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HomeMy WebLinkAbout252 S 2020 MALONEY KRISTEN C. YESIER MALONEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOCKET NO. 00252 S 2010 : KERRY E. MALONEY, : PACSES NO. 958111585 Defendant : IN RE: SUPPORT EXCEPTIONS OPINION AND ORDER OF COURT Hyams, J., June 30, 2021 Before the court are exceptions by Kerry E. Maloney Husband to the February 10, 2020 Order, Report and Recommendation of the Support Master following a de novo hearing on January 13, 2020. For the following reasons, Husband Procedural History and Statement of Facts Husband and Wife were married on October 7, 1993 and separated on April 10. 2010. They are the parents of two, now adult, children, but only the youngest child, their son Kellen, is subject to this current round of litigation. The parties had shared custody of Kellen at the time of the de novo hearing before the Support Master, but Kellen was 18 years old and no longer attending high school. The Husband had filed a Modification Petition to address the was correctly calculated by the conference officer at a net 28, 2020 are set out more specifically below: 1. against the weight of the evidence. 2. contrary to law. 3. The Support Master erred and/or abused his discretion in benefits a willful failure to procure her income and therefore abused his discretion by failing to assign an earning capacity to her. 4. The Support Master erred and/or abused his discretion in length of time that Husband has been paying support. 5. The Support Master erred and/or abused his discretion in failing (sic) prove same. 6. The Support Master erred and/or abused his discretion in self-reports and for - 7. The Support Master erred and/or abused his discretion in handful of times since 2017. 8. The Support Master erred and/or abused his discretion in failing to assign Wife an earning capacity. 2 Discussion proving by competent evidence that a material and substantial change of circumstances has McClain v. McClain, 872 A.2d 856, 863 (Pa. Super. 2005), quoting Samii v. Samii, 847 A.2d 691, 695 (Pa. Super. 2004). The determination of whether a material and substantial change of circumstances has occurred is within the trial discretion. Mackay v. Mackay, 984 A.2d 529, 537-538 (Pa. Super. 2009). In making its determination, the trial court consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of McClain v. McClain, 872 A.2d at 863. It is within the province of the trial court to weigh the evidence and decide credibility and those determinations will not be overturned so long as they are supported by the evidence. Sternlicht v. Sternlicht, 822 A.2d 732, 742 (Pa. Super. 2003), aff'd, 876 A.2d 904 (Pa. 2005). Furthermore, master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003) (citing Simeone v. Simeone, 551 A.2d 219, 225 (Pa. Super. 1988), aff'd, 581 A.2d 162 (Pa. 1990)). We will capacity, work ability/inability, and the medical evidence presented on these issues. When determining the support obligation of a spouse, the trial court must consider income, potential earning capacity and other property and financial resources. Machen v. Machen, 420 A.2d 466 (Pa. Super. 1980) 3 not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training. Commonwealth ex rel. Simpson v. Simpson, 430 A.2d 323 (Pa. Super. 1981). It has long been established that the court may look beyond the actual present earnings of a party. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); McMahon v. McMahon, 167 Pa.Super. 51, 74 A.2d 718 (1950). Wife was not working at the time of the de novo hearing before the Support Master and had not worked since 2014. She is a recovering alcoholic and although she was not actively seeking treatment for alcoholism, she identifies multiple medical conditions that impair her ability to work. Wife took the same position in September 2016 when the parties previously appeared before the Support Master for an evidentiary hearing. Wife still claims to be suffering from joint pain and overall soreness that is unpredictable and so intense that at times she cannot her treating physician, Jessica Herzog, M.D. who is board certified in integrated medicine and modalities focus on natural and holistic remedies over the prescription of medication. Husband has In almost the same breath, Husband argues that Wife had been sober for 1,672 days at the time of the hearing and unlike the 2016 hearing, there was no testimony regarding current treatment for alcoholism. Husband fails to acknowledge Dr. Herzog collected lab work which supported ptoms. This included thyroid and liver findings that were a marker for higher morbidity and mortality as well as impacting overall liver health. The objective and recent findings of Dr. Herzog overcome s 4 primary care physician and had only seen the Wife six times since 2017. speculative causation arguments in his Brief concerning physical history omissions do not change the fact that Dr. Herzog found the Wife to be suffering from a level of pain, fatigue and brain fog (mild cognitive impairment), which rendered her unable to work. Dr. Herzog opined that Wife was unable to work at the time she testified, the moderate level for the foreseeable future. The Support Master ultimately determined that Wife could work at a part-time or work-from- appropriate employment. ecommendation was not contrary to the weight of the evidence when that evidence is reviewed in its entirety. Dr. e and hold gainful employment. Husband further argues that since Wife was instructed to file for Social Security Disability by Dr. Herzog, and did not do so, she should be held to a zero dollar earning record to support a finding that the Wife would qualify for these benefits and furthermore, there was no evidence in the record to support that a social security disability finding should be imposed against Wife. Husband now seemingly argues that the Support Master erred by failing to assign earning capacity to wife based on a record with no evidence to back up such a finding. There simply is no evidentiary record to assign Wife earning capacity based on her lack of follow through with social security applications regard fail. 5 The parties in this case were married for sixteen (16) years. Husband has been paying spousal support in excess of eleven (11) years, however, as Husband emphasizes in his own Brief, spousal support is based on the actual needs of the dependent spouse not simply the income of the spouse who stands in a superior economic position. The record is replete with The The evidence presented in this matter demonstrated that Wife was not willfully failing to maintain appropriate employment. The Support Master observed both Wife and Dr. Herzog sufficient and valid evidence, which supported the finding of the Support Master concerning Kellen should have graduated in June of 2018, but as a result of unfinished projects he could have graduated until after he completed a class at HACC in the Fall of 2018. The completion of this class would provide Kellen the credit he needed to graduate high school and start him on his collegiate path. Unfortunately, Kellen failed the class and instead of informing Husband of this information, he claimed there was an enrollment mistake resulting in his enrollment for class in the Spring of 2019. Husband remained of the belief that Kellen was enrolled in a class that was leading to his high school graduation. Husband had requested bills from HACC and after none were forthcoming he called the high school guidance counselor in May 2019 and learned that Kellen had failed the class at HACC and was no longer eligible to graduate high school by taking a college credit. While Wife had received a call in December 2018 from the high school guidance counselor informing her that Kellen had failed the class at HACC from the Fall 2018 6 semester, she believed that the high school guidance counselor was going to contact HACC and attempt to fix the problem. In addition, Kellen continued to act as if he was attending classes by leaving the house each day in late 2018/early 2019 and she believed he was still attending HACC at that time. The effective date of a modification of an existing Support Order is the date of the filing of the Petition to Modify, but modification may be retroactive to an earlier date if the Petitioner was precluded from filing a Petition for Modification due to misrepresentation of another party. Pa.R.C.P. 1910.17. Husband learned that Kellen was no longer at HACC in May of 2019, but did not file his Modification Petition until October 2019. The reason given for waiting to file was not because he was misled by another party, but because he did not have the funds necessary until he started his new position at a higher income. As the Support Master found, Husband who is and was a licensed attorney could have filed the Modification Petition at the time he learned that Kellen was no longer at HACC (May 2019). Therefore, the evidence Conclusion After review of the record writings in support of their positions Recommendation are DENIED, and the Recommendation of the Support Master is hereby adopted in its entirety. 7 ORDER OF COURT AND NOW, this 30th day of June, 2021, upon consideration of the support exceptions filed by Husband; IT IS HEREBY ORDERED AND DIRECTEDthatHusband DENIED. BY THE COURT, _______________________ Carrie E. Hyams, J. Lindsay Gingrich Maclay, Esquire Gleeson & King, PC th 20 South 36Street Camp Hill, Pennsylvania 17011 Jordan D. Cunningham, Esquire P.O. Box 60457 Harrisburg, PA 17106 Jeffrey R. Lawrence Support Master 8