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HomeMy WebLinkAbout03-224 SupportJAMIE R. HALKO, Plaintiff Vo KELLY P. HENSLEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION PACSES NO. 387105310 NO. 03-224 SUPPORT IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., September ,2003. In this child support case, Defendant mother has filed timely exceptions to a report of the support master in which the master made recommendations with respect to a claim for support by Plaintiff father for the parties' child. The report recommends, in relevant part, that: a) Defendant pay $304.00 per month in support from March 11, 2003, through April 30, 2003, b) Defendant pay $217.00 per month thereafter, c) Defendant pay $338.00 per month at such time as Plaintiff provides written verification of health insurance for the child, and d) "[b]eginning in tax year 2003 the Plaintiff shall be entitled to claim said child as a dependency exemption for federal income tax purposes. The Defendant shall execute and deliver to the Plaintiff any and all documents required by the Internal Revenue Service to effectuate this exemption.''~ The exceptions filed by Defendant are expressed as follows: Exception # 1. Incorrect determination of Plaintiff's earnings. At the time of this hearing Plaintiff reported annual earnings of $37,000. In fact and also a matter of record, Plaintiff earns significantly more. Plaintiff's 2002 W-2 earnings from his employer were $43,376.46. ~ Interim Order of Ct., Jun. 3, 2003, Ex. A (Support Master's Report and Recommendation). Entered into the record at the time of this hearing was the April 17, 2003 Court Order and Summary of Trier of Fact; Docket #00224 S 2003. In the Summary of Trier of Fact, page 2 of 3, Plaintiff Information; Tax Return"; [sic] 2002 W-2 income is substantiated and recorded as $43,376.46. Although required at the time of this hearing, the Plaintiff provided no documentation or substantiation of his earnings. The Plaintiff verbally communicated that he earned $37,000/yr. The Support Master did not substantiate or request verification of the Plaintiff's earnings claim. The Plaintiff's earnings and earning capacity have not been correctly determined. All support calculations, applicable legal adherences, and ultimately the Support Master's report and recommendation, are significantly and critically incorrect. Exception #2. Support Master's recommendation "F" that beginning in tax year 2003 the Plaintiff shall be entitled to claim child as a dependency exemption for federal income tax purposes. At the time of this hearing both Plaintiff and Defendant advised Support Master that they had satisfactorily resolved this issue in their Custody Order (03-722 Civil Action Law, Court of Common Pleas of Cumberland County, Pennsylvania), Whereby #7, "In even numbered years the Mother shall be entitled to claim the dependency exemption for the Child and in odd numbered years the Father shall be entitled to claim the exemption.''2 After a careful review of the master's report and record,3 the exceptions to the report will be dismissed. STATEMENT OF FACTS Plaintiff father is Jamie Robert Halko, 27, residing in Mechanicsburg, Cumberland County, Pennsylvania) Defendant mother is Kelly Page Hensley, 33, 2 Def.'s Exceptions, filed Jun. 13, 2003 (emphasis in the original). 3 Neither party submitted a brief on the issues presented by the exceptions to the master's report in accordance with the order of court dated June 17, 2003. See C.C.R.P. 210-7 ("Issues raised, but not briefed, shall be deemed abandoned."). 2 residing in Camp Hill, Cumberland County, Pennsylvania.5 The parties have one child, Isabella Katherine Halko, born on December 8, 1997, as to whom they have shared physical custody.6 Plaintiff works in the finance department of Adventure Incorporated, which does business as Links to Care.7 Plaintiff is paid a salary of $37,000.00 per year and is paid weekly in the gross amount of $711.54.8 This results in a gross monthly income of $3,083.34. During the course of the master's hearing this is only figure that was used in relation to Plaintiff's income and Defendant chose not to cross examine Plaintiff on this or any other issue.9 Plaintiff plans to file, for federal income tax purposes, as head of household, claiming the dependency exemption for the child, and maintains there is no agreement with respect to who can claim the child for this exemption, l0 Defendant, until March 18, 2003, was employed by PHEAA at an hourly rate of $18.87, working an average of 37.5 to 40 hours per week. ~ This resulted in an income of $37,625.93 per year~2 or a gross monthly income of $3,135.49. Defendant, after March 18, 2003, and as of the time of the hearing before the master, was unemployed. ~3 Although Defendant claimed to have left her job due to N.T. 3., Support Master's Hr'g., May 30, 2003. (hereinafter N.T. ~). N.T. 12. N.T. 4, 7, 12, 17. 7N.T. 4. N.T. 5, Pl.'s Ex. 1, Support Master's Hr'g., May 30, 2003 (hereinafter Pl.'s Ex Def.'s Ex. ~). 9SeeN.T. 5, 12. N.T. 8-9. N.T. 13-14. Def.'s Ex. 3. N.T. 13. or 3 a medical condition, specifically severe depression and anxiety disorders,TM the Pennsylvania Department of Labor and industry initially determined her dismissal to be a discharge due to misconduct.~5 This decision by the Pennsylvania Department of Labor and industry is currently on appeal.~6 Defendant claims that her only source of income is child support payments made to her by the father of a second child who lives with Defendant.~7 The master, consistent with Pennsylvania Rule of Civil Procedure 1910.16-2(d)(1), determined Defendant's income on the basis of what she was earning at the time she was terminated, because she was dismissed for cause.~8 Defendant filed as head of household for purposes of federal income taxes in 2002 and claimed the dependency exemption for both the child at issue in this case and Defendant's other child.~9 The child in this case resided with Plaintiff in excess of 50% of overnights from the time of the filing of the complaint in this case, March 11, 2003, until a custody agreement was reached by the parents on or about March 28, 2003.2° Under the new agreement the child spends Mondays and Tuesdays with Plaintiff and Wednesdays and Thursdays with Defendant and alternates weekends between 14 N.T, 15. It is noted that Defendant did not produce documentation of this condition at the master's hearing. Id. 15 N.T. 18. 16 N.T. 17-18. l? N.T. 20. ~8 Interim Order of Ct., Jun. 3, 2003, Ex. A (Support Master's Report and Recommendation). It is noted that any issue related to the correctness of this determination is not before this court because it is not raised in the exceptions filed by Defendant. See Pa. R.C.P. 1910.12(f)-(h) (stating that, if no exceptions are filed to certain issues in master's report and interim order, those issues are not presented for review). 19 Def.'s Ex. 2. 20 Interim Order of Ct., Jun. 3, 2003, Ex. A (Support Master's Report and Recommendation). It is noted that, although there appears to be a divergence in testimony as to when the custody arrangement changed, see N.T. 8, 20 (father claiming it was at the end of March or April 2003), 17 (mother claiming it was at the end of February 2003), the master found it to be March 28, 2003, and neither party has taken exception to this date. See Pa. R.C.P. 1910.12(f)-(h) 4 the parties.2~ The child has been attending daycare at the Goddard School in Harrisburg, Dauphin County, Pennsylvania since the spring of 200122 at a cost of $615.00 per month.23 In May of 2003, this cost was decreased to $443.00 per month because of Defendant's unemployment and the absence of a need to have the child in daycare on her days of custody.24 Plaintiff has paid for all costs of the childcare with the exception of two payments made by Defendant before the filing of the complaint in this matter.25 During the master's hearing, Plaintiff presented as proof of his income a pay statement from his employer.26 Defendant presented as proof of her income a 2002 W-2 statement, her 2002 federal income tax return and her 2002 Pennsylvania income tax return.27 Based upon this information and testimony presented at the hearing, the master determined that Plaintiff had a gross monthly income of $3,083.00, resulting in a net monthly income of $2,523.00.28 The master also determined that Defendant had a gross monthly income of $3,135.50, resulting in a net income of $2,562.00 per month.29 This results in a joint income of $5,085.00, and a basic monthly child support requirement of $941.00 for one 2~ N.T. 7, 17. 22 N.T. 8-10. 23 Id. 24 Id. 25 N.T. 10-11, 20. 26 See Pl.'s Ex. 1. 27 See Def.'s Ex. 1-3. 28 Interim Order of Ct., Jun. 3, 2003, Ex. A (Support Master's Report and Recommendation). See Cunningham v. Cunningham, 49 Cumberland L.J. 219, 224 n.32 (2000) (Cumberland County uses a computer program to determine taxes applicable to a party' s income). 29 Id. See note 8. 5 child.3° The master found Defendant's proportionate share of that amount to be $474.00, but decreased this by $455.00 as an adjustment for equal shared custody and increased it by $285.00 for the childcare expenses incurred by Plaintifffl This resulted in a support obligation of $304.00 per month from March 11, 2003 until April 30, 2003.32 The master then made an adjustment to the support obligation to reflect the decrease in the cost of childcare, resulting in a monthly obligation of $217.00.33 Finally, the master did not credit Defendant for payments made for childcare expenses to Plaintiff before the filing of the complaint and did not credit Plaintiff for the period of three weeks between the filing of the complaint and the settlement of custody during which time he had the child for a greater percentage of time than Defendant.34 DISCUSSION Statement of Law Review of exceptions to support master's report. On a review of a support master's report, a trial court is to employ the same standard as is applicable to review of a divorce master's report. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988). "While such a 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. Id, see McCurdy v. McCurdy, No. 02-0097 Support (Ct. Com. Pls. Cumberland Sept. 13, 2002) (Hess, J.). Basis for determination of income for purposes of support. It is well-settled in Pennsylvania that the income/earning capacity of a party for purposes of a support calculation is to be determined on the basis of the reality of his or her 3o Id citing Pa. R.C.P. 1910.16-3. It is noted that the master did not deviate at any point from the guidelines for support. 31 Id. See Pa. R.C.P. 1910.16-4(c); Pa. R.C.P. 1910.16-6(a). 32 ]6/. 33 ]d. 34]d' 6 financial circumstances as opposed to a nominal or artificial view. See Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. Ct. 2000). The absence of documentary support for testimony of a party as to his or her income does not, in itself, mandate a conclusion that the evidence was incompetent or insufficient. See, e.g., Grandovic v. Grandovic, 387 Pa. Super. 619, 622-24, 564 A.2d 960, 962 (1989). Dependency Tax Exemption. Pennsylvania Rule of Civil Procedure 1910.16-2 provides, in pertinent part, as follows: In order to maximize the total income available to the parties and children, the court may, as justice and fairness require, award the federal child dependency tax exemption to the non-custodial parent, or to either parent in cases of equally shared custody .... The tax consequences resulting from an award of the child dependency exemption must be considered in calculating each party's income available for support. Pa. R.C.P. 1910.16-2(f). Duty of parties to present evidence in support of their positions. "Support [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 support [o]rder." Id at 262, 606 A.2d at 1192. Judicial Notice. "It is well established that a court may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own, even though the contents of those records may be known to the court." Woodland v. Burton, 345 Pa. Super. 366, 372-73, 498 A.2d 445, 448 (1985) cited by 220 Partnership v. Philadelphia Electric Company, 437 Pa. Super. 650, 656, 650 A.2d 1094, 1097 (1996) (articulating this doctrine after the Pennsylvania Supreme Court adopted the rules of evidence); see also Naffah v. City Deposit Bank, 339 Pa. 157, 160, 13 A.2d 63, 64 (1940). 7 Application of Law to Facts A review of the record before the master reveals that Plaintiff presented testimony with regard to his income, supported by documentary evidence, which the master relied upon in determining the income of the parties. Defendant, in spite of the opportunity to do so, did not cross examine Plaintiff on this issue. The court believes that the evidence in the record clearly supports the finding of the master with respect to the income of Plaintiff. Accordingly, Defendant's first exception will be dismissed. The record reveals that the issue of which party was entitled to take the dependency exemption for federal tax purposes was not discussed at the hearing, beyond Plaintiff's statement that no agreement has been reached on this issue. If Defendant had evidence to the contrary that she wished to have the master consider, she had a duty to either cross examine Plaintiff or present testimony on her own behalf in this regard. In addition, by supplying the court with the docketing information from the child custody matter, Defendant appears to be inviting it to take judicial notice of the record of another case, an action which we decline to undertake on a review of a record already made before the master. Given the lack of evidence as to who was entitled to the exemption, the court believes the master's recommendation was a reasonable one. Accordingly, Defendant's second exception will be dismissed. Therefore, the following order will be entered: ORDER OF COURT AND NOW, this 24th day of September, 2003, 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 3, 2003, is entered as a final order. 8 Michael R. Rundle, Esq. Support Master Jamie R. Halko 5029 East Trindle Road, Apartment 5 Mechanicsburg, PA 17050 Plaintiff Pro Se Kelly P. Hensley 509 Kevin Ct. Camp Hill, PA 17011-1263 Defendant Pro Se BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 9 10 JAMIE R. HALKO, Plaintiff Vo KELLY P. HENSLEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION PACSES NO. 387105310 NO. 03-224 SUPPORT IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 24th day of September, 2003, 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 3, 2003, is entered as a final order. BY THE COURT, Michael R. Rundle, Esq. Support Master Jamie R. Halko 5029 East Trindle Road, Mechanicsburg, PA 17050 Plaintiff Pro Se Kelly P. Hensley 509 Kevin Ct. Camp Hill, PA 17011-1263 Defendant Pro Se ~artme~5 J. Wesley Oler, Jr., J.