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HomeMy WebLinkAbout98-1248 civilMARTHA S. HARNER Plaintiff Ve ROBERT H. HARNER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 646 SUPPORT 1998 PACSES # 075100257 MARTHA S. HARNER Plaintiff Ve ROBERT H. HARNER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-1248 CIVIL TERM DIVORCE ACTION IN RE: SUPPORT BEFORE GUIDO, J. ORDER OF COURT day of DECEMBER, 1998, it ~s hereby ordered and directed as follows: 1) Plaintiff's claim for spousal support is DENIED. 2) Defendant is directed to pay Plaintiff child support in the amount of $1,319 per month commencing June 16, 1998 and ending on September 1998. 3) Defendant is directed to pay Plaintiff APL of $1,167.00 per month commencing September 19, 1998, said amount being the net amount due after deducting the child support obligation of Plaintiff to Defendant in accordance with the instructions of Pa. Rule of Civil Procedure 1910.16-5(j). He is further directed to maintain health insurance coverage on Plaintiff as part of the APL award. 4) Defendant shall maintain medical insurance coverage on the parties' children. Any unreimbursed medical expenses shall be paid 35% by Plaintiff and 65% by Defendant. The Domestic Relations Office is directed to determine the arrears on each order. All arrears shall be paid within ten (10) days. By the Edward E. Guido, J. Kathleen Carey Daley, Esquire For the Plaintiff Samuel L. Andes, Esquire For the Defendant Domestic Relations Office :sld MARTHA S. HARNER Plaintiff Ve ROBERT H. HARNER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 646 SUPPORT 1998 PACSES # 075100257 MARTHA S. HARNER Plaintiff Ve ROBERT H. HARNER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-1248 CIVIL TERM DIVORCE ACTION IN RE: SUPPORT BEFORE GUIDO, J. OPINION AND ORDER OF COURT The parties are married and have three (3) children. On June 16, 1998, Plaintiff filed a complaint for spousal support and the support of two children. The complaint was not on the appropriate PACSES forms and was returned to Plaintiff's Counsel along with the appropriate forms. The complaint for support was refiled on August 6, 1998.~ Defendant denied liability for spousal support. The hearing officer recommended a child support order from which Plaintiff appealed. In September 1998 all three children went to live with Defendant. He filed a petition to modify the child support order ~Defendant acknowledges in his brief that the appropriate commencement date of any support order should be the June date on which the original complaint was filed. NO. 98-00646 SUPPORT - 98-1248 CIVIL asking that the order entered in favor of Plaintiff be terminated and that a new child support order be entered in his favor. At about the same time, Plaintiff filed a petition for alimony pendente lite. A hearing was held before this Court on November 20, 1998. We have been ask to decide the following issues: . Whether Wife is entitled to spousal support. . The net monthly earnings or earning capacity of the parties. . The amount, if any, alimony pendente lite to which wife is entitled. . The amount of child support each party owes the other° The parties have agreed that the end date for any spousal support and child support order in favor of Plaintiff shall be September 19, 1998. They have also stipulated that the beginning date of any support order against Plaintiff, as well as any alimony pendente lite order in favor of Plaintiff, shall be on September 19, 1998. Each party has filed a brief. This matter is now ready for disposition. FINDINGS OF FACT 1) Plaintiff Martha S. Harner is forty-four (44) years old. 2) Defendant Robert H. Harner is forty-five (45) years old. 3) The parties were married on September 11, 1976. They separated on March 12, 1998. 4) The parties have three (3) children, Joseph, born 3-23-81, Elizabeth, born 5-10-83, and Katherine born 5-10-83. NO. 98-00646 SUPPORT - 98-1248 CIVIL 5) The Defendant has been a funeral director since 1976. 6) Plaintiff graduated from Bucknell in 1976 with a degree in English. She is certified to teach. 7) Prior to the birth of their first child, Plaintiff worked in a real estate office and as an employment counselor. She earned approximately $13,000 per year. 8) On April 1, 1990, Defendant purchased the funeral home in which he had been employed. He is now the owner of Myers-Harner Funeral Home, Inc. 9) After the birth of the parties' first child, they agreed that Plaintiff would be a "stay at home Mom." During the years from 1981 through the date of separation, Plaintiff's only employment outside the home was as a substitute teacher and as the part time bookkeeper for Myers-Harner Funeral Home, Inc. 10) Her income as a substitute teacher was nominal. Her income at the Funeral Home was $21,000 per year.2 11) Husband left the marital home on March 12, 1998. He fired Plaintiff from her bookkeeping position at the time of separation. 12) When the parties separated, Joseph went to live with Defendant and the twins remained with Plaintiff. 13) Defendant did not articulate any reasons for leaving the 2There is no question that Plaintiff earned the $21,000 per year that she was paid. After she left the funeral home, Defendant was required to hire another part time employee to perform her duties. He is paying that employee about the same amount Plaintiff was earning. NO. 98-~00646 SUPPORT - 98-1248 CIVIL marital home other than that the parties had agreed to separate.3 14) Plaintiff readily admitted that she has been involved in two extra marital sexual relationships since the time of separation. The first began shortly after separation and continued into the summer. The second began after the first ended and was still ongoing at the time of the hearing in this matter. 15) In November of 1997, the parties agreed that Plaintiff would quit her job at the funeral home so that she could enroll in law school. 16) Plaintiff was accepted to Dickinson School of Law in March of 1998. However, it is not clear whether the acceptance came before or after the parties' separation on March 12. 17) She became enrolled as a full time student at the Law School in September of 1998. 18) Plaintiff has not worked since the time of separation. 19) From the time of separation until September of 1998 Plaintiff had an earning capacity of $21,000 per year gross, or $1406 per month net. Beginning in September, her net earning capacity was reduced to $1,000 per month. 20) Defendant is the owner of all the stock of Myers-Ha. rner Funeral Home, Inc. 21) The parties have accumulated a little over one million 3Defendant's Counsel did elicit testimony from Plaintiff to the effect that she had a suspicious relationship with a classmate of the parties' oldest son. However, the evidence adduced was insufficient to establish grounds for divorce. NO. 98-00646 SUPPORT - 98-1248 CIVIL ($1,000,000) dollars of marital property, almost all of which is in Defendant's possession. 22) Defendant has not been spending any of the interest dividends, or capital gains generated by the marital property. He supports himself and the children entirely from the income generated by the Myers-Harner Funeral Home, Inc. 23) Gross revenues at the funeral home are down approximately 15% in 1998 as compared to 1997. 24) Defendant has a net disposable income of $87,535.00 per year. This amounts to $7295.00 per month. 25) Neither party has offered any reason to justify a deviation from the support guidelines. DISCUSSION SPOUSAL SUPPORT We will first address the issue of spousal support. There is no question that the Defendant has failed to prove that he had grounds for divorce at the time he left the marital residence. Therefore, as of the time of separation, the Plaintiff was entitled to spousal support. See Little v. Little, 47 Cumb. 131 (1998). However, our inquiry does not end there. The obligation to support a dependent spouse continues until the conduct of the dependent spouse provides a ground for divorce. Roach v. Roach, 337 Pa. Super. 440, 487 A.2d 27, (1985). Plaintiff candidly admitted that she has been romantically and sexually involved with other men almost continuously since the NO. 98-00646 SUPPORT - 98-1248 CIVIL parties' separation. This case is identical to the case of Williams v. Williams, 113 Dauph. 323 (1993) wherein Judge Turgeon held that a spouse's post separation adultery precluded her from obtaining spousal support.4 Since the first meretricious relationship began well before the filing of her complaint for 5 support, and since adultery is a ground for divorce, we must conclude that Plaintiff is not entitled to spousal support. EARNING CAPACITY OF THE PARTIES Defendant has asked us to accept his w-2 figure of $49,400 as his gross income. Plaintiff argues that his actual gross income is no less than his 1997 gross income of $194,634 as determined by her expert. We find that neither position presents a true picture of Defendant's disposable income. We have determined Defendant's annual net disposable income to be $87,535. We started with his 1997 net disposable income as determined by Plaintiff's expert on Schedule 1 of Plaintiff's Exhibit 1.6 We subtracted the interest, dividends and capital gains which are accumulating on the marital property and which will be subject to equitable distribution at a later date. We 4Judge Turgeon did recognize that a defendant's prior infidelity would preclude him from raising the subsequent infidelity of his spouse as a defense to a claim for spousal support. However, in the instant case, as ·in the Williams case, there is no allegation as to the Defendant's lack of fidelity. s23 Pa.C.S.A. § 3301(a)(2). 6We found the testimony of Plaintiff's expert to be generally more credible than that of Defendant's expert. NO. 98-00646 SUPPORT - 98-1248 CIVIL further subtracted the health insurance payments which are a legitimate fringe benefit paid by his employer. Finally, we reduced the resulting figure by 15% to account for the business downturn in 1998.7 Our computations were as follows: $147,998 Disposable income after taxes -6,671 Dividends and interest -7,893 Capital gains -24,901 Rental income8 -5,551 Health insurance $102,982 Adjusted disposable income - 15,447 Business reduction $ 87,535 Net annual disposable income In view of the above, we find that Defendant's net monthly income is $7295. We now move to the earning capacity of Plaintiff. According to the testimony, she is certified to teach. She did, in fact, work as a substitute teacher from time to time during the marriage. Plaintiff also had substantial experience as the bookkeeper for the family funeral home for many years. Based upon her education, training, and experience, we conclude that at the time of separation she was able to find another job making at least $21,000 per year. However, Plaintiff contends that she can no longer work full time because she is attending law school. Therefore, she argues, 7Defendant's expert testified that the business was off by about 15% during the first six months. Additionally, Plaintiff confirmed that the number of funerals Defendant projected doing in 1998 was about 15% less than the number done in 1997. 8This income was used to pay Plaintiff's salary in 1997. The rent has been reduced and the salary is now being paid to the new employee from the funeral home. NO. 98-00646 SUPPORT - 98-1248 CIVIL her net earning capacity is only $1000 per month. This poses an interesting question. May the Plaintiff's decision to pursue her education in order to change careers operate to reduce her earning capacity for the purpose of determining APL or child support? In the instant case, we conclude that it may. At the outset, we note that the case law is far from clear on this point. There are those cases which hold that a spouse may not voluntarily reduce his or her income and thereby secure a reduction in child support. Weiser v. Weiser, 288 Pa. Super. 488, 362 A.2d 287 (1976). This is so even if the reduction in income is the result of a decision to pursue an education which would eventually result in greater earnings. Snively v. Snively, 206 Pa. Super 278, 212 A.2d 905 (1965). On the other hand, there are those cases which have held that a support obligation may be based upon the reduced earnings of a spouse who has elected to pursue an education. See Giamber v. Giamber, 255 Pa. Super. 111, 386 A.2d 160 (1978) dealing with child support, as well as Lazarou v. Lazarou, 180 Pa. Super. 342, 119 A.2d 605 (1956) dealing with spousal support and McNulty v. McNulty, 500 A.2d 876, 347 Pa. Super. 363 (1985) dealing with APL. The case before us is similar to Beeqle v. Resler, 395_Pa. Super. 174, 576 A.2d 1100, (1990). In Beetle the defendant lost his full time job through no fault of his own. The Court held that Defendant's decision to further his education was appropriate. Therefore, he could not be penalized for only NO. 98-00646 SUPPORT - 98-1248 CIVIL working on a part time basis. In the case at bar, Defendant fired Plaintiff from a part time job where she was earning $21,000 per year. We cannot fault her for electing to pursue an education especially, where it had been previously agreed upon by the parties. We are satisfied that she could not find another part time position earning over $20 per hour while attending school. We find that a job paying $10 to $12 per hour is more realistic. Therefore, we hold that a net earning capacity of $1000 per month is reasonable commencing in September of 1998. ALIMONY PENDENTE LITE While conduct providing a ground for divorce precludes spousal support, it is not a bar to Plaintiff's claim for APL, See Keller v. Keller, 419 A.2d 49, 275 Pa. Super. 573, (1980) and McKelvey v. McKelvey, 16 D&C 3d 611 (1980). Applying the Support Guidelines Formula contained in Pa. Rule of Civil Procedure 1910.16-3 we compute the APL due Plaintiff to be $1,889 per month.9 In her brief, Plaintiff has requested that we make the APL award retroactive to the filing of the Divorce Complaint. We are unwilling to do this for several reasons. First and foremost, the parties agreed to use September 19, 1998 as the commencement $7,295 -1,000 $6,295 x .30 $1,889 Defendant's Net Monthly Income Plaintiff's Net Monthly Earning Capacity APL Due Plaintiff NO. 98-00646 SUPPORT - 98-1248 CIVIL date of any APL award. Secondly, although Plaintiff raised a claim for APL in her divorce complaint, she did not file a petition to bring the matter to issue until September 15, 1998. Pa. Rule of Civil Procedure 1920.31(a) provides that when a claim for APL is filed as a count in a divorce action, the award shall be retroactive to the date of the written demand for a hearing. In this case the petition filed with the Domestic Relations Office on September 15, 1998 constitutes the first such written demand for a hearing. In view of the above, we find that Plaintiff is entitled to an award of APL in the amount of $1889 per month commencing on September 19, 1998.. We al so direct that Defendant maintain medical insurance on Plaintiff as part of this award of APL. CHILD SUPPORT Two of the parties' children lived with Plaintiff and one lived with Defendant from the time of separation until September 1998. Ail three of the children have lived with Defendant since that time. Therefore, we must determine the amount of child support Defendant owes to Plaintiff for the three month period from June 16, 1998 through September 19, 1998. We must also determine the amount of child support Plaintiff owes to Defendant commencing September 19, 1998. In determining the support owed by Defendant to Plaintiff, we have applied the formula set forth in Pa. Rule of Civil Procedure 1910.16-3 in accordance with the directions set forth 10 NO. 98-00646 SUPPORT - 98-1248 CIVIL in Pa. Rule of Civil Procedure 1910.16-5(h) dealing with divided custody situations. We have determined that the net child support obligation of Defendant to Plaintiff for the three month between June 16, 1998 and September 19, 1998 is $1319 per month. In determining the child support owed by Plaintiff to Defendant we have applied the formula set forth in Pa. Civil Procedure 1910.16-3 in accordance with the directions set forth in Pa. Rule of Civil Procedure 1910.16-5(j) dealing with child support obligations when the custodial parent owes APL to the non-custodial parent. We have determined that the child support obligation of Plaintiff to Defendant is $722 per month commencing September 19, 1998. Deducting that amount from the $1889 APL obligation of Defendant to Plaintiff, we hold that Defendant should pay Plaintiff net APL of $1167 per month effective September 19, 1998. CONCLUSION Based upon the foregoing, we conclude that Plaintiff is not entitled to spousal support. Furthermore, based upon Defendant's net monthly income of $7295 and Plaintiffs net monthly earning capacity of $1406 until September 1998 and $1000 per month thereafter, we have determined the following: · Defendant is obligated to pay Plaintiff child support of $1319 per month from June 16, 1998 to September 19, 1998. · Defendant is obligated to pay Plaintiff APL of $1889 per month commencing on September 19, 1998, plus maintain health insurance coverage on her. 11 NO. 98-00646 SUPPORT - 98-1248 CIVIL · Plaintiff is obligated to pay Defendant child support of $722 per month commencing September 19, 1998. · Defendant should maintain health insurance on the children. . Deducting the $722 child support which Plaintiff is obligated to pay Defendant from the $1889 APL which Defendant is obligated to pay Plaintiff, Defendant has a net APL obligation to Plaintiff in the amount of $1167 per month. . The parties should share the unreimbursed medical expenses of the children in proportion to their incomes and earning capacity. ORDER OF COURT AND NOW, this 16TH day of DECEMBER, 1998, it is hereby ordered and directed as follows: 1) Plaintiff's claim for spousal support is DENIED. 2) Defendant is directed to pay Plaintiff child support in the amount of $1,319 per month commencing June 16, 1998 and ending on September 1998. 3) Defendant is directed to pay Plaintiff APL of $1,167.00 per month commencing September 19, 1998, said amount being the net amount due after deducting the child support obligation of Plaintiff to Defendant in accordance with the instructions of Pa. Rule of Civil Procedure 1910.16-5(j). He is further directed to maintain health insurance coverage on Plaintiff as part of the APL award. 4) Defendant shall maintain medical insurance coverage on the parties' children. Any unreimbursed medical expenses 12 NO. 98-00646 SUPPORT - 98-1248 CIVIL shall be paid 35% by Plaintiff and 65% by Defendant. The Domestic Relations Office is directed to determine the arrears on each order. Ail arrears shall be paid within ten (10) days. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Kathleen Carey Daley, Esquire For the Plaintiff Samuel L. Andes, Esquire For the Defendant Domestic Relations Office 13