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HomeMy WebLinkAbout784 S 2000PATRICIA K. COBURN, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAX GONZALEZ, DEFENDANT IN RE: PACSES NO. 087001096 784 SUPPORT 2000 APPEAL FROM INTERIM SUPPORT ORDER BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., September 16, 2004:-- On June 10, 2004, following a hearing before the Cumberland County Support Master, an interim order was entered denying the petition of defendant, Max Gonzalez, to modify a child support order for Gordon A. Gonzalez, born February 9, 1996, and Jaylen C. Gonzalez, born May 14, 1999. Both children reside with plaintiff, Patricia K. Coburn. The support order was entered on October 23, 2003, requiring payment of child support of $918 per month. A person seeking to modify a support order has the burden of demonstrating that a material and substantial change of circumstances has occurred since the entry of the order to justify a modification. Soncini v. Soncini, 612 A.2d 998 (Pa. Super. 1992). The Support Master found that plaintiff's net monthly income is $1,567.10, and defendant's monthly net income is $2,991.13. Defendant's income includes twenty hours per week he has been working overtime. He maintains that his overtime income 784 SUPPORT 2000 should not have been used to calculate his earning capacity. Pa. Rule of Civil Procedure 1910.16-2 provides that Monthly Gross Income "is ordinarily based upon at least a six-month average of all of a party's income." (Emphasis added). When overtime is earned it is averaged for the purpose of determining income available to pay support. We do not believe that an obligor working full-time must work overtime and be subject to a calculation of income based on earning capacity if such overtime is rejected. However, when an obligor chooses to work overtime, as in this case, it benefits both himself and the children he is obligated to support.~ While defendant does not disagree that he should pay support, he believes that $918 a month is not a fair amount.2 He is hardly the first person to protest that in certain situations the statewide support guidelines are too high. The Domestic Relations Code provides at 23 Pa.C.S. Section 4322: (a) Statewide guideline.--Child and spousal support shall be awarded pursuant to a Statewide guideline as established by general rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties' assets, as warrant special attention. The guideline so developed shall be reviewed at least once every four years. (Emphasis ~ The situation may be different if an obligor works two separate full-time jobs. See Haselrig v. Haselrig, 840 A.2d 338 (Pa. Super. 2003). 2 His current payment, which includes $22.00 toward arrearages, is $940 per month. -2- 784 SUPPORT 2000 added.) (b) Rebuttable Presumption.--There shall be a rebuttable presumption, in any judicial or expedited process, that the amount of the award which would result from the application of such guidelines is the correct amount of support to be awarded. A written finding or specific finding on the record that the application of the guideline would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, provided that the finding is based upon criteria established by the Supreme Court by general rule within one year of the effective date of this act. In the present case, the record does not contain credible evidence of such unusual needs, extraordinary expenses or other factors sufficient to rebut the presumption that the guideline amount is the correct amount. Defendant argues that he does not believe his wife's income should be included in a calculation of his support obligation. Clearly, the support guideline worksheet prepared by the Master does not include such income in calculating his obligation. Defendant questions child care expense used by the Master in his support guideline computation. The record supports the Master's findings. For the foregoing reasons, the following order is entered.3 ORDER OF COURT AND NOW, this day of September, 2004, the interim order of June 10, 2004, denying the petition of defendant for a modification of a support order 3 The guideline amount is actually $1,198.17 a month. We agree with the Support Master that since this matter was litigated on a petition by defendant to modify the $918 per month order of October 23, 2003, and not on a petition by plaintiff seeking an increase in the order, that the petition for modification should simply be denied. We further note that this case reflects that the effect of court ordered support on obligors, -3- 784 SUPPORT 2000 entered on October 23, 2003, IS MADE FINAL. like taxes, impacts most severely on the middle class. -4- 784 SUPPORT 2000 By the Court, Edgar B. Bayley, J. James G. Nealon, III, Esquire For Plaintiff Max Gonzalez, Pro se 400 7th Street, Apt. 4 New Cumberland, PA 17070 Michael Rundle, Esquire Support Master :sal -5- PATRICIA K. COBURN, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MAX GONZALEZ, DEFENDANT IN RE: AND NOW, this PACSES NO. 087001096 784 SUPPORT 2000 APPEAL FROM INTERIM SUPPORT ORDER BEFORE BAYLEY, J. ORDER OF COURT day of September, 2004, the interim order of June 10, 2004, denying the petition of defendant for a modification of a support order entered on October 23, 2003, IS MADE FINAL. By the Court, James G. Nealon, III, Esquire For Plaintiff Max Gonzalez, Pro se 400 7th Street, Apt. 4 New Cumberland, PA 17070 Michael Rundle, Esquire Support Master :sal Edgar B. Bayley, J.