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HomeMy WebLinkAbout93-1181 SupportDe --lo KIMBERLY B. CUNNINGHAM,: Plaintiff ' V. ° JORDAN D. CUNNINGHAM, · Defendant ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOMESTIC RELATIONS SECTION NO. 1181 SUPPORT 1993 DR 22,027 IN RE: CHILD SUPPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 2.6//~ay of April, 2000, upon consideration of Plaintiff's petition to modify child support, filed November 7, 1997, and of Defendant's appeal from the resultant recommended order of court dated December 9, 1998, following a hearing held on June 11, 1999, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. For the period from November 7, 1997, to January 1, 1998, Defendant's child support obligation is set at $1,346.00 per month, with the pertinent percentages of income of the parties being 35.30% for the Plaintiff and 64.70% for the Defendant. 2. For the period from January 1, 1998, to September 4, 1998, Defendant's child support obligation is set at $1,731.15 per month, with the pertinent percentages of income of the parties being 12.95% for the Plaintiff and 87.05% for the Defendant. 3. For the period from September 4, 1998, to January 1, 1999, Defendant's child support obligation is set at $2,831.15 per month, with the pertinent percentages of income of the parties being 12.95% for the Plaintiff and 87.05% for the Defendant. 4. For the period from January 1, 1999, to April 1, 1999, Defendant's child support obligation is set at $2,971.98 per month, with the pertinent percentages of income of the parties being 8.94% for the Plaintiff and 91.06% for the Defendant. 5. For the period from April 1, 1999, to June 10, 1999, Defendant's child support obligation is set at $2,714.85 per month, with the percentages of net income of the parties being 20.59% for the Plaintiff and 79.41% for the Defendant. 6. For the period commencing June 10, 1999, Defendant's child support obligation is set at $2,295.02 per month, with the percentages of net income of the parties being 20.59% for the Plaintiff and 79.41% for the Defendant. All other relief requested by either party is denied. BY THE COURT.,~ ,q j.tesley Oler, r~, j. Stephen J. Anderer, Esq. 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 Attorney for Plaintiff Paige Macdonald-Matthel$, Esq. Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Attorney for Defendant KIMBERLY B. CUNNINGHAM,: Plaintiff · JORDAN D. CUNNINGHAM, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOMESTIC RELATIONS SECTION NO. 1181 SUPPORT 1993 DR 22,027 IN RE: CHILD SUPPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 24, 2000. In this difficult child support case, Defendant obligor has appealed from a support order entered following a Domestic Relations Office conference. The support order in question resulted from a petition to modify filed by Plaintiff. A hearing on Defendant's appeal was held by the court on June 11, 1999. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion, and Order of Court are made and entered. FINDINGS OF FACT 1. Plaintiff is Kimberly Cunningham-Moss; she resides at 1713 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania; her date of birth is January 15, 1952.1 2. Defendant is Jordan Daniel Cunningham; he resides at 340 Equus Drive, Camp Hill, Cumberland County, Pennsylvania; his date of birth is May 9, 1951.2 3. The parties were married on August 28, 1971.3 ~ N.T. 5, 25 Hearing, June 11, 1999 (hereinafter N.T. ). 2 N.T. 25, 84-85. 3 N.T. 27; Court Exhibit 1, Hearing, June 11, 1999 (Opinion Pursuant to Pa. R.A.P. 1925) (hereinafter Exhibit ). 4. The parties are the parents of three children: Jordan Benjamin Cunningham (d.o.b. September 4, 1980), Jared Daniel Cunningham (d.o.b. February 23, 1982), and Christopher Kearins Cunningham (d.o.b. July 17, 1991).4 5. The parties separated around January 1, 1993.5 6. The present support action was commenced by the filing of a complaint by Plaintiff on December 7, 1993. 7. By order of court dated May 19, 1994, primary physical custody of Jared Daniel Cunningham and Christopher Kearins Cunningham was awarded to Plaintiff mother, and primary physical custody of Jordan Benjamin Cunningham was awarded to Defendant father.6 8. The parties were divorced on May 12, 1995.7 9. Defendant remarried sometime after May 12, 1995.8 10. Plaintiff remarried on March 16, 1998.9 11. Two children were born of Defendant's present marriage: Morgan Elizabeth Cunningham (d.o.b. approximately April 1, 1997)~° and Olivia Anne Cunningham (d.o.b. approximately November 1, 1998). ~ 4 N.T. 25. 5 N.T. 27-28; Court Exhibit 1 (Opinion Pursuant to Pa. R.A.P. 1925). 6 See Court Exhibit 1 (Order of Court dated May 19, 1994). This order was entered upon agreement of the parties. Subsequent petitions to modify the custody order have been denied. See Court Exhibit 1 (Opinion Pursuant to Pa. R.A.P. 1925). 7 N.T. 28; Court Exhibit 1 (Opinion Pursuant to Pa. R.A.P. 1925). 8 See Defendant's Exhibit 5 (Defendant's 1997 tax return). 9 N.T. 49. lo See N.T. 92, 97; Defendant's Exhibit 5 (Defendant's 1997 tax return). l~ See N.T. 92-95, 97. 2 12. By order of court dated September 4, 1996, Defendant's child support obligation for two children (i.e., for Jared Daniel Cunningham and Christopher Kearins Cunningham) was set at $1,510.50 per month, $162.50 of which was attributable to child care expenses. This order did not contain findings as to the net incomes of the parties.22 13. During the period from July 7, 1997, until his eighteenth birthday on September 4, 1998, Jordan Benjamin Cunningham lived initially with Plaintiff and then returned to Defendant; since September 4, 1998, he has lived with Plaintiff;~3 he graduated from high school on June 10, 1999.TM 14. Contrary to the custody order, Plaintiff permitted Jordan Benjamin Cunningham to move in with her on July 7, 1997. She was eventually held in contempt of court for this conduct,~5 her petition to modify the custody order to sanction the arrangement was denied,~6 and the adjudication of contempt and denial of modification were affirmed on appeal by the Pennsylvania Superior Court. 2? 15. The estrangement of Jordan Benjamin Cunningham from Defendant on July 7, 1997, was the fault of both the child and Plaintiff. 2a 12 The absence of such findings suggests that the order, which was generated by the Domestic Relations Office, may have been a consequence of an agreement of the parties. 23 N.T. 17, 21-25, 93-98. ~4 N.T. 92-93. ~5 See Court Exhibit 1 (Opinion Pursuant to Pa. R.A.P 1925). The contempt adjudication was on April 22, 1998. See id. 16 See Court Exhibit 1 (Opinion Pursuant to Pa. R.A.P. 1925). The denial of Plaintiff's petition to modify the custody order was on April 22, 1998. See id. 27 Cunningharn v. Cunningham, No. 721 Harrisburg 1998 (Pa. Superior Ct. June 30, 1998). la The history of this estrangement is recited in Court's Exhibit 1 (Opinion Pursuant to Pa. R.A.P. 1925). 3 16. On November 7, 1997, Plaintiff filed a petition to modify the child support order dated September 4, 1996, alleging the following changes in circumstances: a. At the time the ... order was entered, Father maintained primary physical custody of the parties' oldest child, Benjamin. However, on or about July 1, 1997, Benjamin moved to the residence of Mother, and has since that time, with Father's full knowledge and consent,~9 been maintaining his primary residence with Mother. b. Since July 1, 1997, Mother has been paying directly for all of the reasonable needs of Benjamin. c. Mother has filed a separate Petition to Modify Custody asking the Court to recognize the de facto change in primary custody and to revise [the] Order of Custody to reflect said change.2° d. As of September 1, 1997 Mother's income has decreased because of the termination of alimony payments of Eight Hundred Thirty-Three Dollars ($833) under the terms of the parties' Marital Settlement Agreement dated September 28, 1995 .... e. As of September 1, 1997 Father's income has increased because of the termination of alimony payments of Eight Hundred Thirty-Three Dollars ($833) under the terms of the parties' Marital Settlement Agreement dated September 28, 1995.2~ 17. A Domestic Relations Office conference on Plaintiff's petition to modify resulted in an order of court dated December 9, 1998,22 pertaining to the support of the parties' three children, which imposed a child support obligation upon Defendant in the amount of $2,625.00 per month,23 based upon a net monthly income figure of $4,301.00 19 The court, in adjudicating Plaintiff in contempt of the custody order, obviously did not accept the proposition that Defendant was in agreement with the child's change of primary residence. See Court Exhibit 1 (Opinion Pursuant to Pa. R.A.P. 1925). 20 This petition was denied, as indicated in the text accompanying note 6 supra. 21 Plaintiff's Petition To Modify Order of Support, paragraph 6. 22 This order was entered pursuant to Pennsylvania Rule of Civil Procedure 1910.21-4(b). 23 The order also directed that $75.00 per month be paid on arrears. 4 for Plaintiff and a net monthly income figure of $9,683.00 for Defendant, and which was effective as of September 4, 1998 (the eighteenth anniversary of the eldest child's birth). 18. The Domestic Relations Office conference summary24 relating to the order indicated the following, inter alia: Two different calculations were used in this very complicated case. Firstly, in using Meltzer the Defendant's obligation calculated out to be $2967.12 per month, without considering any deviation for the two children of his current marriage. In extrapolhting the support guidelines the calculation came out to $2417.00 per month without any deviation for the Defendant's other children. A medium was struck between the two calculations of $2625.00 per month. Almost all facts and figures are disagreed upon along with who had the custody of Jordan (Ben) Cunningham since the date of the Plaintiffs' petition [to modify] up to the date that the child went to stay with his mother. No order of court was provided that documented any change in the custody circumstance that Benjamin was with his father. 19. The conference summary further indicated that the order was premised upon childcare expenses of $150.00 per month. 20. The summary also indicated that the order did involve a guideline deviation because of "Defendant's other two minor children." 21. Defendant appealed from this order on December 23, 1998.25 22. As noted previously, on June 10, 1999, the parties' son Jordan Benjamin Cunningham (who had become 18 on September 4, 1998) graduated from high school.26 24 This conference summary was issued pursuant to Pennsylvania Rule of Civil Procedure 1910.21-4(a). 25 See Letter dated December 22, 1998, from Defendant's counsel to the parties' Domestic Relations Office conference officer. The letter, requesting a de novo hearing by the court, did not specify the grounds for the appeal. 26 N.T. 92-93. 5 23. A hearing on the matter of child support was held by the court on Friday, June 11, 1999.27 24. Plaintiff is an administrator with the office of the Attorney General of Pennsylvania; in that capacity, she administers a continuing legal education program for attorneys? 25. In 1997, Plaintiff had income which included gross wages of $40,466.00, interest of $2,178.00, dividends of $6,667.00, capital gains from the sale of stock in the amount of $36,513.00, and alimony from Defendant in the amount of $6,667.00.29 26. In 1998, Plaintiff had income which included gross wages of $39,787.00, interest of $1,741.00, dividends of $2,878.00; and capital gains from the sale of stock in the amount of $5,059.00.3° 27. In 1999, Plaintiff's biweekly gross wages were $1,658.70, indicating yearly gross wages of $43,126.20.3~ 28. Plaintiff's gross income in 1997 is found to be $92,491.00 ($40,466.00 plus $2,178.00 plus $6,667.00 plus $36,513.00 plus $6,667.00), yielding a net income figure of $70,801.68 per year and $5,900.14 per month; Plaintiff's gross income in 1998 is found to be $49,465.00 ($39,787.00 plus $1,741.00 plus $2,878.00 plus $5,059.00), yielding a net income figure of $37,829.52 per year and $3,152.46 per month; Plaintiff's 27 At the conclusion of the hearing, counsel requested the opportunity to submit briefs, following the filing of the hearing transcript. N.T. 138. The matter was accordingly taken under advisement by the court. Order of Court, June 11, 1999. The transcript was filed on August 9, 1999, and briefs were submitted by the parties on August 30, 1999. 28 N.T. 6. 29 N.T. 6; Plaintiff's Exhibit 1 (Plaintiff's 1997 income tax return). 3o N.T. 8-9; Plaintiff's Exhibit 3 (Plaintiff's 1998 income tax return). 31 See Plaintiff's Exhibit 4 (Plaintiff's statement from employer). Compulsory retirement contributions of $87.30 every two weeks have been deducted to arrive at this figure. See Pa. R.C.P. 1910.16-2(c)(1)(B). 6 gross income in 1999 is found to be $47,745.20 ($43,126.20 plus $1,741.00 plus $2,878.00), yielding a net income figure of $33,127.92 per year and $2,760.66 per month.32 29. The income of Plaintiff's present spouse does not appear of record. 30. Defendant is a practicing attorney in the law firm of Cunningham & Chemicoff, P.C.33 31. In 1997, Defendant had income which included gross wages of $164,500.00, interest of $326.00, and dividends of $40.00;34 Defendant paid alimony in the amount of $6,667.00.35 32. In 1998, Defendant had income which included gross wages of $169,000.00.36 33. Defendant also receives income in the form of payment of country club dues by his employer in the amount of $2,200.00 per year.37 34. Defendant also receives income in the form of medical coverage in the amount of $2,116.20 per year? 32 Net income figures in this paragraph have been derived by using the computer program of the Domestic Relations Office and a tax filing status of head of household for 1997 andmarried filing separately for 1998 and 1999. With respect to Plaintiff's capital gains, a large portion were long term for federal tax purposes. 33 Defendant's Exhibit 4 (Defendant's Statement of Income and Expense, November 30, 1998); Defendant's Exhibit 5 (Defendant's 1997 income tax return). 34 Defendant's Exhibit 5 (Defendant's 1997 income tax return). Compulsory retirement contributions have been deducted to arrive at this figure. N.T. 121-23. See Pa. R.C.P. 1910.16-2(c)(1)(B). 35 Plaintiff's Exhibit 1 (Plaintiff's 1997 income tax return). 36 Defendant's Exhibit 4 (Defendant's Statement of Income and Expense, November 30, 1998). 37 N.T. 120. 38 N.T. 124-25. 35. Defendant also has income attributable to him from a real estate partnership known as Mahali Haki, in the amount of $8,000.00 per year.39 36. Defendant's gross income in 1997 is found to be $170,515.20 ($164,500.00 plus $326.00 plus $40.00 less $6,667.00 plus $2,200.00 plus $2,116.20 plus $8,000.00), yielding a net income figure of $120,572.76 per year and $10,047.73 per month; Defendant's gross income in 1998 is found to be $181,682.20 ($169,000.00 plus $326.00 plus $40.00 plus $2,200.00 plus $2,116.20 plus $8,000.00), yielding a net income figure of $127,769.52 per year and $10,647.46 per month; Defendant's gross income in 1999 is also found to be $181,682.20 (same), yielding a net income figure of $127,769.52 per year and $10,647.46 per month.4° 37. Defendant pays for health care insurance for coverage of his children in the amount of $1,596.00 per year.4~ 38. The income of Defendant's present spouse does not appear of record.42 39. Child care expenses incurred by Plaintiff were $183.00 per month in 1998,43 and $200.00 per month in 1999.44 40. The reasonable expenses of raising each child are said by Plaintiff to be between $1,500.00 and $2,000.00 per month,45 and by Defendant to be about $800.00 per 39 N.T. 125-26. 40 Net income figures in this paragraph have been derived by using the computer program of the Domestic Relations Office and a tax filing status of married filing jointly. 41 N.T. 108, 124-25; Defendant's Exhibit 4 (Defendant's Statement of Income and Expense, November 30, 1998). 42 See N.T. 125. 43 Plaintiff's Exhibit 5 (Plaintiff's Statement of Income and Expense, August 18, 1998). 44 Plaintiff's Exhibit 8 (Plaintiff's Statement of Income and Expense, June 11, 1999). 45 Plaintiff's Exhibits 7-8 (Plaintiff's Statements of Income and Expense, June 11, 1999). month.46 Based upon the evidence presented, the reasonable expenses of raising each child is determined to be $1,100.00 per month. 41. Plaintiff claims that her own reasonable living expenses were about $2,600.00 per month in 1998,47 and between $2,800.00 and $3,200.00 per month in 1999.48 Although such personal expenditures might have been compatible with Plaintiff's former circumstances, they can not be completely reconciled with her present income and obligation to contribute, consistently with her own needs, to the support of the parties' children. 42. Plaintiff's reasonable living expenses are found to be $2,000.00 per month. 43. Defendant claims that his own reasonable living expenses are about $4,000.00 per month.49 As with Plaintiff, some personal expenses claimed by Defendant (e.g., $400.00 per month for clothes5°) seem to the court to be in excess of amounts reasonably necessary under the circumstances. 44. Defendant's reasonable living expenses are found to be $2,900.00 per month. DISCUSSION Statement of Law Effect of residence of oldest child. Aside from factual disputes, which the court has addressed through the above findings of fact,5~ the primary disagreement between the 46 Defendant's Exhibit 4 (Defendant's Statement of Income and Expense, November 30, 1998). 47 Plaintiff's Exhibit 5 (Plaintiff's Statement of Income and Expense, August 18, 1998). 48 Plaintiff's Exhibits 7-8 (Plaintiff's Statements of Income and Expense, June 11, 1999). 49 Defendant's Exhibit 4 (Defendant's Statement of Income and Expense, November 30, 1998). 5o See Defendant's Exhibit 4 (Defendant's Statement of Income and Expense, November 30, 1998). 5~ Implicit within the findings is a rejection of Defendant's contention that Plaintiff had sources of income which she was concealing. 9 parties is the effect of the residence of the parties' eldest son, Jordan Benjamin Cunningham, with Plaintiff for part of the period between July 7, 1997, and his eighteenth birthday, on September 4, 1998, in contravention of a custody order and against the wishes of Defendant. Given the proximity of the child to the age of majority at the time, and the mother's accommodation of his custodial preference in contempt of the custody order, the court is not willing to alter the father's status as an obligee prior to the child's eighteenth birthday. Cf Oeler v. Oeler, 527 Pa. 532, 594 A.2d 649 (1991). As of the child's eighteenth birthday he was, of course, free to choose the parent with whom he would reside and that parent was free to accommodate his wishes. The Support Guidelines and Melzer. Pennsylvania Rule of Civil Procedure 1910.16-2(e)(2), effective April 1, 1999, states as follows: When the parties' combined net income exceeds $15,000 per month, child support shall be calculated pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). The presumptive minimum amount of child support shall be obligor's percentage share of the highest amount of support which can be derived from the schedule or the chart for the appropriate number of children and using the parties' actual combined income to determine obligor's percentage share of this amount. The court may award an additional amount of child support based on the remaining combined income and the factors set forth in Melzer. Prior to April 1, 1999, the applicable rule stated as follows: If... the parties' joint monthly net income exceeds the maximum [of $10,000], the amount of support is to be determined pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).52 In cases to which Melzer v. Witsberger applies, the presumptive minimum amount of child support shall be the highest guideline amount which can be derived from the formula for the appropriate number of children and using the highest payor income available. In cases where the combined net monthly income of the parties exceeds $10,000, the presumptive minimum amount of support is 52 Pa. R.C.P. 1910.16-5(d), rescinded December 8, 1998, effective April 1, 1999. 10 calculated as if the parties have only a $10,000 combined net income? As a general rule, "Melzer requires the court to consider the needs of the children and the respective abilities of the parents to support the children." Seawalt v. Muldoon, 406 Pa. Super. 94, 100, 593 A.2d 886, 889 (1991). Under Melzer, the court is to "[determine] the reasonable [monetary] needs of the [child] and the amount of each parent's income which remains after the deduction of the parent's reasonable living expenses.''54 The share of the monetary needs of the child for which a given parent will be responsible is in proportion to his or her share of the parties' combined net income thus reduced? Calculation of income. For purposes of support calculations, a person's net income includes medical benefits provided by his business. Calabrese v. Calabrese, 452 Pa. Super. 497, 504, 682 A.2d 393,396-97 (1996), appeal denied, 547 Pa. 722, 689 A.2d 230 (1997). "Monthly gross income is ordinarily based upon at least a six-month average of all of a party's income." Pa. R.C.P. 1910.16-2(a). This policy is presumably designed, inter alia, to thwart the manipulation of support obligations and entitlements through the juxtaposition of the receipt of income (e.g., capital gains) and the filing of a petition to modify. Income includes "net income from business or dealings in property" and may, in the discretion of the court, include alimony received. Pa. R.C.P. 1910.16(a)(2), (7). Net income does not include non-voluntary retirement payments. Pa. R.C.P. 1910.16- 2(c)(1)(B). Nor does it include alimony paid to the other party. Pa. R.C.P. 1910.16- 2(c)(1)(D). 53 Pa. R.C.P. 1910.16-5(a), rescinded December 8, 1998, effective April 1, 1999; see Gowdy v. Kesselring, 455 Pa. Super. 57, 686 A.2d 1343 (1996). 54 Melzer v. Witsberger, 505 Pa. 462, 472, 480 A.2d 991,996 (1984). 55 Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). 11 Child care expenses. Prior to April 1, 1999, child care expenses of the custodial parent were to be divided equally between the parties;56 subsequent to April 1, 1999, they are to be shared according to each party's percentage of their combined net income and subject to a certain federal tax credit relating to child care expenses. Pa. R.C.P. 1910.16- 6(a). Health insurance premiums. Prior to April 1, 1999, health insurance premiums paid by a party for the benefit of the parties' children were to be deducted from the party's income for purposes of computing his or her net income. Pa. R.C.P. 1910.16- 5(b), rescinded, effective April 1, 1999. Subsequent to April 1, 1999, the following rule is applicable: A party's payment of a premium to provide health insurance coverage on behalf of the other party or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it. If the obligor is paying the premium, then obligee's share is deducted from the obligor's basic support obligation .... Employer-paid premiums are not subject to allocation. Pa. R.C.P. 1910.16-6(b)(1). Unreimbursed medical expenses. Prior to April 1, 1999, unreimbursed medical expenses were to be shared by the parties in proportion to their respective net incomes. Pa. R.C.P. 1910.16-5(p), rescinded, effective April 1, 1999. Subsequent to April 1, 1999, unreimbursed medical expenses in excess of $250.00 are to be "allocated between the parties in proportion to their respective net incomes and obligor's share added to his ... basic support obligation." Pa. R.C.P. 1910.16~6(c)(1). 56 this equal division of child care expenses was permissible in a Melzer calculation, as well as under the guidelines. See Lasky v. Lasky, 385 Pa. Super. 508, 561 A.2d 791 (1989). 12 Split custody. In a child support guideline calculation, both prior to and subsequent to April 1, 1999,57 "the court shall offset the parties' respective child support obligations and award the net difference to the obligee as child support?sa Multiple families. In a child support guideline calculation, both prior to and subsequent to April 1, 1999,59 the following rule is to be applied: (1) When the total of obligor's basic child support obligations equals fifty percent or less of his or her monthly net income, there will generally be no deviation from the guideline amount of support on the ground of the existence of a new family .... (2) When the total of the obligor's basic support obligations exceeds fifty percent of his or her monthly net income, the court may consider a proportional reduction of these obligations. Since, however, the goal of the guidelines is to treat each child equitably, in no event should either a first or later family receive preference. Nor shall the court divide the guideline amount for all of obligor's children among the households in which those children live .... (3) For purposes of this Rule, the presumptively correct total of obligor's basic support obligations is calculated using only the basic guideline amounts of support, as determined from the formula to Rule 1910.16-4, and does not include any additional expenses that may be added to these amounts pursuant to Rule 1910.16-6 .... 60 Duty of support beyond age of majority. As a general rule, the parental duty of support is owed until the child reaches the age of eighteen or graduates from high school, whichever event occurs later. Blue v. Blue, 532 Pa. 521,529, 616 A.2d 628, 632 (1992). 57 See Pa. R.C.P. 1910.16-4, Explanatory Comment--1998. 58 Pa. R.C.P. 1910.16-4(d)(1). 59 The present rule represents a clarification of the prior rule. Comment--1998. 60 Pa. R.C.P. 1610.16-7. See Pa. R.C.P. 1910.16-7, 13 Application of Law to Facts Periods Prior to April 1. 1999 General. Based upon the foregoing Findings of Fact, the combined net monthly income of the parties prior to April 1, 1999, was above $10,000.00 at all pertinent times. For this reason, reference must be made to Melzer for purposes of calculation of Defendant's child support obligation, subject to the presumptive minimum derived from the guidelines. Where three children are involved, with one child being with the Defendant and two children being with the Plaintiff, the presumptive minimum child support obligation of Defendant derived from the guidelines in effect prior to April 1, 1999, is $1,346.00. Where three children are involved, with all three children being with the Plaintiff, the presumptive minimum child support obligation of Defendant derived from the guidelines in effect prior to April 1, 1999, is $1,928.00 per month.6t Period from November 7, 1997, to January 1, 1998. During the period from November 7, 1997, to January 1, 1998,62 Defendant was obligated to pay child support to Plaintiff for two children, and Plaintiff was obligated to pay child support to Defendant for one child. The presumptive minimum child support obligation of Defendant was $1,346.00 per month. A Melzer calculation, based upon the above factual findings, results in a child support obligation on the part of Defendant in the amount of $993.60, 61 These figures result from an application of former Pennsylvania Rule of Civil Procedure 1910.16-4(a). Based upon the actual monthly net incomes of the parties, this Rule seems to the court to assign a theoretical monthly net income to Plaintiff of $2,000.00 and a theoretical monthly net income to Defendant of $8,000.00, for purposes of calculating presumptive minimum child support obligations. Present Rule 1910.16- 2(e)(2), effective April 1, 1999, modifies this approach in order to "[eliminate] many of the inequities and inconsistencies that arose under the previous formula for determining [the presumptive minimum child support] amount." Pa. R.C.P. 1910.16-2(e)(2), Explanatory Comment--1998. 62 The court has, as implied by the factual findings as to Plaintiff's income in 1997, allocated the capital gains income which she realized in 1997 to the months of that year. This accounts for the sharp difference in her income before January 1, 1998, and after that date, and for the inclusion of calculations for periods before and after that date. 14 with the pertinent percentages of income of the parties being 35.30% for the Plaintiff and 64.70% for the Defendant. The computation resulting in this child support figure is attached to this Opinion as Appendix A. The presumptive minimum child support oblitation is thus to be ordered for this period. Period from January 1, 1998, to September 4, 1998. During the period from January 1, 1998, to September 4, 1998', Defendant was obligated to pay child support to Plaintiff for two children, and Plaintiff was obligated to pay child support to Defendant for one child. The presumptive minimum child support obligation of Defendant was $1,346.00 per month. A Melzer calculation, based upon the above factual findings, results in a child support obligation on the part of Defendant in the amount of $1,651.15, with the pertinent percentages of income of the parties being 12.95% for the Plaintiff and 87.05% for the Defendant. The computation resulting in this child support figure is attached to this Opinion as Appendix B. The Melzer child support obligation will be ordered for this period. Period from September 4, 1998, to January 1, 1999. During the period from September 4, 1998, to January 1, 1999, Defendant was obligated to pay child support to Plaintiff for three children. The presumptive minimum child support obligation of Defendant was $1,928.00 per month. A Me&er calculation, based upon the above factual findings, results in a child support obligation on the part of Defendant in the amount of $2,831.15, with the pertinent percentages of income of the parties being 12.95% for the Plaintiff and 87.05% for the Defendant. The computation resulting in this child support figure is attached to this Opinion as Appendix C. Period from January 1, 1999, to April 1, 1999. During the period from January 1, 1999, to April 1, 1999, Defendant was obligated to pay child support to Plaintiff for three children. The presumptive minimum child support obligation of Defendant was $1,928.00 per month. A Melzer calculation, based upon the above factual findings, results in a child support obligation on the part of Defendant in the amount of $2,971.98, with the pertinent percentages of income of the parties being 8.94% for the Plaintiff and 91.06% for the Defendant. The computation resulting in this child support figure is 15 attached to this Opinion as Appendix D. The Melzer child support obligation will be ordered for this period. Period Commencing A?il 1. 1999 For periods commencing April 1, 1999, Defendant is obligated to pay child support to Plaintiff for three children, and based upon the foregoing Findings of Fact, the combined net monthly income of the parties is $13,408.12. Since this figure is less than $15,000.00, Defendant's child support obligation can be calculated under the guidelines effective April 1, 1999, without reference to Melzer. Period from April 1, 1999, to June 10, 1999. For the period from April 1, 1999, to June 10, 1999, Defendant was obligated to pay child support to Plaintiff for three children. Based upon the foregoing Findings of Fact and principles of law recited above, this support obligation is $2,714.05 per month, with the percentages of net income of the parties being 20.59% for Plaintiff and 79.41% for Defendant. The computation resulting in this child support figure is attached to this Opinion as Appendix E. Period commencing June 10, 1999. For the period commencing June 10, 1999, Defendant is obligated to pay child support to Plaintiff for two children. Based upon the foregoing Findings of Fact and principles of law recited above, this support obligation is $2295.02 per month, with the percentages of net income of the parties being 20.59% for Plaintiff and 79.41% for Defendant. The computation resulting in this child support figure is attached to this Opinion as Appendix F. Based upon the foregoing Findings of Fact and Discussion, the following Order of Court will be entered: ORDER OF COURT AND NOW, this 24th day of April, 2000, upon consideration of Plaintiff's petition to modify child support, filed November 7, 1997, and of Defendant's appeal from the resultant recommended order of court dated December 9, 1998, following a hearing held on June 11, 1999, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 16 1. For the period from November 7, 1997, to January 1, 1998, Defendant's child support obligation is set at $1,346.00 per month, with the pertinent percentages of income of the parties being 35.30% for the Plaintiff and 64.70% for the Defendant. 2. For the period from January 1, 1998, to September 4, 1998, Defendant's child support obligation is set at $1,731.15 per month, with the pertinent percentages of income of the parties being 12.95% for the Plaintiff and 87.05% for the Defendant. 3. For the period from September 4, 1998, to January 1, 1999, Defendant's child support obligation is set at $2,831.15 per month, with the pertinent percentages of income of the parties being 12.95% for the Plaintiff and 87.05% for the Defendant. 4. For the period from January 1, 1999, to April 1, 1999, Defendant's child support obligation is set at $2,971.98 per month, with the pertinent percentages of income of the parties being 8.94% for the Plaintiff and 91.06% for the Defendant. 5. For the period from April 1, 1999, to June 10, 1999, Defendant's child support obligation is set at $2,714.85 per month, with the percentages of net income of the parties being 20.59% for the Plaintiff and 79.41% for the Defendant. 6. For the period commencing June 10, 1999, Defendant's child support obligation is set at $2,295.02 per month, with the percentages of net income of the parties being 20.59% for the Plaintiff and 79.41% for the Defendant. All other relief requested by either party is denied. BY THE COURT, /s/J. Wesley Oler. Jr. J. Wesley Oler, Jr., J. 17 Stephen J. Anderer, Esq. 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 Attorney for Plaintiff Paige Macdonald-MattheW, Esq. Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Attorney for Defendant 18 PERIOD FROM NOVEMBER. 7, 1997. TO JANUARY 1, 1998 MELZER CALCUATION Two Children with Plaintiff [Jared Daniel Cunningham and Christopher Kearins Cunningham] Monthly Net Income Reasonable Living Expenses Income Avail. for Support Total Income avail, for Support Percentages PLAINTIFF DEFENDANT 5900.14 10047.73 2000.00 2900.00 3900.14 7147.73 110~7.87 35.30% 64.70% Children's Needs 2200.00 Support Obligations [Excluding Child Care] 776.60 1423.40 Support Provided Directly Child Care Total Support Figures -133.00 776.60 1290.40 91.50 91.50 868.10 1381.90 One Child with Defendant [Jordan Benjamin Cunningham] PLAINTIFF DEFENDANT Monthly Net Income Reasonable Living Expenses Income Avail. for Support Total Income avail, for Support Percentages 5900.14 2000.00 3900.14 35.30% 11047.87 10047.73 2900.00 7147.73 64.70% Child's Needs 1100.00 Total Support Figures 388.30 711.70 Offset Result MONTHLY CHILD SUPPORT TO BE PAID BY DEFENDANT TO PLAINTIFF: 993.60 (1381.90- 388.30) APPENDIX A PERIOD FROM JANUARY 1, 1998 TO SEPTEMBER 4. 1998 MELZER CALCUATION Two Children with Plaintiff [Jared Daniel Cunningham and Christopher Kearins Cunningham] Monthly Net Income Reasonable Living Expenses Income Avail. for Support Total Income avail, for Support Percentages PLAINTIFF DEF__~__E___~ANT 3152.46 10647.46 2000.00 2900.00 1152.46 7747.46 8899.92 12.95% 87.05% Children's Needs 2200.00 Support Obligations [Excluding Child Care] 284.90 1915.10 Support Provided Directly Child Care Total Support Figures -133.00 284.90 1782.10 91.50 91.50 376.40 1873.60 One Child with Defendant [Jordan Benjamin Cunningham] PLAINTIFF DEFENDANT Monthly Net Income Reasonable Living Expenses Income Avail. for Support Total Income avail, for Support Percentages 3152.46 200O,00 1152.46 12.95% 8899.92 10647.46 2900.O0 7747.46 87.05% Child's Needs 1100.00 Total Support Figures 142.45 957.55 Offset Result MONTHLY CHILD SUPPORT TO BE PAID BY DEFENDANT TO PLAINTIFF: 1731.15 (1873.60-142.45) APPENDIX B PERIOD FROM SEPTEMBER 4 1998, TO JANUARY 1, 1999 MELZER CALCUATION Three Children with Plaintiff [Jared Daniel Cunningham, Christopher Kearins Cunningham, and Jordan Benjamin Cunningham] Monthly Net Income Reasonable Living Expenses Income Avail. for Support Total Income avail, for Support Percentages PLAINTIFF DtaF_FdSD~.N~ 3152.46 10647.46 2000.00 2900.00 1152.46 7747.46 8899.92 12.95% 87.05% Children's Needs 3300.00 Support Obligations [Excluding Child Care] 427.35 2872.65 Support Provided Directly Child Care Total Support Figures -133.00 427.35 2739.65 91.50 91,50 518.85 2831.15 MONTHLY CHILD SUPPORT TO BE PAID BY DEFENDANT TO PLAINTIFF: 2831.15 APPENDIX C PERIOD FROM APRIL 1, 1999. TO JUNE 10. 1999 GUIDELINE CALCULATION Three Children with Plaintiff [Jared Daniel Cunningham, Christopher Kearins Cunningham, and Jordan Benjamin Cunningham] I. BASIC CHILD SUPPORT 1. Total Gross Income per year 2. Less Deductions 3. Net Income 4. Conversion to Monthly Amount 5. Combined Total Monthly Net Income 6. BASIC CHILD SUPPORT OBLIGATION 7. Net Inc. Expressed As Percentage 8. Each Parent's Monthly Share II. ADDITIONAL EXPENSES 9. Defendant's Share of Child Care Expenses 10. Less Plaintiff's Share of Ins. Payments PLAINTIFF DEFENDANT 47745.20 181682.20 14617.28 53912.68 33127.92 127769.52 2760.66 10647.46 20.59% 669.85 13408.12 3253.26 79.41% 2583.41 +158.82 27.38 III. MONTHLY CHILD SUPPORT TO BE PAID BY DEFENDANT TO PLAINTIFF: 2714.85 APPENDIX E PERIOD COMMENCING JUNE 10. 1999 GUIDELINE CALCULATION Two Children with Plaintiff [Jared Daniel Cunningham and Christopher Kearins Cunningham] I. BASIC CHILD SUPPORT PLAINTIFF 1. Total Gross Income per year 47745.20 2. Less Deductions 14617.28 3. Net Income 33127.92 4. Conversion to Monthly Amount 2760.66 5. Combined Total Monthly Net Income 6. BASIC CHILD SUPPORT OBLIGATION 7. Net Inc. Expressed As Percentage 20.59% 8. Each Parent's Monthly Share 560.99 II. ADDITIONAL EXPENSES 9. Defendant's Share of Child Care Expenses 10. Less Plaintiff's Share of Ins. Payments DEFENDANT 181682.20 53912,68 127769.52 10647.46 13408.12 2724.57 79.41% 2163.58 158.82 27.38 III. MONTHLY CHILD SUPPORT TO BE PAID BY DEFENDANT TO PLAINTIFF: 2295.02 APPENDIX F