HomeMy WebLinkAbout456 S 2007
LORI A. PONDER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
GREGORY A. PONDER, : PACSES NO. 503109244
Defendant : DOCKET NO. 456 SUPPORT 2007
IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., May 26, 2009.
In this pro se child support case in which the parties’ two minor children, Breanna
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L. Ponder and Bryan M. Ponder, both reside with the Plaintiff, Lori A. Ponder (Mother),
Defendant Gregory A. Ponder (Father) filed a Petition for Modification of an Existing
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Support Order on December 3, 2008. An Interim Order of Court was issued by The
Honorable M.L. Ebert, Jr., on January 7, 2009, directing Father to pay child support in
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the basic amount of $841.50 per month, plus $58.50 per month in arrearages. Father
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filed an appeal from the January 7, 2009 order on January 22, 2009. A hearing was held
before the Cumberland County Support Master, Michael R. Rundle, Esq., on March 10,
2009, after which the Support Master issued a report with the following recommended
order:
A.Except as modified in paragraph B, the interim order of January
7, 2009 is affirmed as a final order.
B.Commencing with tax year 2009 the Defendant shall be entitled
to claim his daughter, Breanna L. Ponder, born May 11, 1994, as
a dependency exemption for federal income tax purposes, and the
Plaintiff shall execute and deliver to him all documentation
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009
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Defendant’s Petition for Modification of an Existing Support Order, filed December 3, 2008.
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Interim Order of Court, January 7, 2009.
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Defendant’s Notice of Appeal, filed January 22, 2009.
required by the internal revenue code to effectuate said
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exemption.
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An Interim Order in accordance with this recommendation was thereafter entered.
Father filed Exceptions to the Support Master’s Report and Recommendation and Interim
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Order on March 30, 2009. Father’s exceptions read as follows:
I wish to file an exception to the report and recommendation
pertaining to the hearing held on March 10, 2009.
I would like to object to Findings Of Fact #11
I would like to object to paragraph #3 listed under Discussion
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I would like to object to paragraph #6 listed under Discussion
The pertinent parts of the Support Master’s Report to which Father has excepted
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read as follows:
11. The Defendant served an apprenticeship earning $11.25
per hour for two months and received a wage increase to $17.99 per
hour after completing the apprenticeship.
* * * *
The Defendant voluntarily left his employment at Harley
Davidson where he was earning $25.24 per hour to move to Blair
County to assist his mother in caring for his 90 year old
grandmother. In the opinion of this Master the move was not made
for the purpose of avoiding his child support obligation to his two
children. However, there was no evidence presented that the
Defendant made any effort to obtain employment in Blair County
earning comparable wages to that which he earned at Harley
Davidson. Consequently it would be error to calculate his support
obligation based upon his current earnings at Norfolk Southern.
* * * *
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Recommended Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March
12, 2009
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Interim Order of Court, March 12, 2009
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Defendant’s Exceptions to Support Master’s Report and Recommendation and Interim Order, filed
March 30, 2009.
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Defendant’s Exceptions to Support Master’s Report and Recommendation and Interim Order, filed
March 30, 2009.
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Defendant’s Exceptions to Support Master’s Report and Recommendation and Interim Order, filed
March 30, 2009.
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The Defendant has a gross monthly earning capacity based
upon his wages at Harley Davidson of $4,375.00. Filing his federal
income tax return as married/separate and claiming Breanna as a
dependency exemption, he has a net monthly earning capacity of
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$3,537.00. (citations omitted)
For the reasons set forth in this opinion, Father’s exceptions will be denied.
STATEMENT OF FACTS
Plaintiff is Lori A. Ponder (Mother), an adult individual residing on Allen Road in
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Camp Hill, Cumberland County, Pennsylvania. Defendant is Gregory A. Ponder, an
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adult individual residing on Third Avenue in Duncansville, Blair County, Pennsylvania.
Mother and Father were married on September 3, 1994 and have been separated since
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May 26, 2007. They are the parents of two minor children, Bryan M. Ponder, born
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October 21, 1998, and Breanna L. Ponder, born May 11, 1994. Mother is also the parent
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of an adult child, Brody Pizzino, born January 10, 1990, who was adopted by Father.
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Father does not pay child support with respect to Brody.
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Mother originally filed a claim for child support on June 18, 2007. At that time,
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Mother was unemployed while Father was employed by Harley Davidson in York,
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Pennsylvania, earning $25.24 per hour. As a result, Father’s support obligation was set
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at $1,500.00 by a December 5, 2007 Order. Father petitioned on December 3, 2008, for
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Notes of Testimony 8, Support Master’s Hearing, March 10, 2009 (hereinafter N.T. __).
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N.T. 3-4.
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Mother’s Complaint For Support, filed June 18, 2007.
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Mother’s Complaint For Support, filed June 18, 2007.
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Mother’s Complaint For Support, filed June 18, 2007; N.T. 12.
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See Interim Order of Court, January 7, 2009; N.T. 7.
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Mother’s Complaint For Support, filed June 18, 2007.
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N.T. 9.
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N.T. 4-5.
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This Support Order provided for a support obligation of $500.00 per month for each of the parties’
three children. Order of Court, December 5, 2007. Although the Support Master stated in his report that
the December 5, 2007 Support Order provided for an obligation of $1,200.00 per month, it appears that
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a reduction in his support obligation due to a change of employment. In November of
2008, Father voluntarily left his employment at Harley Davidson to move to
Duncansville, Blair County, for the purpose of helping his mother care for his
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grandmother. Father took an apprenticeship position with Norfolk Southern Railways
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which then paid $11.25 per hour. Father earned this wage for the first two months of his
apprenticeship, at which time his wage was increased to its present rate of $17.99 per
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hour. The record indicates that Father is still in the apprenticeship phase of his
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employment with Norfolk Southern Railways. Father expects a second wage increase -
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to $26.00 per hour - in another 18 months. Father pays for health insurance for himself
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and his minor children, Breanna and Bryan, in the amount of $170.00 per month.
Mother presently is employed by Cracker Barrel as a waitress where she earns $2.88 per
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hour plus tips. She has an average gross income of $286.00 per week.
The Support Master determined that Father had left his position with Harley
Davidson voluntarily, but had not done so for the purpose of avoiding his child support
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obligation. The Support Master also concluded, however, that there was no evidence
that Father had attempted to obtain employment at a wage then comparable to his
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previous employment. Therefore, the Support Master concluded that his support
the support obligation was not reduced to $1,200.00 until November 14, 2008. See Interim Order of
Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Defendant’s Petition for Modification of an Existing Support Order, filed December 3, 2008.
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N.T. 4-5.
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N.T. 6.
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N.T. 6.
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N.T. 6.
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N.T. 6.
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N.T. 7.
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N.T. 9-10.
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N.T. 9-11; See Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March
12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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obligation should be calculated on the basis of his prior employment at Harley
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Davidson. The Support Master concluded that, based on his average monthly income at
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Harley Davidson of $4,375.00, Father had a net monthly earning capacity of $3,537.00.
Further, the Support Master determined that Mother’s acquisition of employment
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represented a change of circumstance justifying a modification to the support order.
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The Support Master concluded that Mother has a support obligation of $1,423.00. He
determined this by taking her approximate gross monthly income of $1,239.00 and
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adding her average monthly tax rebate of $184.00.
The Support Master concluded that:
With combined net monthly income of $4,960.00 the basic
requirement for the support of two children is $1,253.00 per month.
[Father’s] proportionate share of that amount is $894.00. The order
is adjusted downward to $841.50 per month because of the health
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insurance coverage provided by [Father].
DISCUSSION
When reviewing a support master’s report, the trial court is to use the same
standard of review as with a divorce master’s report. Goodman v. Goodman, 375 Pa.
Super. 504, 507, 544 A.2d 1033, 1035 (1988). Accordingly, the report should be given
the “fullest consideration,” particularly regarding 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 determine whether the master’s
recommendations, to which exceptions are taken, are proper. Id.
With respect to the issues raised by exceptions 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,
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, March 12, 2009.
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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 a master’s report and interim order, those issues are not presented
for review).
Father first objects to the Support Master’s findings of fact, specifically paragraph
11, which states, “[t]he Defendant served an apprenticeship earning $11.25 per hour for
two months and received a wage increase to $17.99 per hour after completing the
apprenticeship.” In his brief, Father states that this finding of fact is incorrect because the
apprenticeship remained in effect. The record indicates that Father is correct that the
Support Master misspoke in indicating that Father’s apprenticeship had been completed.
However, the material aspect of the finding for present purposes is the rate of pay, not the
job title. As such, this exception is irrelevant to the present inquiry.
Father’s second and third objections are essentially that he did not fail to make an
effort to obtain wages comparable to those he earned at Harley Davidson. In Father’s
brief, he states that he made an effort to obtain a comparable wage, and in fact did,
because he anticipates earning approximately his prior wage after eighteen months. In
reality, Father took employment which originally paid $11.25 per hour and now pays
$17.99 per hour. Where a party voluntarily accepts a lower-paying job, there generally
will be no effect on the support obligation. Pa. R.C.P. 1910.16-2(d)(1). “[T]o modify a
support obligation based upon reduced income, a petitioner must first establish that the
voluntary change in employment which resulted in a reduction of income was not made
for the purpose of avoiding a child support obligation and secondly, that a reduction in
support is warranted based on petitioner's efforts to mitigate any income loss.” Grimes v.
Grimes, 408 Pa.Super. 158, 163, 596 A.2d 240, 242 (1991) (citations omitted).
Effectively, Father “must present evidence as to why he . . . voluntarily left the prior
employment and also as to why the acceptance of a lower paying job was necessary.” Id.
Where a party willfully fails to obtain appropriate employment, his or her income will be
considered to be equal to his or her earning capacity. Pa.R.C.P. 1910.16-2(d)(4).
A person’s earning capacity for support purposes is “defined not as an amount
which the person could theoretically earn, but as that amount which the person could
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realistically earn under the circumstances, considering his or her age, health, mental and
physical condition and training.” Riley v. Foley, 2001 PA Super 266, ¶5, 783 A.2d 807,
811 (citations omitted).
It is uncontested that Father voluntarily changed his employment. It will be
assumed, for purposes of this opinion, that Father reduced his earnings without the
specific purpose of reducing his child support obligation. However, the right to a
reduction in the support obligation commensurate with the reduction of income is
dependent upon a further showing by Father that his income was “necessarily” reduced.
In this regard, such necessity is sometimes found where an obligor has made a change
which offers a reasonable prospect of a greater financial benefit to the obligor and obligee
in the future. See Weiser v. Weiser, 238 Pa. Super. 488, 492, 362 A.2d 287, 289 (1976)
(patent attorney’s resignation from employment to pursue own practice).
In the present case, however, the evidence established only that Father voluntarily
changed employment under circumstances where the change (a) was intended to benefit a
third party and not his children, (b) produced a reduction in income for a sustained
period, and (c) offered at best the hope of an eventual return to the level of income of the
employment he abandoned. The Support Master’s unwillingness, in this situation, to
calculate Defendant’s earning capacity for purposes of his child support obligation in
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accordance with his reduced level of income was, in the court’s view, correct.
For the Foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 26 day of May, 2009, upon consideration of the exceptions filed
by Defendant to the Support Master’s Report, and for the reasons stated in the
accompanying opinion, the Defendant’s exceptions are denied and the March 12, 2009
Interim Order of Court is adopted as a Final Order.
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Father adds in his brief that Mother stated that she is paying for college for their older child, Brody. He
asserts that Brody is no longer enrolled in college, but works locally while residing with Mother. He also
asserts that Mother’s home was foreclosed on due to her neglect in making mortgage payments. The
record is silent on these arguments of Father in his brief, and neither issue played a part in the Master’s
recommendations.
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BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esq.
Support Master
Lori A. Ponder
4214 Allen Road
Camp Hill, PA 17011
Plaintiff, Pro Se
Gregory A. Ponder
1317 Third Avenue
Duncansville, PA 16635
Defendant, Pro Se
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LORI A. PONDER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
GREGORY A. PONDER, : PACSES NO. 503109244
Defendant : DOCKET NO. 456 SUPPORT 2007
IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 26 day of May, 2009, upon consideration of the exceptions filed
by Defendant to the Support Master’s Report, and for the reasons stated in the
accompanying opinion, the Defendant’s exceptions are denied and the March 12, 2009
Interim Order of Court is adopted as a Final Order.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esq.
Support Master
Lori A. Ponder
4214 Allen Road
Camp Hill, PA 17011
Plaintiff, Pro Se
Gregory A. Ponder
1317 Third Avenue
Duncansville, PA 16635
Defendant, Pro Se