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HomeMy WebLinkAbout836 S 1998SHARON L. DEIHL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION Vo CIVIL ACTION--SUPPORT PATRICK VOGELSONG,: Defendant PACSES NO. 153000551 DOCKET NO. 836 SUPPORT 1998 IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., June 23, 2004. In this child support case, Patrick Vogelsong (Defendant/father) filed a Petition for Modification of an Existing Support Order, requesting a decrease in his monthly child support payments because of a decrease in his wages. Following a hearing, the Cumberland County Support Master, based largely on the father's receipt of a lump-sum workers' compensation award, recommended an increase in both the father's monthly child support payments and his share of the child's unreimbursed medical expenses.~ For disposition at this time are exceptions of Sharon L. Deihl (Plaintiff/mother) to the master's report and recommendation. For the reasons stated in this opinion, the Plaintiff's exceptions to the master's report and recommendation will be dismissed. STATEMENT OF FACTS The Plaintiff/mother is Sharon L. Deihl, who currently lives at 4800 Spring Road, Shermans Dale, Pennsylvania) Plaintiff is presently employed through JFC Staffing Associates as a temporary worker.3 She works an average of twenty hours a week at a ~ See Supp. Master's Report and Recommendation, filed Feb. 24, and Recommendation). : N.T. 32, Hr'g., Feb. 13, 2004 (hereinafter N.T. ~. ~ N.T. 32. 2004 (hereinafter Supp. Master's Report rate of $7.50 to $8.50 per hour, depending upon her work assignment.4 Presumably, she will be filing her federal income tax return as "single" and claiming three children as dependency exemptions.5 The Defendant/father is Patrick Vogelsong, who currently lives at 98 Fallen Cabin Lane, Landisburg, Pennsylvania.6 Defendant is currently employed at R.S. Construction, where he has earned an average of $1,000.00 per month since beginning his employment.7 Defendant has also recently been awarded a $68,000.00 lump-sum workers' compensation award, of which he received $54,400.00 after paying attorney's fees.8 He will be filing his federal income tax return as "married filing separate.''9 Plaintiff and Defendant have one daughter, Ashley M. Vogelsong, who was born on November 14, 1988, and is fifteen years old.l° Ashley currently lives with the Plaintiff.~ She is mentally handicapped, is unable to care for herself, and requires a babysitter when her mother is at work. ~2 On November 12, 2003, Defendant, citing a decrease in his wages, filed a petition to modify an existing order of support, which had been entered on July 24, 2001.~3 4 N.T. 35, 38-39. 5 N.T. 36; Pl.'s Ex. 3, Hr'g., Feb. 13, 2004 (hereinafter Pl.'s/Def.'s Ex. ~. The mother has six children, all of whom live with her. N.T. 35. She claims three of these children on her federal income tax return, and allows the person living with her to file as "head of household" and claim the other three children. N.T. 36. 6N.T. 3. 7N.T. 10-11. 8 N.T. 30; Def.'s Ex. 2. Averaged out over Defendant's life expectancy of 684 months, this award equals a payment of $79.53 per month in compensation for Defendant's lost earning capacity. Def.'s Ex. 2. 9 N.T. 12. l0 N.T. 3. ~ N.T. 36. ~2 N.T. 37; Pl.'s Ex. 5. The Plaintiff spends $50.00 a month on childcare expenses for her six children. ~3 N.T. 3-4; Pet. for Modification of an Existing Supp. Order, filed Nov. 12, 2003 (hereinafter Pet. for Modification). 2 Pursuant to this July 24, 2001, order, Defendant was required to make payments of $3 81.00 per month for the support of his daughter. 14 At the time of the July 2001 order of support, Defendant had been employed with Carlisle Tire & Wheel Company at the rate of $14.46 per hour.15 This resulted in a net monthly income of $1,734.46.16 During this time Defendant was working a combination of regular and light duty shifts at his job because of a work-related back injury he suffered in December of 2000.17 On March 3 1, 2003, pursuant to a Compromise and Release Agreement, Defendant resigned from his job with Carlisle Tire & Wheel Company.la Defendant testified that the amount of pain medication which he was forced to take in order to continue doing his job was having a seriously adverse effect on his life.19 For this reason, Defendant chose to enter into the Compromise and Release Agreement in return for the lump-sum workers' compensation payment of $68,000.00, according to his testimony.2° From April of 2003 until July of 2003, Defendant was employed with Steven Leonard Construction, performing basic residential construction tasks such as siding installation, roof work, and deck construction.21 At the end of July, 2003, Defendant had a dispute with his employer and quit his job after the employer refused to compensate him for materials which the Defendant had purchased for a project, according to 14 Order of Ct., July 24, 2001. In addition, Defendant was required to pay $44.00 per month on arrears. Order/Notice To Withhold Income For Supp., July 25,2001. ~5 N.T. 4. 16 Supp. Master's Report and Recommendation. Typically, a computer program--which takes into account a party's gross income, tax-filing status, and exemptions claimed--is utilized by the Domestic Relations Office in calculating a party's net monthly income. See See/ey-Burnham v. Burnham, 52 Cumb. 48, 52 (2003); Cunningham v. Cunningham, 49 Cumb. 219, 224 n.32 (2000). ~7 N.T. 5, 22-23. Regular duty work included making and molding tires, which required heavy physical labor. N.T. 4-5. Light duty work included cleaning bathrooms, cleaning machines, and sorting bors. N.T. 24. ~8 N.T. 6; Def.'s Ex. 2. 19 N.T. 6-7. Defendant was taking a combination of Zanaflex, Percocet, and OxyContin when he ended his employment with the Carlisle Tire & Wheel Company. 20 N.T. 30; Def.'s Ex. 2. 2~ N.T. 7-8. 3 Defendant's testimony)2 In September of 2003 Defendant began his current employment at R.S. Construction, performing basic roofing tasks.23 From September of 2003 until December of 2003, Defendant was paid an average of $1,000.00 per month)4 On February 13, 2004, the Cumberland County Support Master held a hearing on Defendant's Petition for Modification of an Existing Support Order, and on February 24, 2002, filed a report and recommendation)5 The master concluded that Plaintiff's net monthly income/earning capacity was $1,371.00.26 The master then calculated two possible net monthly income figures for the Defendant)7 For the first calculation, the master determined Defendant's net monthly income to be $2,052.00 based upon Defendant's actual average monthly earnings of $1,000.00, as well as $1,265.00 per month from his workers' compensation award.28 The master arrived at the $1,265.00 figure by taking the total amount of the workers' compensation award ($54,400.00) and dividing it by forty-three months, which was the time from the receipt of the award to the date of his daughter's eighteenth birthday.29 This net monthly income of $2,052.00, in conjunction with Plaintiff's net monthly income, resulted in a child support obligation of $432.00 per month for the Defendant.3° :: N.T. 8-9. :3 N.T. 10, 27. Defendant classifies his position at R.S. Construction as a laborer. N.T. 10. Plaintiff classifies Defendant's position at R.S. Construction as a roofer. :4 N.T. 11-12. Defendant received a total of $4,000.00 for his employment at R. S. Construction from September of 2003 to December of 2003. :s Supp. Master's Report and Recommendation. :6/d. The master determined Plaintiff's net monthly income/earning capacity by taking the average hourly rate for her job placements ($8.00), and the number of hours she was capable of working per week (40 hours), not the number of hours she did work per week (20 hours). See id. :7/d. The master performed two calculations for the Defendant's net monthly income and support obligations because the Plaintiff and Defendant disagreed about how the Defendant's workers' compensation award should be temporally allocated. 28 See id. 29 See id. The Plaintiff advocated having the Defendant's net monthly income determined in this manner. See id. 30 Id. This figure includes the almost $10.00 per month that the Defendant owes for childcare costs. /d. 4 For the second calculation, the master determined Defendant's net monthly income to be $1,926.00 based upon Defendant's net monthly earning capacity of $1,846.00 as a construction laborer, plus $79.53 per month from his workers' compensation award.3~ The net monthly earning capacity of a construction worker was based upon figures from the 2002 Metropolitan Area Occupational Employment and Wage Estimates ($28,070.00 yearly/S2,339.00 gross monthly income) for a construction laborer.32 The master arrived at the $79.53 by taking the total amount of the workers' compensation award ($54,400.00) and dividing it by 684 months, which was the life expectancy of the Defendant.33 This net monthly income of $1,926.00, in conjunction with Plaintiff's net monthly income figure, resulted in a support obligation of $414.00 per month for the Defendant.34 Because the two calculations produced almost identical support obligations, the master averaged the two calculations and recommended a support obligation of $423.00 per month.35 On February 24, 2004, an Interim Order of Court was issued implementing the master's recommendations, as follows: A. The Defendant shall pay to the State Collection and Disbursement Unit as support for his child, Ashley M. Vogelsong, bom November 14, 1988, the sum of $423.00 per month. B. The Defendant shall pay to the State Collection and Disbursement Unit the additional sum of $43.00 per month on arrearages until paid in full. C. The Defendant shall pay 59% of the unreimbursed medical expenses incurred by said child as that term is defined in Pa. R.C.P. 1910.16- 6(c). D. The effective date of this order is November 12, 2003. ~ See id. 32 Pl.'s Ex. 6. ~ See Supp. Master's Report and Recommendation; Def.'s Ex. 2. The Defendant advocated having his net monthly income determined in this manner. See Supp. Master's Report and Recommendation. 34 Supp. Master's Report and Recommendation. This figure includes the almost $10.00 per month that the Defendant owes for childcare costs. /d. ~5 See id. This figure does not include arrearage payments. E. Except as modified herein, the prior order of July 24, 2001 shall remain in full force and effect.36 On March 2, 2004, Plaintiff filed exceptions to the master's report and recommendation. Plaintiff's contentions in the Exceptions were expressed as follows: [1.] Plaintiff takes exception to the recommended child support obligation being $423.00 per month and the concomitant amount of arrears. [2.] Plaintiff takes exception to the recommendation that Defendant pay 59% of the unreimbursed medical expenses incurred by said child. [3.] [4.] Plaintiff takes exception to the Support Master's determination that Defendant's earning capacity be based upon the mean annual income for a construction laborer, at $28,070.00, instead of the mean annual income for a roofer, which Plaintiff argued is $33,460.00. Plaintiff takes exception to the method utilized by the Support Master in imputing the lump sum workers' compensation award. Plaintiff argues that the entire lump sum should have been annualized over three years or thirty six months from November of 2003, which is the month in which Defendant filed his Petition to Modify, to November of 2006, which is the month the subject child becomes eighteen (18) years of age resulting in a gross amount of $1,511.11 per month for the purposes of the child support calculation.37 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). The report should be accorded the "fullest consideration," particularly with respect to the credibility of witnesses. Id. However, the report is advisory only, and when exceptions are filed the court must conduct its own review of the evidence to 36 Interim Order of Ct., Feb. 24, 2004. 37 Exceptions to the Interim Order of Ct. Pursuant to Rule 1910.12(f) of the Pennsylvania Rules of Civil Procedure, filed Mar. 3, 2004. 6 determine whether the master's recommendations to which exceptions are taken are proper. Id.; Gomez v. Gomez, 11 Phila. Co. Rptr. 211,226-27 (1984). With respect to the issues raised by exceptions filed by a party to a master's report, "[i]t is the sole province and the responsibility of the [trial] court to set an award of support, however much it may choose to utilize a master's report." Goodman, 375 Pa. Super. at 507-08, 544 A.2d at 1035; see also Pa. R.C.P. 1910.12(f)-(h) (indicating that, if no exceptions are filed to certain issues in master's report and interim order, those issues are not presented for review). Determination of Income and Support Obligation. 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. Mooney v. Doutt, 2001 PA Super. 12, ¶6, 766 A.2d 1271, 1273. A party's child support obligation is to be calculated in the first instance in accordance with guidelines provided in the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P. 1910.16-1(b). Pennsylvania Rule of Civil Procedure 1910.16-2, which deals with the calculation of income for purposes of determining a party's support obligation, provides, in pertinent part, as follows: (a) Monthly Gross Income. Monthly gross income is ordinarily based upon at least a six month average of all of a party's income. The term "income"... [encompasses] many types of income including, but not limited to: (1) wages, salaries, bonuses, fees and commissions; (8) other entitlements to money or lump sum awards without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements; awards and verdicts; and any form of payment due to and collectible by an individual regardless of source. Pa. R.C.P. 1910.16-2(a). Furthermore, in determining a party's income for the purpose of supporting a child, "the focus is on the person's earning capacity rather than on the person's actual earnings." Mooney, 2001 PA Super. at ¶6, 766 A.2d at 1273. In 7 determining a party's earning capacity, the court should not look to what a person could theoretically earn, but what a person "could realistically earn under the circumstances." Myers v. Myers, 405 Pa. Super. 290, 297, 592 A.2d 339, 343 (1991). The circumstances to be considered by the court when determining a party's earning capacity are the party's "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. The Note to Pennsylvania Rule of Civil Procedure 1910.16-2(a)(8), which deals with the imputation of lump-sum awards as income, provides: The trial court has discretion to determine the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the party's support obligation. These awards may be annualized or they may be averaged over a shorter or longer period of time depending on the circumstances of the case. Pa. R.C.P. 1910.16-2(a)(8). While the trial court does have the discretion to determine the most appropriate method for imputing lump-sum awards, it must still consider the entire lump-sum award when imputing income to a party. See Darby v. Darby, 455 Pa. Super. 63, 68-69, 686 A.2d 1346, 1349 (1996); see also Butler v. Butler, 339 Pa. Super. 312, 315-16, 488 A.2d 1141, 1142 (1985) (holding entire tort award received by the father had to be used in calculating father's child support obligation); Witherow v. Witherow, 288 Pa. Super. 519, 521, 432 A.2d 634, 634 (1981) (holding that trial court abused its discretion when it failed to consider a lump-sum workers' compensation award when calculating father's child support obligation). Medical Expenses. Pennsylvania Rule of Civil Procedure 1910.16-6(c) provides, in pertinent part, as follows: (c) Unreimbursed Medical Expenses. Unreimbursed medical expenses of the obligee or the children shall be allocated between the parties in proportion to their respective net incomes. The court may direct that obligor's share be added to his or her basic support obligation, or paid directly to the obligee or to the health care provider. Pa. R.C.P. 1910.16-6(c). Application of Law to Facts Determination of Income and Support Obligation. In the present case, the court believes that the master's recommendation that Defendant's earning capacity be based upon the mean annual income of a construction worker, at $28,070.00, instead of the mean annual income of a roofer, at $33,460.00, was in accordance with the evidence of record. From April of 2003 until August of 2003, Defendant's work consisted of general construction tasks such as siding installation, roof work, and deck construction. It was not until September of 2003 that Defendant began working exclusively on roofing projects for R.S. Construction. Furthermore, Defendant had not attended school or received any technical training to become a roofer.38 Defendant even identified his current job title as a laborer, not as a roofer.39 Based upon Defendant's education, training, and work experience, the master appropriately classified Defendant as a construction laborer with a gross mean annual earning capacity of $28,070.00 per year. With respect to Plaintiff's contention that the master erred in his method of imputing the lump-sum workers' compensation award in calculating Defendant's net monthly income, the court believes that the master correctly imputed this award. The master considered the entire $54,400.00 workers' compensation award when computing Defendant's net monthly income, calculating his net monthly income two different ways. First, the master calculated Defendant's net monthly income by taking his actual earnings of $1,000.00 per month, and adding $1,265.00, which is the workers' compensation award as averaged over the period from when he received the award until when his daughter turns eighteen.4° The master then calculated Defendant's net monthly income 38 Plaintiff presented no evidence to substantiate her claim that no training or education was required for a person to become a roofer. See Br. in Supp. of Pl.'s Exceptions to the Interim Order of Ct. Pursuant to Rule 1910.12(f) of the Pa. R.C.P. 39 After having already identified his position with R.S. Construction as a laborer, N.T. 10, Plaintiff's counsel later went on to ask the Defendant, "Do you have to actually get up on the roof to be a roofer?" during a line of questioning concerning his job responsibilities with R.S. Construction, N.T. 27-28. Defendant never affirmatively stated that he was a roofer. 40 The time between Defendant's receipt of the award and the daughter's eighteenth birthday is forty-three months. This calculation resulted in a gross monthly income of $2,265.00, and a net monthly income of $2,052.00. 9 by taking his earning capacity as a construction laborer, $1,846.00 per month, and adding $79.53, which is the workers' compensation award as averaged over the remainder of the Defendant's life expectancy.4~ Because Pa. R.C.P. 1910.16-2(a)(8) allows lump sum awards to be either "annualized or... averaged over a shorter or longer period of time[,]" the master acted reasonably in using either calculation to impute the workers' compensation award into Defendant's net monthly income.42 With respect to Plaintiff's contention that the master erroneously determined Defendant's child support obligation, this Court believes that the master proceeded properly. Based upon the calculations of Defendant's net monthly income, the master arrived at two possible child support figures: $432.00 per month and $414.00 per month.43 Because there was not a significant disparity between the two figures, it was reasonable for the master to average the figures together and set Defendant's child support obligation at $423.00 per month. Calculating Defendant's child support obligation in this manner represented a reasonable accommodation between the varying approaches advocated by the parties that still provided for the continued support of their child in accordance with the child support law. Medical Expenses. With respect to Plaintiff's contention that Defendant should pay more than 59% of the unreimbursed medical expenses incurred by his daughter, the court believes that the master correctly calculated the Defendant's obligation for unreimbursed medical expenses. According to Pennsylvania Rule of Civil Procedure 1910.16-6(c), responsibilities for payment of unreimbursed medical expenses is to be "allocated between the parties in proportion to their respective net incomes.''44 Because this Court has not modified the master's determination of the parties' respective net 4~ Defendant's remaining life expectancy when he received the award was 684 months. This calculation resulted in a gross monthly income of $2,419.00, and a net monthly income of $1,926.00. 42 Note to Pa. R.C.P. 1910.16-2(a)(8). 43 The $432.00 per month figure was arrived at by using a net monthly income of $2,052.00. The $414.00 per month figure was arrived at by using a net monthly income of $1,926.00. 44 Pa. R.C.P. 1910.16-6(c). 10 monthly incomes, the Defendant's share of responsibility for his daughter's unreimbursed medical expenses will also not be modified. ORDER OF COURT AND NOW, this 23rd day of June, 2004, after careful consideration of Plaintiff's Exceptions to the Interim Order of Court Pursuant to Rule 1910.12(t) of the Pennsylvania Rules of Civil Procedure, filed March 2, 2004, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the Interim Order of Court dated February 24, 2004, is entered as a final order. BY THE COURT, Michael R. Rundle, Esq. Support Master Marc A. Scaringi, Esq. Walz, Walz, Scaringi & Scaringi 341 Market Street Newport, PA 17074 Attorney for Plaintiff Patrick Vogelsong 98 Fallen Cabin Lane Landisburg, PA 17040 Defendant, pro se s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 11 12 SHARON L. DEIHL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOMESTIC RELATIONS SECTION Vo CIVIL ACTION--SUPPORT PATRICK VOGELSONG,: Defendant PACSES NO. 153000551 DOCKET NO. 836 SUPPORT 1998 IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 23rd day of June, 2004, after careful consideration of Plaintiff's Exceptions to the Interim Order of Court Pursuant to Rule 1910.12(1) of the Pennsylvania Rules of Civil Procedure, filed March 2, 2004, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the Interim Order of Court dated February 24, 2004, is entered as a final order. BY THE COURT, Michael R. Rundle, Esq. Support Master Marc A. Scaringi, Esq. Walz, Walz, Scaringi & Scaringi 341 Market Street Newport, PA 17074 Attorney for Plaintiff Patrick Vogelsong 98 Fallen Cabin Lane Landisburg, PA 17040 Defendant, pro se J. Wesley Oler, Jr., J.