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HomeMy WebLinkAbout2004-867 Civil MARTHA LUTZ, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID W. LUTZ, DEFENDANT PACSES NO. 449101652 04-0867 CIVIL TERM IN RE: EXCEPTIONS OF PLAINTIFF TO SUPPORT MASTER'S REPORT OPINION AND INTERIM ORDER OF COURT Bayley, J., December 6,2004:-- On August 5, 2004, the Cumberland County Support Master filed a report and recommendation upon which an interim order was entered requiring, inter alia, David W. Lutz to pay alimony pendente lite to Martha Lutz of $2,975 a month effective April 14, 2004.1 Wife filed the following exceptions which were briefed and argued on November 10, 2004: 1. The Master erred in failing to include any income from the Lutz Irrevocable Trust ("Pine Hill Property Trust") in Defendant's income available for support. 2. The Master erred in failing to add back depreciation of the Lutz Irrevocable Trust as income available to Defendant. 3. The Master erred in making the order effective April 14, 2004 rather than February 27, 2004. 4. The Master erred in failing to include annual profit from Master Solutions, Inc. in Defendant's income available for support. 5. The Master erred in failing to include income available to Defendant from a crummey trust of approximately $1,000 to $2,000 per year. 6. The Master erred in failing to add back the charitable contributions of Master Solutions, Inc. as income available to Defendant. 1 The Master found that husband's monthly net income available for APL is $8,220.20. Wife's monthly net earning capacity is $783.39. 04-0867 CIVIL TERM The standard for reviewing exceptions to a support master's report are set forth in Goodman v. Goodman, 375 Pa. Super. 504 (1988). The report is advisory only. While it is to be given the fullest consideration, especially with regard to the creditability of witnesses, the court is required to make a review to determine if the recommendations are appropriate. It is the sole province and the responsibility of the court to set an award of support however much it may chose to utilize the Master's report. See, Burnham v. Burnham, 52 Cumberland L.J. 48 (2002). DISCUSSION I. & II. Income from the Lutz Irrevocable Trust, which manages real estate, is properly being used to pay down substantial debt from prior bad investments. Husband has never received income from the Trust. Furthermore, he is only one of the trustees and cannot, alone, make a decision as to distribution. Thus, the Master did not error in not imputing any income from this trust to husband for purposes of his APL obligation. Likewise, the Master did not error in failing to add back depreciation taken by this Trust. Husband does receive $2,000 per month as a co-trustee. This amount was properly included as income for purposes of calculating his APL obligation. III. The Master did not error in setting the order of APL effective April 14, 2004, which is the date plaintiff left the martial residence and moved to Vermont. Wife maintains that the Master erred in not setting the date as February 27, 2004, the day she filed her complaint. After February 2th, husband continued to pay the expenses of -2- 04-0867 CIVIL TERM the home although he did not provide wife with the same amount of money he had previously. Notwithstanding, wife did not require APL between February 27 and April 14, 2004, for the purposes for which APL is ordered. These circumstances support starting the APL on the date the parties separated. See Gerland v. Gerland, 703 A.2d 70 (Pa. Super. 1997). IV. The Master did not error in not including 2003 retained earnings from Master Solutions, Inc. in husband's income available for APL. Husband is president of Master Solutions, Inc. He and wife are officers and own eighty percent of the stock. Husband manages the company. Wife has no direct involvement. Husband's salary has varied substantially over the years. There have been times when he has gone without pay when the company was not performing well. There have been other times when his income has increased substantially upon superior performance. One of the largest suppliers of the company's products is the Ford Motor Company. Plaintiff and Ford are in a serious dispute involving a large amount of money that can have a significant adverse effect on the company. Plaintiff lowered his salary after March, 2003, based largely on this still unresolved dispute. That was a full year before wife separated. The $125,000 retained earnings in 2003 is in anticipation of financial difficulties. The Master found that the retention was done for valid business purposes and not to avoid an obligation to wife. The record supports this finding, and it was not error for the Master not to include the retained earnings for APL purposes. See Fennell v. Fennell, 753 A.2d 866 (Pa. Super. 2000). -3- 04-0867 CIVIL TERM V. The Crummey Trust is funded by husband's parents. Husband's sister, Virginia H. Smith, is the trustee. She testified that she and her brother are beneficiaries of the trust and both have a right to take approximately $2,000 from the trust each year. Husband has not done so. He should. Since he is entitled to receive up to $2,000 a year that amount will be included in setting his APL obligation. VI. The 2002 corporate tax return of Master Solutions, Inc. shows a charitable deduction in the amount of $34,358. Wife cites Coffey v. Coffey, 394 Pa. Super. 194 (1990), for the proposition that while charitable contributions may be deducted for income tax purposes, they should not be deducted for APL purposes. She argues that this charitable contribution should be added to husband's income for APL purposes. The parties did not separate until April 14, 2004. The contribution, which was deducted on a 2002 corporate tax return, has no bearing on husband's income available for APL as of April 14, 2004. Clearly, no add back is warranted. INTERIM ORDER OF COURT AND NOW, this day of December, 2004, IT IS ORDERED: (1) The case is returned to the Support Master to, (a) recalculate husband's income available for APL by adding $2,000 gross per year, (b) reduce that amount to a net monthly figure, (c) add the net to the $8,220.20 previously determined as the net income per month available for APL, and (d) recalculate the monthly alimony pendente lite. (2) The Master shall return the case to the court with a new alimony pendente -4- 04-0867 CIVIL TERM lite calculation sheet, and a recommended order. A final order will then be entered. (3) All other exceptions of wife to the Support Master's Report, ARE DENIED. By the Court, Edgar B. Bayley, J. Ann V. Levin, Esquire For Plaintiff Thomas J. Williams, Esquire F or Defendant Michael R. Rundle, Esquire Support Master :sal -5-