HomeMy WebLinkAbout2007-1434 CivilRUSSELL F. SCHEID, III,: IN THE COURT OF COMMON PLEAS OF
Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION --LAW
: PASCES No. 624109372
ROBIN SCHEID,
Defendant/Petitioner : No. 2007 -1434 CIVIL TERM
IN RE: DEFENDANT'S EXCEPTIONS
TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., February 25, 2008.
In this divorce action, Defendant wife filed a petition for alimony pendente
lite.' The matter was ultimately the subject of a hearing conducted by the
Cumberland County Support Master.2
In his master's report, the master recommended an alimony pendente lite
payment on the part of Plaintiff husband to Defendant wife in the amount of
$500.00 per month .3 An interim order was entered in accordance with the
master's report .4
For disposition at this time are exceptions to the support master's report
filed by Plaintiff husband .5 The exceptions consist of five pages, but the issues
being pursued have been expressed in Plaintiff's brief in support of the exceptions
as follows:
1. Whether the Support Master Erred Abused His Discretion In
Finding the Need for the Award of Alimony Pendente Lite Based Upon the
General Character, Situation and Surroundings of the Parties; the
Husband's Ability to Pay; and the Separate Income of the Wife?
' Defendant's Petition for Alimony Pendente Lite, filed August 6, 2007.
2 N.T. 1-93, Hearing, November 6, 2007 (hereinafter N.T. _).
' Support Master's Report and Recommendation at 4, filed November 9, 2007 (hereinafter
Support Master's Report at _).
4 Interim Order of Court, November 9, 2007 (Guido, J.).
' Plaintiff's Exceptions to the Support Master's Recommendations, filed November 29, 2007.
2. Whether the Support Master Abused his Discretion in Finding
Alimony Pendent Lite was Necessary in Light of the Economic Equality
Which Exists Between the Parties and the Lack of Wife's Financial
Disadvantage Based Upon the Circumstances of the Case?
3. Whether the Support Master Abused His Discretion in Awarding
Alimony Pendente Lite When the Parties Still Reside in the Marital
Residence?6
For the reasons stated in this opinion, Plaintiff's exceptions to the support
master's report will be denied, and the interim order of court incorporating the
master's recommendations will be entered as a final order.
STATEMENT OF FACTS
Plaintiff is Russell F. Scheid, 111, an adult individual residing at 17 West
Mulberry Hill Road, Carlisle, Cumberland County, Pennsylvania .7 Plaintiff is
Robin Scheid, an adult individual also residing at 17 West Mulberry Hill Road,
Carlisle, Cumberland County, Pennsylvania.$ The parties were married on March
29, 1996.9 Two sons born of the marriage, aged 11 and 9, and a daughter of the
mother by a prior relationship, aged 15, also live in the residence. 10
Plaintiff husband filed a no-fault divorce complaint under Sections 3301(c)
(mutual consent) and 3301(d) (two-year separation and irretrievable breakdown)
of the Divorce Code against Defendant wife on March 14, 2007.11 The parties
have put their home up for sale, 12 occupy separate bedrooms, 13 live "in a state of
separateness in the same household," 14 and conduct their financial affairs
6 Brief in Support of Plaintiff's Exceptions to the Support Master's Recommendations at 5.
N.T. 4, 58.
'N.T. 4-5.
9 N.T. 4.
10 N.T. 5-6.
" Plaintiff's Complaint in Divorce under Section 3301(C) or (D) of the Divorce Code, filed
March 14, 2007. An amended divorce complaint, adding an indignities ground, was filed on
September 6, 2007.
12 N.T. 60.
" N.T. 79.
14 N.T. 83.
2
separately. 15 Notwithstanding the filing of the complaint, Plaintiff husband has
chosen to remain in the marital residence and Defendant wife is financially unable
to reside elsewhere. 16
Plaintiff husband is employed as a "transportation manager" for a company
which operates warehouses called Excel,l' with a gross annual salary of
$91,358.2818 and, in 2007, a performance bonus of $16,985.30.19 If Plaintiff's
testimony that he does not anticipate a similar bonus under present circumstances 20
is not credited, his gross earned income per month would total $9,028.63; if it is
credited, his gross earned income per month would total $7,613.19. Among his
expenses are $2,500.00 a year in gifts,21 but he claimed to be "right on the edge"
financially.22
Defendant mother's gross monthly income from part-time hourly
employment as a home care provider is $555.49.23 As the result of the death of
her daughter's father in 2002, Defendant also receives $1,273.00 per month in
social security benefits for the support of that child .24
When Plaintiff father filed for divorce, he closed out the parties' joint
checking accounts, with the result that Defendant mother "has no access to any
money"25 and is incurring personal expenses, including legal fees, far in excess of
" N.T. 8, 33-36, 43, 55, 64, 69, 71, 83-84, 86-87, 93.
16 N.T. 8.
17 N.T. 12.
" Petitioner's Ex. 17, Support Master's Hearing, November 6, 2007 (hereinafter
Petitioner's/Respondent's Ex. �.
19 N.T. 82; Petitioner's Ex. 17.
20 N.T. 86.
21 Respondent's Ex. 1.
22 N.T. 68.
23 N.T. 31-32; Petitioner's Ex. 1.
24 N.T. 6.
2s N.T. 8.
3
her earned income .26 Her current balance due for legal services is $900.00.27 She
is postponing financial disaster by the device of amassing a large credit card
account debt.28 She also suffers from an autoimmune disease.29 Plaintiff father
has been paying most of the expenses related to the home in which he and
Defendant reside,30 including mortgage payments totaling $1,816.00 per month.31
He also pays $218.66 per month for health insurance coverage on himself,
Defendant, the parties' two children, and Defendant's daughter.32
Based upon these facts, the Cumberland County Support Master concluded
that Defendant wife was entitled to alimony pendente lite .33 Declining to include
in Plaintiff husband's income any bonus amount,34 and utilizing a standard
computer program employed in domestic relations cases for a determination of tax
and similar deductions and credits,35 the master calculated the amount to be
recommended as follows:
26 N.T. 12-23, 50; Petitioner's Ex. 6.
27 N.T. 57.
28 N.T. 43, 55. As of the support master's hearing, the debt on this credit card account had risen
to $16,497.00. N.T. 43.
29 N.T. 21.
so N.T. 34.
31 N.T. 63.
32 N.T. 61-62.
" Support Master's Report at 3.
34 See Support Master's Report at 3 n.2. The bonus received in 2007 by Defendant husband was
relegated, in the master's proposed scheme, to the process of equitable distribution. Id.
ss See Support Master's Report, Ex. "A" (Tax Detail Report).
In Cumberland County domestic relations matters a standard computer program is routinely
utilized for purposes of calculating taxes and similar items, deductible from gross income under
Pennsylvania Rule of Civil Procedure 1910.16-2.
"Typically, a computer program is utilized by the Domestic Relations Office to derive the
proper tax and F.LC.A. figures based upon a party's gross income, filing status and exemptions
taken." Seely -Burnham v. Burnham, 52 Cumberland L.J. 48, 52 (2002); see Cunningham v.
Cunningham, 49 Cumberland L.J. 219, 224 n.32 (2000). "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
11
Because the entire family resides in the marital residence, the
Husband will be considered the custodial parent of the parties' children in
calculating his obligation to pay alimony pendente lite to his wife. The
methodology of calculating the award of alimony pendente lite is set forth
in Pa. R.C.P. 1910.16-4(c). It is a four step procedure. Initially, the
Husband's support obligation to the Wife is calculated using the net
monthly income of the parties and the formula without dependent children.
The Husband has gross monthly income of $7,613.00. Filing his federal
income tax return as head of household with two children claimed as
dependency exemptions, he has net monthly income of $5,589.00. The
Wife has gross monthly income of $556.00. Filing her federal income tax
return as married/separate with one child, her daughter Amanda, claimed
as a dependency exemption, she has net monthly income of $679.00.
The spousal support obligation is 40% of the difference of the parties'
respective incomes, or $1,964.00 per month. This figure is then added to
the Wife's net monthly income and subtracted from the Husband's. The
adjusted net incomes become $3,625.00 for the Husband and $2,643.00 for
the Wife. The Wife's obligation to support he children is calculated
utilizing these adjusted figures. With combined net monthly income of
$6,268.00 the basic requirement for the support of two children is
$1,417.00 per month. The Wife's proportionate share of that amount is
$598.00. This is adjusted upward due to the Husband's payment of health
insurance coverage to $671.00 per month. The child support obligation is
deducted from the $1,964.00 spousal support obligation calculated in the
first step leaving a balance of $1,293.00 per month payable by the
Husband as alimony pendente lite under the guidelines. However, several
factors dictate a deviation from this figure. The Husband is paying the
Wife's housing costs as well as the housing costs of her daughter, ... for
whom he has no legal support obligation. The Wife is receiving the sum
of $1,273.00 per month in social security survival benefits for the benefit
of [her daughter], which she is using primarily to pay her own living
expenses. Taking these factors into consideration, a recommendation is
made that the Husband pay the sum of $500.00 per month as alimony
pendente lite.36
The exceptions of Plaintiff husband to the support master's report were
filed on November 29, 2007.37 Briefs have been received from both parties .31
schemes, which do not always correspond to the taxpayer's actual obligations." Murray v.
Kalinoski, No. 01-1097 Support (Cumberland Co. August 15, 2007) (slip op. at 5. n.38), quoting
Parlati v. Morton, 53 Cumberland L.J. 169, 174-75 (2004).
In the present case, a negative tax result increased the Defendant mother's net monthly income
amount for purposes of an alimony pendente calculation by $123.54. See Support Master's
Report, Ex. "A" (tax detail report).
36 Support Master's Report at 3-4 (footnotes omitted).
37 Plaintiff's Exceptions to the Support Master's Recommendations, filed November 29, 2007.
E
DISCUSSION
Statement of law. On a 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, 1035
(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).
"[Alimony pendente lite] is based on the need of one spouse to have the
financial resources to pursue or defend a divorce action." Clouse v. Clouse, 50
Cumberland L.J. 167, 170 (2001) (citation omitted). In this context, a significant
economic advantage is rightly viewed as "the financial sinews of domestic
warfare." Litman v. Litman, 449 Pa. Super. 209, 223, 673 A.2d 382, 388 (1996).
"The claimant must show that APL is needed to adequately his or her rights in the
litigation." Clouse v. Clouse, 50 Cumberland L.J. 167, 170 (2001).
The fact that spouses reside in the same household is not in itself an
impediment to an action for divorce, or to an action for support. See, e.g., McCoy
v. McCoy, 2005 PA Super 411, 888 A.2d 906 (divorce action); Biler v. Biler, 353
Pa. Super. 49, 508 A.2d 1261 (1986) (support action). Furthermore, parties are
presumed to be living "separate and apart" as of the date of the filing of a divorce
complaint. Act of December 19, 1990, P.L. 1240, §2, as amended, 23 Pa. C.S.
§3103 (2007 Supp.). Given the above -stated purpose of alimony pendente lite,
and the foregoing legal review, there is no basis in logic, judicial precedent or
" Brief in Support of Plaintiff's Exceptions to the Support Master's Recommendations, submitted
January 17, 2008; Brief of Robin Scheid, Defendant in Opposition to the Exceptions of Russell F.
Scheid, III, Plaintiff to the recommendations of the Support Master, submitted February 4, 2008.
0
statute to hold that a commonality of residence of parties in a divorce action is in
itself an impediment to an APL award.
"[I]f an award of alimony pendente lite is warranted in a pending divorce
case, the method of calculating the award is pursuant to the Pennsylvania support
guidelines which are the same guidelines used for calculating spousal support."
Little v. Little, 47 Cumberland L.J. 131, 134 (1998); see Pa. R.C.P. 1910.16-1(b).
The amount calculated in accordance with the support guidelines is the
presumptively correct figure to be applied in a given case. Pa. R.C.P. 1910.16-
1(b). However, where the amount prescribed by the guidelines would be "unjust
or inappropriate," a deviation is warranted. Id.; see also Pa. R.C.P. 1910.16-5.
The guidelines are designed to treat similarly situated parents,
spouses and children in the same manner. However, when there are
unavoidable differences, deviations must be made from the guidelines.
Failure to deviate from the[] guidelines by considering a party's actual
expenditures where there are special needs and special circumstances
constitutes a misapplication of the guidelines.
Comment, Pa. R.C.P. 1910.16-1. Such deviations lie within the sound discretion
of the trial court. Ricco v. Novitski, 2005 PA Super 121, 871 A.2d 75.
Application of law to facts. In the present divorce action, initiated by
Plaintiff husband, the tremendous disparity in incomes of the parties and the debt -
ridden personal financial circumstances of Defendant wife have created a
financially adhesive relationship between the parties and a situation in which it is
unrealistic to believe that Defendant can fairly compete in an economic sense in
her defense of the action. Nor does the commonality of the parties' residence
preclude the award of APL to which she would be otherwise entitled, where the
parties are living separate and apart, both physically and financially.
It thus appearing to the court that Defendant wife has shown her entitlement
to an award of alimony pendente lite, a calculation of the presumptive amount of
the award under the support guidelines yields the figure arrived at in the master's
report.
7
A deviation downward from that figure, as recommended by the master,
based in large part upon Plaintiff's payment of most expenses related to the
marital residence, is consistent with the intent of the Rules of Civil Procedure.
The extent of the deviation recommended by the master, amounting to a reduction
of the presumptive figure by more than 60%, is in the court's view, generous to
the Plaintiff, who himself benefits from these payments by virtue of his occupancy
of the premises and co -ownership of the property.
Based upon the foregoing, the following order of court will be entered.
ORDER OF COURT
AND NOW, this 25th day of February, 2008, upon consideration of
Plaintiff's exceptions to the Support Master's Report, and for the reasons stated in
the accompanying opinion, the exceptions are denied and the interim order of
court dated November 9, 2007, is entered as a final order.
Michael R. Rundle, Esq.
Cumberland County Support Master
Jordan D. Cunningham, Esq.
P.O. Box 60457
Harrisburg, PA 17106-0457
Attorney for Plaintiff/Respondent
Marcus A. McKnight, 111, Esq.
60 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant/Petitioner
'3
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
RUSSELL F. SCHEID, III,: IN THE COURT OF COMMON PLEAS OF
Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION --LAW
ROBIN SCHEID, : PASCES No. 624109372
Defendant/Petitioner : No. 2007 -1434 CIVIL TERM
IN RE: DEFENDANT'S EXCEPTIONS
TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 25th day of February, 2008, upon consideration of
Plaintiff's exceptions to the Support Master's Report, and for the reasons stated in
the accompanying opinion, the exceptions are denied and the interim order of
court dated November 9, 2007, is entered as a final order.
BY THE COURT,
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esq.
Cumberland County Support Master
Jordan D. Cunningham, Esq.
P.O. Box 60457
Harrisburg, PA 17106-0457
Attorney for Plaintiff/Respondent
Marcus A. McKnight, 111, Esq.
60 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant/Petitioner