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HomeMy WebLinkAbout191 S 2005 NICOLE L. STEINER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : DOMESTIC RELATIONS SECTION vs. : : NO. 191 SUPPORT 2005 JESSE J. BARDEN, : PACSES NO. 846105510 Defendant : IN RE: DEFENDANT’S EXCEPTIONS TO INTERIM ORDER OF COURT MEMORANDUM OPINION AND ORDER In this case, the defendant has filed exceptions to the interim order of court dated October 28, 2008. At issue is the support for two children: Madeleine Barden, born October 26, 1999; and Seth Barden, born January 10, 2002. The most recent order more than doubled the support obligation of the defendant even though his income has only increased moderately. The plaintiff now resides in New Jersey where she lives with a Mr. Craig Bartlett to whom she is not married. They have two children, Cora, born in December of 2006, and Paige, born in June of 2008. The plaintiff has chosen to be a stay-at-home mother rather than seek gainful employment. Mr. Bartlett makes approximately $100,000 a year and she describes her 1 financial circumstances as “completely fine.” N.T. 22. The Master applied the “nurturing parent doctrine” to this case, citing Frankenfield v. Feeser, 672 A.2d 1347 (Pa.Super. 1996). In doing so, the plaintiff was not assessed any earning capacity. Thus, the sole income of the parties was the defendant’s income of $1,853.00 per month. He was, thereupon, assessed the entire basic requirement for support in the amount of $670.00 per month. In his exceptions, the defendant contends that an earning capacity should have been imputed to the plaintiff. We agree and remand this matter for further proceedings. 1 In fact, the plaintiff analogizes to the situation where she is “paid to take care of the kids.” NO. 191 SUPPORT 2005 The Frankenfield case, as the Master correctly noted, holds that the fact that a party is remaining at home with preschool-age children of a subsequent relationship does not preclude the application of the nurturing parent doctrine. A critical factor in Frankenfield, however, was that the father made no argument that he was unable to support the parties’ child in the amount ordered by the trial court. Frankenfield v. Feeser, 577 A.2d 1347 at 1352. In this case, the defendant argues credibly that the amount of support constitutes a severe financial hardship. Imposing upon the defendant 100% of the basic requirement for support requires him to pay more than a third of his income in support. Under circumstances in which the mother is otherwise financially comfortable, this award is unduly burdensome to the defendant. Normally, parties in a support case must each be assessed an earning capacity. An exception for the “nurturing parent” was first carved out in Wasiolek v. Wasiolek, 380 A.2d 400 in appropriate circumstances, (Pa.Super. 1977) wherein the Court recognized that, a nurturing parent should not be expected to find employment in order to further the child’s economic . welfare at the expense of the child’s emotional welfareThus, in appropriate cases, the earning capacity of a parent who chooses to stay home with young children need not be considered. See Atkinson v. Atkinson, 616 A.2d 22 (Pa.Super. 1992). While the nurturing parent doctrine may be applied in cases involving infant children of a subsequent relationship, the application is by no means automatic. The Frankenfield case cites several cases, in fact, where our courts have not applied the nurturing parent doctrine. These involve cases where the obligee, as in this case, had a work history. See Depp v. Holland, 636 A.2d 204 (Pa.Super. 1994). We have been unable to locate any appellate cases with facts similar to the matter sub judice. Given the appellate cases at our disposal, however, we are constrained 2 NO. 191 SUPPORT 2005 to conclude that this is not an appropriate case for the application of the nurturing parent doctrine. Here, the mother is working towards her Master Degree in the evenings. Continuing education at that level cannot be presumed to preclude employment in the daytime. She is heavily involved in the lives of her children. The children who are the subject of this support order, however, go to school during the day thus limiting the daycare expenses attributable to these children. There are more than adequate resources available to the plaintiff’s new family to provide for daycare for the younger children were she to work. It may be that there should be some increase in the amount of the prior support order. In making that calculation, however, it 2 strikes us as only proper that an earning capacity be attributed to the plaintiff. ORDER th AND NOW, this 17 day of February, 2009, this matter is remanded to the Master for the purpose of determining the plaintiff’s earning capacity. BY THE COURT, _______________________________ Kevin A. Hess, J. Michael Rundle, Esquire Support Master Derek R. Clepper, Esquire For the Plaintiff Jesse J. Barden, Pro Se 2 In his exceptions, the defendant also raises matters having to do with childcare expenses while the mother takes evening classes and he also raises questions concerning health insurance. Neither of these matters, however, appear to have had a bearing on the Master’s proposed order in this case. 3 NICOLE L. STEINER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : DOMESTIC RELATIONS SECTION vs. : : NO. 191 SUPPORT 2005 JESSE J. BARDEN, : PACSES NO. 846105510 Defendant : IN RE: DEFENDANT’S EXCEPTIONS TO INTERIM ORDER OF COURT ORDER th AND NOW, this 13 day of February, 2009, this matter is remanded to the Master for the purpose of determining the plaintiff’s earning capacity. BY THE COURT, _______________________________ Kevin A. Hess, J. Michael Rundle, Esquire Support Master Derek R. Clepper, Esquire For the Plaintiff Jesse J. Barden, Pro Se 407 Valley Street Mechanicsburg, PA 17055