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HomeMy WebLinkAbout908 S 2007 KATHLEEN A. CAREY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHARLES CAREY, III, : PACSES NO. 595109575 DEFENDANT : 908 SUPPORT 2007 IN RE: CROSS-EXCEPTIONS FROM SUPPORT MASTER’S REPORT MEMORANDUM OPINION AND ORDER OF COURT Bayley, J., December 18, 2008:-- The Support Master imputed an earning capacity of $41,017 a year to plaintiff on the “Unrefuted testimony . . . that the Commonwealth of Pennsylvania is in need of civil engineers.” The starting salary for a civil engineer in the Commonwealth is $41,017. Plaintiff, age 47, has been a full-time homemaker for four children and has not worked in the engineering field for thirteen years. All of the children are now in school and she is attempting to resume employment. She and defendant now share physical custody of the children. Plaintiff has a bachelor’s degree in civil engineering technology and worked for ten years for the Pennsylvania Department of Transportation as a civil 1 engineer before she became a full-time homemaker. She took a civil service examination in the summer of 2008, and made an application for employment as a civil engineer with PennDOT and the Department of Environmental Affairs. There is a hiring freeze for these positions. Plaintiff has posted her resume on Monster.com and submitted it to two private employers; however, the resume states that she seeks “a part-time administrative or support position.” 1 She has never been a licensed civil engineer. 908 SUPPORT 2007 Plaintiff excepts to the Support Master’s Report on the basis that ascribing her an earning capacity of $41,017 based on a position with the Commonwealth that is not now available is error. We agree. “Earning capacity” is the amount that a person can realistically expect to earn under the circumstances considering age, health, physical Riley v. Foley, and mental condition, education and training. 783 A.2d 807 (Pa. Super. 2001). Plaintiff cannot realistically expect to earn $41,017 a year in a specific position with a specific employer when such a position is not available. We will remand to the 23 Support Master to take additional testimony, and reset plaintiff’s earning capacity. ORDER OF COURT IT IS ORDERED: AND NOW, this day of December, 2008, ARE DENIED. (1) The exceptions of defendant to the Support Master’s Report, ARE GRANTED. (2) The exceptions of plaintiff to the Support Master’s Report, IS VACATED, (3) The interim order entered on September 26, 2008, and the prior IS REINSTATED order of court . (4) The Master shall take additional testimony and, consistent with this opinion, file a new report with an interim order to be effective on September 1, 2008. 2 Plaintiff must apply for full-times jobs in her field in the private sector. Employers may be willing to hire full-time employees but not part-time employees. Plaintiff must also provide proof that she has done everything required to apply fora full-time position as a civil engineer with the Commonwealth which may at some point become available. 3 Defendant filed exceptions to the Support Master’s Report claiming that plaintiff has a higher earning capacity than $41,017. There is no credible evidence in the record to support this position. -2- 908 SUPPORT 2007 By the Court, Edgar B. Bayley, J. James G. Nealon, Esquire For Plaintiff Elizabeth S. Beckley, Esquire For Defendant Michael Rundle, Esquire Support Master :sal -3- KATHLEEN A. CAREY, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHARLES CAREY, III, : PACSES NO. 595109575 DEFENDANT : 908 SUPPORT 2007 IN RE: CROSS-EXCEPTIONS FROM SUPPORT MASTER’S REPORT ORDER OF COURT IT IS ORDERED: AND NOW, this day of December, 2008, ARE DENIED. (1) The exceptions of defendant to the Support Master’s Report, ARE GRANTED. (2) The exceptions of plaintiff to the Support Master’s Report, IS VACATED, (3) The interim order entered on September 26, 2008, and the prior IS REINSTATED order of court . (4) The Master shall take additional testimony and, consistent with this opinion, file a new report with an interim order to be effective on September 1, 2008. By the Court, Edgar B. Bayley, J. James G. Nealon, Esquire For Plaintiff Elizabeth S. Beckley, Esquire For Defendant Michael Rundle, Esquire Support Master :sal