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HomeMy WebLinkAbout1081 S 2005 MICHELLE M. SPEAKER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : PETER J. SPEAKER, : PACSES NO. 705107911 DEFENDANT : 1081 SUPPORT 2005 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., July 24, 2008:-- Plaintiff, Michelle M. Speaker, and defendant, Peter J. Speaker, were married on April 9, 1998. They separated on December 21, 2005. On March 25, 2008, an interim order was entered on the recommendation of the Cumberland County Support Master requiring defendant to pay $2,162 a month support for his children Jacqueline M. Speaker, age 17, Samuel J. Speaker, age 16, and Victoria A. Speaker, age 9, and $3,411 a month spousal support for plaintiff, for a total of $5,573 per month. Defendant was ordered to provide health insurance coverage for the benefit of his wife and children and contribute ninety-two percent toward any unreimbursed medical 1 expenses. Plaintiff filed exceptions which were briefed and argued on July 8, 2008. The Master found that defendant’s monthly net income available for support was 2 $12,745.72, and plaintiff’s was $1,077.07. With a combined monthly net income of __________ 1 In 2006, defendant paid $11,133 for health insurance coverage through his employment for his wife, himself and their four children. The oldest child Fred, age 19, is now in college. 2 During their marriage plaintiff was a homemaker until two months before their separation. She is now a real estate sales person. Defendant is an attorney. 1081 SUPPORT 2005 $13,823, the basic guideline amount for the support of the three children is $2,345. Defendant’s proportionate share is $2,162. Defendant’s spousal support obligation under the guidelines is $2,852 per month; however, an upward adjustment of $559 a month was awarded because of mortgage payments being made by plaintiff, for a total 3 spousal support award of $3,411 a month. Plaintiff does not contest the income calculations of the Master. She maintains that the 4 Master erred by not recommending an upward deviation in the support under the guidelines. Goodman The standard for reviewing exceptions to a support master’s report are set forth in v. Goodman, 375 Pa. Super. 504 (1988). The report is advisory only. While it is to be given the fullest consideration, especially with regard to the credibility of witnesses, the court is required to make a review to determine if the recommendations are appropriate. It is the sole province and the responsibility of the court to set an award of support, however much it may Burnham v. Burnham, choose to utilize the Master’s report. See 52 Cumberland L.J. 48 (2002). We agree with the Master that the combined total monthly income of the parties makes 3 Plaintiff and the three children live in the marital residence. She pays $2,140 a month on a first mortgage and $500 a month on a second mortgage. 4 Defendant sought a downward deviation from the guidelines based on his spending approximately $14,000 for the college expenses of Fred for the 2007/2008 academic year. This is an expense that plaintiff testified she wanted and expected defendant to pay. The Master denied the deviation, concluding that the voluntary payment does not render the guideline support calculation unjust or inappropriate under the circumstances of this case. Defendant did not file an exception. -2- 1081 SUPPORT 2005 5 this a Pennsylvania support guideline case. Pa. Rule of Civil Procedure 1910.16-5(b), provides: Factors. In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider: (1) unusual needs and unusual fixed obligations; (2) other support obligations of the parties; (3) other income in the household; (4) ages of the children; (5) assets of the parties; (6) medical expenses not covered by insurance; (7) standard of living of the parties and their children; (8) in a spousal support or alimony pendente lite case, the period of time during which the parties lived together from the date of marriage to the date of final separation; and (9) other relevant and appropriate factors, including the best interests of the child or children. Plaintiff testified that the cost of the extracurricular activities of her children is $325 a month. The activities include basketball, soccer, football, cheerleading, swim team, dance and gymnastics. These are active, involved children which is hardly unusual in this type of family. Considering all of the factors in Rule 1910.16-5(b), the cost of the extracurricular activities of the children are not so special that they constitute an unusual need so as to warrant an upward deviation from the support guidelines. Plaintiff maintains that her paying the first and second mortgage constitutes an unusual fixed obligation that warrants an upward deviation from the support guidelines. __________ 5 Their combined total monthly net income of $13,822.79 is well below a High Income Child Support case where, pursuant to Pa. Rule of Civil Procedure 1910.16-2(e)(2), a combined net income exceeding $20,000 a month triggers a calculation of child support Melzer v. Witsberger pursuant to , 505 Pa. 462 (1984). -3- 1081 SUPPORT 2005 Her position is without merit. These payments have already been factored into the guidelines and, pursuant to Rule 1910.16-6(e), an upward adjustment of $559 a month was awarded. Plaintiff argues in her brief: [t]he Master did not include Defendant’s voluntary retirement contribution of $6,605.00 to arrive at Defendant’s available income for purposes of calculating his support obligations. It is respectfully submitted that Defendant is able to increase his separate assets to the financial detriment of Plaintiff. As a result, Defendant’s income available for calculating his support obligation is reduced by $6,605. As a result, it is respectfully submitted that the Master erred in failing to upwardly deviate from the guideline support amount, wherein Defendant increased his own separate assets with monies that would otherwise be available for the support of Plaintiff and the minor child. The Master did include defendant’s voluntary retirement contribution of $6,605 in arriving at his income available to pay support. We assume that what plaintiff is really arguing relates to the Master reducing defendant’s income available for support by his non-voluntary retirement contribution of $26,400. That reduction is required by Rule 1910.16-2(c)(1)(B) because non-voluntary retirement contributions obviously do not constitute income available for the payment of support. Such a reduction in the calculation of defendant’s income available for support is not a basis for a deviation in the support guidelines under Rule 1910.16-5(b). Plaintiff argues that there should be an upward deviation from the support guidelines because her spousal support will be subject to federal tax which will reduce her overall disposable income while defendant’s overall disposable income will be -4- 1081 SUPPORT 2005 increased by the deduction he will take for the money he pays for spousal support. This is not a basis for an upward deviation in support. Furthermore, plaintiff will file a federal income tax return as head-of-household and will claim the three younger 6 children as dependency exemptions. She qualifies for an earned income credit and will be able to deduct the interest on the two mortgage payments. These factors will reduce what she otherwise would have to pay in taxes. Lastly, plaintiff maintains that there should be an upward deviation from the support guidelines because the money she will have from her earnings and support will not allow her and the children to live in the standard to which she has been accustomed. In conjunction with this position, she maintains that her expenses, which include paying on credit card obligations of $15,000 which she has incurred after separation, will be greater than the money 7 available to her from her income and support of $79,800 a year. Explanatory Comment— 2005 B 3 to Rule 1910.16-1, provides: Allowable Deviations. 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 these guidelines by considering a party’s actual expenditures where there are special needs and special circumstances constitutes a misapplication of the guidelines. Plaintiff has no special needs and special circumstances. We have reviewed the entire record and are satisfied that to the extent there are some differences in the standard of living __________ 6 Defendant will file a federal income tax return as head-of-household and will claim the oldest child as a dependency exemption. 7 Her monthly child support of $2,162 plus $3,411 spousal support plus net income of -5- 1081 SUPPORT 2005 of plaintiff and the children from before separation, which is only a factor to consider under Rule 1910.16-5(b) as to whether there should be a deviation, they are not sufficient to warrant a deviation upward in the guideline amount of support. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this _________ day of July, 2008, the exceptions of plaintiff to the ARE DISMISSED. report of the Support Master, The interim support order entered on March 25, 2008, is made a final order. By the Court, Edgar B. Bayley, J. John J. Connelly, Jr., Esquire For Plaintiff James G. Nealon, III, Esquire For Defendant :sal $1,077 totals $6,650 or $79,800 a year. -6- MICHELLE M. SPEAKER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : PETER J. SPEAKER, : PACSES NO. 705107911 DEFENDANT : 1081 SUPPORT 2005 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this _________ day of July, 2008, the exceptions of plaintiff to the ARE DISMISSED. report of the Support Master, The interim support order entered on March 25, 2008, is made a final order. By the Court, Edgar B. Bayley, J. John J. Connelly, Jr., Esquire For Plaintiff James G. Nealon, III, Esquire For Defendant :sal