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HomeMy WebLinkAbout2006-1047 CivilGURPARTAP S. SIDHU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW RUPINDER MANN, PACSES NO. 171109122 Defendant NO. 06-1047 CIVIL TERM RUPINDER MANN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DOMESTIC RELATIONS SECTION GURPARTAP S. SIDHU, PACSES NO. 310109115 Defendant NO. 305 SUPPORT 2007 IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., July 30, 2008 In this child support and alimony pendente lite case, a Husband/Father filed a complaint for divorce, along with a claim for alimony pendente lite,' and a Wife/Mother filed a petition for child support.2 Following a hearing before the Cumberland County Support Master, the Master issued a report in which he calculated a monthly net income/earning capacity of $5,425.00 for the Wife/Mother and $952.00 for the Husband/Father.3 Accordingly, the Wife/Mother was determined to have an alimony 'No. 06-1047 Civil Term. 2 No. 305 Support 2007. ' Support Master's Report and Recommendation at 6 (hereinafter "Master's Report"). Under Pennsylvania Rule of Civil Procedure 1910.16-2(c)(1), except as otherwise provided in the Rules, net income for the purpose of support is to be determined by a deduction from gross income of the following pendente lite obligation of $1,789.00 per month, and the Husband/Father was determined to have a child support obligation of $829.00 per month, following adjustments for childcare and health insurance expenses.4 After offsetting the two obligations, the Master concluded in his report that the difference of $960.00 per month should be awarded to the Husband/Father as alimony pendente lite .5 The Master also recommended that the Wife/Mother provide health insurance coverage for the benefit of the parties' child .6 An interim order of court in accordance with the recommendation was thereafter entered. For disposition at this time are exceptions filed by both parties to the Support Master's Report. The exceptions of the Wife/Mother read as follows: 1. Defendant/Respondent Rupinder Mann takes exception to this Court's exercising subject matter jurisdiction over this case in light of prior pending action for dowry and annulment in India and Plaintiff/Petitioner Gurpartap S. Sidhu's status as a fugitive "Proclaimed Offender" in India. 2. Defendant/Respondent Rupinder Mann hereby takes exception to the Finding that Plaintiff/Petitioner Husband has a minimum wage earning capacity of $6.50 per hour in light of evidence that Plaintiff/Petitioner Husband completed all of his academic medical studies and all but three months of his rotation in medical school in India and that he was eligible to complete a residency in the United States to become a licensed doctor. 3. Defendant/Respondent Rupinder Mann hereby takes exception to the Finding that Plaintiff/Petitioner Husband has a minimum wage earning capacity of $6.50 per hour in light of his previous apprenticeship with a stockbroker and work as a stockbroker. amounts: federal, state and local income taxes; F.LC.A. payments and non -voluntary retirement payments; union dues; and alimony paid to the other party. 4 Master's Report at 6. s Master's Report at 6. 6 Master's Report at 7. 2 4. Defendant/Respondent Rupinder Mann hereby takes exception to the Finding that Plaintiff/Petitioner Husband is blind in one eye. 5. Defendant/Respondent Rupinder Mann hereby takes exception to the Master's rulings regarding inadmissibility of evidence, Plaintiff's Exhibit 8 and the testimony of Sukhder S. Mann, proffered by Defendant/Respondent regarding Plaintiff/Petitioner's rental income from land. 6. Defendant/Respondent Rupinder Mann hereby takes exception to Finding #56 that Defendant/Respondent filed criminal charges in April 2006, since they were initiated in November 2005. 7. Defendant/Respondent Rupinder Mann hereby takes exception to the Conclusion of Law that Plaintiff/Petitioner Husband is entitled to alimony pendente lite in light of the fact that he has not proceeded with the divorce action since filing the complaint. 8. Plaintiff, Rupinder Mann, takes exception to Master's finding regarding Defendant, Gurpartap S. Sidhu's earning capacity as it affects the calculation of his obligation for child support obligation.7 The exceptions of the Husband/Father read as follows: 1. Gurpartap S. Sidhu ("Husband") takes exception to the Master's finding that a significant dowry was paid by Rupinder Mann's ("Wife") family to the Husband and his family. 2. Husband takes exception to the Master's finding that he has not made an effort to obtain employment in the medical field in that Husband testified that he applied for positions in pharmacies because of his medical background. 3. Husband takes exception to the Master's finding that Wife's salary in 2005 was $88,000 in that Wife testified that she received bonus money in addition to salary in 2005. 4. Husband takes exception to the Master's finding that had Husband began his internship immediately after completing the academic requirements, he could have completed the program by the end of 2003, and rather than do so, he traveled to the United States to visit his wife. Plaintiff/Defendant-Respondent, Rupinder Mann's, Exceptions to Support Master's Report and Recommendation, filed March 17, 2008 (hereinafter "Wife/Mother's Exception No. _"). 3 5. Husband takes exception to the Master's finding that Husband clearly has the present ability to work in the medical field, perhaps as a laboratory technician in that there was no testimony as to the requirements needed to work in the medical field or as a laboratory technician, or that Husband is able to meet those requirements. 6. Husband takes exception to the Master's failure to order Wife to provide health insurance for Husband, given Husband's lack of medical insurance, and his extensive health issues and healthcare expenses.8 For the reasons stated in this opinion, both sets of exceptions will be dismissed, and the interim order of court dated February 26, 2008, will be entered as a final order of court. STATEMENT OF FACTS The claimant with respect to alimony pendente lite and the defendant with respect to child support is Gurpartap S. Sidhu ("Husband/Father"), an individual residing at 5232 Charles Street, Racine, Wisconsin.9 The respondent in the claim for alimony pendente lite and the plaintiff in the child support action is Rupinder Mann ("Wife/Mother"), an individual residing at 637 Brisbain Lane, Enola, Cumberland County, Pennsylvania.10 The parties were married in India on December 30, 2001,11 and are the parents of a child, Jasleen Sidhu, who was born December 16, 2004, and resides with Wife/Mother.12 s Gurpartap S. Sidhu's Exceptions to Support Master's Report and Recommendations, filed April 18, 2008 (hereinafter "Husband/Father's Exception No. 9 Master's Report at 1. 10 Master's Report at 1. " N.T. 20, 59, Support Master's Hearing, January 9, 2008 and February 11, 2008 (hereinafter "N.T. 'Z N.T. 22, 52-54, 59. 11 On February 21, 2006, Husband/Father filed a complaint in divorce, which included a claim for alimony pendente lite. He requested a hearing on his claim for alimony pendente lite on March 27, 2007, and, thereafter, on April 19, 2007, Wife/Mother filed a complaint for child support. On January 9, 2008, and February 11, 2008, the parties attended a hearing before the Cumberland County Support Master regarding the issues of child support and alimony pendente lite. The evidence from the hearing may be summarized as follows: Both parties were born and raised in India. 13 Wife/Mother came to the United States in 1995, to attend dental school at the University of Pittsburgh, from which she graduated with a DDM degree in 1997.14 The following year, in 1998, she became a naturalized United States citizen, 15 and since then has worked in dental practices within this country. 16 Pursuant to an arranged marriage, the parties were wed in India on December 30, 2001.17 Shortly after the wedding, Wife/Mother returned to the United States to continue practicing dentistry while Husband/Father remained in India where he was in his third year of medical school." As a candidate for a medical degree in India, Husband/Father " N.T. 19, 58. 14 N.T. 19-20. " N.T. 20. 16 N.T. 28-29. 17 N.T. 20, 59. " N.T. 20, 89-90; Husband/Father's Deposition, August 10, 2007, N.T. 34-35. (hereinafter "Husband/Father's Deposition N.T. _ "). 5 was required to successfully complete four and a half years of academic study and a one- year rotating internship in a hospital in order to receive his degree. 19 From the date of their marriage until their eventual separation in 2005, the parties lived together only briefly.20 Primarily, Wife/Mother resided in the United States, working in dental practices in both Missouri and Pennsylvania, 21 and Husband/Father maintained his residence in India.22 One child, Jasleen Sidhu, was born of the marriage on December 16, 2004.23 The parties separated in November, 2005, following an argument that occurred while Wife/Mother and daughter, Jasleen, were visiting Husband/Father and other relatives in India.24 Immediately after the argument, Wife/Mother left with Jasleen.25 Within two days of the argument, Husband/Father flew to the United States.26 Later, in 2006, Wife/Mother filed criminal charges in India against Husband/Father arising out of events allegedly occurring during their argument in November, 2005.27 19 N.T. 21, 89, 129-30; Husband/Father's Deposition N.T. 32. 20 N.T. 55. 21 N.T. 28-30. 22 N.T. 60. 2s N.T. 22. 24 N.T. 116-20. 2s N.T. 200. 26 N.T. 120,198-201. 27 N.T. 64-65; see also Husband/Father's Deposition N.T. 57-66. 31 Upon leaving India following the November argument, Husband/Father flew directly to Wisconsin, where several members of his extended family resided .28 In December, 2005, he obtained permanent residency status permitting him to stay in the United States, and he has resided with relatives in Wisconsin continuously since his arrival .29 At the time Husband/Father left India, he had completed four years of medical course work and had only a few months remaining of the one-year internship .30 Had he remained in India, he would have completed his medical internship by March, 2006.31 As of the second day of the Support Master's hearing in February, 2008, Husband/Father had not engaged in gainful employment since his arrival in the United States,32 and had been continuously supported by personal loans from an aunt.33 Although he had submitted a number of applications for employment to K -Mart, Wal- Mart, and several drug stores, he had been offered no positions.34 Aside from the applications to drug stores, he had not made an effort to obtain employment in the medical field despite his educational background.35 Wife/Mother testified at the hearing that, although Husband/Father had no earned income, he had income from a rental property in India. To support her testimony 28 N.T. 61, 125; see also Husband/Father's Deposition N.T. 11. 29 N.T. 58, 61, 92, 127. so N.T. 61, 90; see also Husband/Father's Deposition N.T. 32-34. 31 N.T. 61, 90; see also Husband/Father's Deposition N.T. 35. 12 N.T. 75; see also Husband/Father's Deposition N.T. 39-42; 74. " N.T. 77-78; see also Husband/Father's Deposition N.T. 11-12. 34 N.T. 75, 95, 98; see also Husband/Father's Deposition N.T. 39-42. " N.T. 98, 102, 112. 7 regarding Husband/Father's alleged property in India, Wife/Mother offered her father, Sukhdar Mann, as an expert in valuation of land in India, and the Master accepted him as such.36 However, Wife/Mother did not offer Mann as an expert in the real estate market or in the determination of rental income in India, and the Support Master did not accept him as an expert in these areas .37 The Master also denied the admission of an affidavit Wife/Mother presented as to the rental value of the land in question because the Master could not confirm its authenticity.38 Husband/Father denied owning any land in India.39 Wife/Mother and her father further testified that Husband/Father had no need for alimony pendente lite because of the significant dowry their family paid to Husband/Father and his family.40 Wife/Mother explained that she filed criminal charges in India in 2006 against Husband/Father as the result of events allegedly occurring during their argument in November, 2005.41 She claimed in her charges that Husband/Father demanded the payment of dowry from Wife/Mother's family in violation of the Indian Penal Code .42 However, Husband/Father testified at the hearing that Wife/Mother's family never paid a dowry.43 Husband/Father told the Support Master that, because of 36 N.T. 160, 167-72. 37 N.T. 171-72. " N.T. 164-65; 171-73. 39 N.T. 80; see also Husband/Father's Deposition N.T. 104-06. 40 N.T. 25-27, 37, 185-89. 41 N.T. 64-65. 42 N.T. 48, 64 43 N.T. 59. i the criminal actions filed by Wife/Mother against him in India, if he were to return to India, his passport would be seized and held until the charges were resolved.44 Consequently, according to Husband/Father, he would not be able to come to the United States to see his daughter and he would lose his permanent residency card because criminal charges in India typically take anywhere from five to ten years to resolve Husband/Father stated that he intends to remain in the United States until the divorce is finalized and at that time will return to India to finish his degree and settle the criminal charges .46 He further testified that he had participated in good faith in trying to move forward and settle the divorce action. 47 Husband/Father has significant health issues in that he is blind in his left eye due to retinal detachment, and has glaucoma in his right eye .48 Although he has struggled with these issues since he was a child, the problems did not prevent him from successfully completing his medical course work nor did they impact his ability to successfully complete nearly all of his internship. 49 Furthermore, Husband/Father testified that, despite his medical problems, he frequently drives from Wisconsin to Pennsylvania, uses a computer, and reads his medical books .50 Husband/Father further 44 N.T. 63-69. 4s N.T. 64-69; see also Husband/Father's Deposition N.T. 60-66. A United States permanent residency green card requires the holder to reside in the United States for six out of every twelve months. 46 N.T. 63, 66, 133-34, 140, 148; see also Husband/Father's Deposition N.T. 31. 47 N.T. 83. 48 N.T. 72-73; see also Husband/Father's Deposition N.T. 7, 46-55. 49 N.T. 61-62, 72-73, 89, 108; see also Husband/Father's Deposition N.T. 33-35, 47-49. so N.T. 77, 92, 97; see also Husband/Father's Deposition N.T. 14-18, 23, 26-28, 39. 9 testified that he does not have health insurance, 51 and that he incurs extensive medical expenses stemming from his retinal detachment and glaucoma .52 Since the parties' separation, Wife/Mother has worked at an Affordable Dentures franchise located in Harrisburg, Pennsylvania .5' Her annual salary in 2005 was $88,000.00 and, in addition to her salary, she received bonuses dependent upon the performance of the practice.54 In 2006, she earned $98,682.00 in salary and bonuses .55 Due to a slowdown in business, she was laid off from Affordable Dentures from August, 2007, through December, 2007, but has worked there full time since January, 2008, to date earning approximately $88,000.00 per year plus bonuses .56 In approximately four to five years, Wife/Mother intends to purchase the Affordable Dentures franchise in Harrisburg.57 In addition to her earned income, Wife/Mother has $100,000.00 to $110,000.00 invested in India, $10,000.00 invested in a mutual fund in the United States and $9,000 in a P.S.E.C.U. account .58 She has childcare expenses of $132.00 per week and pays $357.44 per month for medical and dental insurance for the parties' daughter .59 Her tax 51 N.T. 83. 12 N.T. 80. " N.T. 6, 40. 14 N.T. 9, 41. " N.T. 30. 16 N.T. 15, 40-45. 57 N.T. 30, 46. " N.T. 34-36. s9 N.T. 34-36, 43, 194. 10 filing status is head of household and she claims her daughter as a dependency exemption .60 Both Wife/Mother and daughter reside with the Wife/Mother's parents in Enola.6 i Following the hearing, the Support Master issued his Report and Recommendation. Based upon the evidence presented by both parties at the hearing, the Master calculated a monthly net income/earning capacity of $5,425.00 for Wife/Mother and $952.00 for Husband/Father.62 Accordingly, Wife/Mother was determined to have an alimony pendente lite obligation of $1,789.00 per month, and Husband/Father was determined to have a child support obligation of $829.00 per month, following adjustments for childcare and health insurance expenses.63 After offsetting the two obligations, the Master concluded that the difference of $960.00 per month should be awarded to Husband/Father as alimony pendente lite. 64 An Interim Order of Court was issued on February 26, 2008, implementing the Master's recommendations as follows: A. The Wife shall pay to the Pennsylvania State Collection and Disbursement Unit as alimony pendente lite the sum of $960.00 per month. B. The Wife shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $40.00 per month on arrearages. 60 N.T. 51-54. 61 N.T. 38. 62 Master's Report at 6; under Pennsylvania Rule of Civil Procedure 1910.16-2(c)(1), except as otherwise provided elsewhere in the Rules, net income for the purpose of support is to be determined by a deduction from gross income of the following amounts: federal, state and local income taxes; F.I.C.A. payments and non -voluntary retirement payments; union dues; and alimony paid to the other party. 63 Master's Report at 6. 64 Master's Report at 6. 11 C. The Wife shall provide health insurance coverage for the benefit of her child, Jasleen Sidhu, born December 16, 2004, as is available through employment or other group coverage at a reasonable cost. D. The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for said child. Unreimbursed medical expenses of the child that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide documentation of expenses to the other party no later than March 31st of the year following the calendar year in which the final medical bill to be allocated was received. The unreimbursed medical expenses of the child are to be paid as follows: 57% by Wife and 43% by Husband. E. The interim order entered to 305 Support 2007 on July 18, 2007 is vacated. F. The effective date of this order is April 1, 2007; provided, however, that the order is suspended for the period of September 1, 2007 through December 31, 2007, and is reinstated effective January 1, 2008. G. All payments made by the Husband to PACSES case number 310109115 shall be added to the retroactive arrearages in PACSES case number 171109122.65 After proceeding with the criminal dowry action in India from November 2005, through 2008, Wife/Mother filed for an annulment of the parties' marriage on January 3, 2008, in India. On January 3, 2008, Wife/Mother filed an Affidavit of Consent and Waiver of Notice in the pending divorce action filed by Husband/Father in this court. On March 17, 2008, in the divorce action, Wife/Mother filed a "Motion To Dismiss and/or Stay Proceedings for Lack of Subject Matter Jurisdiction and for Reasons of Dowry and 61 Interim Order of Court, dated February 26, 2008. 12 Annulment Actions Pending in India. ,66 In addition, on March 17, 2008, Wife/Mother filed exceptions to the Support Master's Report and Recommendation. On April 2, 2008, Husband/Father filed an Answer and New Matter to Wife/Mother's motion to dismiss and/or stay proceedings. Wife/Mother filed a reply to Husband/Father's new matter on April 23, 2008. A hearing on Wife/Mother's motion to dismiss and/or stay the divorce action was held on May 16, 2008, before the undersigned judge in the Cumberland County Court of Common Pleas. At the hearing, the counsel argued their respective positions and agreed to supplementation of the record by way of two exhibits admitted as the evidence for the hearing.67 Exhibit One was the transcript from the proceedings held before the Support Master on January 9, 2008 and February 11, 2008,68 and Exhibit Two was a deposition of Husband/Father ,69 in which his testimony was consistent with his testimony before the Support Master. At the hearing, it was agreed that the court would review the evidence and make credibility determinations in reaching its decision on the motion to dismiss and/or stay.70 66 Defendant's Motion To Dismiss and/or Stay Proceedings for Lack of Subject Matter Jurisdiction and for Reasons of Dowry and Annulment Action Pending in India, filed March 17, 2008. 67 N.T. 5-7, Hearing on Motion to Dismiss and/or Stay Proceedings, May 16, 2008 (hereinafter "N.T. Hearing on Motion to Dismiss"). 68 Cases at No. 305 Support 2007 and 06-1047 Civil Term. 69 Case No. 06-1047 Civil Term. 70 N.T. 7, Hearing on Motion to Dismiss. 13 Wife/Mother argued that the motion to dismiss and/or stay the divorce proceedings should be granted because of the annulment action pending in India. 71 While she conceded that the Pennsylvania courts have subject matter jurisdiction over the divorce,72 her position was that the court should defer to the action in India on the basis of comity. To support her position, Wife/Mother argued that India has a stronger interest in the outcome of the case than Pennsylvania ,73 and therefore India should adjudicate the annulment and Pennsylvania should either dismiss or stay the divorce proceedings.74 She further argued that, if the annulment proceeds in India and the Indian court finds that there was no marriage, there will be no reason for a divorce in Cumberland County.75 Finally, she argued that her consent to the divorce action was not necessarily a waiver of the issue now being pursued. 76 Husband/Father's position at the hearing was that subject matter jurisdiction was clear in this case," and therefore Pennsylvania should adjudicate the divorce action.'$ Husband/Father argued that, in order for the court to exercise jurisdiction over the case, the court must only establish that one of the parties had been a resident and domiciliary of " N.T. 14, Hearing on Motion to Dismiss. 72 N.T. 14, 28, Hearing on Motion to Dismiss. 73 N.T. 15-17, Hearing on Motion to Dismiss. 74 N.T. 17, Hearing on Motion to Dismiss. 75 N.T. 17, Hearing on Motion to Dismiss. 76 N.T. 27, Hearing on Motion to Dismiss. 77 N.T. 23. 78 N.T. 21, 23, Hearing on Motion to Dismiss. 14 this Commonwealth for at least six months prior to the filing of the divorce complaint. 79 Husband/Father maintained that, based on the facts of this case, there is no question that Wife/Mother is a domiciliary of Pennsylvania,80 and once domicile is established, it is presumed to continue and the burden is on the moving party to show by clear and convincing evidence a change in the domicile status.81 He contended that Wife/Mother had not met this burden. 82 Husband/Father further argued that it would be improper for the court to dismiss or stay the action on grounds of comity because the court clearly has jurisdiction in the present case since Husband/Father initiated his divorce action in Cumberland County a full two years before Wife/Mother initiated her annulment action in India, and, additionally, Wife/Mother submitted herself to the jurisdiction of the court." Following the hearing, the court issued the following order: AND NOW, this 19th day of May, 2008, upon consideration of Defendant's Motion to Dismiss and/or Stay Proceedings for Lack of Subject Matter Jurisdiction and for Reasons of Dowry and Annulment Action Pending in India, and following an argument on the record and supplementation of the evidentiary record by agreement of counsel on May 16, 2008, the motion is denied. 84 79 N.T. 21, Hearing on Motion To Dismiss. 80 N.T. 21-22, Hearing on Motion to Dismiss. 81 N.T. 22, Hearing on Motion to Dismiss. 82 N.T. 22, Hearing on Motion to Dismiss. " N.T. 24-26, Hearing on Motion to Dismiss. 84 Order of Court, dated May 19, 2008. 15 DISCUSSION Statement of Law Review of Exceptions to Support Master's Report. The standard of review of a support master's report and recommendation is well settled. While the 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. Goodman v. Goodman, 375 Pa. Super 504, 507, 544 A.2d 1033, 1035 (1988); see McCurdy v. McCurdy, No. 02-0097 Support (slip op.) (Cumberland Co. 2002) (Hess, J.). Thus, with respect to the issues raised by 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 the master's report." Goodman v. Goodman, 375 Pa. Super. 504, 507-08, 544 A.2d 1033, 1035 (1988); see also Pa. R.C.P. 1910.12(f) -(h) (indicating that, if no exceptions are filed to certain issues in a master's report and interim order, those issues are not preserved for review). Although the court will afford great deference to the recommendations made in the support master's report, the court is not bound by them. Tagnani v. Tagnani, 439 Pa. Super. 596, 600, 654 A.2d 1136, 1138 (1995). The reviewing court therefore has a duty to make a complete and independent review of all evidence, including an analysis of the weight and credibility to be given to the testimony of the witnesses. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988); Gomez v. Gomez, 11 Phila. Co. 221, 226-27 (1984). 16 Determination of Alimony Pendente Lite. "Alimony pendente lite" is defined as "an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding." 23 Pa. C.S. §3103. Alimony pendente lite is designed to be temporary and is available to those who demonstrate the need for maintenance and professional services during the pendency of the proceedings. Jayne v. Jayne, 443 Pa. Super. 664, 678-79, 663 A.2d 169, 176 (1995). Factors to consider in determining entitlement to an award of alimony pendente lite include the separate income and estate of the claimant, the ability of the other party to pay, and the character, situation and surroundings of the parties. Litman v. Litman, 449 Pa. Super. 209, 224, 673 A.2d 382, 389 (1996). If a claimant is found to be entitled to an award of alimony pendente lite, the amount of the award is calculated pursuant to the support guidelines in the same manner as an award for spousal support. Little v. Little, 47 Cumberland L.J. 131 (1998). Determination of Child Support. Both parents share a responsibility to provide support to their children to the extent that their respective incomes and earning capacities allow them to do so. Depp v. Holland, 431 Pa. Super. 209, 213, 636 A.2d 204, 206 (1994); Mooney v. Doutt, 2001 PA Super. 12, ¶6, 766 A.2d 1271, 1273. The determination of a parent's ability to pay is based upon the parent's earning capacity and not his or her actual earnings. Mooney v. Dout, 2001 PA Super. 12, ¶6, 766 A.2d 1271, 1273. A parent's earning capacity is the amount that he or she can realistically be expected to earn under the circumstances considering his or her "age, education, training, health, work experience, earnings history, and child care responsibilities." Portugal v. 17 Portugal, 2002 PA Super. 132, ¶6, 798 A.2d 246, 250; see also Riley v. Foley, 2001 PA Super. 266, ¶5, 783 A.2d 807, 811. lication of Law to Facts Determination of Earning Capacity. Several of the exceptions raised by both parties concern Husband/Father's present ability to work within the United States and his earning capacity as determined by the Support Master. 85 At the time of the hearing, although Husband/Father had no actual earnings, he certainly had an earning capacity. As discussed above, his earning capacity is that amount he realistically can be expected to earn under the circumstances considering his age, health, physical and mental condition, education and training. Portugal v. Portugal, 2002 PA Super. 132, ¶6, 798 A.2d 246, 250; see also Riley v. Foley, 2001 PA Super. 266, ¶5, 783 A.2d 807, 811. The Support Master found that, based on the evidence, Husband/Father's earning capacity was $6.50 per hour, the minimum wage in Wisconsin. While the Support Master expressed his concern that Husband/Father might be capable of more gainful employment, the Master found no evidence in the record to support a finding of an earning capacity above the minimum wage, and the court agrees. The testimony presented at the hearing supported a finding that Husband/Father had not secured employment since he came to the United States in November, 2005. Husband/Father testified that he had made numerous efforts to obtain gainful employment in the United States, but had been unable to do so.86 " Wife/Mother's Exception Nos. 2-3, 8; Husband/Father's Exception Nos. 2, 5. 86 N.T. 75-77; Husband/Father's Deposition N.T. 39-42. Although Husband/Father is certainly a well-educated person, he has yet to complete the one-year rotating internship required to receive a medical degree. Husband/Father testified at length about his inability to find an adequate internship in the United States and his hesitancy to return to India to complete his internship until the divorce is finalized. 87 Although Wife/Mother offered testimony at the hearing of what a physician could be expected to earn during a residency program in the United States, the Support Master did not consider this evidence as dispositive in determining Husband/Father's earning capacity, since he was not yet a physician and was therefore not qualified for a residency in the United States. The court agrees that the record does not support an assignment to Husband/Father of an earning capacity commensurate with the earnings of a medical resident in the United States. Additionally, while the Support Master recognized that, based on his medical education, Husband/Father could potentially find employment within the medical field outside the capacity of a physician, the Master also acknowledged that, because there was no evidence presented at the hearing of what earnings he could be anticipated to earn in the field, the Master could not consider such evidence in determining Husband/Father's earning capacity.$$ 87 N.T. 64, 69-71, 102, 134-35, 140, 148-51; Husband/Father's Deposition N.T. 29-31, 110-12. ss Additionally, with respect to the wife's contention that the husband could earn more than minimum wage in light of his previous apprenticeship with a stockbroker and work as a stockbroker, the court finds this argument without merit. The husband worked in these positions in India following high school. There was no evidence presented at the hearing as to what, if any, qualifications the husband has to work in similar positions in the United States. Furthermore, there was no evidence presented as to what earnings the husband could be anticipated to earn within the investment industry. 19 With regard to the latter point, it is important to bear in mind that "[s]upport [o]rders are created in an adversarial process ...." Ball v. Minnick, 414 Pa. Super. 242, 259, 606 A.2d 1181, 1190 (1992) (plurality opinion), aff'd, 538 Pa. 441, 648 A.2d 1192 (1994). It is the responsibility of both parties to "bring to the court the necessary data upon which the court establishes the [s]upport [o]rder." Id. at 262, 606 A.2d at 1192; see Halko v. Hensley, No. 03-224 Support (slip op. at 7) (Cumberland Co. 2003). In this regard, a support master is not in a position to act as an advocate on behalf of a party as to the submission of evidence. Furthermore, a trier of fact may not consider evidence outside the record in making its determination of a party's earning capacity. Ney v. Ney, 2007 PA Super. 38, ¶7, 917 A.2d 863, 866. Wife/Mother also takes exception to the Support Master's finding that Husband/Father is blind in one eye. 89 Presumably, Wife/Mother takes exception to this finding because she assumes the Master considered it as a factor in determining Husband/Father's earning capacity. However, the Support Master did not regard Husband/Father's blindness, or any of his other health issues, as determinative of his earning capacity. In fact, the Master was clear in stating that the condition "does not ... prevent [Husband/Father] from obtaining gainful employment."90 Despite his impaired vision and lack of work experience within the United States, Husband/Father has the ability to work. An imputed earning capacity of $6.50 per hour 89 Wife/Mother's Exception No. 4 90 Master's Report at 5. 20 is, in the court's view, appropriate based on what Husband/Father can realistically be expected to earn considering the record established at the hearing. Determination of Alimony Pendente Lite and Child Support Obligations. At the hearing, Husband/Father demonstrated a need for temporary maintenance during the pendency of the divorce as he had no actual earnings and was being supported solely by his aunt in Wisconsin. In reviewing Wife/Mother's income and investments, there is no question that she has the ability to pay alimony pendente lite. She has been a practicing dentist for approximately ten years and has an earning capacity of at least $88,000.00 per year. Additionally, she has investments in excess of $100,000.00. She failed to present any evidence at the hearing of expenses that preclude her from paying an award of alimony pendente lite. Accordingly, Wife/Mother has an obligation to provide support to Husband/Father during the pendency of the divorce. The Support Master also found that, since both parents are required by law to support their daughter to the extent that their ability to pay permits, Husband/Father had an obligation to pay child support to Wife/Mother. The court agrees. The procedure for calculating the support obligation when the custodial parent has an obligation to pay spousal support, or alimony pendente lite, and the non-custodial parent has an obligation to pay child support is set forth in Pa. R.C.P. 1910.16-4(e), which provides as follows: (e) Support Obligations When Custodial Parent Owes Spousal Support. Where children are residing with the spouse obligated to pay spousal support or alimony pendente lite (custodial parent) and the other spouse (non-custodial parent) has a legal obligation to support the children, the guideline amount of spousal support or alimony pendente lite shall be 21 determined by offsetting the non-custodial parent's obligation of a spousal support or alimony pendente lite, and awarding the net difference either to the non-custodial parent as spousal support/alimony pendente lite or to the custodial parent as child support as the circumstances warrant. The court is of the view that the Support Master used the correct incomes for both parties and followed the proper procedure in calculating the support obligations of Husband/Father and Wife/Mother. Accordingly, the court concludes that the exceptions presented by the parties regarding the incomes used by the Master in his calculations are without merit. With respect to Wife/Mother's contentions that the Master erred in calculating Husband/Father's income by not factoring in his alleged rental income from land in India,91 the court disagrees. To support her testimony regarding Husband/Father's alleged property in India, Wife/Mother offered her father, Sukhdar Mann, as an expert in valuation of land in India and the Master accepted him as such. 92 Wife/Mother did not, however, offer Mann as an expert in the real estate market or in the determination of rental income in India, and, likewise, the Support Master did not accept him as an expert in these areas .93 Mann's testimony regarding the rental value of property in India was therefore beyond the scope of knowledge for which he was certified as an expert by the Support Master, and consequently the testimony was properly stricken from the record. Additionally, the Master appropriately denied the admission of the affidavit presented by Wife/Mother as to the rental value of the land in question because its authenticity could 91 Wife/Mother's Exception No. 5. 92 N.T. 160, 167-72. 9s N.T. 171-72. 22 not be verified. 94 Thus, while Wife/Mother claims that Husband/Father has additional income from rental property in India that was not included in the Master's calculation, the record is devoid of any testimony or exhibits which identify the source of this additional income Wife/Mother claims exists. Husband/Father takes exception to the Support Master's finding that Wife/Mother's family paid a significant dowry to him and his family.95 By including in his findings of fact that Wife/Mother's family paid a dowry to Husband/Father and his family, the Support Master indicated that he found Wife/Mother's and her father's testimony as to the dowry credible. In the process of a court's independent review of a support master's recommendations, the court is to give the master's report the "fullest consideration," particularly with respect to the credibility of witnesses. Gomez v. Gomez, 11 Phila. Co. 221, 226-27 (1984). In this regard, it is the master who had "the opportunity to observe and assess the behavior and demeanor of the [witnesses]." Moran v. Moran, 2003 PA. Super. 455, ¶9, 839 A.2d 1091, 1095. Therefore, the master is "in a better position than th[e] court to pass upon the credibility of [the] witnesses." Wiegand v. Wiegand, 259 Pa. Super. 72, 74, 393 A.2d 722, 723 (1978). In the present case, an independent review of the testimony by the court has led it to the same conclusion as reached by the Master that Wife/Mother's family paid a dowry to Husband/Father and his family. 94 N.T. 164-65; 171-73. 9s Husband/Father's Exception No. 1. 23 Husband/Father also contends that the Master erred in failing to include Wife/Mother's bonuses in 2005 in calculating her income/earning capacity;96 however, the Master's finding that she earned $88,000.00 in 2005 is consistent with both Wife/Mother's and her employer's testimony. Although she and her employer testified that bonuses were paid dependent on production, there was no evidence of record as to what her bonuses, if any, were in 2005. Thus, the Master's finding is supported by the record. Husband/Father took further exception to the Support Master's decision not to order Wife/Mother to provide health insurance for Husband/Father given his lack of medical insurance and his health issues.97 Section 3702 of the Divorce Code, pertaining to alimony pendente lite, counsel fees and expenses, provides that "the court shall also have the authority to direct that adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite."98 However, in the instant case, the court is of the view that the award of alimony pendente lite was more than sufficient to meet Husband/Father's needs during the pendency of the divorce. Finally, Wife/Mother takes exception to the Support Master's Conclusion of Law that Husband/Father is entitled to alimony pendente lite in light of the fact he has not proceeded with the divorce action since filing the complaint.99 In Orr v. Orr, the 96 Husband/Father's Exception No. 3. 97 N.T. 83; Husband/Father's Exception No. 6. 98 23 Pa.C.S. §3702. 99 Wife/Mother's Exception No. 7. 24 Superior Court held that the purpose of an alimony pendente lite order is to "maintain" the spouse during the pendency of the divorce action and that receiving the award should not cause the spouse to delay the divorce proceedings. 315 Pa. Super. 168, 174, 461 A.2d 850, 853 (1983). However, there is no evidence of record to support a conclusion that Husband/Father is intentionally delaying the proceedings. He filed a Complaint in Divorce on February 21, 2006, and served Wife/Mother with interrogatories and requests for production of documents in the divorce action on September 6, 2006.100 On December 12, 2007, he filed a Motion to Compel Discovery, which was still pending before the court at the time of the Master's hearing.101 In addition, Husband/Father testified that he had participated in good faith since the filing of the divorce complaint to attempt to settle the action and move the case forward. 102 Additional Exceptions to Support Master's Findings of Fact. Wife/Mother takes exception to the Support Master's finding of fact regarding the date upon which she filed criminal charges in India against Husband/Father.lo3 Husband/Father testified that Wife/Mother filed criminal charges against him in April, 2006.'04 No other testimony was provided of record regarding the date upon which criminal charges were filed against Husband/Father; therefore, the record supports the Master's finding that Wife/Mother '00 plaintiff's Motion to Compel Discovery, filed December 12, 2007, at ¶2. 10' Plaintiff's Motion to Compel Discovery, filed December 12, 2007. 102 N.T. 83. '03 Wife/Mother's Exception No. 6. 104 N.T. 64. 25 filed criminal charges against Husband/Father in April, 2006. Furthermore, this exception does not directly impact the current issues of alimony pendente lite and child support. Husband/Father's contention concerning the Support Master's finding that he could have graduated from medical school in 2003,105 is not only irrelevant to the issues immediately before the court, but is also incorrect. In his Findings of Fact, the Master did not find that Husband/Father could have completed his internship and thus graduated in 2003. Rather, in his Findings, the Master stated: "Had he remained in India [Husband/Father] would have completed his internship by March, 2006."106 Later, in the discussion section of his report, the Master simply made the following observation: Had [Husband/Father] begun his internship immediately after completing the academic requirements he could have completed the program by the end of 2003. Rather than do so, he chose to travel to the United States to visit [Wife/Mother]. He finally began the internship in January, 2005. In November, 2005 he voluntarily left the internship before concluding it to again come to the United States. 107 The Master's finding, as well as his subsequent observation, is a reasonable interpretation of the parties' testimony. Lastly, Wife/Mother takes exception to this court's refusal to dismiss or stay the parties' divorce action in light of pending actions for dowry and annulment in India.108 This issue is not a proper subject of an exception to the Support Master's Report, 105 Husband/Father's Exception No. 4 106 Master's Report at 2. 107 Master's Report at 5. los wife/Mother's Exception No. 1. 26 inasmuch as the issue was not raised prior to the filing of his report and was not considered by him. However, the court will take this opportunity to place its rationale on the record for declining to dismiss or stay the parties' divorce action in Cumberland County. As Wife/Mother concedes, this court clearly has subject matter jurisdiction over the parties' divorce as a matter of Pennsylvania domestic law. 109 A court's "U]urisdiction over a divorce is a function of the domicile of the individuals involved in the divorce." Sinha v. Sinha, 2003 PA Super. 375, ¶4, 834 A.2d 600, 603. A party is entitled to commence a divorce action in Pennsylvania if "at least one of the parties has been a bona fide resident of this Commonwealth for at least six months immediately previous to the commencement of the action." 23 Pa.C.S. §3104(b); see also Zinn v. Zinn, 327 Pa. Super. 128, 130, 475 A.2d 132, 133 (1984) ("`Bona fide residence' means domicile, i.e. actual residence coupled with the intention to remain there permanently or indefinitely."). Furthermore, "proof of actual residence within this Commonwealth for six months shall create a presumption of domicile within this Commonwealth." 23 Pa.C.S. §3104(b). It is undisputed that, at the time Husband/Father filed his complaint in divorce on February 21, 2006, Wife/Mother had been living in Cumberland County, Pennsylvania for over two years.110 In addition, Wife/Mother is a citizen of the United States, pays '09 The courts of common pleas in Pennsylvania are vested with exclusive original subject matter jurisdiction in divorce and annulment proceedings, and have the authority to determine claims that may be joined with divorce or annulment proceedings, including support matters. 23 Pa.C.S. §3104(a). 10 N.T. 20-21, Hearing on Motion to Dismiss. 27 taxes in Pennsylvania, and continues to live in Pennsylvania."' Thus, Wife/Mother is domiciled in Pennsylvania and, accordingly, this court has subject matter jurisdiction over the parties' divorce action. At the hearing on Wife/Mother's motion to dismiss or stay the divorce proceedings in Cumberland County, Husband/Father argued that, because subject matter jurisdiction is firmly established in this case, Pennsylvania has clear authority to adjudicate the divorce action. However, Wife/Mother argued that the court must look beyond subject matter jurisdiction and dismiss or stay the divorce action based on the legal principle of comity among nations. As previously discussed, Wife/Mother filed for an annulment in India on January 3, 2008, two years after Husband/Father filed for divorce in Pennsylvania. Wife's position was that this court should defer to the action in India because of comity. The court disagrees. The Superior Court of Pennsylvania has explained comity by contrasting it with the Full Faith and Credit Clause of the United States Constitution: Although we must give full faith and credit under the mandate of the United States Constitution to a decree ... by a court of a sister state if such court had jurisdiction over the parties and the subject matters, judicial decrees rendered in foreign countries depend for recognition in Pennsylvania on comity. Comity is the recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a "' The fact that the marriage and cause for separation occurred in India, rather than Pennsylvania, does not mean this court lacks jurisdiction over the divorce. Section 3104 of the Pennsylvania Divorce Code provides for jurisdiction in such a circumstance: "(c) Powers of court — The court has the authority to entertain a divorce action ... notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside of this Commonwealth ...."; see also Sinha v. Sinha, 2003 PA Super. 375, ¶6, 834 A.2d 600, 603 (Subject matter jurisdiction attaches whether or not the marriage or cause of action for divorce occurred outside of Pennsylvania). rule of law, but one of practice, convenience and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation's expression of understanding which demonstrates due regard both to international duty and convenience and to the rights of persons protected by its own laws. Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect. 112 Due regard both to international duty and convenience, and to the rights of Wife/Mother and Husband/Father, led the court to conclude that it is entirely proper for Pennsylvania to exercise jurisdiction over the parties' divorce. Whether or not to yield to another jurisdiction based upon considerations of comity is a matter of judicial discretion. Chestnut v. Pediatric Homecare of America, Inc., 429 Pa. Super. 598, 602, 617 A.2d 347, 350 (1993). Comity does not require a Pennsylvania court to be divested of jurisdiction when its interest in the divorce is stronger than the foreign court's interest. Sinha v. Sinha, 2003 PA Super. 375, ¶9, 834 A.2d 600, 604-05. The Pennsylvania Superior Court has explained the requirements of international comity through an analysis of the Commonwealth's choice of law doctrine. Id. In cases involving conflicts between application of Pennsylvania law and the law of another state, Pennsylvania courts use a flexible approach wherein the court analyzes "the policies and interests underlying the particular issue before the court." Commonwealth v. Sanchez, 552 Pa. 570, 576, 716 A.2d 1221, 1223 (1998) (citations omitted). This interest -based approach "gives the state having the most interest in the question paramount control over "Z Hilkmann v. Hilkmann, 2003 PA Super. 25, ¶17, 816 A.2d 242, 245, appeal granted, 825 A.2d 1261 (Pa.2003) (quoting Drakulich v. Drakulich, 333 Pa. Super. 273, 276, 482 A.2d 563, 565 (1984), and Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440, 13 A.L.R. Fed. 194 (3rd Cir. 1971)). 29 the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome" Id. at 576, 716 A.2d at 1223-24. According to the Superior Court, use of a similar, interest -based approach is appropriate for resolving conflicts between applying the law of a state of the United States and the law of another country. Sinha v. Sinha, 2003 PA Super. 375, ¶13, 834 A.2d 600, 605. With regard to marriages and divorces, "it is generally accepted that `[t]he local law of the domiciliary state in which the action is brought will be applied to determine the right to divorce."' Sinha v. Sinha, 2003 PA Super. 375, ¶14, 834 A.2d 600, 605 (citing Restatement (Second) of Conflict of Law §285 (1971)). The state where a party is domiciled "has the dominant interest in that person's marital status and therefore has judicial discretion to grant him a divorce." Id. Pennsylvania's interest in the parties' divorce is greater than India's interest in this case. Although the parties were wed in India and Wife/Mother filed for an annulment in India, it is of greater importance that both parties are residents of the United States, Wife/Mother is a citizen of the United States, domiciled in Cumberland County, Pennsylvania, and Wife/Mother pays taxes in Pennsylvania. Furthermore, Wife/Mother works full-time in Harrisburg, Pennsylvania, and intends to purchase the Affordable Dentures Franchise in four to five years. Although Husband/Father resides in Wisconsin, he has also had contacts with Pennsylvania for some time. 30 The fact that Wife/Mother filed for an annulment in India is of marginal significance under a test focused on the comparative interests of India and Pennsylvania in this action. Wife/Mother did not file the annulment action until early this year, whereas Husband/Father filed the complaint of divorce in Pennsylvania in February, 2006. Consequently, the parties have been litigating their custody, support and divorce actions in Cumberland County, Pennsylvania, ever since Husband/Father filed for divorce over two years ago. Because Pennsylvania's interest in the divorce is so great, this court declined to dismiss or stay the proceedings. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 30th day of July, 2008, upon consideration of the exceptions filed by both parties to the Support Master's Report, and for the reasons stated in the accompanying opinion, the exceptions of both parties are dismissed and the interim order of court dated February 26, 2008, is entered as a final order of court. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michael R. Rundle Support Master Cumberland County Domestic Relations Office 9 North Hanover Street Carlisle, PA 17013 31 Darren J. Holst, Esquire Howett, Kissinger, & Holst, P.C. 130 Walnut Street NUONVITIM Harrisburg, PA 17108 For Gurpartap S. Sidhu Lori K. Serratelli, Esquire Serratelli, Schiffman, Brown, & Calhoon, P.C. Suite 201 2080 Linglestown Road Harrisburg, PA 17110 For Rupinder Mann 32 33 GURPARTAP S. SIDHU, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW RUPINDER MANN, PACSES NO. 171109122 Defendant NO. 06-1047 CIVIL TERM RUPINDER MANN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DOMESTIC RELATIONS SECTION GURPARTAP S. SIDHU, PACSES NO. 310109115 Defendant NO. 305 SUPPORT 2007 IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 30th day of July, 2008, upon consideration of the exceptions filed by both parties to the Support Master's Report, and for the reasons stated in the accompanying opinion, the exceptions of both parties are dismissed and the interim order of court dated February 26, 2008, is entered as a final order of court. BY THE COURT, J. Wesley Oler, Jr., J. Michael R. Rundle, Esquire Support Master Cumberland County Domestic Relations Office 9 North Hanover Street Carlisle, PA 17013 Darren J. Holst, Esquire Howett, Kissinger, & Holst, P.C. 130 Walnut Street NUONVITIM Harrisburg, PA 17108 For Gurpartap S. Sidhu Lori K. Serratelli, Esquire Serratelli, Schiffman, Brown, & Calhoon, P.C. Suite 201 2080 Linglestown Road Harrisburg, PA 17110 For Rupinder Mann, D.D.S.