HomeMy WebLinkAbout98-0131 SupportLISA J. TILTON,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION--SUPPORT
: PACSES No. 891100040
JOSEPH J. TILTON, : DRO No. 27,732
Defendant :No. 131 SUPPORT 1995
IN RE: CHILD AND SPOUSAL SUPPORT; PETITION FOR CONTEMPT
BEFORE OLER, J.
OF/DER OF COURT
AND NOW, this 13th day of October, 1999, upon consideration of Defendant's
~.ppeal from the s~;k?o:~ ur.act Uar~d .,-'qz:ii i, i~;~$, L~:D..'id,~t'~ ),cS:[:>n tc, ~uc.f,}~', and
the petition i7~r contempt filed against Defendant, following a hearing held on March 5,
1999, and May 28, 1999, and for the'reasons stated in the accompanying opinion, it is
ordered and directed as follows:
1. From February 20, 1998, through December 31, 1998,
Defendant's child/spousal support obligation is $1,037.36 per
month, allocated $766.06 for child support and $271.30 for
spousal support; Defendant's responsibility for unreimbursed
medical and child care expenses during this period is 67% and
PlaintifFs responsibility is 33%, based on respective net
monthly incomes of $3,299.39 and $1,628.98.
2. From January 1, 1999, through March 31, 1999, Defendant's
child/spousal obligation is $718.34 per month, allocated
$609.74 for child support and $109.60 for spousal support;
Defendant's responsibility for unreimbursed medical and child
care expenses during this period is 62% and PlaintifFs
responsibility is 38%, based on respective net monthly
incomes of $2,603.07 and $1,628.98.
3. From April 1, 1999, and thereafter, pending further order of
court pursuant to a party's petition, Defendant's child/spousal
support obligation is $802.02 per month, allocated $728.28 for
child support and $73.74 for spousal support; Defendant's
responsibility for unreimbursed medical expenses in excess of
$250.00 during this period is 62% and Plaintiff's
responsibility is 38%, based on respective net monthly
incomes of $2,603.07 and $1,628.98.
4. Defendant is responsible for providing medical insurance
coverage for his spouse and children.
5. Within 30 days of the date of this order, Defendant shall pay
to Plaintiff all sums due for unreimbursed medical expenses
and child care expenses, properly supported by third-party
documentation submitted to him by Plaintiff.
6. The Domestic Relati:.7~: OS'fi~-~ i? c~::.~.:t~_4 t,~ ~,diust
Defendant's account in accordance with this order.
7. for contempt filed against Defendant is
The petition
dismissed.
Kathleen Carey Daley, Esq.
1029 Scenery Drive
Harrisburg, PA 17109
Attorney for Plaintiff
BY THE COURT
'Wesley Old)Jr.,
Diane G. Radcliff, Esq.
3448 Trindle Road
Camp Hill, PA 17011
Attorney for Defendant
LISA J. TILTON,
Plaintiff
Vo
JOSEPH J. TILTON,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION--SUPPORT
: PACSES No. 891100040
: DRO No. 27,732
:No. 131 SUPPORT 1998
IN RE: CHILD AND SPOUSAL SUPPORT; PETITION FOR CONTEMPT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., October 13, 1999.
In this child and spousal support case, the primary issues to be determined are
whether the custodial mother/wife should be assessed an earning capacity commensurate
with her full-time earning potential where her actual income is less due to enrollment in
graduate school, whether the father/husband should be assessed an earning capacity based
upon prior earnings rather than present income, and whether the father should be held in
co~elnpt for failure to reimburse the mother for child care and unreimbursed medical
expenses where he had not been provided with documentation of such expenses. The
matter was presented on (a) an appeal by the father/husband from a support order entered
following a Domestic Relations Office conference, (b) a petition to modify filed by the
father/husband, and (c) a petition for contempt filed against the father/husband.
A hearing was held on March 5, 1999, and May 28, 1999. Counsel requested a
transcript of the proceedings, and briefs were filed on behalf of the Plaintiff on July 13,
1999, and on behalf of the Defendant on July 15, 1999. Based upon the evidence
presented at the hearing, each of the issues stated above will be resolved in the negative.
STATEMENT OF FACTS
Plaintiff is Lisa Ann Tilton, 35, a resident of Mechanicsburg, Pennsylvania.
Defendant is Joseph J. (Jim) Tilton, 36, a resident of Springville, Utah. The parties were
married on August 24, 1985.
Two children were bom of the marriage: John Tilton, 13 (d.o.b. June 6, 1986), and
Patricia Tilton, 7 (d.o.b. June 4, 1992). The parties separated on November 10, 1997.
The primary custodian of the children since the separation has been Plaintiff, the mother.
Both parties have college degrees. Plaintiff is a registered nurse, employed on a
part-time basis at the Carlisle Hospital; she is also enrolled in a program at Widener
University (Harrisburg campus) directed toward a master's degree in science (family
nurse practitioner). Defendant is employed in the internet sales industry; his past
employment was primarily in the automobile sales business.
When ti-,e, parties separated in 1997, Plaintiff was employed in her present part-
time position ~ t?'..? C?.r!!s' ~ Hospital. Her gross yearly income from wages has remained
at about $23,600.00; =m'oss earnings of $23,600.00 translate to a net monthly income
figure of $1,628.98.~ Defendant was employed as business manager at Brenner Motors,
an automobile agency. His gross yearly income was about $52,900.00 in 1997 and
$56,600.00 in 1998; Ross earnings of $56,600.00 translate to a net monthly income
figure of $3,299.39. Commencing about January 1, 1999, his gross yearly income has
?!~,:' 7, ~.~,~: %2,800.00 in the intemet sales industry; gross earnings of $42,800.00
translate to a net monthly income figure of $2,603.07.
Defendant moved to Utah, where he has family and friends, several months after
the breakup of the parties' marriage and at~er a loss of employment in Pennsylvania.
Plaintiff has, on occasion in the past, shown a disregard for Defendant's employment
status by the placement of unwelcome phone calls to his place of employment. Based
upon the evidence presented at the hearing, the court is of the view that Defendant's
move to Utah ',vas not unreasonable and was not intended to reduce his earnings; it also
appears to the court that his present income in Utah is commensurate with his earning
capacity.
Plaintiff enrolled in the Widener master's program following the parties'
separation. Successful completion of her course of studies will lead to a gross income
I This figure, however, does not include any spousal support that may be received.
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potential of between $60,000.00 and $80,000.00 per year. Based upon the evidence
presented at the hearing, the court believes that her enrollment was reasonably intended
to enhance her marketability, was not designed to avoid her support obligations, and will
ultimately accrue to the benefit of both parties and their children.
Defendant has failed to pay directly to Plaintiff his share of certain alleged child
care and unreimbursed medical expenses. A petition for contempt has been filed against
Defendant. The basis for Defendant's refusal to pay has been the absence of third-party
documentation in support of the expenses. Given the degree of animosity and distrust
which exists between the parties, the court will not find a knowing, voluntary and
intelligent violation of the order on the part of Defendant based upon this conduct, but
will order the expenses, properly supported, to be paid within 30 days.
DISCUSSION
Tt:e prim. au' legal issue presented by this case is whether a parent/spouse in
PlaintifFs position should be assessed an earning capacity based upon actual present
income Potential where he or she has chosen to pursue an educational goal which will
enhance future income potential at the expense of present earnings. An instructive case
on this point is Beegle v. Rasler, 395 Pa. Super. 174, 576 A.2d 1100 (1990). In Beegle,
Judge Del Sole, writing for the majority, reversed a lower court's attribution of an
earning capacity in excess of actual part-time earnings to a father who had enrolled in a
program directed toward a degree in public health; the opinion stated as follows:
In analyzing this set of facts the trial court concluded that it
should look to [the obligor's] earning capacity not his actual earnings.
We conclude that this determination was in error. It is true that as a
general rule the earning capacity, not the actual earnings, is the
determinative factor in ascertaining the ability to pay support. This
rule, however, is not without exceptions, such as those situations
~vhere the income is reduced involuntarily through illness, layoff or
some other factor over which the parent has no control. Further the
courts have recognized a parent's legitimate desire to forgo a
lucrative present employment situation in the hope of establishing a
rewarding future career.
Id. at 178-79, 576 A.2d at 1102 (citations omitted) (emphasis added).
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In Commonwealth ex rel. McQuiddy v. McQzdddy, 238 Pa. Super. 390, 358 A.2d
102 (1976), a case involving the child support obligation of an attomey who had elected
to leave a salaried position to establish his own office, the Superior Court affirmed the
decision of a lower court which stated in part as follows:
It is to be hoped that the latent "earning power" to be found in every
young lawyer will emerge with the passage of time and will enure to
the benefit of Respondent's minor children as well as to himself. Thg. t
earning power should not be equated to the higher earnings which he
might for the time being command as a salaried employee at the
expense of abandonment of his professional career. We do not think
tsar it is such a concept of earning power which we are to look for
when we look beyond actual earnings in our search for ability to pay.
Id. at 395,358 A.2d at 104-05.
.'L d~ee of Iv.t;.t'~,~de is to be provided to parents in their career pursuits. The
Superior Court has expressed this principle in the following words:
We are not constrained to say that a man once he has established a
certain income level for himself and his family in the employ of
another cannot decide to go into business for himself even though it
results in a decrease of his preSent earnings. A man should have
freedom of choice to be an employee of another or to establish his
own business even though such change may result in present financial
sacrifice with the hope of future increased income.
Roberts v. Bockin, 315 Pa. Super. 52, 55-56,461 A.2d 630, 632 (1983) (quoting Weiser v.
Weiser, 238 Pa. Super. 488,492, 362 A.2d 287, 288-89 (1976)).
In the present case, the court is of the view that Plaintiff's pursuit of a master's
degree at the expense of higher earnings during the course of her studies has been
undertaken in good faith and will ultimately benefit both parties and their children
financially. For this reason, it has utilized her actual net monthly income of $1,628.98
for purposes of computing child and spousal support in this case as opposed to her
immediate earning capacity; the utilization of net monthly income figures for Defendant
of $3,299.39 prior to January 1, 1999, and $2,603.07 thereafter is explained in the
Statement of Facts above, as is the court's refusal to hold Defendant in contempt at this
time.
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Based upon the foregoing, the following Order will be entered:
ORDER OF COURT
AND NOW, this 13th day of October, 1999, upon consideration of Defendant's
appeal from the support order dated April 1, 1998, Defendant's petition to modify, and
the petition for contempt filed against Defendant, following a hearing held on March 5,
1999, and May 28, 1999, and for the reasons stated in the accompanying opinion, it is
ordered and directed as follows:
1. From February 20, 1998, through December 31, 1998,
Defendant's child/spousal support obligation is $1,037.36 per
month, allocated $766.06 for child support and $271.30 for
spousal support; Defendant's responsibility for unreimbursed
medical and child care expenses during this period is 67% and
Plaintiffs responsibility is 33%, based on respective net
monthly incomes of $3,299.39 and $1,628.98.
2. From January 1, 1999, through March 31, 1999, Defendant's
child/spousal support obligation is $718.34 per month,
allocated $609.74 for child support and $109.60 for spousal
support; Defendant's responsibility for unreimbursed medical
and child care expenses during this period is 62% and
Plaintiffs responsibility is 38%, based on respective net
monthly incomes of $2,603.07 and $1628.98.
3. From April 1, 1999, and thereafter, pending further order of
court pursuant to a party's petition, Defendant's child/spousal
support obligation is $802.02 per month, allocated $728.28 for
child support and $73.74 for spousal support; Defendant's
responsibility for unreimbursed medical expenses in excess of
$250.00 during this period is 62% and Plaintiffs
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responsibility is 38%, based on respective net monthly
incomes of $2,603.07 and $1,628.98.
4. Defendant is responsible for providing medical insurance
coverage for his spouse and children.
5. Within 30 days of the date of this order, Defendant shall pay
to Plaintiff all sums due for unreimbursed medical expenses
and child care expenses, properly supported by third-party
documentation submitted to him by Plaintiflr:
6. The Domestic Relations Office is directed to adjust
Defendant's account in accordance with this order.
7. The petition for contempt filed against Defendant is
dismissed.
BY THE COURT,
/s/J. Wesley Oler. Jr.
J. Wesley Oler, Jr., J.
Kathleen Carey Daley, Esq.
1029 Scenery Drive
Harrisburg, PA 17109
Attorney for Plaintiff
Diane G. Radcliff, Esq.
3448 Trindle Road
Camp Hill, PA 17011
Attorney for Defendant
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