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Home My WebLink About82-585 supportRUBY I. GEHR, Plaintiff V. GERALD R. GEHR, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : · : : NO. 585 SUPPORT 1982 : : DR#10,115 : IN RE- pLAINTIFF'S MOTION ON PETITION FOR SPECIAL RELIEF BEFORE GUIDO, J. AND NOW, this ORDER OF COURT day of MARCH, 2000, it is ordered and directed as follows: (1) Defendant's support obligation to plaintiff from January 1, 1998, thru December 31, 1998, is set at $709 per month plus 81% of unreimbursed medical expenses. (2) Defendant's support obligation to plaintiff from January 1, 1999, thru November 30, 1999, is set at $807 per month plus 83% of unreimbursed medical expenses. (3) Since the parties were divorced on December 1, 1999, the order for spousal support shall terminate effective that date. (4) The Domestic Relations Office is directed to compute the defendant's arrears and to prepare an order in the form prescribed by Pa. Rule of Civil Procedure 1910.25(e) for our review and signature. 585 SUPPORT 1982 - DR # 10,115 Carol J. Lindsay, Esquire For the Plaintiff Ruby D. Weeks, Esquire For the Defendant Domestic Relations Office 'sld By the Court Edward E. Guido, J. RUBY I. GEHR, Plaintiff ge GERALD R. GEHR, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 585 SUPPORT 1982 · DOMESTIC RELATIONS SECTION · DR# 10,115 IN RE: PLAINTIFF'S MOTION ON PETITION FOR SPECIAL RELIEF BEFORE GUIDO. J. OPINION AND ORDER OF COURT On June 24, 1999, plaintiff filed a petition to increase the current spousal support order. A conference was held in the Domestic Relations Office and based upon the recommendation of the conference officer we entered an order on August 3, 1999 which increased the prior order. We made the revised order effective June 24, 1999. Defendant timely filed a written demand for a heating pursuant to Pa. R.C.P. 1910.11 (f). On November 24, 1999, plaintiff filed a "Petition for Special Relief" requesting that the modified order became effective January 1, 1998, rather than June 24, 1999. A heating de novo was held by this Court on December 2, 1999. Each party has filed a brief and supplemental brief in support of their respective positions. This matter is now ready for disposition. F1NDINOS OF FACT On October 11, 1996, the Honorable Harold E. Sheely, P.J. entered an order directing defendant to pay plaintiff the sum of $745 per month, effective April 18, 1996. 585 SUPPORT 1982 - PACSES 713000034 He also directed defendant to pay 82% of plaintiff's unreimbursed medical expenses. The order was based upon his finding that defendant's net monthly income was $2367 and plaintiff's net monthly income was $504.~ On October 1, 1997, the defendant filed a petition to decrease his support obligation. The petition was based, in large part, upon an alleged reduction in income resulting from a special work assignment.2 On January 29, 1998, a heating on the petition was held before this Court. We found that defendant's net monthly income had decreased to $1916. We also found that plaintiff's net monthly income was $530.3 Based upon those respective incomes, we reduced defendant's support obligation to 4 $555. We also directed him to pay 79% of plaintiff's unreimbursed medical expenses. The reduction was made retroactive to October 1, 1997.5 Defendant's special work assignment lasted only 2 or 3 months.6 At the time of the hearing on January 29, 1998, or shortly thereafter, defendant was earning substantially the same income that he had been earning at the time of the 1996 order.7 In fact, his average net monthly income in 1998 was $2304.8 Defendant did not report his increased income to the Court, to the Domestic Relations Office, or to plaintiff. Plaintiff first became aware of the increase at a heating I Plaintiff's Hearing Exhibit 1, December 2, 1999. 2 Transcript of December 2, 1999, Proceedings, pp. 30-31. 3 Plaintiff's Hearing Exhibit I(B), December 2, 1999. 4 Plaintiff's Hearing Exhibit 1 (B), December 2, 1999. We also ordered defendant to pay plaintiff 40% of any bonus he might receive from his employer. 5 Plaintiff's Hearing Exhibit I(B), December 2, 1999. 6 Transcript of December 2, 1999, Proceedings p. 30. 7 Defendant's Hearing Exhibit 3, December 2, 1999. 8 Plaintiff's Hearing Exhibit 4, December 2, 1999. 585 SUPPORT 1982 - PACSES 713000034 before the Divorce Master in June of 1999.0 On June 24, 1999, within several days of learning of the increase, plaintiff filed a petition to modify the support order. Plaintiff's net monthly income in 1999 was $491.~° Defendant's net monthly income in 1999 was $2509.Il Neither party had any extraordinary expenses which would justify a deviation from the support guidelines.~2 DISCUSSION The parties have agreed that there is no reason to deviate from the guidelines in calculating the support due in this case. The major point of contention involves the effective date of the modified order. Plaintiff contends that any modification should be retroactive to January 1, 1998. Defendant argues that the effective date of the modified order should be June 24, 1999, the date the petition was filed. The general role is that an order modifying an existing support order will be effective as of the filing date of the petition for modification. 23 Pa. C.S.A. {} 4352(e); Albert v. Albert, 707 A.,2d 234, 236 (Pa. Super. 1998). However, the modification may be made retroactive to an earlier period "if the petitioner was precluded from filing a petition for modification by reason of... misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition." Id. In the instant case, we are satisfied that the effective date of modification should be January 1, 1998. On October 1, 1997, the defendant filed a petition to modify the order entered by Judge Sheely in 1996. The petition was based upon a special work assignment which 9 Transcript of December 2, 1999, Proceedings p. 39. l0 Transcript of December 2, 1999, Proceedings p. 13. ~ Plaintiff's Hearing Exhibit I(C), December 2, 1999. 32 Transcript of December 2, 1999, Proceedings, p. 22. 585 SUPPORT 1982 - PACSES 713000034 resulted in a reduction, of defendant's earnings. Based upon the defendant's testimony and exhibits, we found as a fact that his income had decreased by more than $450 per month. As a result, we reduced his support obligation retroactive to October 1, 1997. The special work assignment lasted only two or three months. The heating on defendant's petition was held almost four months after it was filed. When the defendant testified before us on January 29, 1998, he knew that the special work assignment had ended. He was also aware that the earnings upon which we based the revised support obligation no longer represented his tree earnings. It would be patently unfair to allow the defendant to benefit from this wilful misrepresentation. Defendant points out that plaintiff became aware of his 1998 income in June of 1999. While she promptly filed a petition to modify the support order, she did not ask this Court to make the order retroactive until she filed the "Petition for Special Relief' on November 24, 1999. Therefore, he argues, we are precluded from making the order effective on January 1, 1998, because plaintiff did not act "promptly" as required by 23 Pa. C.S.A. § 4352(e). We disagree. Plaintiff filed a petition to modify the support order within days of discovering defendant's 1998 income. That action was sufficient to satisfy the requirements of 23 Pa. C.S.A. § 4352(e). Admittedly, the plaintiff did not object to the recommended order of August 3, 1999 which made the modification retroactive to the June 24, 1999, filing date of the petition. However, the defendant was not satisfied with the amount of the order and elected to request a hearing de novo. A de novo hearing has been defined as a "full consideration of the case anew." D'Arciprete v. D'Arciprete, 323 Pa. Super. 430, 470 A.2d 995 (1984). Plaintiff was not required to file a "cross appeal" in order to object to 585 SUPPORT 1982 - PACSES 713000034 the effective date of the recommended order. "Once one of the parties demanded a hearing each would be entitled to litigate as if it were a first proceeding." Warner v. Pollock, 434 Pa. Super. 551,644 A.2d 747, 750 (1994). The "Petition for Special Relief" filed on November 24, 1999, was superfluous. Applying the formula set forth in Pa. Rule of Civil Procedure 1910.16-4 to the facts of this case, we find that the defendant's spousal support obligation for the period January 1, 1998 through December 31, 1999, was $709 per month. The support obligation from January 1, 1999 through November 30, 1999, was $807 per month. Since the parties were divorced on December 1, 1999, the obligation for spousal support has terminated. For the reasons set forth above, we will enter the order that follows. ORDER AND NOW, this 3P'I) day of MARCH, 2000, it is ordered and directed as follows: (1) Defendant's support obligation to plaintiff from January 1, 1998, thru December 31, 1998, is set at $709 per month plus 81% of unreimbursed medical expenses. (2) Defendant's support obligation to plaintiff from January 1, 1999, thru November 30, 1999, is set at $807 per month plus 83% of unreimbursed medical expenses. (3) Since the parties were divorced on December 1, 1999, the order for spousal support shall terminate effective that date. 585 SUPPORT 1982 - PACSES 713000034 (4) The Domestic Relations Office is directed to compute the defendant's arrears and to prepare an order in the form prescribed by Pa. Rule of Civil Procedure 1910.25(e) for our review and signature. By the Court, /s/Edward E.Ouido Edward E. Guido, J. Carol J. Lindsay, Esquire For the Plaintiff Ruby D. Weeks, Esquire For the Defendant Domestic Relations Office :sld