master's Report, filed pro se by Defendant. The exceptions provide as follows: 1. When the Support Master (Michael R. Rundle) asked Constance how much she was asking for, she said that the Defedant was paying her daughter $38 to $40 dollars a week, but since he is getting older she wouldent mind $50 dollars a week. Then I was asked how much I think I can afford. Thinking that $50 dollars a week wasent that much more then what the Defendent (I, Raymond D. Bogardus Jr.) was paying the mother of my child. (Christopher Weary) I told him I guess I have to pay what you tell me. 2. He also asked the Plaintiff (Constance C. Salvatore) why she was not filing a complaint on her daughter. She said because she provides health insurance coverage on him, and also gives her $40 dollars a week. How does she pay $40 dollars and I (Raymond D. Bogardus Jr.) pay $90 dollars a week? Shouldnet it be 50/50 she only makes $40 dollars less a week then I do. 3. I the Defendent (Raymond D. Bogardus Jr.) was given an income and expense statement to fill out. It was never brought up. You allready know how much 1m 1 Support Master's Report and Recommendation, filed January 17, 2007 (hereinafter Support Master's Report). 2 Order of Court, January 17, 2007. making by how much I get per hour. But was never asked of my expenses - car payment $496.25 a month, car insurance little over $300.00 a month, fuel $40.00 a week, $300.00 a month for rent to help my 70 some year old parents to help with bills and food. That leave me $339.75 (approxametly) a month, not counting toothpaste ext., and I'm ordered to pay $387.00 a month, how can I afford that? Ability to pay Depp v. Holland. 636 A.2D 204 (Pa.Super. 1994)? For the reasons stated in this opinion, Defendant's exceptions to the Support Master's report will be dismissed, and the interim order of court dated February 2, 2007, will be entered as a final order. STATEMENT OF FACTS Plaintiff is Constance C. Salvatore (hereinafter Plaintiff or the grandmother), an individual residing at Suite 102, 810 Charlotte Way, Enola, Cumberland County, Pennsylvania 17025.4 Defendant is Raymond D. Bogardus, Jr. (hereinafter Defendant or the father), an individual residing at 214 Bailey Street, New Cumberland, Cumberland County, Pennsylvania 17070.5 Plaintiff is the maternal grandmother and Defendant is the father of Christopher Weary (d.o.b. June 8, 1989) (hereinafter the child).6 The child lives with the grandmother.7 The name and precise address of the child's mother do not appear in the evidentiary record. On October 12, 2006, the grandmother filed a complaint for child support against the father with respect to the child.8 A support master's hearing on the complaint was held on January 17, 2007. At the hearing, the grandmother testified that the child had resided with her since July of 2006, when the child's mother moved to Camp Hill, Cumberland County, Pennsylvania, with her husband.9 In addition, the grandmother testified that the child had 3 Defendant's exceptions to Support Master's Report, filed January 30, 2007. 4 NT. 3, Support Master's Hearing, January 17,2007 (hereinafter NT.~. 5 NT. 6. 6 NT. 3. 7 NT. 4. 8 NT. 3. 9 NT. 4. 2 not wanted to change school districts and did not get along with his stepfather.10 The grandmother also testified that she worked part-time and received social security death benefits as a result of her ex-husband's death.ll The grandmother testified that the child's mother was employed by Amazon.com, where she earned between $10.00 and $11.00 per hour, resulting in a gross income of approximately $1,820.00 per month.12 In addition, the grandmother testified that the child's mother provided health and dental insurance for the child and supplied $40.00 per week to the grandmother. 13 Based upon an income tax filing status of "married, filing separately," with two exemptions, the mother's deduction and exemption amounts for purposes of arriving at a net income figure under the Pennsylvania Rules of Civil Procedure pertaining to child support calculations totaled $309.61 per month. 14 At the hearing, the father testified that he was divorced and lived with his parents.15 The father testified that he was also the father of a twelve-year-old daughter by another woman, that his daughter lived with her mother, and that he did not pay any support for his daughter.16 According to his testimony, he was employed full-time by a company named Old Fashioned Heat, Inc., as an installer of wood, coal, gas, and pellet stoves,17 and he had no medical insurance through his employment. 18 The father further testified that he earned $11.50 per hour, resulting in a gross income of $1,998.00 per month.19 Based upon an income tax filing status of "single," 10 NT. 4. 11 NT. 6. 12 NT. 5. 13 NT. 5. 14 See Pa. RC.P. 1910.16-4(a). In Cumberland County, a standard computer program is utilized to compute each parent's monthly share of the child support obligation. See Parlati v. Morton, 53 Cumberland LJ. 169 (2004). In the present case, the details with respect to these reductions are found in the Support Master's Report, Exhibit "A." 15 NT. 6. 16 NT. 7-8. 17 NT. 7. 18 NT. 8. 19 NT. 7. 3 with one exemption, the father's deduction and exemption amounts for purposes of arriving at a net income figure under the Pennsylvania Rules of Civil Procedure pertaining to child support calculations totaled $397.31 per month.20 At the support master's hearing, the father did not present testimony as to his expenses and, when asked by the Master whether there were "[a ]ny other facts" which he wanted to bring out, the father responded in the negative?1 Based upon a combined net monthly income of the mother and father of $3,106.38, an application of Pennsylvania's support guidelines yielded a combined basic child support obligation of $754.00 per month.22 The father's proportional share of this amount, without deviation from the guidelines, was $387.00 per month.23 On January 17, 2007, following the hearing, the Master issued a Report and Recommendation with respect to the grandmother's request for child support. The Report recommended that the Defendant pay $387.00 per month for his son, in addition to $23.00 a month for arrearages. It was also recommended that Defendant pay 50% of the umeimbursed medical expenses relating to the child in accordance with Pennsylvania Rule of Civil Procedure 191O.l6-6(c)?4 An interim order incorporating the Master's recommendation was issued by the court on January 17, 2007. The father's exceptions to the report quoted at the beginning of this opinion were filed on January 30,2007. The father submitted a brief on March 5, 2007. 20 See Pa. RC.P. 1910.16-4(a). In Cumberland County, a standard computer program is utilized to compute each parent's monthly share of the child support obligation. See Parlati v. Morton, 53 Cumberland LJ. 169 (2004). In the present case, the details with respect to these reductions are found in the Support Master's Report, Exhibit "A." 21 NT. 8. 22 See Support Master's Report, Exhibit "B." 23 See Support Master's Report, Exhibit "B." 24 Support Master's Report, at 2. 4 DISCUSSION Statement of Law On review of a support master's report, a trial court is to employ the same standard as is applicable to a review of a divorce master's report. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033 (1988). "While such a report is to be given the fullest consideration, especially with regard to the credibility of witnesses," the findings and conclusions are advisory rather than binding. Id; see McCurdy v. McCurdy, No. 02-0097 Support (slip op.) (Cumberland Co. 2002) (Hess, 1.). Thus, on exceptions to a master's report, "[i]t is the sole province and responsibility of the [trial] court to set an award of support, however much it may choose to utilize a master's report." Goodman v. Goodman, 375 Pa. Super. 504, 507-08, 544 A.2d 1033, 1035 (1988). The general rule is that a parent has the responsibility to provide care, control, and subsistence for his or her child, and has a duty to love, protect, and support the child; this parental obligation is a positive duty, and requires affirmative performance. Petition of Lutheran Children and Family Service of Eastern Pennsylvania, 456 Pa. 429, 321 A.2d 618 (1974). The duty of child support, as with every other duty encompassed in the role of parenthood, is the equal responsibility of both the mother and the father; and, as this duty is "absolute," it must be discharged by parents even if it causes them some hardship. Yerkes v. Yerkes, 573 Pa. 294, 298-99, 824 A.2d 1169 (Pa. 2003). In this sense, it is the parent's first duty. Kane v. Kane, 199 Pa. Super. 489, 492, 185 A.2d 669 (Pa. Super 1962). Under Section 4322 of the Domestic Relations Code, it is provided as follows: Child . . . support shall be awarded pursuant to a Statewide guideline as established by general rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child. . . seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child . . . seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties' assets, as warrant special attention.25 25 Act of October 30, 1985, P.L. 264, ~l, as amended, 23 Pa. C.S. ~4322(a) (emphasis added). 5 In accordance with this general directive, support guidelines have been adopted by the Pennsylvania Supreme Court that set forth the amount of child support which a parent should pay, taking into consideration the net income of both parents and the number of persons being supported?6 Under Pennsylvania Rule of Civil Procedure 191O.l6-2(c)(1), except as otherwise provided in the rules, net income for this purpose is to be determined by a deduction from gross income of the following amounts: federal, state and local income taxes; F.I.C.A payments and non-voluntary retirement payments; union dues; and alimony paid to the other party. On the rare occasion when a deviation from the guidelines is to be entertained, factors of an unusual nature, such as those relating to other support obligations of the parties, other income in the household, ages of the children, assets of the parties, medical expenses not covered by insurance, and standard of living of the parties and their children, are relevant. Pa. RC.P. 191O.l6-2(c)(1). Finally, with respect to the procedural aspect of a support proceeding, it must be remembered that "[ s ]upport [0 ]rders are created in an adversarial process . . . ." Ball v. Minnick, 414 Pa. Super. 242, 259, 606 A.2d 1181, 1190 (1992) (plurality opinion), aff'd, 538 Pa. 441, 648 A.2d 1192 (1994). It is the responsibility of both parties to "bring to the court the necessary data upon which the court establishes the support [o]rder." Id. At 262, 606 A.2d at 1192.27 In this regard, a support master is not in a position to act as an advocate on behalf of a party with respect to the submission of evidence. Application of Law to Facts With respect to Defendant's first exception, it may be noted that, as phrased, its intended meaning is somewhat unclear. To the extent that the exception is intended to imply that the Master agreed to recommend that Defendant's support obligation be limited to the amount which the child's mother was paying the Plaintiff, or that the Master mistakenly felt that Defendant had agreed to pay whatever the master recommended, there is no basis in the record to support either contention. 26 See Pa. RC.P. 1910.16-1(a)(l). 27 See Halko v. Hensley, No. 03-224 Support (slip op. at 7) (Cumberland Co. 2003). 6 With respect to Defendant's second exception, it appears to be Defendant's position that his support obligation should not exceed the amount of support being paid informally by the mother, since the parents' incomes are relatively equal. Although it is true that one parent's support obligation is in part dependent upon the income of the other parent, it is not the rule that his support obligation is dependent upon the amount of support actually being paid by the other parent. In the present case, Defendant received the benefit of the correct rule when the master determined the parties' combined child support obligation from the guidelines on the basis of their combined net income, and apportioned their individual liability for child support on the basis of their relative net incomes. The fact that the child's custodian may have chosen not to collect all that she could at law from the mother has no legal relationship to the amount of the father's obligation. Finally, with respect to Defendant's third exception, relating to alleged expenses on his part, it is noted that is was not the responsibility of the master to preserve this issue by introducing evidence of the expenses at the hearing. More substantively, it may be said that none of the expenses alleged in Defendant's exception is sufficiently unusual to justify a deviation from the guidelines. F or the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 22nd day of March, 2007, upon consideration of Defendant's exceptions to Support Master's Report and Recommendation, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order of court dated February 2, 2007, is entered as a final order. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 7 Michael R Rundle, Esq. Support Master Constance C. Salvatore Suite 102 810 Charlotte Way Enola, P A Plaintiff, pro Se Raymond D. Bogardus, Jr. 214 Bailey Street New Cumberland, P A Defendant, pro Se 8