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HomeMy WebLinkAbout98-0007 SupportCHRISTINE A. RAMOS, Plaintiff Vo CARLOS N. RAMOS, II, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - SUPPORT NO. ~-0007 SUPPORT IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., January 25, 1999. In this child support case, Defendant father has appealed to the Pennsylvania Superior Court from an order of court which determined his monthly support obligation to be $794.00. The basis for the appeal is that the court erred in finding that Plaintiff was the primary physical custodian of the parties' child, and applying the rule of,,tnzalone v. ~dnzalone, 449 Pa. Super. 201,673 A.2d 377 (1996) (deviation from guidelines held improper in 60/40 custody arrangement, where partial custodian did not spend unusual amount of time with children and unique financial needs did not exist). This opinion in support of the court's order is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Plaintiff is Christine Ann Ramos. 1 She resides at Apartment 105, 4183 Cove Court, ~ N.T. 9 (hearing, June 26, 1998). Mechanicsburg, Cumberland County, Pennsylvania.2 Defendant is Carlos N. Ramos, II. 3 He resides at 365 Criswell Drive, Boiling Springs, Cumberland County, Pennsylvania.4 Plaintiff and Defendant are the parents of two children, a boy named Tristan Ramos and a girl named Lindsay Ramos.s Tristan was bom on February 10, 1984; Lindsay was bom on October 3, 1985.6 Plaintiff Christine Ann Ramos is employed as an administrator with Computer Aid, Incorporated.7 Her net income is $1821.57 per month.8 Defendant's occupation does not appear of record; his net income is $3530.64 per month.9 Neither party has unique expenses with respect to the children.l° Pursuant to a post-nuptial agreement, "[Plaintiff w]ife shall have primary physical custody of the children. [Defendant h]usband shall have temporary physical custody at such 2Id. N.T. 7 (hearing, October 23, 1998). 4Id. N.T. 9 (hearing, June 26, 1998). 6 ~/d. 7Id. N.T. 6 (hearing, June 26, 1998). N.T. 6 (hearing, June 26, 1998). See N.T. 13 (hearing June 26, 1998) (mother); N.T. 10, 13, 20, 32-38 (hearing 1o October 23, 1998) (father). 2 times as the parties mutually agree.''~ In a more specific provision of the post-nuptial agreement, it was provided as follows [Defendant h]usband will have visitation every other week from 6:00 p.m. Wednesday through 6:00 p.m. Sunday. During the other weeks [Defendant] will have visitation from 6:00 p.m. Thursday to 8:00 a.m. Friday. The parties agree to alternate the holidays. If necessary, the parties agree that the visitation schedule can change to accommodate work schedules.TM The effect of these terms was to provide Plaintiff Christine A. Ramos with physical custody of the children about 71% of the time and Defendant with physical custody about 29% of the time, during a typical two-week period.~3 If nine holidays are assumed for purposes of the computation, Plaintiff's percentage was 70% and Defendant's was 30%. Plaintiff testified that in practice Defendant's custodial periods were as follows A. Every other week, he has them Wednesday after school, or around 5 or 6 p.m. during the summer, until Sunday evening at 6. Q. Okay. And in the alternating weeks A. The alternating weeks, he gets them Thursday after 11 Petitioner's [Plaintiff's] Exhibit 1, at 2 (post-nuptial agreement). This agreement was dated May 4, 1997. 12 /d. 13 This computation assumes a year of 52 weeks (364 days). Under the post-nuptial agreement, during a typical two-week period Plaintiff was allotted 240 hours of physical custody, and Defendant was allotted 96 hours. 3 school, around five or six, and has them until Friday morning. During the summer, he usually brings them home Friday afternoon around lunchtime or so. Q. Okay. And how long has that custodial arrangement been going on? A. Since we separated, which was January of'97.~4 Accepting, as the court did, this testimony to be accurate,is under the de facto custody arrangement of the parties Plaintiff's custodial periods averaged about 66% of the time and Defendant about 34% of the time, during a typical two-week period. If nine holidays are assumed for purposes of the computation, Plaintiff's (rounded-off) percentage remained 66% and Defendant's remained 34%.~6 Based upon the parties' net incomes, and treating Plaintiff as the obligee, the court applied the Pennsylvania support guidelines without deviation to arrive at a monthly support obligation on the part of Defendant of$794.00.~? From this determination, Defendant has appealed. 14 N.T. 10-11 (hearing, June 26, 1998). 15 Defendant's depiction of custodial periods, while unquestionably undertaken in good faith, seemed to the court in some instances, due to generality, to miscredit portions of days during which Plaintiff actually had custody. See N.T. 24-25 (October 23, 1998). 16 On occasion, the parties "traded off' custodial periods to accommodate each other's schedules. For this reason, a view of a single month in the history of the custodial arrangement did not necessarily suffice for purposes of a representative sampling. N.T. 22 (hearing October 23, 1998). 17 N.T. 6 (hearing June 26, 1998). The computation is attached hereto as an appendix. 4 DISCUSSION In a child support case, "it is within the sole province of the trial judge, sitting without a jury, to assess the credibility of the witnesses and to weigh their testimony." Luzerne County Children and Youth Services v. Cottarn, 412 Pa. Super. 268, 271,603 A.2d 212, 213, appealdenied, 530 Pa. 666, 610 A.2d 45, cert. denied, 506 U.S. 960, 113 S. Ct. 425, 121 L. Ed. 2d 347 (1992) (citation omitted). In general, a court as trier-of-fact "is free to believe all, part or none of the evidence that is presented." Matokitis v. Woodmansee, 446 Pa. Super. 433,444, 667 A.2d 228, 233 (1995), appeal denied, 545 Pa. 680, 682 A.2d 311 (1995). In Anzalone v. Anzalone, 449 Pa. Super. 201,673 A.2d 377 (1996), the Pennsylvania Superior Court held that it was error for a support court to deviate from the child support guidelines in favor of a parent who had custody of the children 40% of the time, in the absence of a finding that the amount of time spent with the children was unusual or that unique expenses were involved. In Dalton v. Dalton, 409 Pa. Super. 258, 597 A.2d 1192 (1992) (plurality), the Superior Court affirmed the support court's determination that a custody arrangement whereby a father spent approximately 42% of the time with his children was not so unusual as to warrant a reduction in the guideline amount of his child support obligation. In Connor v. Connor, 434 Pa. Super. 288, 642 A.2d 1136 (1994), the Superior Court reversed a support court's child support order deviating from the guidelines in favor of a parent who had custody of her children 27% of the time and whose expenses were not unique. In Connor, Judge Del Sole, writing for the majority, noted that [e]xpenses for food and shelter have already been factored into the support guidelines. The support guidelines also contemplate that the non-custodial parent has regular contact, including vacation time, with his or her children, and that direct expenditures on behalf of the children will be made. The non-custodial parent's support obligation should not be reduced absent a determination that the parent spends an unusual amount of time with the children or where unique financial needs can be demonstrated.~8 In Anzalone, Judge, now Justice, Saylor stated the following on behalfofa unanimous panel: [A] parent should not be allowed to use the amount of time which he or she spends with the children as a method of reducing his or her support obligation at the expense of the children: "[A] parent's support obligation as determined by the guidelines will not be reduced by allocating the time that each parent spends with the children as this is a misapplication of the guidelines?9 Implicit within the holdings of Anzalone, Dalton and Connor is a view that rather substantial percentages of time spent by a noncustodial parent with a child are not, in themselves and as a general rule, "unusual" for purposes of the criteria for a deviation from ~8 Connor v. Connor, 434 Pa. Super. 288, 293-94, 642 A.2d 1136, 1138-39 (1994). ~9 Anzalone v. Anzalone, 449 Pa. Super. 201,209, 673 A.2d 377, 381 (1996), quoting Connor v. Connor, 434 Pa. Super. 288, 294, 642 A.2d 1136, 1139 (1994). 6 the guidelines. Nor are such arrangements to be equated with a shared custody situation, which might wan'ant special treatment. Cf. Little v. Little, 441 Pa. Super. 185, 657 A.2d 12 (1995) (50/50); Depp v. Holland, 431 Pa. Super. 209, 636 A.2d 204 (1994) (53/47) Based upon the foregoing authority, it is believed that the court's factual findings as to the percentages of custody of the parties and the absence of unique expenses, and its application of the guidelines without deviation, were authorized and in accordance with law. For this reason, it is further believed that the net monthly child support obligation of Defendant was correctly set at $794.00. Diane G. Radcliff, Esq. 3448 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff Ira H. Weinstock, Esq. 800 N. Second Street Harrisburg, PA 17102 Attorney for Defendant 'rc