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HomeMy WebLinkAbout1097 S 2001 DONNA L. MURRAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : MICHAEL S. : KALINOSKI, : PACSES NO. 677104127 Defendant : No. 01-1097 SUPPORT IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., August 15, 2007. In this child support case involving two children in the primary custody of 1 their mother, the children’s father filed a petition to modify child support. Following a hearing held by Michael R. Rundle, Esq., Cumberland County Support Master, the master issued a report recommending that Defendant’s 2 support obligation for the children be decreased to $760.00 per month. An 3 interim order in accordance with the recommendation was thereafter entered. For disposition at this time are exceptions to the support master’s report, 4 filed pro se by Defendant father. The exceptions read as follows: 1. Defendant’s Tax Detail Report was incorrect for yearly income. 2. Defendent’s [sic] business expenses were not deducted from Tax detail Report. 3. Plaintiff’s afterschool care is invalid. 4. Plaintiff’s claim for therapeutic horseback riding lesson is unrealistic. Support Master is not qualified to make this decision. 5 5. Plaintiff’s claim for annual income is incorrect. 1 Defendant’s Petition for Modification of an Existing Support Order, filed December 26, 2006. 2 Support Master’s Report and Recommendation, filed April 11, 2007. 3 Interim Order of Court, April 11, 2007. 4 Defendant’s Exceptions, filed May 3, 2007. 5 Defendant’s Exceptions, filed May 3, 2007. For the reasons stated in this opinion, Defendant’s exceptions to the support master’s report will be dismissed and the interim order of court issued in accordance with the master’s recommendation will be entered as a final order. STATEMENT OF FACTS Plaintiff is Donna L. Murray, an adult individual residing at 1710 Lincoln 6 Street, Camp Hill, Cumberland County, Pennsylvania. Defendant is Michael S. Kalinoski, an adult individual residing at 2023 North Atlantic Avenue 109, Cocoa 7 Beach, Florida. Plaintiff and Defendant are the mother and father, respectively, of two minor children: Allison M. Kalinoski, born October 8, 1994, and Ashley E. 8 Kalinoski, born February 4, 1998. The children live primarily with Plaintiff, their 9 mother. On December 31, 2001, Plaintiff mother filed a complaint for child support 10 with respect to the children against Defendant father. Eventually, by way of an order of court dated May 7, 2003, Defendant’s monthly support obligation for the children had become $1,580.00, based upon a monthly net income of Plaintiff 11 mother of $1,608.34 and a monthly net income of Defendant father of $3,857.25. 12 On December 26, 2006, Defendant father filed a petition to modify this order. A hearing before the Cumberland County Support Master on the modification petition of Defendant father, at which Plaintiff mother was represented by counsel and Defendant father represented himself, was held on 6 N.T. 19, Support Master’s Hearing, April 3, 2007 (hereinafter N.T. __). 7 N.T. 3-4. 8 N.T. 3-4, 19. 9 N.T. 4. 10 Plaintiff’s Complaint for Support, filed December 31, 2001. The complaint also included a claim for spousal support. Id. 11 Order of Court, May 7, 2003. 12 Petition for Modification of an Existing Support Order, filed December 26, 2006. 2 April 3, 2007. The evidence at the hearing pertinent to the exceptions of Defendant father may be summarized as follows: The parties’ youngest daughter suffers from depression and a learning 13 disability, and is under the care of a psychiatrist, whom she sees once a month at 1415 an unreimbursed cost of $30.00 per session, a private therapist, whom she sees once a month at an unreimbursed cost of $30.00 per session, and a second 16 therapist, whom she sees once a week, at no cost. The unreimbursed cost of the 17 child’s medication is $50.00 per month. Pursuant to a recommendation of her psychiatrist, she also engages in therapeutic horseback riding lessons four times a month, at a cost per month of $152.00. All of these expenses are paid by Plaintiff 18 mother. With respect to child care expenses during the school year, Plaintiff mother 1920 incurs such expenses for the parties’ youngest child, but not for the older child. In this regard, as of April 2, 2007, the cost of such child care to Plaintiff mother, 21 averaged out over 12 months, rose to $346.67 per month. Before April 2, 2007, the cost of such child care incurred by Plaintiff was apparently less due to her 22 occasional utilization of private sitters and her daughter for this purpose. An estimate of monthly child care expenses of Plaintiff mother during the school year, averaged out over 12 months, of $180.00 would thus appear to be a conservative one. Plaintiff mother also incurs summer camp expenses for the children in the 13 N.T. 22-23. 14 N.T. 24. 15 N.T. 24. 16 N.T. 24. 17 N.T. 24. 18 N.T. 27. 19 N.T. 28. 20 N.T. 27. 21 N.T. 36; Plaintiff’s Ex. 7. 22 See N.T. 36-37. 3 amount of $2,735.00 each year, or $227.92 per month, averaged out over 12 23 months. A combination of the monthly figures of $180.00 and $227.92 produces an average monthly child care expense incurred by Plaintiff mother of $407.92. Defendant father resides alone in Florida, is employed as a laborer, and is a member of a trade union which sends him to various work sites of contractors, 24 including sites in the Commonwealth of Pennsylvania. In these jobs, he is a 25 salaried employee of the contractor. His gross monthly income, from 26 unemployment compensation and earnings, is $4,389.00; his union dues per month are $149.50. In addition, Defendant incurs some unusual expense in connection with his employment, including the cost of lodging, when he is on jobs at a substantial distance from his home and can not secure accommodations with 2728 relatives. However, the precise amount of such expense is difficult to predict, and the evidence Defendant presented to document such expense in the past was 29 less than compelling. 30 Defendant father’s state of residence, Florida, has no state income tax. On the other hand, he is required to pay state tax on the portion of his income 31 which derives from states like Pennsylvania which do have income taxes. For federal income tax purposes, Defendant father’s filing status on his individual tax 23 N.T. 29. 24 N.T. 4-6. 25 See Defendant’s Ex. 1 (W-2 forms). 26 See Defendant’s Ex. 2, Master’s Hearing, April 3, 2007 (hereinafter Plaintiff’s/Defendant’s Ex. __). 27 N.T. 8-15. 28 N.T. 8-15. On Defendant father’s 2006 federal income tax return, he claimed unreimbursed business expenses, exclusive of union dues, in the amount of $27,118.00. Defendant’s Ex. 2. 29 N.T. 8. 30 N.T. 5-6. 31 N.T. 6. According to Defendant father, he also receives an unspecified amount of work-related income intended to cover certain foreign taxes and the preparation of tax returns related to those taxes, but the import of his testimony in this regard was not clear. N.T. 15. 4 32 return is “Single” and he claims one exemption. Through his employment, Defendant father is able to provide health insurance for the parties’ children 33 without cost to himself. Based upon the foregoing, Defendant father’s gross monthly income, without reference to the aforesaid unusual expenses, is $4,389.00. With 34 deductions of his monthly union dues ($149.50) and federal income tax ($616.91), FICA payment (308.93), applicable state income tax ($62.91), and local 35 income tax ($19.91), calculated in accordance with his tax filing status, his single 3637 exemption, and a standard deduction, as determined by an application of the 38 standard tax computer program utilized by Cumberland County for this purpose, Defendant father’s monthly net income for support purposes totals $3,230.84. 39 Plaintiff mother resides with the parties’ two children in Pennsylvania. 40 She is employed as a dental hygienist on a full-time basis for Periodontal 32 N.T. 7; Defendant’s Ex. 2. 33 N.T. 7. 34 See Pa. R.C.P. 1910.16-2(c)(1)(C). 35 See Pa. R.C.P. 1910.16-2(c)(1)(A), (B). 36 $283.33. 37 $445.83. 38 “Typically, a computer program is utilized by the Domestic Relations Office to derive the proper tax and F.I.C.A. figures based upon a party’s gross income, filing status and exemptions.” Colleen Seeley-Burnham v. David M. Burnham, 52 Cumberland L.J. 48, 52 (2002). The use of a standard tax computer program to calculate these deductions, which is routine practice in domestic relations cases, avoids problems inherent in relying upon [such potential contrivances as] individual withholding schemes, which do not always correspond to the taxpayer’s actual obligations. Parlati v. Morton, 53 Cumberland L.J. 169, 174-75 (2004). 39 N.T. 19. 40 Plaintiff’s Ex. 1. 5 41 Associates at a gross monthly salary of $3,898.54 and on a part-time basis for 42 Harrisburg Area Community College at a gross monthly salary of $85.13. For federal income tax purposes, Plaintiff mother’s filing status on her 4344 individual tax return is “Head of Household.” She claims three exemptions. Based upon the foregoing, Plaintiff mother’s gross monthly income is 45 $3,983.67. With deductions of federal income tax ($158.60), FICA payment ($304.75), state income tax ($125.88), and local tax ($39.84), calculated in accordance with her tax filing status, three exemption, and a standard deduction, as determined by an application of the aforesaid standard tax computer program, Plaintiff mother’s monthly net income for support purposes totals $3,354.60. Following the support master’s hearing, the master issued a report on April 1, 2007. In the report, utilizing the monthly net income figures of Plaintiff mother and Defendant father, the master arrived at a combined total monthly net income for support purposes of approximately $6,585.00 and a proportional ratio of 50.94 46 to 49.06 between Plaintiff mother’s and Defendant father’s incomes. Under the support guidelines, the joint basic support obligation for this income for two 47 children was $1,460.00, of which Defendant father’s proportional share was $716.28. With the addition to this obligation of a proportional share of the child care 48 expenses incurred by Plaintiff mother ($155.03) and a proportional share of the 41 N.T. 20; Plaintiff’s Ex. 2. 42 N.T. 21-22; Plaintiff’s Ex. 3. 43 Plaintiff’s Ex. 1. 44 Plaintiff’s Ex. 1. 45 This figure takes into account the monthly “child tax credit” ($166.66) provided for in the Internal Revenue Code. See Master’s Report, Exhibit “A”. 46 Master’s Report, Ex. “B”. 47 Pa. R.C.P. 1910.16-3. 48 This figure is predicated upon a reduction of the monthly child care expenses incurred by the mother ($407.92) by the monthly “child care tax credit” available to her under the Internal Revenue Code. See Pa. R.C.P. 1910.16-6(a)(1). The calculation of the “total child care 6 therapeutic horseback riding lessons of the parties’ youngest child ($74.57), Defendant’s monthly child support obligation in accordance with a strict application of the guidelines is $945.88. This is the figure arrived at by the master 49 in his report. However, in recommending a support obligation on the part of Defendant father, the master recommended a deviation downward from the guideline figure in the amount of $185.88 per month, citing the unusual expenses incurred in 50 connection with his employment. Accordingly, the master’s recommendation was to reduce Defendant’s support obligation by more than 50%, to a monthly 51 figure of $760.00. An interim order in accordance with this recommendation was entered as follows: A. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his children, Allison M. Kalinoski, born October 8, 1994, and Ashley E. Kalinoski, born February 4, 1998, the sum of $760.00 per month. B. The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $120.00 per month on arrearages. C. The Defendant shall provide health insurance coverage for the benefit of said children as provided through his employment or other group coverage at a reasonable cost. D. The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for each child. Unreimbursed medical expenses of the children that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide st documentation of expenses to the other party no later than March 31 of the year following the calendar year in which the final medical bill in which to be allocated was received. The unreimbursed medical expenses are to be paid as follows: 49% by Defendant and 51% by Plaintiff. Expenses incurred for psychological counseling therapy for the [parties’ youngest child] shall be includable as unreimbursed medical expenses. expenses” in this regard is performed by the standard tax computer program referred to elsewhere in this opinion. In this case, the monthly reduction was about $90.00, yielding a total child care expense per month of $317.92, Defendant’s proportional share of which being approximately $155.00. 49 Master’s Report, Exhibit “B”. 50 Master’s Report, at 4. 51 Master’s Report, at 4. 7 52 E. The effective date of this order is December 26, 2006. Notwithstanding the conservative nature of the master’s report with respect to a calculation of Plaintiff mother’s child care expenses during the school year, the substantial downward deviation from the guideline figure recommended by the master on the basis of poorly documented expenses associated with Plaintiff father’s employment, and a recommended reduction in the child care obligation of Defendant father by more than 50%, Defendant father filed exceptions to the report, as recited at the beginning of this opinion. Following the filing of the exceptions, Defendant father was adjudicated in contempt for failure to comply with his support obligation by the Honorable Edward E. Guido of this court and sentenced to a period of probation of 12 53 months. A petition for revocation of this probationary sentence is presently 54 pending. DISCUSSION On review of a support master’s report, a trial court is to employ the same standard as is applicable to a review of a divorce master’s report. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1037 (1988). “While such a report is to be given the fullest consideration, especially with regard to the credibility of witnesses,” the findings and conclusions are advisory rather than binding. Id.; see McCurdy v. McCurdy, No. 02-0097 Support (slip op.) (Cumberland Co. 2002) (Hess, J.). Thus, on exceptions to a master’s report, “[i]t is the sole province and responsibility of the [trial] court to set an award of support, however much it may choose to utilize a master’s report.” Goodman v. Goodman, 375 Pa. Super. 504, 507-08, 544 A.2d 1033, 1035 (1988). 52 Interim Order of Court, April 11, 2007. 53 Order of Court, June 7, 2007. 54 Petition for Revocation of Probation, filed July 11, 2007. 8 A trier-of-fact, of course, “is free to believe all, part or none of the evidence.” See, e.g., Hill v. Reynolds, 384 Pa. Super. 34, 45, 557 A.2d 759, 765 (1989). In general, the amount of support to be awarded is based upon parents’ net 55 incomes, not expenses. Under Pennsylvania Rule of Civil Procedure 1910.16- 2(b)(1), where a person is a salaried employee, only (a) federal, state and local income taxes, (b) FICA payments and non-voluntary retirement payments, (c) union dues, and (d) alimony paid to the other party are to be deducted from monthly gross income for purposes of calculation of net income in connection with a child support determination. Where a child has special needs, their cost may be included in the support obligation related to the child, and the amount is to be apportioned between the parents according to their net incomes. Pa. R.C.P. 1916-6(d). A figure calculated in strict conformity with the guidelines represents the presumptive support obligation of the parent. See Humphreys v. DeRoss, 567 Pa. 614, 790 A.2d 281 (2002). However, in rare circumstances a deviation from the guideline figure may be permitted, based, inter alia, upon “unusual needs and unusual fixed obligations.” Pa. R.C.P. 1910.16-5(b). In the present case, as evidenced by the foregoing, the exceptions of Defendant father to the master’s report are not meritorious. First, contrary to the contention that Defendant’s Tax Detail Report “was incorrect for yearly income,” the figures utilized by the master in the computation were supported by the record and the computation involved utilized a standard tax computer program routinely employed in domestic relations cases for such purposes. Second, the master properly treated the “business expenses” claimed by Defendant father as a predicate for a deviation from the guidelines rather than a deduction from gross income; given the absence of supporting documentary evidence as to the amount 55 Pa. R.C.P. 1910.16-2. 9 of such expenses, the degree of deviation from the guidelines in Defendant’s favor was generous. Third, Plaintiff’s claim related to therapeutic horseback riding lessons was hardly “unrealistic,” given the mental condition of the parties’ youngest child and the recommendation of her psychiatrist that she engage in such an activity. Fourth, with respect to Plaintiff’s child care expenses during the school year, the figure utilized by the master was conservative. Finally, the master’s assessment of Plaintiff’s annual income was precisely substantiated by the record. For these reasons, the following order will be entered: ORDER OF COURT th AND NOW, this 15 day of August, 2007, upon consideration of Defendant’s exceptions to the support master’s report, and for the reasons contained in the accompanying opinion, the exceptions are dismissed and the interim order of court dated April 11, 2007, is entered as a final order. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michael R. Rundle, Esq. Support Master John J. Connelly, Jr., Esq. P.O. Box 650 Hershey, PA 17033 Attorney for Plaintiff Michael S. Kalinoski 2023 North Atlantic Avenue, 109 Cocoa Beach, FL 32931 Defendant, pro Se 10 11 DONNA L. MURRAY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : MICHAEL S. : KALINOSKI, : PACSES NO. 677104127 Defendant : No. 01-1097 SUPPORT IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE OLER, J. ORDER OF COURT th AND NOW, this 15 day of August, 2007, upon consideration of Defendant’s exceptions to the support master’s report, and for the reasons contained in the accompanying opinion, the exceptions are dismissed and the interim order of court dated April 11, 2007, is entered as a final order. BY THE COURT, _________________ J. Wesley Oler, Jr., J. Michael R. Rundle, Esq. Support Master John J. Connelly, Jr., Esq. P.O. Box 650 Hershey, PA 17033 Attorney for Plaintiff Michael S. Kalinoski 2023 North Atlantic Avenue, 109 Cocoa Beach, FL 32931 Defendant, pro Se