HomeMy WebLinkAbout305 S 2008DARLENE F. MELLINGER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : DOMESTIC RELATIONS SECTION
TRAVIS L. MELLINGER, PACSES NO. 089109935
Defendant DOCKET NO. 305 SUPPORT 2008
IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., October 31, 2008
In this child support case, Plaintiff has primary physical custody of the parties'
two minor children and Defendant has partial physical custody of the children on
alternating weekends and each Wednesday.' Following a hearing before the Cumberland
County Support Master, the Master issued a report in which he calculated a monthly net
income/earning capacity for support purposes of $2,803.00 for Plaintiff and $1,951.00 for
Defendant .2 Accordingly, the Master determined that Defendant's proportionate share of
child support should be $893.00 per month, following adjustments for childcare and
' The custody arrangement has not substantially changed since the Master's Hearing held on June 23,
2008; see Order of Court, August 25, 2008, Mellinger v. Mellinger, No. 08-1793 Civil Term (Cumberland
County).
2 Support Master's Report and Recommendation at 3 (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
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.
health insurance expenses .3 An interim order of court in accordance with the Master's
Report and Recommendation was thereafter entered .4
For disposition at this time are Defendant's exceptions to the Support Master's
Report. Defendant's exceptions read as follows:
1. The parties hereto are Darlene F. Mellinger, hereinafter "Wife", and Travis
L. Mellinger, hereinafter "Husband".
2. The issues that Husband is appealing are the finding that daycare for children
is a reasonable expense and the imputation of an earning capacity to Husband
that is beyond his actual earnings.
3. Wife has the burden of proof that the daycare expense is a reasonable
expense.
4. The Support Master found that the daycare expense was a reasonable expense
because Wife had de facto custody by virtue of Wife's unjustified, unilateral,
removal of the children from the marital residence, where Husband continues
to reside.
5. Husband was not permitted to fully develop the background of the prior
daycare arrangement with Husband's parents in the residence of Husband's
parents that is adjacent to the marital residence of the parties hereto.
6. Wife was permitted to testify in detail about her asserted reasons why the
provision of daycare by Husband's parents, which she used without
complaint for months prior to her unjustified, unilateral removal of the
children from the marital residence, was unsatisfactory in her view.
7. Husband was not permitted to cross-examine Wife as to all relevant aspects
of her general credibility and her specific credibility regarding her assertions
of problems with the provision of daycare by Husband's parents, which she
used without complaint for months prior to her unjustified, unilateral,
removal of the children from the marital residence.
8. Development of Wife's general credibility is particularly pertinent where
your Honorable Court in the person of the Honorable J. Wesley Oler, Jr., J.,
dismissed her Complaint for Protection from Abuse.
s Master's Report at 3.
4 Interim Order of Court, dated June 30, 2008.
2
9. Wife's testimony in the hearings on her allegations of abuse would, if
believed, have clearly established a prima facie case of abuse.
10. The only permissible conclusion from the dismissal of Wife's Complaint for
Protection from Abuse is that Judge Oler did not believe her testimony.
11. Husband has been providing daycare for the children, without incident, every
Wednesday since May 14, 2008.
12. Where Husband works from 11:00 P.M. to 7:00 A.M., he is available t
provide daycare for the children every day that Wife is at work, and he wants
to provide daycare every day.
13. Requiring Husband to contribute thousands of dollars per year so that
strangers can watch his children, where Husband is available to provide the
daycare, only operates to reward Wife for her unjustified, removal of the
children from the marital residence.
14. It is undenied that, prior to Wife's removal from the marital residence
without warning, the parties had agreed that Husband would seek other
employment even though it would result in a reduced income in the short run,
so that he would have more reliable employment that was not seasonal and
weather-related.
15. It is undenied that the parties agreed that he would apply for employment
where he is presently working.
16. It is undenied that Husband actually filed the application for employment
before Wife left the marital residence.
17. It is undenied that after Wife left the marital residence and shortly prior to
commencement of his new employment, Husband's prior employer began the
process of dissolving the business and liquidating its equipment.
18. Under these circumstances, it was error to impute to Husband an earning
capacity that is greater than his actual earnings. s
s Husband's Exceptions to Interim Support Order of June 30, 2008, filed July 14, 2008 (hereinafter
"Father's Exception No. _").
3
For the reasons stated in this opinion, Defendant's exceptions will be dismissed,
and the interim order of court dated June 30, 2008, will be entered as a final order of
court.
STATEMENT OF FACTS
The plaintiff in this child support action is Darlene F. Mellinger ("Mother"), an
individual residing at 846 Alexander Spring Road, Apartment C, Carlisle, Pennsylvania,
and the defendant is Travis L. Mellinger ("Father"), an individual residing at 298 Creek
Road, Newville, Pennsylvania.6 The parties were in on April 2, 2002, and
separated on March 14, 2008. They have two children, Tristan Lee Mellinger, born
September 22, 2003, and Teagan Reeves Mellinger, born July 26, 2006.8 On April 7,
2008, Mother filed a complaint for child support,9 and a hearing was held on the matter
before the Cumberland County Support Master on June 23, 2008.
The evidence from the Support Master's Hearing may be summarized as follows:
Pursuant to a temporary custody order, Mother had primary physical custody of the
children and Father had partial physical custody on alternating weekends and each
Wednesday from 7:00 a.m. to 6:00 p.m.10 Mother was employed by the federal
government with the United States District Court in Harrisburg, Pennsylvania, and had a
6 N.T. 3-4; 30-31.
N.T. 4, Support Master's Hearing, June 23, 2008 (hereinafter "N.T. _"); Master's Report at 1.
'N.T. 4; Master's Report at 1.
9 Complaint for Support, filed April 7, 2008.
10 Order of Court, May 12, 2008, Mellinger v. Mellinger, No. 08-1793 Civil Term (Cumberland County).
11
gross bi-weekly income of $1,503.20.11 She paid $181.23 bi-weekly for medical and
dental insurance coverage for the family, and had a bi-weekly mandatory retirement
deduction of $12.03.12 She was expected to file her 2008 federal tax return as head of
household to claim the children as dependency exemptions. 13
As the primary custodian of the children, Mother had placed them in daycare at a
commercial daycare center located across the street from her place of employment. 14 The
location of the daycare center permitted her to take the children out for lunch or, at times,
to bring them into her office to spend time with her during the workday. 15 Mother
utilized the daycare center four days a week at a cost of $172.00 per week for both
children. 16 The children did not go to the daycare center on Wednesdays, when Father
had custody. 17
Prior to April, 2008, when Mother filed for child support, Father was employed at
John Walter Excavating ("Walter") earning $18.00 per hour.18 His employment with
Walter was weather dependent.19 In 2007, Father earned $25,386.76 at Walter and
received an additional $4,212.00 in unemployment compensation benefits due to seasonal
" N.T. 4 -5; Master's Report at 1.
12 Plaintiff's Exhibit No. 1; Master's Report at 1.
" N.T. 29-30; Master's Report at 1.
14 N.T. 17, 25; Master's Report at 1.
" N.T. 25.
16 N.T. 6-7; Master's Report at 2.
17 N.T. 6.
" N.T. 38, 44; Master's Report at 2.
19 N.T. 38; Master's Report at 2.
5
layoffs.20 On May 4, 2008, Father voluntarily changed employment and began to work at
Carlisle Syntec through Aerotech Commercial Staffing earning $12.30 per hour.21
According to Father, he changed employment because of the unsteadiness of his
employment with Walter due to the seasonal nature of the work and because he
anticipated that Walter was going out of business. 22 Father further stated that Mother
supported his decision to change his employment .23 At the time of the Master's hearing
on June 23, 2008, Father was on a ninety -day probationary period at Carlisle Syntec and
expected to be hired following the said ninety days.24 During his six weeks of
employment at Syntec prior to the hearing, Father had accumulated forty hours of
overtime, for which he earned $836.40.25 Father had also earned an additional $700.00 in
May, 2008, concluding various projects for Walter.26 His tax filing status was presumed
to be married/separate.27
At the time of the hearing, Father had been working the 11:00 p.m. to 7:00 a.m.
shift at Carlisle Syntec from Sunday night until Friday morning.2g Father testified that, in
addition to his nightly shift, he generally worked on his parents' farm for approximately
20 N.T. 48; Master's Report at 2.
21 N.T. 41, 52; Defendant's Exhibit 4; Master's Report at 2.
22 N.T. 38-39.
2s N.T. 40, 48.
24 N.T. 41; Master's Report at 2.
2s Defendant's Exhibit No. 4; Master's Report at 2.
26 N.T. 43; Master's Report at 2.
27 Master's Report at 2.
2s N.T. 32; Master's Report at 2.
31
six to eight hours per day.29 He further reported sleeping each evening for four to five
hours from approximately 6:00 p.m. until 10:00 P.M .30
Father lived in the marital home on property adjoining his parents' farm .31 At the
hearing, Father argued that, instead of taking the children to the daycare center in
Harrisburg, Mother should take the children to the family farm where both he and his
mother could provide the daycare.32 Prior to the parties' separation, his mother had
provided daycare for the children,33 and, under the parties' custody arrangement, his
mother helped care for the children each Wednesday.34 Father felt that Mother should
bring the children to the farm each morning or meet him at a convenient location to drop
off the children, rather than take them to Harrisburg for daycare, so that the children
could be with family during the day. 35 Father explained that his work on the farm would
not interfere with his watching the children if he had them during the week and that the
chores had never been a problem when he had them on Wednesdays.36 Finally, Father
urged the Master to deny Mother's claim for Father's proportionate share of daycare
29 N.T. 46-47.
so N.T.
47.
31 N.T.
30-31.
sz N.T.
32.
" N.T.
10, 53-54.
34 N.T.
34.
" N.T.
19-20, 36.
36 N.T.
51
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expenses since, according to Father, the expenses were "unreasonable" in light of the fact
that he and his mother could provide the daycare.37
Mother testified that she preferred to take the children to the daycare center in
Harrisburg. Not only could she spend time with them during the commute and
occasionally during the day when she visited them or took them to her office, but she also
felt more comfortable with her children in the daycare center rather than with their father
and grandmother.31 Mother testified that, in the past when Father and his mother
provided daycare, she found that the daycare was "not reliable" and, as a result, she "was
late to work nearly every morning that [she] dropped the kids at their home .„39
Furthermore, according to Mother, the custody exchanges were very tense and involved
minimal communication.40 Mother stated that, when she picked the children up from
Father or his mother, it was difficult for her to ascertain at what time the children had
napped and been fed because Husband's mother was unwilling to speak with her.41
Mother further testified that she did not experience any of these difficulties with the
daycare center.42
Father's mother testified at the hearing regarding her ability to provide daycare for
the children. She stated that she did not work outside the home and had always been
37 N.T. 19-20,36-38.
” N.T. 11-15, 23-27.
39 N.T. 15.
40 N.T. 23-27.
41 N.T. 26-27.
42 N.T. 26-27.
available to provide daycare.43 She also said that she had never been overwhelmed by the
responsibility of watching the children and, when Mother asked her questions about the
children, she answered the questions.44
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 net monthly income/earning capacity for support purposes of
$2,803.00 for Mother and $1,951.00 for Father.45 With regard to Father's earning
capacity, the Master explained in his report that, although Defendant voluntarily changed
employment in May, 2008, and was earning $5.70 less per hour at his new job, the
Master was using Father's total income from 2007 to calculate his current earning
capacity. 46 The Master explained that, in light of the significant overtime received by
Father during the first six weeks of his employment at Syntec, "only time will tell
whether, in fact, there will be a loss of income."47 Thus, the Master calculated an annual
earning capacity for child support purposes of $29,598.00 for Father, and, with a tax
filing status of married/separate, a net monthly income of $1,951.00.48 Accordingly, the
Master determined that Father's proportionate share of child support was $893.00 per
43 N.T. 53.
44 N.T. 56.
41 Master's Report at 3.
46 Father earned $25,386.00 in wages in 2007 and had unemployment compensation benefits of $4,212.00
during periods of seasonal layoffs. Master's Report at 2-3.
47 Master's Report at 3.
48 Master's Report at 3.
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month, following adjustments for childcare and health insurance expenses. 49 The Master
further noted that, in his opinion, Father did not change employment to avoid support
obligations to his children; rather, "[h]e desired to have stable employment without the
risk of seasonal layoffs ."50
An Interim Order of Court was issued on June 30, 2008, implementing the
Master's recommendations as follows:
A. The Defendant shall pay to the Pennsylvania State Collection and
Disbursement Unit as support for his children, Tristan L. Mellinger, born
September 22, 2003, and Teagan R. Mellinger, born July 26, 2006, the sum
of $893.00 per month.
B. The Defendant shall pay to the Pennsylvania State Collection and
Disbursement Unit the additional sum of $22.00 per month in arrearages.
C. The Plaintiff shall provide health insurance coverage for the benefit of said
children 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 each
child. Unreimbursed medical expenses of the children 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: 41%
by Defendant and 59% by Plaintiff.
E. The effective date of this order is April 7, 2008 .51
Father's exceptions to the Support Master's Report were filed on June 14, 2008.
49 Master's Report at 3.
so Master's Report at 3.
51 Interim Order of Court, dated June 30, 2008.
10
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).
Although the court will afford great deference to the recommendations made in the
support master's report, it 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, I I Phila. Co. Reptr. 211,
226-27 (1984).
Furthermore, 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,"
11
particularly with respect to the credibility of witnesses. Gomez v. Gomez, 11 Phila. Co.
Rptr. 211, 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).
Determination of Earning Capacity for Child Support Purposes. 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. 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.
It is settled law that a party cannot voluntarily reduce his earnings in an attempt to
circumvent his support obligation. Weiser v. Weiser, 238 Pa. Super. 488, 491, 362 A.2d
287, 288 (1976). In fact, the court views any sudden reduction in income with suspicion.
See Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186 (1993). Therefore,
where a party assumes a lower paying job or willfully fails to obtain appropriate
12
employment, the support obligation is determined by his or her assessed earning capacity
rather than his or her actual earnings. Portugal v. Portugal, 2002 PA. Super. 132, ¶6, 798
A.2d 246, 250 (2000).
Reasonableness of Daycare Expenses. Pennsylvania Rule of Civil Procedure No.
1910.16-6 provides as follows:
Support Guidelines. Adjustments to the Basic Support Obligation.
Allocation of Additional Expenses.
(a) Child care expenses. Reasonable child care expenses paid by
either parent, if necessary to maintain employment or
appropriate education in pursuit of income, shall be allocated
between the parties in proportion to their net incomes and added
to his and her basic support obligation...
A third -party daycare expense may be found reasonable even if a party is available
and willing to provide daycare at no cost. In Funk v. Funk, 376 Pa. Super. 76, 545 A.2d
326 (1988), the Superior Court overturned the trial court's decision to not order
reimbursement of third -party childcare expenses when the mother was unemployed and
offered to watch the children while the father worked. The trial court had reasoned that,
although the proposed childcare arrangement was unacceptable to the father, "from an
economic standpoint, it would seem to make a great deal of sense if that were to be done
as it would provide more money for both families and there [was] apparently no
testimony ... as to what adverse affect that might have on the children. ,52
Sz Funk v. Funk, 376 Pa. Super. 76, 84-85, 545 A.2d 326, 331 (1988).
13
Disagreeing with the trial court, the Superior Court stated as follows "[t]he
appellant, who is also a custodial parent, wants the children to attend a respected daycare
facility after school. Certainly, the trial court's discretion is not so broad as to allow the
court to deny arbitrarily the custodial father's reasonable wishes regarding child care .,53
Thus, the Superior Court supported the father's decision to place his children in a daycare
center and ordered contribution from the wife for the expense. Likewise, in Mooney v.
Doute, 2001 PA Super. 12, 766 A.2d 1271, the Superior Court upheld the trial court's
decision to assign a portion of third -party childcare expenses to a noncustodial father
even though he was unemployed and willing to provide the care.
APPLICATION OF LAW TO FACTS
Determination of Father's Earning Capacity. As discussed above, Father's
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. In the present case, the
Support Master found that, based on the evidence, Father had an annual earning capacity
for support purposes of $29,598.00, and, with a tax filing status of married/separate, a net
monthly income of $1,951.00.54 Father asserts that the Support Master erred in assessing
his earning capacity.
" Funk v. Funk, 376 Pa. Super. 76, 86, 545 A.2d 326, 332 (1988).
14 Husband's Exception No. 2; Master's Report at 3.
14
An imputed earning capacity of $29,598.00 is, in the court's view, appropriate
based on what Father can realistically be expected to earn considering the record
established at the hearing. At the time Mother filed her complaint for child support in
April, 2008, Husband had been employed with Walter, earning $18.00 per hour.ss
However, shortly after Mother filed for child support, Father voluntarily changed
employment and began working at Carlisle Syntec, through Aerotech Commercial
Staffing, earning $12.30 per hour — significantly less than the $18.00 per hour he had
been earning at Walter.
A party who voluntarily changes employment resulting in a reduction in income
has the burden of demonstrating that the change was not made for the purpose of
avoiding a child support obligation and that he or she has made efforts to mitigate the loss
of income. Grimes v. Grimes, 408 Pa. Super. 158, 163, 596 A.2d 240, 242 (1991). After
reviewing the hearing transcript, the court finds itself in agreement with the Support
Master that Father did not change employment to avoid his support obligation; rather,
Father desired to have reliable employment without the prospect of lay-offs .56
Moreover, Mother supported Father's decision to change employment even though it
would temporarily result in a reduced hourly rate.
" In 2007, Father earned $25,386.00 in wages and had unemployment compensation benefits of
$4,212.00, during periods of seasonal layoffs.
16 Father testified at length about his unease surrounding the weather -dependent nature of his employment
with Walter's. He also stated that he was concerned that Walter's was going out of business in the near
future. N.T. 38-39.
15
Although the court recognizes that Father's hourly rate was reduced by his change
of employment, the evidence presented at the hearing failed to show that his total income
would be reduced. Of particular relevance is the fact that, in his first six weeks of
employment at Syntec prior to the hearing, Father received significant overtime .57 Thus,
as the Support Master noted, only time will tell whether there will be a loss in Father's
income. In fact, Father's total income may actually increase in 2008. The court is
therefore of the view that, considering the record established at the hearing, an earning
capacity equivalent to his total wages and unemployment compensation for 2007 is
appropriate based on what Father can realistically be expected to earn. The court notes
that, if Father does not receive overtime or a pay increase in the future, he is entitled to
petition the court to modify the support order.
Reasonableness of Daycare Expenses. Father contends that Wife's daycare
expense of $172.00 per week is unreasonable and should not be allocated between the
parties because he and his mother are willing to provide daycare for the children .5' Based
upon the thoroughly developed record from the hearing, including the fact that Mother is
the primary physical custodian of the children, the court finds the daycare expenses
claimed by Mother reasonable and necessary, and the allocation of the expenses between
the parties, appropriate.
57 His Aerotech pay stub shows that Father earned $3,788.40 gross in the five weeks between his start
date, May 4, 2008, and the date of the pay stub, June 14, 2008. Defendant's Exhibit 4.
" Husband's Exception No. 2. Father has been bearing $261.00 of the $745.00 monthly cost, with
Mother paying the remaining $484.00.
16
The two young children clearly need a daycare provider since Mother, who is the
primary physical custodian, works fulltime. As the primary custodian, she has chosen to
place the children in a commercial daycare center across the street from her office at a
cost which is entirely reasonable. However, Father argues that paying for a third -party
daycare provider is unreasonable and, at the hearing, gave the Master a rather complete
explanation as to why he believed he and his mother should provide the primary daycare
to the children.59 While the court certainly finds Husband's desire to provide the daily
daycare to the children understandable, the court simply cannot overlook the challenges
that both parties would face if Husband and his mother were to provide the daycare.
Husband works a substantial amount of hours each day between his job at Syntec
and his work on the family farm. Consequently, his mother would have to bear much of
the burden that comes with providing daily daycare. Moreover, Mother testified that,
although Father and his mother care for the children each Wednesday pursuant to the
custody order, she is simply not comfortable with them watching the children every day.
After reviewing the hearing transcript, the court is in agreement with the Support Master
and supports Mother's decision to use a daycare center. 60 Thus, the cost of daycare is an
s9 N.T. 31-38, 47, 51-52.
60
The court notes that, in his Report and Recommendation, the Support Master seems to find Mother's
testimony credible despite Father's argument that she was in fact not credible. 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. Rptr. 211, 226-27 (1984), for it is the master who had the opportunity to observe
and hear the testimony of the witnesses. Bearing this in mind, independent review of the testimony by the
court has led it to the same conclusion as reached by the Master, that Mother's concerns about Father
providing the primary childcare are valid. Furthermore, the court places great emphasis on the custodial
Mother's wishes regarding childcare. See Funk v. Funk, 376 Pa. Super. 76, 86, 545 A.2d 326, 332
(1988).
17
expense that is necessary for Mother to maintain her employment and should therefore be
allocated between the parties. A daycare expense of $172.00 per week is a reasonable
and will be allocated between the parties in accordance with Pennsylvania Rule of Civil
Procedure 1910.16-6.
For the foregoing reasons, the following order will be entered:61
ORDER OF COURT
AND NOW, this 31st day of October, 2008, upon consideration of Defendant's
exceptions to the Support Master's Report, and for the reasons stated in the
accompanying opinion, the exceptions are dismissed and the interim order of court dated
June 30, 2008, is entered as a final order of court.
61 Although Defendant complains in his exceptions that his cross-examination of Mother was curtailed by
the Master at the master's hearing with respect to "all relevant aspects of her general credibility and her
specific credibility regarding her assertions of problems with the provision of daycare by Husband's
parents," neither Defendant's brief no the exceptions request that the case be remanded for development
of a more complete record. Furthermore, the person who presides over a hearing must be afforded some
latitude in controlling the extent of cross-examination in the interests of maintaining an orderly process:
It is well established that the scope and limits of cross-examination are within the discretion of
the trial judge and [the trial judge's exercise of judgment in setting those limits] will not ... be
reversed in the absence of a clear abuse of that discretion, or an error of law.
Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992) (citation omitted); see Schmiedel v.
Nealy, 50 Cumberland L.J. 59, 70-71 (2000).
An examination of the record of the master's hearing reveals that the Master more than adequately
protected the right of both counsel to bring out facts pertaining to Plaintiff's credibility, without
permitting the introduction of collateral custody and protection from abuse issues. See N.T. 7-29.
For these reasons, relief will not be afforded to Defendant based upon the contention that the Master
improperly limited his cross-examination of Plaintiff.
Michael R. Rundle, Esquire
Support Master
Cumberland County Domestic Relations Office
9 North Hanover Street
Carlisle, PA 17013
Carol J. Lindsay, Esquire
26 West High Street
Carlisle, PA 17013
For Plaintiff
Wayne F. Shade, Esquire
53 West Pomfret Street
Carlisle, Pennsylvania 17013
For Defendant
19
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
20
21
DARLENE F. MELLINGER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : DOMESTIC RELATIONS SECTION
TRAVIS L. MELLINGER, PACSES NO. 089109935
Defendant DOCKET NO. 305 SUPPORT 2008
IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 31st day of October, 2008, upon consideration of Defendant's
exceptions to the Support Master's Report, and for the reasons stated in the
accompanying opinion, the exceptions are dismissed and the interim order of court dated
June 30, 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
Carol J. Lindsay, Esquire
26 West High Street
Carlisle, PA 17013
For Plaintiff
23
Wayne F. Shade, Esquire
53 West Pomfret Street
Carlisle, Pennsylvania 17013
For Defendant