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HomeMy WebLinkAbout717 S 2003 STACY A. PATTERSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DOMESTIC RELATIONS SECTION JEFFREY A. PATTERSON, Defendant PACSES NO. 101105714 DOCKET NO. 717 SUPPORT 2003 IN RE: DEFENDANT'S EXCEPTIONS TO MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 8th day of June, 2005, upon consideration of Plaintiffs exceptions to the support master's report, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order pursuant to the master's report dated April 11, 2005, is entered as a final order. BY THE COURT, 1. Wesley Oler, Jr., 1. Michael R. Rundle, Esq. Support Master Hannah Herman-Snyder, Esq. 200 North Hanover Street Carlisle, P A 17013 Attorney for Plaintiff Nora F. Blair, Esq. 5440 J onestown Road Post Office Box 6216 Harrisburg, P A 17112-0216 Attorney for Defendant STACY A. PATTERSON, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DOMESTIC RELATIONS SECTION JEFFREY A. PATTERSON, Defendant PACSES NO. 101105714 DOCKET NO. 717 SUPPORT 2003 IN RE: DEFENDANT'S EXCEPTIONS TO MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., June 8, 2005. F or disposition in this child support case are exceptions to a report of the Cumberland County Support Master, filed by Defendant. The exceptions are as follows: 1. The Support Master erred in not assigning Plaintiff an earning capacity at more than minimum wage where Plaintiff has skills that would provide earnings several times the minimum wage. 2. The Support Master erred in not holding Plaintiff to her earnings at the Commonwealth of Pennsylvania where Plaintiff indicated she was terminated from the employment. 3. The Support Master erred in indicating that Jeffrey A. Patterson has custody for 49.86% of the time where the record clearly indicated a fifty-fifty custodial arrangement. 1 F or the reasons stated in this opinion, Plaintiff s exceptions will be dismissed, and the interim order of court issued on April 11, 2005, in accordance with the support master's recommendations, will be entered as a final order. STATEMENT OF FACTS Plaintiff is Stacy Ann Patterson, an adult individual residing at 408 South Enola Drive, Enola, Cumberland County, Pennsylvania? Defendant is Jeffrey A. 1 Defendant's Exceptions to Order of Court by Support Master, filed April 20, 2004. 2 Patterson, an adult individual residing at 1184 Oyster Mill Road, Camp Hill, Cumberland County, Pennsylvania. 3 They are divorced and are the parents of one child, Justin T. Patterson, who lives half-time with each parent.4 Plaintiff filed a complaint for child support with respect to Justin T. Patterson on August 12, 2003.5 Ultimately, following a conference on December 30, 2003, an order was entered directing Defendant to pay child support in the amount of $163.50 per month, based on the parties having a fifty-fifty shared custody arrangement. 6 At the time of this order, Defendant was unemployed and was collecting unemployment.7 In November, 2004, Defendant began work as a meat cutter apprentice, earning $9.00 an hour and working an average of twenty- eight hours per week. 8 On December 29, 2004, Plaintiff filed a petition to increase the support order, based upon this new information concerning Defendant's employment status. 9 A support master's hearing on this petition was held April 6, 2005. The evidence at the hearing, as it pertained to the issues raised in Defendant's exceptions sub judice, was that the Plaintiff had been attempting to find employment since she was terminated without cause from the Commonwealth of Pennsylvania on October 18, 2002.10 At the time of the hearing, Plaintiff had not succeeded in securing employment and was receiving welfare. 11 Plaintiff suffers from impaired vision and from two neurological conditions, hydrocephalus and 2 NT. 3, Master's Hearing, April 6, 2005 (hereinafter NT. _). 3 NT. 10. 4 NT. 4. 5 Plaintiffs Complaint for Support, filed August 12,2003. 6 Modified Order of Court, December 30, 2003 (Oler, J.). 7NT. 11. 8 NT. 11. 9 Petition for Modification of an Existing Support Order, December 29,2004. 10 NT. 5. 11 NT. 5. 3 post-concussion syndrome, but cannot be termed incapable of any work, according to her doctors.12 To her credit, Plaintiff herself insists that she has the ability to work. 13 Although she has a driver's license, Plaintiff does not own a vehicle, is understandably afraid to drive because of her medical conditions, and needs employment that is compatible with her local bus schedule. 14 Plaintiff would prefer to find employment similar to what she had with the Commonwealth in computer help desk support, but has been working with the Office of Vocational Rehabilitation to determine the type of work for which she is best suited. 15 The support master assigned Plaintiff an earning capacity of $5.15 per hour for forty hours per week, and calculated her net monthly income/earning capacity for support purposes at $766.00.16 The Defendant's net monthly income/earning capacity was calculated at $1,193.00.17 Based on a basic combined monthly net income/earning capacity of $1,960.00, the support guidelines produced a basic combined support requirement for one child of $472.00. See Master's Report, Exhibit "C"; Pa. RC.P. 1910.16-3. Defendant's share of this basic child support obligation, in accordance with the parties' relative net incomes/earning capacities, came to $287.4518 The support master recognized the parties' shared custody arrangement by the practical device of crediting Defendant with 182 custodial overnight periods and Plaintiff with 183 custodial overnight periods per year, and reducing Defendant's child support obligation in accordance with the formula provided in Pennsylvania Rule 12 NT. 16. 13 NT. 6. 14 NT. 9. 15 NT. 6. 16 See Support Master's Report, Exhibits "A," "C," filed April 11, 2005 (hereinafter Master's Report). 17 See Master's Report, Exhibits "A," "C"; Defendant's Exhibit 1. 18 See Master's Report, Exhibit "C"; Pa. RC.P. 1910.16-4(a), Part!. 4 of Civil Procedure 191O.16-4(a), Part II (substantial or shared physical custody d. ) 19 a ~ustment . DISCUSSION 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 the 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.; 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. RC.P. 191O.12(f)-(h) (indicating that, if no exceptions are filed to certain issues m master's report and interim order, those issues are not presented for review). In determining the ability of a parent to support his or her child, the focus is on earning capacity, not actual earnings. Mooney v. Doutt, 766 A.2d 1271, 1273 (Pa. Super. 2001). A party's earning capacity is that amount that he or she can realistically be expected to earn under the circumstances considering his or her age, health, physical and mental condition and training. Riley v. Foley, 783 A.2d. 807 (Pa. Super. 2001). Despite having impaired vision and two neurological conditions, Plaintiff insists she has the ability to work. While she would prefer to find employment similar to what she performed for the Commonwealth of Pennsylvania, which would likely provide earnings several times the minimum wage, she has in fact been unable to find any type of employment since her 19 See Master's Report, Exhibit "B"; Pa. RC.P. 1910.16-4(a), Part II. 5 termination over two and a half years ago. Plaintiffs dependence on the local bus line for transportation is a further hindrance to finding employment. An imputed earning capacity of $5.15 is, in the court's view, appropriate based on what Plaintiff can realistically be expected to earn considering her medical condition. The record does not support, in the court's view, assigning to Plaintiff an earning capacity commensurate with her earnings at the Commonwealth of Pennsylvania, which exceeded the minimum wage. "Where a party voluntarily assumes a lower-paying job, there generally will be no effect on the support obligation. A party will not be relieved of a support obligation by voluntarily quitting work or by being fired for cause.,,20 However, the only evidence of record on the point tends to support the proposition that Plaintiff was terminated without cause from employment with the Commonwealth of Pennsylvania, and does not support the proposition that she voluntarily quit or has willfully failed to obtain employment since her termination. Earning capacity should generally not be based on greater prior earnings where there is no evidence of a deliberate reduction in income to avoid a support obligation. Diehl v. Beaver, 444 Pa. Super. 91, 96, 663 A.2d. 232,234 (1995). The record and the support master's report clearly show that the parties share custody on a fifty-fifty basis. Under Pennsylvania Rule of Civil Procedure 1910 .16-4( c) (substantial or shared physical custody), it is provided as follows: (1) The support guidelines contemplate that the obligor has regular contact, including vacation time, with his or her children, and that he or she makes direct expenditures on behalf of the children. When the children spend 40% or more of their time during the year with the obligor, a rebuttable presumption exists that the obligor is entitled to a reduction in the basic support obligation to reflect this additional time. Except [in certain situations not here relevant], the reduction shall be calculated pursuant to the formula set forth in Part II of subdivision (a) of this Rule. For purposes of this provision, the time spent with the children shall be determined by the number of overnights they spend during the year with obligor. * * * * 20 Pa.RC.P. 1910.16-2(d). 6 (2) Without regard to which parent initiated the support action, when the children spend equal time with both parents, the Part II formula cannot be applied unless the obligor is the parent with the higher mcome.... Under the adjustment formula referred to in this Rule, the obligor's share of the combined monthly support obligation is reduced by (a) subtracting 30% from the percent of overnight custody enjoyed by the obligor, (b) subtracting that percentage figure from the percentage figure corresponding to the obligor's share of the parties' combined net monthly income/earning capacity, and (c) applying the resultant percentage figure to the combined basic monthly support obligation. See Pa. RC.P. 191O.16-4(a), Part II. In this case, the process involved (a) the subtraction of 30% from the percent of overnight custody enjoyed by the Defendant (49.86%), (b) subtraction of that percentage figure (19.86%) from the percentage figure corresponding to Defendant's share of the parties' combined net monthly income/earning capacity (60.90%), and (c) application of the resultant percentage figure (41.04%) to the combined basic child support obligation ($472.00), yielding a monthly support obligation on the part of Defendant of $193.71, or an adjustment downward of $93.74. See Master's Report, Exhibit "B." Given the net incomes/earning capacity of the parties as proposed by the support master and adopted by the court, and the shared custody arrangement with respect to the parties' child, Defendant is the obligor with respect to child support and the master credited him with the proper adjustment to which he was entitled under Pennsylvania Rule of Civil Procedure 191O.16-4(c). To the extent that Defendant's exception relates to the attribution to Defendant of 182 overnights per year as opposed to 183 for purposes of this adjustment, the effect of the alleged error is de minimis?1 F or the foregoing reasons, the following order will be entered: 21 The use of 182 overnights per year as opposed to 183 results in a difference of $1. 3 2 per month. 7 ORDER OF COURT AND NOW, this 8th day of June, 2005, upon consideration of Plaintiffs exceptions to the support master's report, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order pursuant to the master's report dated April 11, 2005, is entered as a final order. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Michael R. Rundle, Esq. Support Master Hannah Herman-Snyder, Esq. 200 North Hanover Street Carlisle, P A 17013 Attorney for Plaintiff Nora F. Blair, Esq. 5440 J onestown Road Post Office Box 6216 Harrisburg, P A 17112-0216 Attorney for Defendant 8