HomeMy WebLinkAbout2008-6648 Civil
ROBERT G. MASON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
INCA D. MASON, : PACSES NO. 448110558
Defendant/Petitioner : DOCKET NO. 08-6648 CIVIL
INCA D. MASON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
ROBERT G. MASON, : PACSES NO. 656110355
Defendant : DOCKET NO. 860 SUPPORT 2008
IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J., June 10, 2009
In this divorce case, a husband has filed a complaint for divorce, and a wife has
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filed a complaint for spousal support and a claim for alimony pendente lite. The wife
has since elected to forgo her claim for spousal support and is proceeding on her alimony
pendente lite claim only. Following a hearing before the Cumberland County Support
Master, the Master issued a report in which he calculated a monthly net income/earning
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No. 860 Support 2008.
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No. 08-6648 Civil Term.
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capacity of $1,523.00 for the wife and $1,951.00 for the husband. Accordingly, the
husband was determined to have an alimony pendente lite obligation of $171.00 per
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month. The Master also recommended that the husband provide health insurance
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coverage to the wife. An interim order of court in accordance with the Master’s Report
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and Recommendation was thereafter entered.
For disposition at this time are the husband’s exceptions to the Support Master’s
Report. The husband’s exceptions read as follows:
1.The Support Master erred in awarding alimony pendente lite because
Wife failed to provide reliable information upon which her actual
earnings could be determined, and fraudulently understated her actual
earnings.
2.The Support Master erred in imputing a minimum wage earning
capacity to Wife, based upon her previous employment as a waitress,
instead of determining her actual earnings or earning capacity as an
owner and operator of a restaurant, the occupation she has held for the
past 14 months.
3.While the Support Master acknowledged that Wife maintained a ledger
showing higher income than that which she reported, and also found
that Wife operated a shopping service business, he failed to calculate
Wife’s actual earnings or to otherwise add such earnings to her imputed
earning capacity.
4.Based upon the most reliable evidence submitted to the Support Master,
Wife’s actual income as the owner and operator of a restaurant greatly
exceeds the minimum wage earning capacity imputed to her.
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Support Master’s Report and Recommendation at 4 (hereinafter “Master’s Report”). Under
Pennsylvania Rule of Civil Procedure 1910.16-2(c)(1), except as otherwise provided in the Rules, net
income for the purpose of support is to be determined by a deduction from gross income of the following
amounts: federal, state and local income taxes; F.I.C.A. payments and non-voluntary retirement
payments; union dues; and alimony paid to the other party.
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Master’s Report at 4.
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Master’s Report at 4.
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Interim Order of Court, dated March 16, 2009.
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5.The Support Master failed to consider additional rental income to Wife
from other employed adults residing in her household.
6.The cost of the health insurance Husband has been ordered to provide
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for the benefit of Wife is not reasonable.
For the reasons stated in this opinion, the husband’s exceptions will be dismissed,
and the interim order of court dated March 16, 2009, will be entered as a final order of
court.
STATEMENT OF FACTS
The plaintiff with respect to the spousal support action and the claimant with
respect to alimony pendente lite is Inca D. Mason (hereinafter “Wife”), an individual
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residing at 208 Reno Avenue, Apartment 2, New Cumberland, Pennsylvania. The
defendant in the spousal support action and the respondent in the claim for alimony
pendente lite is Robert G. Mason (hereinafter “Husband”), an individual residing at 364
Pleasant View Drive, Lot 18, Etters, Pennsylvania. The parties were married on January
1, 2005, and had no children together.
On September 25, 2008, Wife filed a complaint for spousal support. Thereafter,
on November 10, 2008, Husband filed a complaint in divorce. On December 15, 2008,
Wife filed an answer to the complaint and a claim for alimony pendente lite. The parties
attended a hearing on March 10, 2009, before the Cumberland County Support Master
regarding the issues of spousal support and alimony pendente lite. Before presenting any
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Exceptions of Robert G. Mason to Report of Support Master and Interim Order, filed April 1, 2009
(hereinafter “Husband’s Exception No. __”).
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N.T. 4, Support Master’s Hearing, March 10, 2009 (hereinafter “N.T. __”).
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evidence, the parties stipulated that Wife would proceed only on her claim for alimony
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pendente lite and would withdraw her complaint for spousal support. The evidence from
the hearing may be summarized as follows:
Husband and Wife were married on January 1, 2005, and separated in the summer
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of 2008. At the time of the Master’s hearing, Husband had been a foreman for sixteen
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years at Black Landscape Contracting, Inc., and had a gross annual income of
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$32,664.00. Husband testified that he had paid $141.67 bi-weekly for health insurance
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coverage on Wife in 2008, and that the premium increased in 2009 to $177.44 bi-
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weekly for the same coverage.
In 2007, Wife was a waitress at a restaurant located in downtown Harrisburg,
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Pennsylvania, and had a gross annual income of $12,563.80. In February, 2008, Wife
purchased the restaurant and, in doing so, became the owner and operator of the
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N.T. 3; Under Pennsylvania law, a party may not receive an order for both spousal support and alimony
pendente lite simultaneously. Pa. R.C.P. 1910.16-1(c). The parties also stipulated that if entitlement to
alimony pendente lite is found, the effective date of the order would be November 15, 2008.
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Wife testified at the hearing that the parties separated in June of 2008, while Husband testified that they
separated in August of 2008. N.T. 4, 64.
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N.T. 61.
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N.T. 61; Master’s Report at 2.
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N.T. 62.
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N.T. 63.
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N.T. 14.
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business. To finance the purchase, Wife took out a $65,000.00 business loan and
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Husband acted as a guarantor on the loan.
At the hearing, Wife testified as to the accounting and record keeping process she
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used in running the business. Wife testified that, to calculate her daily sales totals, she
would subtract the amount of cash that was in the register at the beginning of the day
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from the money that was in the cash register at the end of the day, and then add to that
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total her daily credit card total. She would then record the daily total in her sales ledger
and would later provide the totals, along with sales receipts, to her accountant on a
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weekly or monthly basis.
Wife testified that she did not deposit all of the cash receipts into the business’
checking account because she used some of the cash to pay her food vendors and to buy
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supplies for the restaurant. She further testified that she took approximately $300.00
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home each week to “help credit the cost from [her] personal expense.” She stated that
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N.T. 6, 66-67; Master’s Report at 2.
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N.T. 10, 66.
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N.T. 21, 66-67.
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The court notes that Wife’s testimony on this subject was rather lengthy and difficult to follow, and
certainly demonstrated that she was still learning to run the newly acquired business. N.T. 24-36.
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N.T. 24-27.
21
N.T 27.
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N.T. 8, 21, 29.
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N.T 45-47.
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N.T. 19, 36, 41.
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the $300.00, along with tips ranging from $5.00 to $20.00 per day, was her only income
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from the restaurant.
Wife supplied ledger sheets to the Support Master reflecting gross sales in 2008 of
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$118,682.90 and total expenses of $105,321.61. She made loan payments in the
amount of $1,000.00 per month starting in February, 2008, and continuing through
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December, 2008. For the same period, she paid sales tax in the amount of $6,539.00.
Based upon the numbers provided by Wife, the business operated at a loss in 2008.
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However, Husband produced a second sales ledger for 2008, reflecting substantially
higher sales than those provided in the ledger produced by Wife. While admitting that
she had in fact kept the duplicate ledger, Wife testified that she and Husband created the
higher sales numbers while on vacation to determine the volume of sales needed to reach
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gross sales of $150,000.00. Husband, on the other hand, testified that the higher sales
numbers were the actual sales numbers that Wife entered onto the ledger sheets after
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totaling her daily sales receipts.
25
N.T. 36.
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N.T. 19.
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N.T. 8-9; Plaintiff’s Exhibit 1; Master’s Report at 2.
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N.T. 9-10; Plaintiff’s Exhibit 1.
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Plaintiff’s Exhibit 1.
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Respondent’s Exhibit 4.
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N.T. 49.
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N.T. 70-71.
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Wife also testified that she had owned and operated a grocery delivery service up
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until 2005 or 2006, earning approximately $10 per customer. She told the Master that
she no longer operated the business and was currently shopping for only one person every
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three months, earning $10 each trip. In contrast, Husband testified that, at the time of
their separation, Wife still operated the business and had been shopping for three
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customers each week, earning $25 per person.
Wife further testified that she owned real estate consisting of a two-unit building
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in New Cumberland, Pennsylvania. She told the Master that she resided in one unit and
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rented the other unit to a tenant for $550.00 per month.
Following the hearing, the Support Master issued his Report and
Recommendation. Based upon the evidence presented by both parties at the hearing, the
Master calculated a monthly net income/earning capacity of $1,523.00 for Wife and
$1,951.00 for Husband. With respect to Wife’s earning capacity, the Master explained in
his report that, although Wife presented evidence that she was earning far less than
minimum wage as a self-employed restaurant owner, the Master was of the opinion that
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N.T. 15.
34
N.T. 16.
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N.T. 66. In his Findings of Fact, the Master found that Wife operated the business in 2006 and 2007,
but failed to report the income for tax purposes, and that Wife continued to operate the business in 2008,
prior to the parties’ separation. Master’s Report at 2.
36
N.T. 5.
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N.T. 13.
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she had the present ability to earn at least minimum wage. Accordingly, in calculating
Wife’s earning capacity, the Master used a gross income of $1,239.00 per month,
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representative of the minimum wage in Pennsylvania. The Master also included in her
earning capacity a rental income of $550.00 per month from the second unit in her home.
Thus, the Master calculated a gross monthly income for support purposes of $1,789.00
for Wife, and, with a tax filing status of married/separate, a net monthly earning capacity
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of $1,523.00. Based on this figure, the Master recommended that Husband have an
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alimony pendente lite obligation of $171.00 per month. The Master also recommended
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that Husband provide health insurance coverage to Wife.
An interim order of court was issued on March 16, 2009, implementing the
Master’s recommendations as follows:
A.The Husband shall pay to the Pennsylvania State Collection and
Disbursement Unit as alimony pendente lite the sum of $171.00 per
month.
B.The Husband shall pay on arrearages the additional sum of $29.00 per
month.
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With regard to her income in 2008, the Master stated as follows: “She is currently self-employed
and has offered evidence that her net monthly profit from February through December, 2008 has been
approximately $1,215.00. This, however, does not include her obligation to pay $1,000.00 per month on
a business loan which was utilized to finance the purchase of a restaurant.”
The Master also noted that, in 2007, as a waitress at the restaurant, she demonstrated the ability to
earn $12,563.80. Although this figure was still below minimum wage, Master opined that she currently
had the ability to earn more than that.
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Master’s Report at 4.
40
Master’s Report at 4.
41
Master’s Report at 4.
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Master’s Report at 4.
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C.The Husband shall provide health insurance coverage for the benefit of
his Wife as is available to him through employment or other group
coverage at a reasonable cost.
D.The effective date of this order is November 15, 2008.
E.The Wife’s complaint for spousal support is dismissed.
Husband’s exceptions to the Support Master’s Report were filed on April 1, 2009.
DISCUSSION
Application of Law
Review of Exceptions to Support Master’s Report. The standard of review of a
support master’s report and recommendation is well settled. While the 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. Goodman v. Goodman, 375
Pa. Super 504, 507, 544 A.2d 1033, 1035 (1988); see McCurdy v. McCurdy, No. 02-0097
Support (slip op.) (Cumberland Co. 2002) (Hess, J.). Thus, with respect to the issues
raised by exceptions to a master’s report, “[i]t is the sole province and responsibility of
the [trial] court to set an award of support, however much it may choose to utilize the
master’s report.” Goodman v. Goodman, 375 Pa. Super. 504, 507-08, 544 A.2d 1033,
1035 (1988).
Although the court will afford great deference to the recommendations made in the
support master’s report, the court is not bound by them. Tagnani v. Tagnani, 439 Pa.
Super. 596, 600, 654 A.2d 1136, 1138 (1995). The reviewing court therefore has a duty
to make a complete and independent review of all evidence, including an analysis of the
weight and credibility to be given to the testimony of the witnesses. Goodman v.
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Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988); Gomez v. Gomez, 11
Phila. Co. Reptr. 211, 226-27 (1984).
With specific reference to the credibility of witnesses, however, it must be
remembered that in such cases it is the master who had “the opportunity to observe and
assess the behavior and demeanor of the [witnesses].” Moran v. Moran, 2003 PA Super
455, ¶9, 839 A.2d 1091, 1095. In this respect, the master was in a better position that
th[e] court to pass upon the credibility of [the] witnesses.” Wiegand v. Wiegand, 259 Pa.
Super. 72, 74, 393 A.2d 722, 723 (1978).
Determination of Alimony Pendente Lite. “Alimony pendente lite” is defined as
“an order for temporary support granted to a spouse during the pendency of a divorce or
annulment proceeding.” 23 Pa. C.S. §3103. Alimony pendente lite is designed to be
temporary and is available to those who demonstrate the need for maintenance and
professional services during the pendency of the proceedings. Jayne v. Jayne, 443 Pa.
Super. 664, 678-79, 663 A.2d 169, 176 (1995). Factors to consider in determining
entitlement to an award of alimony pendente lite include the separate income and estate
of the claimant, the ability of the other party to pay, and the character, situation and
surroundings of the parties. Litmans v. Litmans, 449 Pa. Super. 209, 224, 673 A.2d 382,
389 (1996). “In attempting to determine the net income and earning capacity of a sole
owner of a business, a court is faced with special difficulties.” Weitzel v. Shilling, 52
Cumberland L.J. 211 (2003); Olafsson v. Olafsson, 44 Cumberland L.J. 252, 259 (1965),
aff’d, 451 Pa. Super. 612, 678 A.2d 840 (1996); see Murphy v. Murphy, 410 Pa. Super.
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146, 154, 599 A.2d 647, 651 (1991); cf. Pacella v. Pacella, 342 Pa. Super. 178, 492 A.2d
707 (1985).
If a claimant is found to be entitled to an award of alimony pendente lite, the
amount of the award is calculated pursuant to the support guidelines in the same manner
as an award for spousal support. Little v. Little, 47 Cumberland L.J. 131 (1998).
Additionally, Section 3702 of the Divorce Code, pertaining to alimony pendente lite,
counsel fees and expenses, provides that “the court shall also have the authority to direct
that adequate health and hospitalization insurance coverage be maintained for the
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dependent spouse pendente lite.”
Application of Law to Facts
The difficulties in trying to determine the net income and earning capacity of a
sole owner of a business are evident in the present case. After a careful review of the
testimony and exhibits from the hearing, the court finds itself in agreement with the
Support Master’s calculation of Wife’s net income and earning capacity for purposes of
alimony pendente lite. First, with regard to Husband’s contention that the Master erred in
failing to determine Wife’s actual earnings from the operation of her restaurant business,
it may be noted that (a) Wife made less than minimum wage in 2007 as a waitress, (b)
with virtually no training, Wife became the owner and sole operator of a small business
in 2008, (c) after only a year in the business, Wife testified and presented evidence as to
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23 Pa. C.S. §3702.
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the business’ earnings, and (d) the Support Master, who is in the best position to assess
the evidence and credibility of a witness, credited the evidence presented by Wife.
Second, with regard to Husband’s contention that the Master erred in failing to
consider additional rental income to Wife from other adults residing in her household and
additional income from her shopping service business, it may be noted that, (a) with the
exception of the $550.00 rental income Wife testified to receiving, Husband did not
provide the Master with any additional 2008 rental figures, and (b) an assumption that
Wife had additional income from the shopping business in 2008 would have been entirely
speculative on the part of the Master, given the record produced at the hearing.
Rarely can net income/earning capacity be determined to a mathematical certainty
on the records produced in cases of the present type. Thus, to the extent that future
monthly income of the Wife rises above the Master’s calculation, such a change of
circumstance may provide a basis for a modification of order.
For the foregoing reasons, the following order will be entered:
OIRDER OF COURT
th
AND NOW, this 10 day of June, 2009, upon consideration of Husband’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
March 16, 2009, is entered as a final order of court.
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BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esquire
Support Master
Domestic Relations Office
Dennis J. Shatto, Esquire
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108
Attorney for Robert G. Mason
Diane M. Dils, Esquire
1400 North Second Street
First Floor, Front
Harrisburg, PA 17102
Attorney for Inca D. Mason
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ROBERT G. MASON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
INCA D. MASON, : PACSES NO. 448110558
Defendant/Petitioner : DOCKET NO. 08-6648 CIVIL
INCA D. MASON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
ROBERT G. MASON, : PACSES NO. 656110355
Defendant : DOCKET NO. 860 SUPPORT 2008
IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 10 day of June, 2009, upon consideration of Husband’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
March 16, 2009, is entered as a final order of court.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esquire
Support Master
Domestic Relations Office
Dennis J. Shatto, Esquire
119 Locust Street
P.O. Box 11847
Harrisburg, PA 17108
Attorney for Robert G. Mason
Diane M. Dils, Esquire
1400 North Second Street
First Floor, Front
Harrisburg, PA 17102
Attorney for Inca D. Mason