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HomeMy WebLinkAbout1144 S 1997 PATRICIA A. CRAWFORD, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLANIA : vs. : CIVIL ACTION – LAW : DOMESTIC RELATIONS SECTION DAVID A. CRAWFORD, : NO. 1144 SUPPORT 1997 Defendant : PACSES NO. 891100016 IN RE: DEFENDANT’S EXCEPTIONS TO REPORT AND RECOMMENDATION OF THE SUPPORT MASTER OPINION AND ORDER The plaintiff, Patricia A. Crawford, and the defendant, David A. Crawford, have been divorced since 2001. The parties are the parents of three children. The oldest is emancipated, resides with his father, and attends college. Eric, born May 19, 1991, lives with his mother. Kyle, born August 9, 1988, resides with his father. In November of 2004, an order was entered setting the defendant’s support obligation for Eric at $286.00 per month. On June 10, 2005, the plaintiff filed a petition for modification of that order. Following a hearing held before the Support Master on October 5, 2005, an interim order was entered setting the defendant’s support obligation at $222.00 per month. Despite this comparatively favorable result for the defendant, he has filed exceptions to the Support Master’s Report and Recommendations. The defendant argues that the Master erred in two respects. One is the Master’s refusal to make any adjustment in the support order for parochial school tuition paid by the defendant. Pa.Civ.P. 1910.16-6(d) provides that the court shall allocate between the parties the cost of private school tuition “if the court determines that one or more such needs are reasonable.” The decision to enroll Kyle in parochial school was made unilaterally by his father. Moreover, the NO. 1144 SUPPORT 1997 enrollment runs contrary to the agreement of the parties as memorialized in a custody order of November 12, 2004. Clearly, it is not “reasonable” to require the plaintiff to now share in this tuition expense. In addition, the defendant’s taking this exception appears at odds with the legal position which he took at the Master’s hearing. When the plaintiff attempted to testify with respect to Kyle’s schooling, her testimony was met with an objection on the grounds of relevance. The objection was sustained. The defendant also contends that the Master’s recommendation is erroneous because it “overlooks the substantial income mother received in the form of the capital gain from the sale of the former marital residence.” The Master’s discussion of that issue was as follows: In December, 2004 the Plaintiff sold the marital residence which she had received in 2001 as part of the equitable distribution proceedings in the divorce. The Defendant argues that the gain on the sale should be included as income to the Plaintiff for support purposes. In Miller v. Miller, 783 A.2d 832, 835 (Pa.Super. 2001) the court stated: “Money received from the sale of an asset awarded in equitable distribution may not be included in an individual’s income for purposes of calculating support payments. The single caveat to this rule is that any gain realized in the sale of the asset may, indeed must, be included in the calculation of income.” The court added that “[a] gain would occur if the sale of the asset resulted in proceeds in excess of the value at the time of equitable distribution.” The Defendant produced evidence showing that the parties agreed upon a fair market value of the marital residence at the time of equitable distribution of $254,750.00 and that the house was subject to a mortgage with an outstanding balance of $129,100.00. The home was sold by the 2 NO. 1144 SUPPORT 1997 Plaintiff in December, 2004 for $340,000.00. She had refinanced the mortgage on the home during her ownership. The Defendant argues that the Plaintiff realized a gain of $85,250.00 upon the sale, which gain should be attributed as income to the Plaintiff for support purposes. This overlooks, however, costs incident to the sale, particularly real estate commissions, as well as the cost of any capital improvements the Plaintiff may have made to the home prior to the sale. Unfortunately none of these figures were made part of the record. While the plaintiff did present evidence of certain work that was done on the home prior to sale (see Plaintiff’s Exhibit 3), she did not present costs associated with the work. While it is more likely than not that the Plaintiff did, in fact, realize some gain on the sale which would be includable as income under Miller, for this Master to utilize any figure would be pure speculation. Therefore, a calculation of the support obligation will be made based upon the incomes of the parties without consideration of the sale of the marital residence. The Master’s statement of the applicable law was correct as was his analysis of the testimony. Moreover, the failure to flesh out the record on this issue was as much the fault of the defendant as it was of the plaintiff. Nonetheless, and for the purpose of bringing some finality to this matter, we will remand this case to the Master for further hearing on the issue of the plaintiff’s sale of the marital residence and the application to this case of the principle’s announced in Miller v. Miller. ORDER AND NOW, this day of January, 2006, this matter is remanded to the Master for further hearing on the question of whether the plaintiff received “income” in the form of gain 3 NO. 1144 SUPPORT 1997 from the sale of the former marital residence. BY THE COURT, _______________________________ Kevin A. Hess, J. John W. Purcell, Jr., Esquire For the Plaintiff Samuel L. Andes, Esquire For the Defendant Support Master :rlm 4 PATRICIA A. CRAWFORD, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLANIA : vs. : CIVIL ACTION – LAW : DOMESTIC RELATIONS SECTION DAVID A. CRAWFORD, : NO. 1144 SUPPORT 1997 Defendant : PACSES NO. 891100016 IN RE: DEFENDANT’S EXCEPTIONS TO REPORT AND RECOMMENDATION OF THE SUPPORT MASTER AND NOW, this day of January, 2006, this matter is remanded to the Master for further hearing on the question of whether the plaintiff received “income” in the form of gain from the sale of the former marital residence. BY THE COURT, _______________________________ Kevin A. Hess, J. John W. Purcell, Jr., Esquire For the Plaintiff Samuel L. Andes, Esquire For the Defendant Support Master :rlm