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HomeMy WebLinkAbout326 S 2018 MICHELLE A. MANCE, : THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : DOMESTIC RELATIONS SECTION v. : : DYLAN T. WINTERS, : DOCKET NO. 00326 S 2018 Defendant : PACSES NO. 378117035 OPINION IN RE: DEDFENDANT’S EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION Smith, J., January 11, 2022 FACTS Plaintiff, Michelle A. Mance (“Mother”) and Defendant, Dylan T. Winters (“Father”) were married in 2009. Their union produced three children, K.W.-M., (YOB 2009), M.W.-M. (YOB 2012), and S.W.-M (YOB 2015). The parties separated in April of 2018, at which time, Mother commenced these proceedings for child support and spousal support. To date, neither party has filed for divorce. Pursuant to a March 9, 2020 Custody Order entered by the Honorable Edward E. Guido, Mother has primary physical custody of the minor children during the school year, with Father exercising partial physical custody on the first, second and third weekends of the month from 1 Friday after school until Monday before school. The parties share physical custody on 2 a week on/week off alternating schedule during the summer. Support was initially assessed against Father on August 15, 2018 at $1,420 per month in combined spousal and child support. Father did not file exceptions to the Support Master’s Report and Recommendation at that time, but instead evaded his support obligations, resulting in the commencement of several contempt proceedings, 3 initiated by both Mother and the Domestic Relations Office. To date, Father has been adjudged in contempt of the support order twice. 1 See Order of Court, Mance v. Winters, No. 2018-03071 (March 9, 2020). 2 Id. 3 At the commencement of this action, Father was employed and subject to a wage attachment. At some point after August of 2018, Father became less than regularly employed, in that he was no longer receiving regular paychecks subject to garnishment. Whether Father was truly unemployed, was being paid under the table for jobs, or a combination of both, is unclear from the record. The last wage garnishment received by the Domestic Relations Office appears to be from August 16, 2018. Page 1 of 8 On July 15, 2020, Father filed for modification of the support order alleging that his income had decreased since the entry of the original support order. A hearing was held before the Support Master, Jeffrey Lawrence, Esquire (“the Master”), on January 8, 2021. The Master issued his Report and Recommendation (herein after “Report and Recommendation”) on January 21, 2021. Mother’s income was assessed at $966 per month, which she receives in the form of Social Security Disability payments. The parties stipulated to the amount that Mother receives from her SSD payments, and no 4 other income was considered. The Master then turned his attention to Father’s finances, which are more complicated. Father suggests support should be assessed based on his income for the 5 last ten years, which was between $18,000 and $26,000 per year. Father’s sole document in support of this assertion was his 2019 tax return which indicated that he 6 had a combined taxable earning of $21,847. The discussion around Father’s income was nebulous. On page 18 of the Transcript, Father indicates that he left employment with Electric Power Savers toward the end of 2018 and began working as a 1099 subcontractor installing lighting fixtures under a man named John Gearhart. On page 19 of the Transcript, the Master asked Father if the work was fulltime. Instead of answering the question, Father began discussing the type of work Mr. Gearhart does. The Master attempted to redirect Father into answering direct questions through which he could ascertain Father’s income. Father again went into the nature of the program with Mr. Gearhart and began discussing his own business ventures. On page 23 of the Transcript, the Master, appearing frustrated, states “So far you haven’t – you literally haven’t told me anything. I know nothing or very close to nothing about what you have actually been doing or how much money you’ve actually been earning since April of 2019.” The Master again attempted to be direct with Father and stated “if you have some fancy way that I can create a fair support order based on what you’ve told me, I am all ears. I’m going to give you one more try.” Again Father evaded the question of how much he made while working with Mr. Gearhart, to which the Master responded 4 The Master also noted that Mother is also the designated payee for Social Security derivative payments for the children in the amount of $282. Rather than attribute these payments to Mother’s income, the Master added the payments to combined monthly income of the parties. See Report and Recommendation, 10. 5 See Petition for Modification of an Existing Support Order, Mance v. Winters, No. 326 S 2018 (July 15, 2020). See also, Report and Recommendation, 1. 6 See Defendant’s Exhibit 1. See also, Report and Recommendation, 1. Page 2 of 8 I can’t be more direct to you. I don’t want you to leave this proceeding saying, Man, the Court shafted me again. They didn’t let me talk about this. They didn’t let me bring in X, Y, and Z exhibit. They don’t understand. They’re not setting it right. I’ve asked you six different ways, and I’m frustrated now because what I want is for you to at the end of this process say, Hey the Court gave me a fair shake. The Court actually listened to me. They understood what happened, and they set support based on what really happened and why it happened. But you’re not answering my questions. How much did you expect to earn from Mr. 7 Gearhart in April of 2019? On page 31 of the transcript, Father states that he expected to earn $300 per week from his work with Mr. Gearhart and believes that he made $17,000 from his work with Mr. Gearhart in 2020. Father then stated that work with Mr. Gearhart was picking up so much that he was intending on hiring another person, and that he had more hours for Father to work. Father stated that his December 2020 earnings from working for Mr. 8 Gearhart amounted to $2,215. Mother, for her part, argued that support should be based on Father’s potential earnings as an electrician, and she submitted several documents showing that an 9 electrician can expect to make $20 per hour in Central Pennsylvania. The Master 10 rejected this argument based on Father’s work history and criminal record. The Master also declined to base Father’s income on his own business ventures, to which Father surmised he could earn at least $40,000 per year, and possibly even 11 $150,000 per year. The Master classified those projections as speculative, and instead chose to base Father’s income on Father’s November and December 2020 income derived from his work with Mr. Gearhart, accounting for his annual expenses, 12 and arrived at an annual taxable income of $29,585. 7 Transcript, 26. 8 See Transcript, 33. 9 See Transcript, 51-55. 10 See Report and Recommendation, 9. 11 See Report and Recommendation, 4. 12 Father testified that he made $2,215 in December 2020. Father was asked on cross-examination if he made $3,382.50 in November, 2020, to which he stated “I don’t know, it might be.” Transcript, 47. The Master relied on this acquiescence in his calculation. See Report and Recommendation, 5. Page 3 of 8 The Master’s final recommendation was that Father pay $907 per month in child support for the parties’ three children and $145 per month in spousal support for Mother, for a combined monthly support award of $1,052 per month. An additional $8,322.54 is owed in arrears, payable in monthly increments of $104. The Report and Recommendation was adopted as an Order of Court by the Honorable Jessica E. Brewbaker on January 21, 2021. Father filed exceptions to the Master’s Report and Recommendation on February 10, 2021, that 1. Defendant averaged less income annually than Plaintiff during relationship. 2. Plaintiff’s mental health/emotional state provided inaccurate testimony. 3. Defendant does not have the means to support his self, as income for Defendant is set higher than as appears on his 2019 taxes. 4. Plaintiff owns a home purchased by her father, along with consistent financial support. 5. Defendant is contesting spousal support, as it has been over three years of living separately, and neither side has filed for divorce. The parties appeared for argument on Father’s Exceptions on December 8, 2021, at which time the matter was taken under advisement. DISCUSSION A report of the Support Master is to be given the fullest consideration, especially with regard to credibility of witnesses. However, the trial court is required to review the 13 report to determine if the recommendations are appropriate. Additionally, the credibility issue is not to be resolved entirely by the Master as the reviewing court has the duty to make a complete and independent review of all the evidence, including a 14 review of the weight and credibility to be accorded to the testimony of the witnesses. For ease of analysis, we will address Father’s Exceptions individually as numbered above. 13 Goodman v. Goodman, 544 A.2d 1033, 1035 (Pa. Super. 1988). 14 Rollman v. Rollman, 421 A.2d 755, 758 (Pa. Super 1980). Page 4 of 8 EXCEPTION 1 Father first asserts that Mother made more money than him during the course of their relationship. Even if we ignore that the purpose of support is to assess and 15 compare the current financial state of the parties, Father’s exception is without merit. Father stated at the hearing before the Master that “…I actually averaged less than \[Mother\] in the time that we were together. She averaged just over $11,000; I 16 averaged just under $11,000.” Defendant provided no documentation to support this contention, or what “just over” and “just under” $11,000 actually means. In theory, “just over $11,000” could be $11,001, and “just under $11,000” could be $10,999, a difference of $2. Thus, even ignoring whether consideration of the parties’ income during the course of the marriage is proper in this instance, we have nothing concrete on which to base that analysis. Therefore, Father’s first exception is OVERRULED. EXCEPTION 2 Father next contends that Mother provided inaccurate testimony because of her “mental health/emotional state.” Father does not indicate exactly what testimony is inaccurate, which prohibits any meaningful review of Mother’s statements. Therefore, Father’s second exception is OVERRULED. EXCEPTION 3 Father’s third objection is that, with the current support obligation, he does not have sufficient funds to support himself. Again, Father provided no documentation regarding his income and expenses, therefore, once again, we are forced to surmise the details of Father’s current financial situation from his testimony before the Master. Father testified that he lives with his mother, but sometimes stays with his fiancée. Father does not assist his mother in paying the rent, and that when asked if he 15 See 23 Pa.C.S. §4322(a)(“\[support guidelines\] place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for usual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.”). 16 Transcript, 15. Page 5 of 8 17 pays for any other expenses, he responded “I help her do stuff.” Father went on to state that he spends about $4,000 annually on his business expenses, and there is not 18 enough leftover to assist in household expenses. The Master relied solely on Father’s testimony that he has $4,000 annually in 19 business expenses and deducted all $4,000 from Father’s calculated income. By Father’s own admission, he does not pay for housing or utilities. We have no additional testimony or documentation as to what other expenses Father could have that would warrant a deviation from the standard guidelines. Therefore, Father’s third exception is OVERRULED. EXCEPTION 4 Father next contends that the Master did not consider that Mother’s home was purchased by her father and that he provides her with additional financial support. Father surmises that Mother’s father has paid around $50,000 in attorney fees on behalf 20 of Mother and that he gives her $20,000 per year. Father based this figure on 2 emails sent by Mother’s father, one in 2016 and 2018, that may show Mother’s father gave the parties sums of $6,000 and $9,000 and purchased the home in which Mother 21 currently lives for $14,000. Those emails were not admitted into evidence, but even if they were, they would not be relevant at this juncture, given that they date prior to the parties’ separation and may not be indicative of Mother’s current situation. Father admitted that he had no first-hand knowledge as to what, if any, financial support Mother is currently receiving from her father. Mother testified that “yeah, \[Mother’s father\] did help me get the house I’m in. 22 And he has paid attorney fees, but there’s no regular income.” Mother further testified that in 2020, her father gave her $2,000 as a Christmas gift, which she used to pay 23 bills. The Master considered both the purchase of the home and the $2,000 as gifts 17 Transcript, 11. 18 See Transcript, 11-12. 19 See Report and Recommendation, 5. 20 See Transcript, 41-42. 21 See Transcript, 42. To be fair, by Father’s own admission, the purchase of Mother’s home occurred in 2016, while the parties were living together. See Transcript, 29-30. 22 Transcript, 60. 23 See Transcript, 61. Page 6 of 8 24 and did not consider them as income. The Master further concluded that while Mother will likely continue to receive gifts from her father, he surmised that the gifts would not total more than a few thousand dollars per year, and thus no deviation would be 25 warranted in this instance. In fairness, as noted above, Father is also receiving financial assistance from his mother in the form of rent and other living expenses, and no evidence was placed on the record to show a significant disparity in the amount of assistance the parties receive from their respective family members. Therefore, Father’s fourth objection is OVERRULED. EXCEPTION 5 Father’s last objection is that Mother is not entitled to spousal support because neither party has filed for divorce. 23 Pa.C.S. § 4321(1) holds that “married persons are liable for the support of each other according to their respective abilities to provide support as provided by law.” Further, our Superior Court has held that “\[t\]he duty of spousal support…arises out of the marital relationship itself and terminates when the 26 marriage ends.” As the Master aptly pointed out to Father, he could have objected to spousal support when Mother initiated this action, but he did not, and as such, the Court has found that Mother is entitled to spousal support absent a change in circumstances and until the entry of a divorce decree. Therefore, Father’s fifth objection is OVERRULED. By the Court, Matthew P. Smith, J. 24 See Report and Recommendation, 11. 25 See Report and Recommendation, 11-12. 26 Noldy v. Noldy, 490 A.2d 1376, 1377 (Pa.Super. 1985)(quoting Remick v. Remick, 456 A.2d 163, 169 (Pa.Super. 1983)). Page 7 of 8 Kara W. Haggerty, Esquire 245 Grandview Avenue, Suite 102 Camp Hill, PA 17011 Dylan T. Winters 2430 Fishing Creek Valley Road Harrisburg, PA 17112 Page 8 of 8