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HomeMy WebLinkAbout892 S 2005 MICHELLE E. PETIT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V.: : DAVID N. PETIT : NO. 892 SUPPORT 2005 : : PACSES NO. 242107748 : IN RE: PLAINTIFF’S EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us are plaintiff’s exceptions to the Support Master’s Report and Recommendation which gave rise to an Interim Order of Court dated October 12, 2006. While several issues are raised, the essence of her complaint is that the support master erred in determining the defendant’s income for support purposes. We are cognizant of the fact that we are to give the Support Master’s report and recommendation the fullest consideration, especially with regard to the credibility of witnesses. Goodman v. Goodman, 375 Pa.Super 504, 544 A.2d 1033 (1988). Nevertheless, the report and recommendations are advisory only. Id. “It is the sole province and the responsibility of the Court to set an award of support, however much it may choose to utilize a master’s report.” Id. 555 A.2d at 1035. After a thorough review of the notes of testimony as well as the exhibits we agree with plaintiff that the master erred in determining the monthly income available to defendant for support purposes. NO. 892 SUPPORT 2005 - PACSES # 242107748 We will summarize the relevant facts relating to plaintiff’s exceptions. In March 2006 the defendant voluntarily left his employment with Keller’s Custom Cabinets, Inc. He immediately began working for a woodworking business which operates under the name “Petit’s Custom Woodworking.” The business is “owned” by his paramour Terry Etters. Although she “owns” the business, Ms. Etters maintains her full time job working at a day care center. Ms. Etters and defendant live together. The business “Petit Custom Woodworking” was formed after the defendant decided to quit his job to work for himself. The decision was reached only after consultation with Ms. Etters who told him “if you want to go out on your own and be self-employed I will give you all the support 1 you need.” The business is operated out of the home owned by Ms. Etters. She and the defendant also live in that home. Defendant purportedly works as an independent contractor for the business. He bills at the rate of $13.50 per hour. He does not get paid until he completes a job. He also performs many services for which he does not bill. These services include drawings to support projects, making sales calls and preparing job estimates. All monies received on a project go to the business and are used to pay for materials, supplies and other expenses. The excess money is split between the defendant and Ms. Etters. In the five (5) months it had been open prior to the Support Master’s hearing, business income exceeded expenses by $24,792.45 or $4958.49 per month. Of that amount only $1466.90 per month went to pay defendant’s “invoices”. The remaining $3492.41 per month was retained by Ms. Etters as the “owner” of the business. 1 Transcript of Proceedings, p. 59. 2 NO. 892 SUPPORT 2005 - PACSES # 242107748 While she retains the business profits, Ms. Etters confers substantial financial benefits upon defendant. He lives in her home without paying rent. She also makes payment on some of his other bills, including marital debt. Finally, the parties “share” all other household expenses. Defendant is a skilled cabinet maker. Ms. Etters is neither skilled nor knowledgeable in woodworking. However, she does do some bookkeeping and assists defendant from time to time doing manual labor. Defendant is the only “independent contractor” or employee working for “Petit’s Custom Woodworking”. Furthermore, “Petit’s Custom Woodworking” is the only business for which the defendant does work. After reviewing the entire record, we are satisfied that the “ownership” of “Petit’s Custom Woodworking” was placed in the name of defendant’s paramour primarily to reduce his income for support purposes. The income passes through her directly to the benefit of defendant. Ms. Etters literally adds nothing of value to the business. If they were to split, defendant would make the very same income without her. She, on the other hand, would make nothing from a woodworking business. Under these circumstances, defendant’s monthly earning capacity for support purposes is the entire $4958.49 profit from the business rather than the $2340.00 determined by the master. This results in an increase of his total monthly income from $2453 to $5071.49. It also results in an increase of his monthly guideline support obligation from $250.89 to $640.07. See Exhibit A attached hereto. A party’s support obligation calculated pursuant to the guidelines is presumed to be correct, but the presumption may be rebutted by evidence that the guideline amount is 3 NO. 892 SUPPORT 2005 - PACSES # 242107748 unjust or inappropriate. Landis v. Landis, 691 A.2d 939 (Pa.Super 1997). The master recommended an upward deviation of 10% based upon the following facts: The Defendant resides with Ms. Etters. He pays no rent, and the two share living expenses. Ms. Etters has full-time employment with income and potential profit from the cabinet business. A recommendation is made to deviate upward by 10% in the Defendant’s support obligation setting his 2 monthly order at $275.00. In view of our findings, the reasons for the Master’s recommended deviation no longer exist. ORDER OF COURT TH AND NOW, this 26 day of APRIL, 2007, Plaintiff’s Exceptions to the Support Master’s Report and Recommendation are GRANTED. It is further ordered and directed as follows: A.The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his children, Jolina L. Petit, born July 8, 1992, and Jacob I. Petit, born May 19, 1998, the sum of $640 per month. This order takes into consideration the Plaintiff’s offsetting obligation for the support of the child Annabella M. Petit, born June 14, 1993, now residing with the Defendant. B.The Defendant shall pay the additional sum of $100.00 per month on accrued arrearages. C.The Plaintiff shall provide health insurance coverage for the benefit of said three children as provided through employment or other group coverage at a reasonable cost. D.The Defendant shall pay 66% of the unreimbursed medical expenses incurred by Jolina and Jacob as that term is defined in Pa. R.C.P. 1910.16-6(c). E.The Plaintiff shall pay 34% of the unreimbursed medical expenses incurred by Annabella as that term is defined in Pa. R.C.P. 1910.16- 6(c). F.The effective date of this order is April 17, 2006. 2 See Support Master’s Report and Recommendation, p. 4. 4 NO. 892 SUPPORT 2005 - PACSES # 242107748 By the Court, /s/ Edward E. Guido Edward E. Guido, J. Taylor P. Andrews, Esquire For the Plaintiff Patrick J. Redding, Esquire For the Defendant David N. Petit 10193 Blue Jay Circle Orrstown, Pa. 17244 Michael Rundle, Esquire Support Master DRO :sld 5