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HomeMy WebLinkAbout00-164 support (2)NANCY L. NESS Vo JOHN C. NESS · IN THE COURT OF COMMON PLEAS OF : YORK COUNTY, PENNSYLVANIA · SUPPORT - 00164 SA 2000 · PACSES NO. 812101920 · DR# 70422 COPY IN RE' COMPLAINT FOR SPOUSAL SUPPORI BEFORE GUIDO, J~. AND NOW, this ORDER OF COURT day of NOVEMBER, 2000, it is ordered and directed as follows' 1.) From January 21, 2000, thru March 15, 2000, defendant is ordered to pay plaintiff spousal support in the amount of $3575 per month plus 89% of her unreimbursed medical expenses. 2.) From March 16, 2000, for~vard defendant is ordered to pay plaintiff spousal support in the amount of $2975 per month plus 88% of her unreimbursed medical expenses. 3.) Defendant is ordered to provide health insurance for plaintiff and shall be given a credit against his support obligation equal to 12% of the amount of any premium he has paid or will pay to provide such insurance. 4.) The Domestic Relations Office is directed to compute the arrears due on this order, giving defendant credit for $947 paid directly to plaintiff in addition to any sums paid at this term and number. Defendant shall pay an additional $100 per month to be credited to the arrears. 5.) In all other respects, the Order of Judge Blackwell dated April 27, 2000, shall remain in full force and effect. By Edward E. Guido, J. John F. Pyfer, Jr., Esquire For the Plaintiff Kathleen J. Prendergast, Esquire For the Defendant 'sld NANCY L. NESS V,, JOHN C. NESS · IN THE COURT OF COMMON PLEAS OF · YORK COUNTY, PENNSYLVANIA : : ' SUPPORT - 00164 SA 2000 : · PACSES NO. 812101920 · DR# 70422 : : IN RE' COMPLAINT FOR SPOUSAL SUPPORT BEFORE GUIDO, J. OPINION AND ORDER OF COURT On January 21, 2000, plaintiff filed a complaint for spousal support. A conference was held at the York County Domestic Relations Office. Pursuant to the recommendation of the Domestic Relations Officer, the Honorable Penny Blackwell entered an order dated April 27, 2000. Plaintiff filed a timely request for a hearing de novo. At the same time, she requested that the case be assigned to a judge from outside York County because of defendant's status as a practicing attorney in that county. This Court was assigned to the case and the hearing de novo was held on October 2, 2000. The parties were given the opportunity to file briefs in support of their respective positions, which they have done. The matter is now ready for disposition. FINDIN0$ OF FACT 1. The parties were married on December 3, 1977. 2. They lived together as husband and wife until June of 1994, when defendant left the marital residence. They have lived separate and apart since that date. 00164 SA 2000 - YORK COUNTY SUPPORT 3. They are the parents of two (2) grown children, a son twenty-two (22) and a daughter nineteen (19). 4. The daughter is attending the University of Delaware as a sophomore. Both parties were inv. olved in the decision to have her attend that university. 5. The cost of tuition, room and board is $11,500 per year which is being paid by the defendant. 6. Plaintiff is fifty-two (52) years old. She was a homemaker throughout the marriage. 7. After separation plaintiff attended York College where she obtained a bachelor's degree in English in 1998. 8. Plaintiff continues to live in the marital home which has no mortgage. 9. Plaintiff works part-time in a jewelry store earning $10 per hour. 10. While plaintiff treats for a variety of chronic illnesses, there is no indication that she is physically unable to work full-time. 11. Plaintiff has a gross earning capacity of $20,800 per year. She has a net monthly earning capacity of $1316.~ 12. Defendant is an attorney in business as a sole practitioner. He also controls all of the joint marital investments. 13. We find defendant's net monthly earnings to be $11,252 prior to March 16, 2000, and $9603 thereafter. 14. The parties have historically filed joint tax returns, even after separation. They have agreed to file a joint tax remm for the year 2000. ~ We computed the figure from Plaintiff's Exhibit 1. It shows a bi-weekly gross of 5720 which is 90% of ' her gross earning capacity of $800. We increased deductions appearing on the Exhibit proportionately to get a bi-weekly net of $605. 00164 SA 2000 - YORK COUNTY SUPPORT 15. Defendant fathered a female child with another woman. The child was bom on March 16, 2000. He has been living with the child and her mother since April 28, 2000. 16. The mother of defendant's child has a gross earning capacity of $21,000 per year, although, she is not currently working. Her net monthly earning capacity is $1325. 17. The complaint was filed on January 21, 2000, which the parties have agreed will be the effective date of any order. 18. Defendant has paid the sum of $947 directly to plaintiff. DISCUSSION There is no issue with regard to defendant's obligation to pay spousal support to plaintiff. The only issue is the appropriate amount to be paid. For the reasons hereinafter set forth, we set that amount at $3575 per month front the date the complaint was filed on January 21, 2000, until March 16, 2000, and at $2975 per month thereafter. Income of the parties We have found that plaintiff has an earning capacity of $20,800. This represents a 40 hour work week at $10 per hour. While we recognize that her work experience is limited, we are convinced that the earning capacity of $20,800 per year is well within her capabilities. She has no physical disabilities which would prevent her from working. · She has a degree in English. However, even more persuasive is the fact that she already holds a position in which she earns the $10 per hour salary. Under the circumstances, we feel that the earning capacity attributed to her is quite reasonable. Defendant's earnings, on the other hand, are much more problematic. Both parties agree that the defendant's income as shown on the parties' 1999 income tax return 00164 SA 2000 - YORK COUNTY SUPPORT presents the most accurate reflection of his available income. However, they have differing opinions on the amount of his income. Plaintiff argues that defendant's net monthly income is $12,085. Defendant contends that his net monthly income is $11,241. The ma[or points of contention are a depreciation expense of $3328 taken in connection with his business, approximately $4800 in expenses (mostly depreciation) taken in connection with the office building occupied by his and another law practice2 and a $3000 capital loss. The focus of inquiry in determining whether depreciation deductions should be disallowed for purposes of computing support was set forth by the Superior Court as follows' ... (1.) was there an actual increase in the party's income, and (2) was the depreciation expenditure necessary for the ongoing business concern or a mere attempt to shield income for the purpose of avoiding support obligation. Calabrese v. Calabrese, 452 Pa. Super. 497, 682 A.2d 393,397 (1996). In the instant case, the expenses in question were quite modest in relation to the overall income, (about 13% of the rental property income and only 2% of the business income). We are satisfied that they were reasonably necessary for the ongoing performance of the various business concerns. Furthermore, we are convinced that the expenses were not taken in an attempt to shield income.3 Using the 1999 income tax return, we have determined the defendant's net monthly income to be $11,252 computed as follows: There is a net rental income of over $30,000 generated from that property. Plaintiff has offered no good reason why the capital loss of $3000 should be disallowed. 00164 SA 2000 - YORK COUNTY SUPPORT $190,963 - 711 -36,570 -13,315 -5_2_42 $135,020 ~ 12 $ 11,252 total Income plaintiff's earnings federal income tax self employment tax state and local income tax We will use that figure in computing the spousal support due to plaintiff. Effect of new child Pennsylvania Rule of Civil Procedure 1910. ! 6-2(c)(2) provides as follows' In computing a spousal support or alimony pendente lite obligation, the court shall deduct from obligor's monthly net income all of his or her child support obligations and any amounts of spousal support, alimony pendente lite or alimony being paid to former spouses. Each party acknowledges that the above rule must be applied to the case at bar. In order to determine defendant's child support obligation, we must use the guidelines set forth in Pa. Rule of Civil Procedure 1910.16-3 and 4.4 Defendant's net monthly income of $11,252 must be added to the $1,325 net monthly earning capacity of the child's mother to detem'tine the total net monthly household income available for child support. The combined figure of $12,577 results in a basic child support obligation of $1843 per month.5 Using the formula contained in Pa. R.C.P. 1910.16-4 we have determined that defendant's share of that basic child support obligation is 5;1649.6 Pursuant to Pa. R.C.P. 1910.16-2(c)(2), supra, we must deduct the defendant's 4 Refer to Pa. R.C.P. 1910.16-1(b)making the application of the guidelines mandatory. The formula contained in Melzer v. Wit~berge__r, 505 Pa. 462,480 A.2d 991 (1984) is now applicable only when the combined ne~- income of the parties exceeds S 15,000. (See Pa. R.C.P. 1910.16-2(e)). 5 Pa. R.C.P. 1910.16-3 6pa. R.C.P. 1910.16-4 00164 SA 2000 - YORK COUNTY SUPPORT child support obligation from his net monthly income before computing his spousal support obligation. Therefore, we have determined the defendant's net monthly income to be $9,603 after March 16, 2000. Computation of spousal support The spousal support payable to plaintiff must also be calculated in accordance 7 We have calculated the basic amount of spousal support due with the guidelines. plaintiff in accordance with Pa. R.C.P. 1910.16-4 (a) IV as follows' Before March 16, 2000 $11,251 defendant's net monthly income -! 316 plaintiff's net monthly earning 9935 x. 40 $ 3,974 monthly spousal support due After March 16, 2000 $ 9603 defendant's net monthly income _-1316 plaintiff's net monthly earning capacity 8287 x. 40 $ 3,314 In addition, it was clear from the testimony that defendant is paying the premiums for health insurance coverage on plaintiff. Pursuant to Pa. R.C.P. 1910.16-4(b) he is entitled to a credit against his basic support obligation for plaintiff's proportionate share of that premium. Therefore, defendant is entitled to a credit of 12% of the monthly premium he is paying to provide plaintiff with health insurance. ? Pa. R.C.P. 1910.16-1(b) ~ Unfortunately, there was no testimony as to the amount of that premium. However, we are confident that the Domestic Relations Office can perform the ministerial task of computing the credit due once the parties have provided them with the premium amount. If the parties are unable to agree on the amount of the premium, we will schedule a brief hearing limited to that issue. 00164 SA 2000 - YORK COUNTY SUPPORT Deviation from guidelines Defendant argues that we should deviate from the support guidelines because of the college eixpenses he is paying on behalf of the parties' daughter. While he recognizes that there is no legal duty which requires a parent to provide college educational support,9 he contends that we have the discretion to deviate from the guidelines pursuant to Pa. R.C.P. 1910.16-5(b). Defendant's counsel has not cited, nor have we been able to find, any case which 10 deals with a deviation from the guidelines as a result of paying college expenses. However, our Supreme Court has recognized that we may deviate from the guidelines "where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate." Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192, 1196 (1994). We feel that such circumstances exist in the case before us. The parties have been separated for a good many years. The decision to send their daughter to the University of Delaware was a joint decision made by the parties well after separation. It'would be patently unfair to lay upon defendant the entire burden of a mutually agreed upon obligation. Therefore, we have adjusted defendant's spousal support obligation downward by approximately 10%. For the reasons set forth above, we will enter the order that follows' 9 See Blue v. Blue_, 532 Pa. 521,616 A.2d 628 (1992) and Curtis v. Klin_e, 542 Pa. 249,666 A.2d 265 (1995). 10 Plaintiff's counsel does not argue that college expenses should not be a factor for consideration in justifying a deviation from the guidelines. He merely argues that defendant has sufficient financial resources to pay the expenses without a reduction in his spousal support obligation. 00164 SA 2000 - YORK COUNTY SUPPORT ORDER OF COURT AND NOW, this Isa. day of NOVEMBER, 2000, it is ordered and directed as follows: 1.) From January 21, 2000, thru March 15, 2000, defendant is ordered to pay plaintiff spousal support in the amount of $3575 per month plus 89% of her unreimbursed medical expenses. 2.) From March 16, 2000, forward defendant is ordered to pay plaintiff spousal support in the amount of $2975 per month plus 88% of her unreimbursed medical expenses. 3.) Defendant is ordered to provide health insurance for plaintiff and shall be given a credit against his support obligation equal to 12% of the amount of any premium he has paid or will pay to provide such insurance. 4.) The Domestic Relations Office is directed to compute the arrears due on this order, giving defendant credit for $947 paid directly to plaintiff in addition to any sums paid at this term and number. Defendant shall pay an additional $100 per month to be credited to the arrears. 5.) In all other respects, the Order of Judge Blackwell dated April 27, 2000, shall remain in full force and effect. By the Court, John F. Pyfer, Jr., Esquire Kathleen J. Prendergast, Esquire /s/Edward E. Guido Edward E. Guido, J.