HomeMy WebLinkAbout594 S 2018 Thomas V Thomas
CYNTHIA DIANE THOMAS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
: DOCKET NO. 00594 SUPPORT 2018
DOUGLAS MICHAEL :
THOMAS, :
Defendant : PACSES NO. 600117190
IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE HYAMS, J.
OPINION and ORDER OF COURT
th
HYAMS, J., August 13, 2021.
For disposition in this spousal support/child support case are exceptions filed by
Defendant obligor to a Report and Recommendation of the Cumberland County Support
1
Master.The exceptions being pursued according to Defendant’s brief relate to the
Master’s calculation of Defendant’s income available for support and to the Master’s
determination as to Plaintiff’s earning capacity:
Exception 1. The Master erred and abused his discretion by including Defendant’s car
allowance as income, even though it is designed to offset work-required expenses.
Exception 2. The Master erred and abused his discretion by determining that Plaintiff was
unable to work in her old position \[as an occupational therapist\], as Plaintiff did not
present sufficient evidence or submit the proper documentation to establish an inability to
perform this employment.
Exception 3. The Master erred and abused his discretion by incorrectly calculating
Plaintiff’s earning capacity/income.
Exception 4. The Master erred and abused his discretion by not holding Plaintiff
2
responsible for finding additional employment when her employer reduced her hours.
For the reasons stated in this opinion, Defendant’s exceptions will be dismissed.
1
Defendant’s Exceptions to the Master’s Report and Recommendation Filed December 21, 2020, filed
January 11, 2021.
2
Defendant’s Brief in Support of Defendant’s Exceptions to the Master’s Report and Recommendation
Filed December 21, 2020, filed c. May 10, 2021.
1
PROCEDURAL HISTORY; STATEMENT OF FACTS
Procedural history. Plaintiff wife/mother filed a claim for spousal and child
3
support against Defendant husband/father on August 2, 2018,which resulted in an initial
monthly obligation on the part of Defendant for spousal support in the base amount of
4
$1,316.00 and for the support of two children in the base amount of $1,472.00, premised
5
upon net monthly incomes of $3,567.92 for Plaintiff and $9,428.02 for Defendant.
Under this order, Defendant’s total base monthly support obligation was $2,788.00.
By the time of an order of court dated October 1, 2019, Defendant’s base monthly
spousal support obligation was $836.00 and his base monthly child support obligation
was $1,264.00, premised upon net monthly incomes of $3,794.83 for Plaintiff and
6
$7,870.66 for Defendant.Under this order, the total base monthly support amount was
$2,100.00.
On January 28, 2020, Plaintiff filed a petition for modification of the support
7
order, based upon an income issue. Following a Domestic Relations Office conference,
an interim order of court dated July 20, 2020, was entered providing for a base monthly
spousal support obligation of $975.00 and a base monthly child support obligation of
$1,324.00, premised upon monthly net incomes of $3,035.89 for Plaintiff and $7,792.78
8
for Defendant.Under this order, the total base monthly support amount was $2,299.00.
9
On August 7, 2020, Plaintiff requested a hearing de novo on the matter, which
10
was held by the Cumberland County Support Master on December 1, 2020.Following
3
Plaintiff’s Complaint for Support, filed August 2, 2018.
4
Support Master’s Report and Recommendation, at 10, filed January 8, 2019.
5
Support Master’s Report and Recommendation, Exhibits “A” and “B”, filed January 8, 2019; see Order
of Court, dated January 2, 2019; see also Amended Order of Court, dated January 9, 2019.
6
Order of Court, dated October 1, 2019; Order of Court, dated October 7, 2019; see Opinion and Order of
Court, dated February 19, 2020.
7
Plaintiff’s Petition for Modification of an Existing Support Order, filed January 28, 2020.
8
Interim Order of Court, dated July 20, 2020.
9
Letter from Plaintiff’s counsel to Domestic Relations Office, dated August 7, 2020.
2
the hearing, the Master issued a Support Master’s Report and Recommendation, dated
December 21, 2021, recommending on the part of Defendant (a) a base monthly spousal
support obligation of $1,111.00 and a base monthly child support obligation of $1,449.00
from January 28, 2020, through June 30, 2020, premised upon net monthly incomes of
11
$3,044.23 for Plaintiff and $8,274.52 for Defendant,and (b) thereafter, a base monthly
spousal support obligation of $1,148.00 and a base monthly child support obligation of
$1,469.00, premised upon net monthly incomes of $3,044.23 for Plaintiff and $8,389.37
1213
for Defendant.An interim order to this effect was entered on December 21, 2020.
Under this order, the total base monthly support amount as of July 1, 2020, was
$2,617.00.
The exceptions sub judice of Defendant to the Support Master’s Report and
14
Recommendation precipitating this order were filed on January 11, 2021. Briefs on the
15
exceptions have been received from both parties.
Statement of facts. By way of background, the following facts have been
16
developed in prior proceedings.Plaintiff Cynthia Diane Thomas and Defendant
17
Douglas Michael Thomas are both residents of Cumberland County, Pennsylvania.
18
They are the parents of two children: G.T. (Y.O.B. 2007) and B.T. (Y.O.B. 2009).
10
N.T. __, Support Master’s Hearing, December 1, 2020.
11
Support Master’s Report and Recommendation, at 11 and Exhibit “A”, filed December 21, 2020.
12
Support Master’s Report and Recommendation, at 11 and Exhibit “B”, dated December 21, 2020.
13
Interim Order of Court, dated December 21, 2020.
14
Defendant’s Exceptions to the Master’s Report and Recommendation Filed December 21, 2020, filed
January 11, 2021.
15
Defendant’s Brief in Support of Defendant’s Exceptions to the Master’s Report and Recommendation
Filed December 21, 2020, filed c. May 10, 2021; Plaintiff’s Brief in Opposition to Defendant’s
Exceptions to the Master’s Report and Recommendation Filed December 21, 2021, filed May 24, 2021.
16
See Opinion and Order of Court, dated February 19, 2020.
17
Support Master’s Report and Recommendation, Findings of Fact, ¶¶1-2, filed October 3, 2019.
18
Support Master’s Report and Recommendation, Findings of Fact, ¶3, filed October 3, 2019.
3
Defendant husband/father resides in the marital residence, and pays the mortgage,
19
homeowner’s insurance, and taxes. He also pays for medical insurance that covers both
20
parties and their children. He is salaried, having secured his most recent employment on
21
July 29, 2019.
22
Plaintiff wife/mother is the primary physical custodian of the children. In
23
January of 2017 she incurred a work-related injury at a rehab facilityfor which she has
24
been awarded workers’ compensation benefits.
At the Support Master’s Hearing on December 1, 2020, it was agreed that
Plaintiff’s income per month attributable to workers’ compensation was about
2526
$3,044.23, which is not taxable. It was also agreed that Defendant’s taxable income
per month from employment, including a monthly car allowance of $700.00, was
27
$11,125.00 prior to July 1, 2020, and $11,291.88 thereafter; these yielded putative
28
monthly net income figures of $8,274.52 and $8,389.37.
However, it was not agreed by Defendant that his income available for support
29
should include his car allowance or that Plaintiff’s earning capacity should be equated
30
with her workers’ compensation benefits. On the first point, Defendant conceded that
19
Support Master’s Report and Recommendation, Findings of Fact, ¶12, filed October 3, 2019.
20
Support Master’s Report and Recommendation, Findings of Fact, ¶11, filed October 3, 2019.
21
Support Master’s Report and Recommendation, Findings of Fact, ¶10, filed October 3, 2019
22
Support Master’s Report and Recommendation, Findings of Fact, ¶6, filed January 8, 2019.
23
N.T. 38, Support Master’s Hearing, September 11, 2019.
24
Support Master’s Report and Recommendation, Findings of Fact, ¶11, filed January 8, 2019, ¶11; N.T.
32-36, Support Master’s Hearing, September 11, 2019.
25
N.T. 4, Support Master’s Hearing, December 1, 2020; see Support Master’s Report and
Recommendation, Findings of Fact, ¶6 and Exhibit “A”, filed December 21, 2020.
26
See Harrison v. Workers’ Compensation Appeal Board, 165 A.3d 1019, 1029 (Pa. Cmwlth 2017).
27
N.T. 4-5, Support Master’s Hearing, December 1, 2019; see Support Master’s Report and
Recommendation, at 2 and Exhibits “A” and “B”, filed December 21, 2020.
28
Support Master’s Report and Recommendation, Exhibits “A” and “B”, dated December 21, 2020.
29
N.T. 5, Support Master’s Hearing, December 1, 2020.
30
N.T. 5-6, Support Master’s Hearing, December 1, 2020.
4
31
he did not use his vehicle exclusively for work, and he testified that his office was in his
32
home, so that he “\[was\] at work when \[he\] w\[o\]ke up, so to speak.” However, his
employer “ha\[d\] manufacturing facilities . . . all over the place that \[he had\] to visit,
33
customers as well,” according to his testimony.
He described the extent of his work-related travel in the month prior to the hearing
on cross-examination as follows:
Q So you’re saying that your travel has maintained consistent throughout
COVID?
A I wouldn’t say consistent, but it’s still substantial.
Q Where did you travel for work in the month of November?
A I’m really not comfortable saying where my customers are or anything
with any specificity.
\[PLAINTIFF’S COUNSEL\]: Could he be directed to answer that?
THE MASTER: It’s up to him how much he wants to build his case. I would
think he could certainly talk about counties or towns or different states.
THE WITNESS: I’ve been throughout the State of Pennsylvania, if that answers
the question.
Q How many trips for work did you make within the month of November?
A Leaving my house counts as a trip? I don’t know off the top of my head.
I’d have to look. I don’t know.
Q Now, you’ve been testifying about work trips. So I’m asking how many
work trips you made during the month of November.
34
A At least a dozen.
* * * *
Q Did you leave the state at all?
35
A I did not leave the state in the month of November.
The car allowance he received was not sufficient to cover the actual out-of-pocket
expenses that he incurred during his workday by using his own vehicle, according to
31
N.T. 38, Support Master’s Hearing, December 1, 2020.
32
N.T. 34, Support Master’s Hearing, December 1, 2020.
33
N.T. 34, Support Master’s Hearing, December 1, 2020.
34
N.T. 37-38, Support Master’s Hearing, December 1, 2020.
35
N.T. 38, Support Master’s Hearing, December 1, 2020.
5
36
Defendant’s testimony.“My payment on the vehicle alone is nearly 400 a month,” he
37
stated, “\[a\]nd we all know what gas costs.”
On the issue of Plaintiff’s earning capacity, Plaintiff testified at the Support
38
Master’s Hearing on December 1, 2020, that she was 49 years old, and had been an
occupational therapist for 22 years with an annual income of $60,000.00 in 2017, when
39
she suffered a job-related injury to her right ankle.This injury ultimately led to
40414243
reconstructive surgery,
sensory deprivation,another injury, increasing pain,and a
44
physician’s decision not to release her to return to her job as an occupational therapist,
according to her testimony. As of the hearing, she was awaiting the results of her most
45
recent MRI.
With respect to alternative employment, Plaintiff, whose college degree was in
46
occupational therapy, and who had worked as an occupational therapist since her
47
graduation from college in 1995,testified that
I was considering that, but I am hopeful that this summer I will show something that can
be treated and that I can return to occupational therapy, one, because it’s what I’m trained
to do and won’t require additional money spent on education. And, also, I believe I can
earn the highest income from doing the job that I’ve done for 20 years as opposed to
36
N.T. 35, Support Master’s Hearing, December 1, 2020.
37
N.T. 35-36, Support Master’s Hearing, December 1, 2020.
38
N.T. 7, Support Master’s Hearing, December 1, 2020.
39
N.T. 8, 18-19, 22, Support Master’s Hearing, December 1,2020.
40
N.T. 14, Support Master’s Hearing, December 1, 2020.
41
N.T. 30, Support Master’s Hearing, December 1, 2020.
42
N.T. 30, Support Master’s Hearing, December 1, 2020.
43
N.T. 8, 30, Support Master’s Hearing, December 1, 2020.
44
N.T. 18, Support Master’s Hearing, December 1, 2020; see also Plaintiff’s Exhibit 2 (Plaintiff’s
Physician Verification Form), Support Master’s Hearing, December 1, 2020.
45
N.T. 8-9, 15, 17, 25, Support Master’s Hearing, December 1, 2020.
46
N.T. 20, Support Master’s Hearing, December 1, 2020.
47
N.T. 18, Support Master’s Hearing, December 1, 2020.
6
trying to start a new career. So I’m hoping that this summer I, perhaps, will identify what
48
type of treatment is necessary to move forward.
Plaintiff testified further that she was the parent responsible for the education of
49
the parties’ 11- and 13-year-old sons, that they were being educated online due to the
50
COVID pandemic, and that they were not mature enough to be left home alone for the
51
entirety of the school day.
In terms of their education, she testified that
I have to provide quite a bit of supervision. \[The younger child\] is doing better since his
medication for ADHD was adjusted, but I still provide significant help along the way
with his school work. And \[the older child\] is having trouble concentrating and requires
constant supervision to stay on track with doing his work. And he’s having difficulty
52
keeping up with the work load as well.
The younger child, according to her testimony, “was diagnosed with anxiety, and
he goes for counseling. \[The older child\] was not, \[she\] guess\[ed\], officially diagnosed
with anxiety, but he does go for counseling and has demonstrated anxiety about the
53
COVID situation.”Given the current COVID-related precautions, she regarded herself
as the person singularly suited to provide the oversight needed with respect to the
54
children’s at-home education.
Following a hearing, the Support Master adopted Plaintiff’s positions that for
purposes of a support calculation Defendant’s gross income included his car allowance
and that for the moment Plaintiff’s earning capacity was fairly deemed equivalent to her
workers’ compensation income. With regard to the car allowance, the Master stated, inter
alia,
. . . \[T\]he simple fact \[is\] that \[Defendant‘s\] employer is not obligated to give
him any money as reimbursement for travel expenses he incurs during the course of his
employment. Clearly, the reimbursement of driving expenses—either in part or in full—
48
N.T. 20, Support Master’s Hearing, December 1, 2020.
49
N.T. 10-11, Support Master’s Hearing, December 1, 2020.
50
N.T. 10, Support Master’s Hearing, December 1, 2020.
51
N.T. 11, Support Master’s Hearing, December 1, 2020.
52
N.T. 12, Support Master’s Hearing, December 1, 2020.
53
N.T. 13, Support Master’s Hearing, December 1, 2020.
54
N.T. 22-23, Support Master’s Hearing, December 1, 2020.
7
is something the company can choose to offer prospective employees as part of their
efforts to entice that prospective employee. Thus, whether the employer reimburses
\[Defendant\] through a reimbursement-per-mile arrangement, or whether they reimbursed
him with a flat fee, does not change the concept of whether the reimbursement is income
or not. Similarly, whether the automobile allowance covers all of Father’s expenses or
not does not change the fact that the automobile allowance is part of \[Defendant’s\]
compensation and, therefore, clearly falls within the definition of income for purposes of
55
child support.
With regard to Plaintiff’s earning capacity, the Master noted Plaintiff’s current
physical condition and COVID-related demands upon her time devoted to the children’s
56
education.
In part, he stated as follows:
On its own, if \[Plaintiff\] was completely healthy and was simply choosing to not
to return to work . . . , \[the latter\] factor would not prevent me from recommending
imputation of income. However, that is not the case here. There is no question that
\[Plaintiff’s\] ankle has made her return to work as an occupational therapist all but
impossible, and after more than 20 years in that field, it would be difficult for \[Plaintiff\]
to suddenly find good employment in an entirely different field. Thus, it is the
combination of hurdles that \[Plaintiff\] faces—two children who are distance learning
from home during her custodial periods, and a difficult road back to employment—that
make me recommend no imputation of additional income. \[Plaintiff’s\] income from her
worker’s compensation claim should constitute the entirety of her income available for
57
support at this time.
The resultant interim court order, dated December 21, 2020, provided for a total
monthly support obligation on the part of Defendant as of July 1, 2020, in the amount of
58
$2,617.00, as described in more detail above. As noted, Defendant is pursuing
59
exceptions to two predicates of this order.
DISCUSSION
Statement of law. In Pennsylvania, a support 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 assess the behavior and demeanor of the parties. . . . However,
55
Support Master’s Report and Recommendation, at 8, filed December 21, 2021.
56
Support Master’s Report and Recommendation, at 2-7, filed December 21, 2021.
57
Support Master’s Report and Recommendation, at 6-7, filed December 21, 2021 (emphasis added).
58
See text accompanying notes 11-13 supra.
59
See text accompanying note 2 supra.
8
it is advisory only and the reviewing court is not bound by it and it does not come to the
60
court with any preponderate weight or authority which must be overcome.”
As a general rule, “the support guidelines \[set forth in the Pennsylvania Rules of
Civil Procedure\] determine the amount of support that a spouse or parent should pay
based on the parties’ combined monthly net income, as defined in Pa.R.C.P. No.
1910.16-2, and the number of persons being supported.” Pa. R.C.P. 1910.16-1(a)(1). The
purpose of the guidelines is to ensure that “persons similarly situated shall be treated
similarly,” and they “place primary emphasis on the net incomes and earning capacities
of the parties.” 23 Pa. C.S. §4322(a).
“Earning capacity is defined as the amount that a
person realistically could earn under the circumstances, considering his age, health,
mental and physical condition, training, and earnings history.” Woskob v. Woskob, 2004
PA Super 37, ¶9, 843 A.2d 1247, 1251.
For purposes of a support calculation, a party’s monthly gross income includes
“income from any source,” such as “wages, salaries, bonuses, fees, and commissions”
and entitlements to money in the form of “payments due to and collectible by an
individual regardless of source.” Pa. R.C.P. 1910.16-2(a)(1), (8)(v). Appropriate
deductions from monthly gross income in calculating a party’s net income for purposes
of support are provided in Pa. R.C.P. 1910.16-2(c).
In Pennsylvania, it has said that car allowance from an employer can be
considered as income available for support. Bulgarelli v. Bulgarelli, 2007 PA Super 295,
¶16, n.5, 934 A.2d 107, 114 n.5. This is consistent with the position of several other
states. See, e.g., Sapinsley v. Sapinsley, 171 Ohio App. 3d 74, 869 N.E.2d 702 (2007);
Moreland v. Hortman, 72 Ark. App. 363, 39 S.W.3d 23 (2001) (semble); Bates v. Bates,
404 N.W.2d 817 (Minn. Ct. App. 1987).
Application of law to facts. With regard to the inclusion of car allowance in
60
Frey v. Frey, 1 Pa. D. & C.5th 116, 121, 2006 WL 5166597 (Monroe Co. 2006) (citations omitted); see
also Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988); Wiser v. Wiser, No.
1076 Support 2009 (Cumberland Co. 2010).
9
Defendant’s gross income for purposes of a calculation of his support obligation, the
Support Master’s position was legally sound, as indicated above, and correctly
rationalized, in the court’s view. Accordingly, Defendant’s exception to the Master’s
recommendation to the inclusion of this income in the calculation will not be granted.
With regard to the Master’s conclusion that, as of the time of the hearing, an
imputation of additional income to Plaintiff under the rubricof earning capacity was not
warranted, the court is also persuaded that the Master was correct. This determination
was to a large extent dependent upon an assessment of Plaintiff’s credibility, and the
unusual set of circumstances in which she found herself at that timejustified the Master’s
refusal, for the moment, to assume her acquisition of unskilledemployment outside of
her field for purposes of inflating her earning capacity.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 13day of August, 2021, upon consideration of Defendant’s
Exceptions to the Master’s Report and Recommendation Filed December 21, 2020,
which were filed January 11, 2021, and for the reasons stated in the accompanying
opinion, theexceptions are dismissed and the interim order of court dated December 21,
2020, is entered as a final order.
BY THE COURT,
_________________
Carrie E. Hyams, J.
Jeff R. Lawrence, Esq.
Cumberland County Support Master
13 N. Hanover St,
Carlisle, PA 17013
10
Jessica E. Smith, Esq.
JSDC LAW OFFICES
Suite 300
11 East Chocolate Avenue
Hershey, PA 17033
Attorney for Plaintiff
John F. King, Esq.
GLEESON & KING, P.C.
20 South 36th Street
Camp Hill, PA 17011
Attorney for Defendant
11