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HomeMy WebLinkAbout627 S 2007 CECELIA F. STOCK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : NO. 627 SUPPORT 2007 TERRANCE E. STOCK, : Defendant : IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION OPINION AND ORDER Before the court are the exceptions of the defendant to the Support Master’s Report and Recommended Interim Order of Court dated May 6, 2008. The defendant has not contested the plaintiff’s entitlement to spousal support. Moreover, the parties have stipulated that the plaintiff has net monthly income for support purposes of $2,873.00. The dispute in this case involves the income/earning capacity of the defendant. The standard of review of a support master’s report and recommendation is well settled. The court will give the Master’s recommendations the fullest consideration unless testimony and evidence is produced which provide grounds upon which the Master’s findings of credibility can be impeached. Foca v. Foca, 97 Dauph. 302, Pa. Com. Pl. (1975); see also, Hargrove v. Hargrove, 381 A.2d 143 (Pa.Super. 1977). Following hearing, the Support Master made the following findings which we are satisfied are supported by the record: 1. The Plaintiff is Cecelia F. Stock, who resides at 5492 Bullcreek Drive, Mechanicsburg, Pennsylvania. 2. The Defendant is Terrance E. Stock, who th resides at 10937 SW 86 Terrace, Ocala, Florida. 3. The parties were married on February 17, 1973. NO. 627 SUPPORT 2007 4. The parties separated in August 2003. 5. On August 6, 2007 the Plaintiff filed a complaint for spousal support. 6. The Plaintiff is employed by the Diocese of Harrisburg and has a net monthly income of $2,873.39. 7. The Plaintiff resides in the marital residence which has a first mortgage payment of $864.42 per month, a home equity loan payment of $400.00 per month, real estate taxes of $200.00 month, and homeowner’s insurance of $87.00 per month. 8. The Defendant resided in the Pittsburgh area when the parties separated and was employed by Union Orthotics & Prosthetics. 9. The Defendant is a certified orthotiest. 10. At Union Orthotics the Defendant was a manager of pediatric orthotists and was a practicing orthotist. 11. In January 2004, the Defendant had surgery for prostate cancer. 12. After recuperation from the surgery the Defendant was able to return to his employment without impairment. 13. The Defendant’s employment with Union was stressful. 14. The Defendant developed a significant alcohol problem. 15. In July 2005, the Defendant voluntarily admitted himself to Western Psychiatric Hospital for his alcohol dependency. 16. After his release from the hospital later 2 NO. 627 SUPPORT 2007 in July the Defendant voluntarily quit his employment with Union Orthotics and and moved to Florida. 17. The Defendant currently resides with a woman with whom he became involved in Pittsburgh in a home she owns in Florida. 18. The Defendant became employed as an orthotist in Florida by M & M Rehab, Inc. 19. The Defendant has no managerial duties in his present position. 20. The Defendant earned $98,541.00 in 2004, his last full year with Union Orthotics. 21. The Defendant earned $54,204.00 in 2005 at Union Orthotics before leaving the company’s employ in July. 22. The Defendant earned $61,154.00 in 2006 at M & M Rehab, Inc. 23. The State of Florida has a requirement that an individual practicing orthotics obtain a license from the State. 24. Pennsylvania has no such licensing requirement. 25. The Defendant applied for a license to practice as an orthotist in Florida but was advised that he did not meet certain educational requirements for license approval. 26. Rather than attempting to meet the education requirements the Defendant applied for a variance of the license requirements. 27. The Defendant’s request for the variance was denied. 28. The Defendant refuses to meet the educational 3 NO. 627 SUPPORT 2007 requirements required for a license. 29. The Defendant’s employer has reduced his hours because of his failure to obtain a license. 30. The Defendant may continue to function as an orthotist in Florida but must do so under the supervision of a licensed orthotist. It is well established that a party’s support obligation is determined primarily by their earning capacity. A person’s earning capacity is not an amount which the person could theoretically earn, but rather the “amount that a person realistically could earn under the circumstances, considering his age, health, mental and physical condition, training, and earnings history.” Woskob v. Woskob, 843 A.2d 1247 (Pa.Super. 2004). The review of a person’s earning capacity, as opposed to actual earnings, becomes particularly important where a party changes employment and accepts a lower paying position. See Baehr v. Baehr, 889 A.2d 1240 (Pa. Super. 2005). These foregoing principles are expressly set out in subsections (d) and (e) of Pa.R.C.P. 1910.16-2. They are, specifically: (d) Voluntary Reduction of Income. When either party voluntarily assumes a lower paying job, quits a job, leaves employment, changes occupations or changes employment status to pursue an education, or is fired for cause, there generally will be no affect on the support obligation…. (e) Earning Capacity. Ordinarily, either party to a support action who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. 4 NO. 627 SUPPORT 2007 The defendant complains that the Master improperly conflated these two rules contending that the principles having to do with voluntary reduction of income are applicable only to a request for a modification and have no application to a case where the support amount is being set in the first instance. We do not agree with the defendant’s analysis and, instead, tend to think of the rules with regard to earning capacity and voluntary reduction of income as being two sides of the same coin. Here, the husband had held a supervisory position in Pittsburgh where he earned more than $92,000 per year. He left that job and moved to Florida with his girlfriend. Once in Florida, he elected not to take steps to obtain a license as a certified orthotist, concluding that the 1 educational requirements were beneath him. We agree with the plaintiff that there is more than ample and sufficient evidence to support the Master’s conclusion that husband’s earning capacity should be based upon the earnings he enjoyed at the Union Orthotics in Pittsburgh. The Master’s conclusions were based in part upon his assessment of the credibility of the witnesses. This is an assessment which we are loathe to disturb. ORDER AND NOW, this day of August, 2008, the exceptions of the defendant are DENIED and the order of court entered May 6, 2008, is herewith made a final order of court. BY THE COURT, _______________________________ Kevin A. Hess, J. 1 By his own admission, these educational requirements would involve no effort on his part. He indicated that he could, in fact, teach the very courses he was required to take. 5 NO. 627 SUPPORT 2007 Samuel L. Andes, Esquire For the Plaintiff John W. Purcell, Jr., Esquire For the Defendant DRO :rlm 6 CECELIA F. STOCK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : NO. 627 SUPPORT 2007 TERRANCE E. STOCK, : Defendant : IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION ORDER AND NOW, this day of August, 2008, the exceptions of the defendant are DENIED and the order of court entered May 6, 2008, is herewith made a final order of court. BY THE COURT, _______________________________ Kevin A. Hess, J. Samuel L. Andes, Esquire For the Plaintiff John W. Purcell, Jr., Esquire For the Defendant DRO :rlm