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HomeMy WebLinkAbout96-0285 SupportCYNTHIA M. HUBER, Plaintiff Mo WILLIAM M. HUBER, Defendant WILLIAM M. HUBER, Plaintiff Me CYNTHIA M. HUBER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -- SUPPORT : No. 96-0285 SUPPORT : PASCES #130000047 : DR# 25,180 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION-- SUPPORT : No. 97-0872 SUPPORT : PASCES #701100005 : DR# 26919 IN RE: APPEALS FROM CHII.D SUPPORT ORDERS ORDER OF COURT AND NOW, this 6th day of August, 1998, upon consideration of the parties' appeals from the order entered on December 5, 1997, at No. 96-0285 Support, imposing a child support obligation upon the father in the amount of $384.20 per month (plus $21.75 per month on arrears), and of the father's appeal from the order entered on December 5, 1997, at No. 97-0872 Support, dismissing the father's complaint for child support, it is ordered and directed as follows: 1. The father's appeal at No. 96-0285 Support is sustained, the mother's appeal is dismissed, and the father's child support obligation is terminated as of the date he filed a petition or otherwise formally moved to terminate. To the extent that a credit in his favor exists as a result of this order, it shall be repaid by the mother at the rate of $20.00 per month. 2. The father's appeal at No. 97-0872 Support is sustained, and the mother is directed to pay the sum of $388.19 per month until May 18, 1998, and $352.01 per month thereafter, for the support of the parties' three children, Abigail Huber (d.o.b. September 29, 1998), Jessica Huber (d.o.b. September 4, 1992), and Allison Huber (d.o.b. September 4, 1992), plus $20.00 on arrearages, effective as of the date the father filed a complaint for support. In addition, unreimbursed medical (including dental) expenses are to be paid 72% by the father and 28% by the mother until May 18, 1998, and 74% by the father and 26% by the mother thereafter. Each party shall maintain medical and dental insurance through his or her employer upon the children to the extent such insurance is available. 4. This order is premised upon findings that the father's net monthly income is $3,481.41, the mother's net monthly income was $1,357.48 until May 18, 1998, and thereafter has been $1,230.66, the parties' monthly childcare expenses are $690.00, and the father is the primary custodian of the children. A copy of the calculations under the Support Guidelines predicated upon these findings as to net incomes is attached to this Order. 5. A mandatory wage attachment will issue unless the obligor is not henceforth in arrears in payment in an amount equal to or greater than one month's support obligation. See Pa. R.C.P. 1910.22. 6. The parties are notified that each is under a continuing obligation to inform the Domestic Relations Office and all other parties in writing within seven days of any material change in circumstances relevant to the level of support or the administration of the support order, including, but not limited to, loss or change of income or employment and change of personal address or change of address of any child receiving support. If a party willfully fails to inform the Domestic Relations Office of the required information, the court may adjudge the party to be in contempt of court and may order the party to be punished by jail, fine and/or probation. BY THE COURT, Marilyn C. Zilli, Esq. 200 N. Third Street P.O. Box 1161 Harrisburg, PA 17108 Attorney for Cynthia M. Huber Theresa Barrett-Male, Esq. 115 Pine Street Harrisburg, PA 17101 Attorney for William M. Huber CYNTHIA M. HUBER, Plaintiff WILLIAM M. HUBER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION -- SUPPORT : No. 96-0285 SUPPORT : PASCES #130000047 : DR# 25,180 WILLIAM M. HUBER, Plaintiff CYNTHIA M. HUBER, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION -- SUPPORT : No. 97-0872 SUPPORT : PASCES #701100005 : DR# 26,919 IN RE: APPEALS FROM CHILD SUPPORT ORDERS BEFORE OLER, J~ OEJ. NIO_N~ld ORDER OF COURT OLER, J., August 6, 1998. In this child support matter involving the parties' three children, both parents have appealed from an order entered upon recommendation of the Domestic Relations Office at No. 96-0285 Support, imposing a support obligation upon the father in the amount of $384.20 per month (plus $21.75 per month on arrears); and the father has appealed from an order entered upon recommendation of the Domestic Relations Office at No. 97-0872 Support, dismissing the father's complaint for support) A hearing was held on these appeals on June 26, 1998. Based upon the evidence presented at the hearing, the following Statement of Facts, Discussion and Order of Court ~ See Letter, December 18, 1997, from Theresa Barrett Male, Esq., to Amy Ickes, Conference Officer, on behalf of William M. Huber; Letter, December 22, 1997, from Marilyn C. Zilli, Esq., to Amy L. Ickes, Conference Officer, on behalf of Cnythia M. Huber, Esq. will be made and entered. The mother of the children who are the subject of these support proceedings is Cynthia M. Huber, an adult individual residing at No. 114, 4183 Cove Court, Mechanicsburg, Cumberland County, Pennsylvania. The father of the children is William M. Huber, an adult individual residing at 24 Cumberland Estates Drive, Mechanicsburg, Cumberland County, Pennsylvania. The children are Abigail Huber (d.o.b. September 29, 1988), Jessica Huber (d.o.b. September 4, 1992), and Allison Huber (d.o.b. September 4, 1992).2 Under an agreed-upon custody order dated September 9, 1997, the father has primary physical custody of the children and the mother has partial physical custody.3 The father's net monthly income (calculated with a reduction of $456.23 per month for alimony pendente lite being paid to the mother) is $3,481.41. The mother's net monthly income (calculated without an increase for alimony pendente lite being paid by the father) was $1,357.48 until May 18, 1998, and thereafter has been $1,230.66. Child care expenses are $690.00 per month. Neither party has any unusual items of expense? None of the children has any special See Petitioner's Exhibit 2, Hearing, June 26, 1998. 3S¢¢ id. 4 The post-hearing brief of the mother, while conceding that she had no evidence of unusual expenses on behalf of the children, implies that the court refused to admit her income and expense statement and thus prevented her from showing "direct expenditures on behalf of the children." Brief in Support of Mother's Appeal That the Order of the Domestic Relations Office [sic] Directing That Father Pay Child Support Be Affirmed and/or That Father's Petition for Support Be Denied, at 9-10. This is not, in the court's view, a fair characterization of what occurred. When the mother's counsel began to refer to an income and expense statement filled out by the mother, the court inquired as to whether any unusual expenses were being claimed needs. Under the aforesaid custody order, the father as a general rule, during a given two- week period, has physical custody of the children for eight consecutive days and the mother has physical custody for six consecutive days.s Responsibility for transportation under the order is shared by the parents.6 The agreed-upon order characterizes the father's custody as "primary physical custody.''7 The position of the father is that he is the primary physical custodian of the children, that as such custodian he is the obligee under the Support Guidelines, that given the net incomes of the parties and the childcare expenses the guidelines provide for a monthly child support obligation on the part of the mother in the amount of $847.00 until May 18, 1998, and $811.00 thereafter.8 The position of the mother is that the parties have shared physical custody, that by virtue of her lower net income she is the obligee under the support that would warrant an examination of the statement. See Pa. R.C.P. 1910.16-4(b) (factors to be considered for guideline deviation). The mother's counsel stated that the mother's total expense figure (which was made part of the record) was high, that no particular item of the mother's expenses was unusual, and that she did not believe the father's expenses were unusual either. While questioning the relevance under the guidelines of expenses which were not unusual, the court did not rule that the mother's statement could not be introduced, and in fact indicated that the father's statement could come in as well. The mother's counsel at this point advised that she would be satisfied to have her client's overall expense figure in the record. 5/d. 6/d. ?/d. Although each party attempted in testimony to characterize his or her amount of actual physical custody as more than that allotted in the agreed-upon order, the court was not convinced that on balance the parties' periods of actual physical custody resulted in a materially different ratio from that provided for in the order. 8 William M. Huber's Supplemental Brief. guidelines (and that her income should not be calculated to include alimony pendente lite payments) .9 DjSEUSSIObI A custodial arrangement whereby one parent has physical custody of a child approximately 58 percent of the time and the other parent has physical custody about 42 percent of the time is not equivalent to a 50-50 shared custody arrangement, and does not in itself warrant a deviation from the guidelines by reason of being "unusual." See Anzalone v. Anzalone, 449 Pa. Super. 201,673 A.2d 377 (1996); Dalton v. Dalton, 409 Pa. Super. 258, 597 A.2d 1192 (1991); cf. Little v. Little, 441 Pa. Super. 185, 657 A.2d 12 (1995); Recommendation 48 -- Proposed Amendments to Rules of Civil Procedure 1910.16-4(b). As the Pennsylvania Superior Court has stated, 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. Anzalone v. Anzalone, 449 Pa. Super. 201,209, 673 A.2d 377, 381 (1996). For this reason, the court is in agreement with the father's position that he is the obligee under the guidelines, and is unable to accept the mother's position that she should be regarded as the obligee. Nor would the relative percentages of time which the parties spend with the children warrant a deviation from the guidelines on the ground that the mother's custodial allotment is unusually high. With respect to the inclusion of alimony pendente lite in the mother's computed net income, Pennsylvania Rule of Civil Procedure 1910.16-5(b) provides that alimony is to be 9 Brief in Support of Mother's Appeal That the Order of the Domestic Relations Office Directing That Father Pay Child Support Be Affirmed and/or That Father's Petition for Support Be Denied. 4 deducted in the calculation of the net income of the payor and may, in the discretion of the court, be included~ in the calculation of the net income of the payee. Since an award of alimony pendente lite to a defendant in a divorce action has traditionally been predicated upon a particular need for financial aid to maintain a proper defense,~° and because the inclusion of this item in the mother's income would have the result of causing about half of her income to be paid in child support, would reduce her disposable income to a subsistence level, and would place her at an obvious disadvantage in the divorce action, the court will exercise its discretion in this regard to exclude alimony pendente lite from the computation of her net income for purposes of child support. With respect to responsibility for cbildcare expenses, Pennsylvania Rule of Civil Procedure 1910.16-5(i) provides as follows: Reasonable childcare 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 by determining the reasonable childcare expenses and adding one-half of this amount to the obligor's monthly obligation. Pa. R.C.P. 1910.16-5(i) (emphasis added). Where, however, as in this case, the earnings of the parties being facilitated by the childcare are so disparate, the cost of daycare is so great relative to one party's (the mother's) income, and the result of dividing the expense of daycare equally between the parties would be a reduction of the mother's disposable income to a mediocre level, it is doubtful that the situation can be fairly characterized as "normal." The court is of the view that in these circumstances a division of cbildcare expenses between the parties in proportion to their l0 "[T]he objective of alimony pendente lite is to enable the financially dependent spouse to maintain or defend against the principal action, i.e., the divorce action .... "Frank & Gale, Pennsylvania Family Practice Manual § 5.07 (A), at 147 (1990). respective net incomes is more appropriate than the usual 50-50 division.~ Unreimbursed medical expenses, in general, are to be divided between the parties in proportion to their respective net incomes. Pa. R.C.P. 1910.16-5(p). Finally, as a general rule the effective date of a support order is the date of filing of the request for relief. See Pa. R.C.P. 1910.17(a). Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this 6th day of August, 1998, upon consideration of the parties' appeals from the order entered on December 5, 1997, at No. 96-0285 Support, imposing a child support obligation upon the father in the amount of $384.20 per month (plus $21.75 per month on arrears), and of the father's appeal from the order entered on December 5, 1997, at No. 97-0872 Support, dismissing the father's complaint for child support, it is ordered and directed as follows: 1. The father's appeal at No. 96-0285 Support is sustained, the mother's appeal is dismissed, and the father's child support obligation is terminated as of the date he filed a petition or otherwise formally moved to terminate. To the extent that a credit in his favor exists as a result of this order, it shall be repaid by the mother at the rate of $20.00 per month. 2. The father's appeal at No. 97-0872 Support is sustained, and the mother is directed to pay the sum of $388.19 per month until May 18, 1998, and $352.01 per month thereafter, for the support of the parties' three children, Abigail Huber (d.o.b. September 29, 1988), Jessica Huber (d.o.b. September 4, 1992), and Allison Huber (d.o.b. September 4, 1992), plus $20.00 on arrearages, effective as of the date the father filed a complaint for support. In addition, unreimbursed medical (including dental) expenses and childcare expenses are to be paid 72% by the father and 28% by the mother until May 18, 1998, and 74% by the father t~ Under the order which will be entered, the parties will pay the childcare expenses directly rather than through the Domestic Relations Office. and 26% by the mother thereafter. Each party shall maintain medical and dental insurance through his or her-employer upon the children to the extent such insurance is available. 4. This order is premised upon findings that the father's net monthly income is $3,481.41, the mother's net monthly income was $1,357.48 until May 18, 1998, and thereafter has been $1,230.66, the parties' monthly childcare expenses are $690.00, and the father is the primary custodian of the children. A copy of the calculations under the Support Guidelines predicated upon these findings as to net incomes is attached to this Order. 5. A mandatory wage attachment will issue unless the obligor is not henceforth in arrears in payment in an amount equal to or greater than one month's support obligation. See Pa. R.C.P. 1910.22. 6. The parties are notified that each is under a continuing obligation to inform the Domestic Relations Office and all other parties in writing within seven days of any material change in circumstances relevant to the level of support or the administration of the support order, including, but not limited to, loss or change of income or employment and change of personal address or change of address of any child receiving support. If any party willfully fails to inform the Domestic Relations Office of the required information, the court may adjudge the party to be in contempt of court and may order the party to be punished by jail, fine and/or probation. See Pa. R.C.P. 1910.17(b). BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Marilyn C. Zilli, Esq. 200 N. Third Street P.O. Box 1161 Harrisburg, PA 17108 Attorney for Cynthia M. Huber Theresa Barrett-Male, Esq. 115 Pine Street Harrisburg, PA 17101 Attorney for William M. Huber 8