The URL can be used to link to this page

Home My WebLink About97-763 supportKRISTEN J. HUFFER, Plaintiff V® DANIEL S. HUFFER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 763 SUPPORT 1997 · · : DR# 26,811 IN RE: SUPPORT APPEAL OPINION AND ORDER OF COURT AND NOW, this ORDER day of MAY, 1998, after hearing, Defendant's Petition for Modification is granted. Judge Sheely's Order of October 1, 1997, is modified to provide that Defendant shall pay Plaintiff the sum of $480.00 per month for the support of the parties' three minor children. This order is based upon the Plaintiff having net monthly earnings of $1871.00 and Defendant having a net monthly earning capacity of $1626.00. The effective date of the modification is November 25, 1997. The arrears shall be determined by the Domestic Relations Office. Defendant shall pay an additional $150.00 per month on the arrears, until paid in full. In all other respects, The order of October 1, 1997, shall remain in full force and effect. Defendant is directed to pay directly to Plaintiff the sum of $250.00 within thirty (30) days of this Order to reimburse her for legal fees incurred in connection with the second hearing on this matter. Nora F. Blair, Esquire For the Plaintiff Diane G. Radcliff, Esquire For the Defendant SEdward E. Guido, J. KRISTEN J. HUFFER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Ve DANIEL S. HUFFER, Defendant : NO. 763 SUPPORT 1997 : : DR# 26,811 IN RE: SUPPORT APPEAL OPINION AND ORDER OF COURT BEFORE GUIDO, J. The parties are the parents of three minor children who are the subject of this support action. On October 1, 1997, the Honorable Harold E. Sheely entered an order directing the Defendant to pay $175.00 per week for the support of said children.~ On November 25, 1997, the Defendant filed a Petition For Modification of the existing support order. Thereafter, a conference was held before the Domestic Relations Section. On January 14, 1998, a modified order was entered by this Court in accordance with the Domestic Relations Officer's recommendation. Plaintiff filed a timely appeal. Hearings were held in connection with said appeal on February 26 and May 7, 1998. This matter is now ready for disposition. ~Since the order was agreed to by the parties, the support guidelines were not consulted in arriving at the amount of the order. In fact, Judge Sheely's Order specifically provides as follows: "And now, 1st day of October, 1997, based upon the Courts determination that the Payee's monthly net income is $0.00 and the Payor's monthly net income is $0.00, it is hereby ordered that the Payor pay to the Domestic Relations Section $758.00 a month.., payable $175.00 per week." NO. 763 SUPPORT 1997 - DR# 26,811 FINDINGS OF FACT 1) The parties separated in July of 1996. 2) In February 1997, the parties entered into a marital settlement agreement which provided, inter alia, that Defendant would pay child support of $175.00 per week. 3) At the time the marriage settlement agreement was executed, Defendant was employed as a roofer earning between $45,000 and $50,000 per year. 4) Defendant's job required him to be out of town most of the time. 2 5) Defendant voluntarily quit his job in August of 1997. 6) A major contributing factor in his decision to quit his job was the understandable desire to spend more time with his children after the parties' separation. 7) When he quit his job in August, Defendant intended to start his own roofing company. 8) The Defendant worked odd jobs between August 1997, and December 1997. 9) From August through the first week of December 1997, the Defendant grossed a little over $5700 at the odd jobs. His expenses and taxes substantially reduced that amount.3 2Defendant was able to get home only 2 or 3 times per month, sometimes for as little as a couple of hours, other times as long as a couple of days. 3Since we specifically find that Defendant has had a net - earning capacity of $1,626 per month, we need not determine the actual net income the Defendant received from his odd jobs. NO. 763 SUPPORT 1997 - DR# 26,811 10) In early December 1997, Defendant accepted work for LeRoy Roofing at a wage of $15.28 per hour. He worked at that job through the middle of February 1998, at a net monthly income of approximately $2000. 11) From the middle of February until May 1, 1998, Defendant collected unemployment compensation benefits in the net amount of $319 per week ($1382 per month). 12) At all times since the Petition For Modification was filed on November 25, 1997, the Defendant has had an earning capacity of $25,000 per year. This translates into a net monthly income of approximately $1626.4 13) At all times after November 25, 1997, the Plaintiff's net monthly income was $1871. 14) The parties' children have medical insurance coverage provided by "Blue Chip" without cost to either party. 15) The Plaintiff incurred legal fees of $250 in connection with the second hearing in this matter. DISCUSSION The Plaintiff would have us deny Defendant's Petition for Modification on the basis that there was no change in circumstances between the entry of the original order on October 4Defendant testified that he could earn $25,000 per year as a roofer working locally. This would include unemployment compensation benefits received during periods of lay off which are experienced by all local roofers. Deducting 21.95% of that amount for taxes (Federal @ 11%, FICA @ 7.15%, Pa. @ 2.8% and local @ 1%), we arrive at a net monthly income of $1626. NO. 763 SUPPORT 1997 - DR# 26,811 1, 1997, and the date the request for modification was filed on November 25, 1997. She argues that since the Defendant was unemployed on October 1, 1997, and since he was not collecting unemployment benefits, his zero income could not have been any less on the date the Petition For Modification was filed. We are not persuaded by this argument. The general rule in this Commonwealth is that a Court may only modify an existing support award when the party seeking the modification demonstrates "a material and substantial change in circumstances since the order was entered." Soncini v. Soncini, 417 Pa. Super. 397 at 399, 612 A.2d 998 at 1000 (1992). However, where, as in the instant case, the original support order is entered without the taking of testimony, we are not limited to considering only changed circumstances, but we may look at the entire situation de novo. See Bradley v. Bradley, 387 Pa. Super 503, 564 A.2d 504 (1989) and Crawford v. Crawford, 429 Pa. Super 540, 633 A.2d 155 (1993). When the original support action was filed by Plaintiff, the parties simply memorialized the written agreement they had entered into nine months earlier at a time when Defendant was earning between $45,000 and $50,000 annually. Neither the Domestic Relations Office nor the Court made any findings of fact as to the respective income of the parties or the appropriateness of the order. Based upon Plaintiff's net monthly income of $1871 and NO. 763 SUPPORT 1997 - DR# 26,811 Defendant's net monthly earning capacity of $1626,s the Defendant would owe $480.00 per month for the support of his children pursuant to the support guidelines. (Pa. Rules of Civil Procedure 1910.16-2, 1910.16-3 and 1910.15.5) We see no reason to deviate from those guidelines. Plaintiff has asked us to award attorney fees in the amount of $250.00 for costs incurred in connection with the second hearing in this matter. Since the hearing was necessitated by Defendant's failure to timely provide Plaintiff's counsel with he income and expense information as directed by the Court, we feel that the request for attorney fees is appropriate. ORDER AND NOW, this ~ day of MAY, 1998, after hearing, Defendant's Petition for Modification is granted. Judge Sheely's Order of October 1, 1997, is modified to provide that Defendant shall pay Plaintiff the sum of $480.00 per month for the support of the parties' three minor children. This order is based upon the Plaintiff having net monthly earnings of $1871.00 and Defendant having a net monthly earning capacity of $1626.00. The effective date of the modification is November 25, 1997. The sWhile Defendant's actual earnings during the period he worked for LeRoy Roofing exceeded this figure, his earnings during his layoff from February through the first week of May were substantially less. However, based upon Defendant's testimony that his yearly income as a local roofer, including periods of work and periods of lay off, would approximate $25,000, we feel that a net monthly earning capacity of $1626 is appropriate. NO. 763 SUPPORT 1997 - DR# 26,811 arrears shall be determined by the Domestic Relations Office. Defendant shall pay an additional $150.00 per month on the arrears, until paid in full. In all other respects, The order of October 1, 1997, shall remain in full force and effect. Defendant is directed to pay directly to Plaintiff the sum of $250.00 within thirty (30) days of this Order to reimburse her for legal fees incurred in connection with the second hearing on this matter. By the Court, Nora F. Blair, Esquire For the Plaintiff /s/ Edward E. Guido Edward E. Guido, J. Diane G. Radcliff, Esquire For the Defendant :sld