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Home My WebLink About330 S 2001 KATHLEEN M. GLOVER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : PACSES NO. 676103394 CARLOS R. GLOVER, : Defendant : DOCKET NO. 330 SUPPORT 2001 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATIONS OPINION AND ORDER Before the Court are the exceptions of the plaintiff to the Interim Order of Court dated June 18, 2008. Pursuant to the entry of the order, the Support Master made certain factual findings which we are satisfied are supported by the record. They are as follows. Kathleen Glover and Carlos Glover are the parents of Jessica M. Glover, born March 4, 1994. Jessica is the child for which child support payments are sought. The parties are no longer together and the defendant has since remarried. By order dated July 6, 2001, Defendant’s obligation for support of said child was set at $1007.00. In March of 2008, Defendant was serving as an officer on active duty in the United States Army stationed at Fort Monroe, Virginia. Defendant received notice that he was to be retired from active duty service effective May 31, 2008, after thirty years of service. This was a mandatory retirement. Defendant is entitled to retirement pay of $7,154.00 per month, which came into effect on June 1, 2008. His gross monthly salary while on active duty was $9,351.90 and Basic Allowance for Subsistence of $202.76. On March 25, 2008, Defendant filed a Petition for Modification of the original Support Order due to the decrease in his gross monthly income after retirement. NO. 330 SUPPORT 2001 In regards to the modified support payments, the Support Master found that at the time Defendant filed his Petition for Modification, Plaintiff and Defendant had a net monthly income for support purposes of $4,796.00 and $7,447.00 respectively. Thus, the total basic amount for the support of one child is $1,548.00 per month. After adjustments, the Defendant’s share of the monthly support obligation under the guidelines was $972.00. Defendant’s monthly retirement pay became effective June 1, 2008, reducing his net monthly income for support purposes to $5,709.00. The Support Master determined Defendant was therefore responsible for child support in the amount of $800.00 per month after adjustments. Plaintiff has filed three exceptions to the Support Master’s Report and Recommendations. First, Plaintiff alleges that the Master erred as a matter of law and of fact by finding that Plaintiff is “paid” flex benefits in the weekly amount of $74.85 and by including that amount in her monthly gross income. Second, Plaintiff suggest that Defendant should be held to his “earning capacity” rather then his actually earnings. Finally, Plaintiff claims the Master erred as a matter of law by failing to grant an upward deviation from the guidelines due to the fact that Defendant does not exercise his custodial time with the minor child, and thus, incurs no direct expenses on behalf of the minor child. We agree with the plaintiff that the Support Master erred in including the plaintiff’s “flex credits” in the calculation of her monthly income. The child support guidelines state that “[e]mployer-paid [health insurance] premiums are not subject to allocation.” See Pa.R.C.P. 1910.16-6(b)(1). In Culver v. Pilkauskas, 859 A.2d 818 (Pa.Super. 2004), the court addressed the issue of whether employer paid “flex credits” are subject to allocation. In that case, the mother testified that her “employer adds that amount of money known as flex credits into her 2 NO. 330 SUPPORT 2001 paycheck and then the employer deducts the full amount of her benefits. Id. at 819. This is the same scenario in the case sub judice. Because Plaintiff testified that her employer pays a portion of her insurance premiums and then deducts the full amount from her weekly paycheck, these “flex credits” are employer-paid health insurance premiums not subject to allocation. N.T. , 6/16/2008 at 43. Plaintiff also wishes to have Defendant’s monthly income determined by his “earning capacity.” The child support guidelines provide that a party “who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity.” Pa.R.C.P. No. 1910.16-2(d)(4). The circumstances of this case do not warrant the invocation of this rule. Although Defendant is only fifty-two years of age, his retirement was mandatory after he completed thirty years of service. This is not a case in which a parent failed to search for appropriate employment, or took a reduction in pay for the purpose of avoiding a support obligation. Further, Defendant has suffered several injuries during his thirty years of service. These resulted in neck surgery and two hip replacements. He is, in fact, in the process of applying for disability. N.T., 16/16/2008 at 23. In Hoffman v. Hoffman, 762 A.2d 766, 772 (Pa.Super. 2000), the court held that a sixty-seven-year-old Navy retiree with diabetes, and who had undergone quadruple heart by-pass surgery should not be held to an earning capacity because “it is unlikely that he could secure meaningful employment commensurate with his experience as a naval officer.” The same facts are present here. We are satisfied that the Master did not err in basing Defendant’s child support obligations on his rather significant military pension. 3 NO. 330 SUPPORT 2001 Plaintiff’s final exception that the Master erred in not considering an upward deviation is without merit. The direct contributions of non-custodial parents contemplated by the guidelines are during the times the non-custodial parent has “contact, including vacation time, with his or her children,” and that is when it is anticipated that “he or she makes direct expenditures on behalf of the children.” Marshall v. Marshall, 591 A.2d 1060, 1067 (Pa.Super.1991). There is conflicting testimony from both sides as to why Defendant has not exercised all his visitation. Credible testimony suggests that Plaintiff interferes with the father’s periods of custody. N.T., 6/16/2008 at 23. In any event, we know of no authority, nor has the Plaintiff cited any, for the proposition that a support obligation should be adjusted upward as a penalty for failing to exercise rights of partial custody. In fact, the courts have held to the contrary. See Marshall v. Marshall, id. As noted above, we agree with the Plaintiff that the sum of $74.85 per week in “flex credits” should not have been added to her income. Thus, her annual gross income must be reduced by $3,892.20 or $324.35 per month. Making the appropriate adjustment to the Plaintiff’s income does not make a major change in the support amount ordered by the Master. While deducting the “flex credits” from the Plaintiff’s income reduces the earnings attributable to the Plaintiff and therefore increases the Defendant’s percentage of support, the basic support obligation, itself, is reduced. Our recalculations require an upward adjustment in the order of $10.00 per month. ORDER th AND NOW, this 16 day of September, 2008, the order of court of June 18, 2008, is modified as to three paragraphs as follows: 4 NO. 330 SUPPORT 2001 A. For the period of March 25, 2008, through May 31, 2008, the Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his child, Jessica M. Glover, born March 4, 1994, the sum of $982.00 per month. B. Effective June 1, 2008, the Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for said child the sum of $810.00 per month. E. … The unreimbursed medical expenses are to be paid as follows: 56% by Defendant and 44% by Plaintiff. All other terms and conditions of the order of June 18, 2008, not inconsistent herewith, shall remain in full force and effect and shall constitute part of this final order of court. BY THE COURT, _______________________________ Kevin A. Hess, J. Kathy M. Shughart, Esquire For the Plaintiff Carlos R. Glover, Pro Se 421 Forrest Lane Richmond, Kentucky 40475 DRO Support Master :rlm 5 KATHLEEN M. GLOVER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : PACSES NO. 676103394 CARLOS R. GLOVER, : Defendant : DOCKET NO. 330 SUPPORT 2001 IN RE: PLAINTIFF’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATIONS ORDER th AND NOW, this 16 day of September, 2008, the order of court of June 18, 2008, is modified as to three paragraphs as follows: A. For the period of March 25, 2008, through May 31, 2008, the Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his child, Jessica M. Glover, born March 4, 1994, the sum of $982.00 per month. B. Effective June 1, 2008, the Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for said child the sum of $810.00 per month. E. … The unreimbursed medical expenses are to be paid as follows: 56% by Defendant and 44% by Plaintiff. All other terms and conditions of the order of June 18, 2008, not inconsistent herewith, shall remain in full force and effect and shall constitute part of this final order of court. BY THE COURT, _______________________________ Kevin A. Hess, J. Kathy M. Shughart, Esquire For the Plaintiff Carlos R. Glover, Pro Se 421 Forrest Lane Richmond, Kentucky 40475 DRO Support Master :rlm