HomeMy WebLinkAbout98-0060 SupportSUSAN K. FRITCHMAN-PICKFORD,
Plaintiff
Vo
SCOTT D. PICKFORD,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: DOMESTIC RELATIONS SECTION
:
: CIVIL ACTION -- LAW
: DR# 27,263
:No. 60 SUPPORT 1998
IN RE: OPINION PURSUANT TO PA. R.A.P.
OLER, J. April 27, 1999.
In this child/spousal support case, Plaintiff obligee has appealed to the Pennsylvania
Superior Court from an order of this court which (a) determined Defendant obligor's support
obligation to be $986.28 per month, (b) prorated unreimbursed medical expenses on a 60/40
basis and (c) divided child care expenses evenly between the parties. The order appealed
from read as follows:
AND NOW, this 26th day of March, 1999, upon
consideration of Plaintiff's appeal from the Order of Court
dated February 18, 1999, respecting spousal and child support,
and following a hearing held on this date, and the court finding
that the payee's monthly net income/earning capacity is
$2400.00, and that 'the payor's monthly net income/earning
capacity is $3770.00, it is ordered and directed that the Order of
Court dated February 18, 1999, be amended to reflect a support
obligation on the part of the Defendant of $986.28 per month, a
60/40 percent proration for unreimbursed medical expenses, and
adjusted arrearage figures in accordance with the revised net
income/earning capacity figures. Childcare expenses shall be
divided evenly between the parties.
The order represented an increase in Defendant's support obligation from the
February 18, 1999, order~ which Plaintiff found unacceptable. However, Plaintiff continues
~ The February 18, 1999, order was based upon a recommendation of the Domestic
Relations Office following a conference. See Pa. R.C.P. 1910.11. This order attributed a net
earning capacity to Plaintiff of $3,374.06 per month.
to be dissatisfied with the order, believing that the attribution of any earning capacity to her
for purposes of support was improper. The bases for Plaintiff's appeal are expressed in a
statement of matters complained of on appeal as follows:
1. The court erred in failing to acknowledge and apply
the nurturing parent doctrine.
2. The court erred in finding that the Defendant's
monthly net income/earning capacity is $3,770.00.
3. The court erred in finding the plaintiff's monthly net
income/earning capacity is $2,400.00.
4. The court erred in ordering a 60/40 percent proration
for unreimbursed medical expenses.
5. The court erred in ordering that child care expenses be
divided equally between the parties.
6. The court erred in ordering Defendant's support
obligation at $986.28 per month.2
This opinion in support of the court's order is written pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a).
STATEMENT OF FACTS
Plaintiffis Susan Kathleen Fritchman-Pickford, 41, an adult individual residing at 525
Haldeman Boulevard, New Cumberland, Cumberland County, Pennsylvania.3 Defendant is
Scott Drew Pickford, 39, an adult individual residing at Apartment C, 1020 Bridge Street,
NeW Cumberland, Cumberland County, Pennsylvania?
The parties were married on September 26, 1992.5 Two children were bom of the
2 Defendant's Statement of Matters Complained of on Appeal, filed April 8, 1999.
3 N.T. 54, 79, Hearing, March 26, 1999 (Hereinafter N.T. __).
4 N.T. 4, 79.
SN.T. 10.
2
marriage: William Pickford, now about six years old, whose date of birth is May 3, 1993, and
Mackenzie Pickford, now about three and a half years old, whose date of birth is December
18, 1995.6 The parties separated on January 23, 1998.7
The children reside primarily with Plaintiff.. On weekends, they are with the
Defendant? Plaintiff's mother lives within five blocks of Plaintiff, is unemployed and is able
to spend a considerable amount of time with the children? The older child, William, is in
daycare, at a cost of $88.00 per week.~°
Plaintiff received a bachelor of arts degree in elementary education from Penn State
University in 1979.TM She received a law degree from Dickinson Law School in 1984. t2 She
was admitted to the bar in California in 1984, and was admitted to the bar in Pennsylvania
in 1985.~3 She is an experienced criminal defense attorney, having tried over a hundred cases
and having engaged in appellate work.TM She also possesses a teaching certificate.15
6N.T. 5.
7 N.T. 79.
8 N.T. 85.
9 N.T. 95-96, 103.
1° N.T. 113.
~ N.T. 80.
~2 N.T. 80.
~3 N.T. 80.
~4 N.T. 10, 81.
N.T. 13, 84.
~5 N.T. 85.
Plaintiff's license in California included a specialty in criminal law.
As an attomey in Califomia, Plaintiff earned approximately $55,000.00 per year.~6
However, she has placed her licenses to practice law in California and Pennsylvania on
inactive status.~7
Defendant is a project manager in the construction industry, employed by the
Norwood Company of Linglestown, Pennsylvania.is His net monthly income is $3,770.00.19
The parties were married in California, where they were both residing.2° Following
the birth of their first child, Plaintiff returned to full-time employment as an attorney and the
child was placed in daycare? In December of 1993, she terminated her employment to
facilitate a single-marital-residence living arrangement in San Luis Obispo.22 She joined the
local bar and "made some rounds" in search of employment, but at that point the parties
decided to move to Pennsylvania?
In Pennsylvania, Plaintiff did some legal work of a minor nature,24 and involved
herself in volunteer research for an organization known as the Public Defender Information
~6 N.T. 10, 62.
~7 N.T. 76-77.
~s N.T. 5.
19 N.T. 7-8. In arriving at this figure, the court considered Plaintiff's position that one
of Defendant's pay stubs suggested a net monthly income figure of $3990.13, and that
Defendant claimed unreimbursed job expenses of between $300.00 and $400.00 per month.
See N.T. 8-9, 29.
2° N.T. 10.
21 N.T. 12, 15.
22 N.T. 12-13. Plaintiff had been practicing law in Santa Cruz, California, and
Defendant was living and working in San Luis Obispo, California. N.T. 12.
23 N.T. 13-14, 33.
24 N.T. 16.
4
Center? Serious financial problems ensued for the parties? As noted, they separated in
January of 1998.
On April 20, 1998, the parties entered into a "Stipulation between the Parties for
Support," which provided for private payments to Plaintiff from Defendant in the amount of
$1,820.00 per month for child and spousal support? Under the agreement, $956.00 was
allocated to child support and $864.00 was allocated to spousal support? The agreement
also provided that "[t]his order''29 had to be reviewed within three years, and could be
reviewed upon petition of either party within 30 days?
Plaintifftestified that she has "sought employment that [she] could do at home that
would not interfere with [her] ability to be with the kids.''31 However, she is not interested
in employment outside of the home; her rationale for this position was elicited in testimony
on direct examination as follows:
A I wanted kids all my life. I prepared to have kids
all my life. I think it's the most wonderful thing to be able to do
in this life is to watch children go through discovery and
wonderment and to be there to see that and help guide it and to
watch them grow and help them grow. I can't think of anything
more wonderful to do.
Q Have you enjoyed the opportunity to do that?
25 N.T. 18, 68-69.
26 N.T. 69-70.
27 Defendant's Exhibit 1.
2a Id., paragraph 2.
29 An order pursuant to the stipulation was entered on April 23, 1998.
3o Defendant's Exhibit 1, paragraph 7.
3! N.T. 74.
5
A
Yes, very much.
Would you like to continue to do that?
Yes.32
[The children] have been very clingy and showing
signs of a lot of insecurity. And I think that I can help them
with that. I have a lot more -- I would like to teach them before
they get into the public school systems about values, morals,
safety issues, things that you don't often get taught in the
schools or that you should have before you get into a school to
help you deal with the kids you're going to meet there, the
routine you're going to meet there.
And I just enjoy them. I mean, I'm going to give
them over to the public school system when they're six and
seven, and I want all the time with them that I can get to enjoy
their childhood. I'm only going to get it once.33
According to Defendant's testimony, Plaintiff told him following their separation that
"she didn't have to do anything, that I had to pay her for two years, and that she didn't have
to seek employment or do anything else, and that I was stuck.''34 Defendant had been under
the impression that Plaintiff would be seeking employment about six months after the
execution of the agreement for support in April of 19987
Defendant eventually petitioned for review of his obligation.36 Following a Domestic
32 N.T. 70-71.
33 N.T. 78-79.
34 N.T. 46.
35 N.T. 37-38.
36 See Letter, filed December 3, 1998.
6
Relations Office conference,37 a recommended order was entered on February 18, 1999.38
Under this order, Plaintiff was assigned a net monthly income (earning capacity) of
$3,374.06, Defendant's net monthly income was determined to be $3,770.18, and
Defendant's monthly child/spousal support obligation was set at $795.50, based upon the
guidelines .39
Plaintiff appealed from the recommended order of court on February 23, 1999.® A
hearing on the appeal was held on March 26, 1999. At the hearing, Plaintiff's counsel argued
that Plaintiff should not be assessed an earning capacity, by reason of the nurturing parent
doctrine.41 Defendant's counsel argued that Plaintiff"wants to stay home. All parents do,"
but that she "should be assessed an earning capacity; at the very least, that what she had
earned as a criminal defense attorney in California.''42
Following the hearing, the court entered the order quoted at the beginning of this
opinion. The order reduced the net monthly earning capacity attributed to Plaintiff from
$3,374.06 to $2,400.00, but rejected the argument that no earning capacity whatsoever
should be attributed to her. Based upon the guidelines, Defendant's monthly support
obligation was set at $986.28; unreimbursed medical expenses were divided in accordance
3?SeePa. R.C.P. 1910.11.
38 Order of Court, February 18, 1999.
39 Id.
40 Appeal and Request for Special Relief in the Form of a Supersedes (sic) of the
Modified Order for Spousal and Child Support, filed February 23, 1999.
4~ N.T. 107-09.
42 N.T. 107.
7
with the income figures on a 60/40 basis, and childcare expenses were divided equally.43
DISCUSSION
The general rule is that "[c]hild support is a shared responsibility; both parents must
contribute to the support of their child in accordance with their relative incomes and ability
to pay." Depp v. Holland, 431 Pa. Super. 209, 213,636 A.2d 204, 206 (1994). It is also the
general rule that a person's earning capacity rather than his or her actual earnings should be
considered in support computations. See Pa. R.C.P. 1910.16-5(c)(5). "The concept of
imposing a support Order based on earning potential is of long standing in support law and
derives from the principle that a person who has a support obligation may not withdraw from
income producing endeavors to defeat the right of support to his/her dependents." Atkinson
v. Atkinson, 420 Pa. Super. 146, 148-49, 616 A.2d 22, 23 (1992).
An exception to the general rule that both parents are equally responsible for the
support of their children according to their earning capacities exists in the form of the
"nurturing parent doctrine.''44 Under this doctrine, which was first recognized in
Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa. Super. 108, 380 A.2d 400 (1977),
earning capacity cannot always be imputed to a parent who
chooses to stay home with the minor child. In appropriate cases,
such a nurturing parent may be excused from contributing
support payments. A trial court, so holding, must consider the
age and maturity of the child, the availability of others who
might assist the parent, the adequacy of available financial
resources if the parent remains at home, and finally, the parent's
desire to stay home and nurture the minor child.
Frankenfield v. Feeser, 449 Pa. Super. 47, 51,672 A.2d 1347, 1349 (1996) (citation omitted).
43 A copy of the guideline computation is attached to this opinion as Appendix A.
This case was decided under the rules of civil procedure as they existed prior to the
amendments effective April 1, 1999.
44 Frankenfieldv. Feeser, 449 Pa. Super. 47, 51,672 A.2d 1347, 1349 (1996).
The Superior Court in Wasiolek did not "establish an absolute rule that an earning
capacity cannot be imputed to a parent who chooses to stay home with a minor child."
Bender v, Bender, 297 Pa. Super. 461,465, 444 A.2d 124, 126 (1982). "[T]he 'nurturing
parent doctrine' is not an absolute rule; it is but one factor to be considered by the trial court
in determining whether to excuse the parent from contributing toward support.''45 Nor is "a
court ... strictly bound by the nurturing parent's assertion that the best interest of the child
is served by the parent's presence in the home.''46
Thus, in Depp v. Holland, 431 Pa. Super. 209, 636 A.2d 204 (1994), the Pennsylvania
Superior Court made these observations in approving a lower court's attribution of an
earning capacity to a mother who had asserted the nurturing parent doctrine with respect to
child support:
Upon review, we find that the particular facts of this case do not
warrant the application of the "nurturing parent doctrine" to
Mother. Unlike the mother in Atkinson [v. Atkinson, 420 Pa.
Super. 146, 616 A.2d 22 (1992)], Mother not only has a past
work history but, as demonstrated by the record, she has in the
past performed private accounting for persons and at one time
ran a day care facility out of her home. Under these
circumstances, application of the "nurturing parent doctrine" is
not appropriate.
Id. at 215, 636 A.2d at 207.
In a support case, where the court is acting as the trier-of-fact, the court "is entitled
to weigh the evidence presented and assess its credibility .... The fact finder is free to believe
all, part, or none of the evidence .... "See Smith v. Smith, 439 Pa. Super. 283,293,653 A.2d
1259, 1264 (1995).
45 Depp v. Holland, 431 Pa. Super. 209, 215,636 A.2d 204, 207 (1994).
46 Commonwealth ex rel. Wasiolek v.
400, 402 (1977).
Wasiolek, 251 Pa. Super. 108, 113,380 A.2d
9
Under Pennsylvania Rule of Civil Procedure 1910.16-5(p), in effect at the time of the
decision in this case,47 as a general rule "unreimbursed medical expenses will be divided
between the parties in proportion to their respective net incomes." With respect to child care
expenses, under Pennsylvania Rule of Civil Procedure 1910.16-5(i), in effect at the time of
the decision,48
[r]easonable child care expenses paid by the custodial parent, if
necessary to maintain employment or appropriate education in
pursuit of income, are the responsibility of both parents.
Normally, the burden will be divided equally between the
parents ....
In the present case, a number of factors led the court to attribute at least a modest
earning capacity to the Plaintiff. These included Plaintiff's educational background, which
produced a teaching certificate, a law degree, and licenses to practice law in California and
Pennsylvania; her significant employment experience as a practicing attorney, with a
specialty in criminal law; her proven ability to earn an annual salary in excess of $50,000.00;
the ages of the children, who are well beyond the stage of infancy; the proximity and
availability of Plaintiff's mother to Plaintiff and the children; the difficult financial situation
of the parties; and the fact that a part of Plaintiff's desire to remain at home with the children
centers upon her own needs.49
Under these circumstances, the court was of the view that the attribution of a net
earning capacity to Plaintiff of $2,400.00 per month, which represented a reduction in the
amount assumed in the recommended order of February 18, 1999, and an amount far less
than her prior annual salary would imply, was consistent with her child support
47 See supra note 43.
48 Id.
49 This is not to suggest, however, that the court felt that Plaintiff was at all insincere
in her belief that the children would benefit from her availability at all times to them.
10
responsibilities and the preservation of her ability to share a substantial amount of time with
her children. The basis for fixing Defendant's net monthly income at $3,770.00 has been
previously discussed in this opinion,so
The 60/40 allocation of unreimbursed medical expenses between the parties, in
accordance with their incomes, was consistent with the rule of civil procedure applicable to
the issue, as was the equal division of child care expenses. For these reasons, it is believed
that the order of court dated March 26, 1999, fi.om which Plaintiff has appealed was properly
entered.
Thomas D. Gould, Esq.
2 East Main Street
Shiremanstown, PA 17011
Attorney for Plaintiff
James A. Miller, Esq.
122 Locust Street
Harrisburg, PA 17101
Attorney for Defendant
so See supra note 19 and accompanying text.
11
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