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HomeMy WebLinkAbout776 S 2003 JODI L. EICKERT, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : DOMESTIC RELATIONS SECTION : v. : CIVIL ACTION—SUPPORT : DUSTIN S. THOENY, : PACSES NO. 831104197 Defendant : DOCKET NO. 776 SUPPORT 2003 IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., July 21, 2005. In this child support case, Jodi L. Eickert (Plaintiff/mother) filed a petition for 1 modification of an existing support order against Dustin S. Thoeny (Defendant/father). 2 A conference was held on the petition and an interim order was entered, from which 3 both parties requested a hearing de novo. A hearing was held before the support master on Plaintiff’s petition and an interim order was entered based upon the master’s report 4 and recommendation. Plaintiff then filed pro se exceptions to the master’s report and 5 recommendation. For disposition at this time are Plaintiff’s exceptions filed by Plaintiff. For the reasons stated in this opinion, Plaintiff’s exceptions to the master’s report and recommendation will be dismissed. 1 Petition for Modification of an Existing Support Order, filed Aug. 6, 2004. 2 Order of Court, Sept. 15, 2004. 3 Appeal of Interim Child Support Order Dated September 15, 2004, filed Sept. 28, 2004; Request for a Hearing De Novo, filed Sept. 15, 2004. 4 N.T. 1, Hr’g., Oct. 12, 2004 (hereinafter N.T. __); Interim Order of Court, Oct. 14, 2004. 5 Exceptions to Support Master’s Report and Recommendation, filed Nov. 18, 2004. Although Plaintiff’s exceptions were docketed on November 18, 2004, which was well after the ten-day period allowed by Pennsylvania Rule of Civil Procedure 1910.12(f) for filing exceptions to a master’s report and recommendation, this court, after a hearing on the matter, determined Plaintiff’s actual filing to have been timely. See Order of Court, Apr. 29, 2005. STATEMENT OF FACTS Based upon the evidence presented at the support master’s hearing, the facts may be summarized as follows: 6 Plaintiff/mother is Jodi L. Eickert, who currently lives at 2843 Juneau Drive, 7 Missoula, Montana. Plaintiff is presently employed as a medical transcriptionist for 8 Northern Lights Medical Transcription. Plaintiff’s income varies month by month and is based upon the number of lines she transcribes, with her current compensation rate set at 9 six cents per line. Based upon the year 2003, Plaintiff has been filing her federal income tax return as “head of household,” claiming her three children as dependency 10 exemptions. Defendant/father is Dustin S. Thoeny, who currently lives at 301 Eleventh Street, 11 Apartment A, New Cumberland, Cumberland County, Pennsylvania. Defendant lives 12 with his wife, who he married on June 9, 2003, and her two children. Since June 7, 2004, Defendant has been employed with KEI Pearson—a staffing agency that works with government contracts across the United States—and is presently working at the 13 Defense Distribution Center in New Cumberland. His current salary is $42,000.00 a 14 year. Based upon the year 2003, Defendant has been filing his federal income tax 15 return as “married filing separately,” claiming no children as dependency exemptions. 6 Order of Court, Apr. 29, 2005. 7 N.T. 4. 8 N.T. 5. 9 N.T. 5-7; Pl.’s Ex. 1, Hr’g., Oct. 12, 2004 (hereinafter Pl.’s/Def.’s Ex. __). For example, Plaintiff transcribed and billed for 5788 lines in July 2004, 4806 lines in August 2004, and 7001 lines in September 2004. Pl.’s Ex. 1. 10 N.T. 42-43. 11 N.T. 45. 12 N.T. 45-46. Defendant is in the process of adopting his wife’s two children. 13 N.T. 46-47; Def.’s Ex. 1. 14 N.T. 47. 15 N.T. 48-49. 2 Plaintiff and Defendant were once married, but they divorced after moving to 16 Pennsylvania in 2001. Plaintiff and Defendant have three children: Shayna, who was born on August 23, 1997, Alexys, who was born on July 25, 1998, and Marla, who was 1718 born on March 1, 2000. All three children live with Plaintiff in Montana. The parties’ daughter Alexys has autism, which has caused significant financial 19 stresses on Plaintiff. The time Plaintiff is available to work as a medical transciptionist 20 is severely limited by Plaintiff’s responsibilities in caring for Alexys. Alexys must follow a strict diet that is gluten (a protein found in grain) free and casein (a protein 21 found in dairy products) free. Thus, Plaintiff must purchase special groceries in order 22 to prepare meals for Alexys. These special groceries increase to some extent Plaintiff’s 2324 food expenses, costing Plaintiff between $250.00 and $300.00 per month. Plaintiff does receive approximately $450.00 per month in food stamps to assist in paying for this 25 diet. Additionally, Plaintiff spends a significant amount of time preparing Alexys’ 26 meals. For example, Plaintiff must grind rice and beans in order to make flour to use in 27 Alexys’ meals. Alexys must also see a number of doctors for problems related to her autism. 28 Alexys sees a Dr. Hawes, a naturopathic physician, for problems associated with a yeast 16 N.T. 41-42. 17 N.T. 3-4. 18 N.T. 4. 19 N.T. 10-11. 20 N.T. 10-11. 21 N.T. 12; Pl.’s Ex. 3. 22 N.T. 13. 23 N.T. 14; Pl.’s Ex. 3. 24 Pl.’s Ex. 5. 25 N.T. 32; Pl.’s Ex. 11. 26 N.T. 13-15. 27 N.T. 14. 28 N.T. 40-41. 3 29 overgrowth in her intestinal tract. Alexys also attends sessions with an occupational therapist to assist with problems in the development of her fine motor skills and her 30 social skills. According to Defendant, all three of the children are covered under his health 31 insurance policy with Great West Healthcare. Payment for this insurance policy is 32 subtracted from Defendant’s paycheck each pay period. Plaintiff, however, claims that she is unable to access any information concerning this policy because she is not listed on 33 the policy. Defendant claims he has taken care of this problem; thus, Plaintiff should now be able to access the policy regarding matters concerning Shayna, Alexys, and 34 Marla. Both Shayna and Alexys are enrolled in Valley Christian School, a private school 35 located in Missoula, Montana. The tuition for two children to attend the school is 36 $5,075.00 per year. Plaintiff has applied for scholarships to pay for the tuition for her children to attend the school; however, at the present time, she has worked out an 37 arrangement with the school to pay whatever she can afford each month. Plaintiff has enrolled Shayna and Alexys in Valley Christian School because she believes a private 38 school will provide a more caring, supportive environment for Alexys. While a public school would have to offer the assistance necessary to allow Alexys to attend school, 29 N.T. 16. 30 N.T. 17-18; Pl.’s Ex. 4. 31 N.T. 48, 51-52; see also Def.’s Ex. 2-3. 32 N.T. 48; Def.’s Ex. 1. 33 N.T. 33-34. 34 N.T. 34. 35 N.T. 23; Pl.’s Ex. 7. 36 N.T. 24; Pl.’s Ex. 7. 37 N.T. 24-26; Pl.’s Ex. 7. 38 N.T. 36-37. 4 Plaintiff believes it is better to put her children in a facility that is willing to offer certain 39 care to Alexys without the parents’ having to fight for the care to be provided. 40 Additionally, when Alexys is in school, she is in need of one-on-one support. Plaintiff goes school with Alexys and provides this support when those who usually 41 provide it are unavailable. 42 When Plaintiff has time, she works in the evening as a medical transcriptionist. 43 While working, she relies upon childcare for her three children. The estimated cost of obtaining childcare for her three children is between $1,300.00 and $1,500.00 per 44 month. However, Plaintiff receives assistance from the state of Montana for childcare 45 expenses, leaving her with a co-pay of $10.00 per month for childcare. On August 6, 2004, Plaintiff filed a petition to modify Defendant’s support 46 obligation based upon his attainment of employment with KEI Pearson. A support conference was held on September 15, 2004, after which an interim order was entered 47 against Defendant that set forth a support obligation of $1,100.00 per month. Both 48 parties requested a hearing. On October 12, 2004, a hearing was held before the Cumberland County Support 49 Master on Plaintiff’s support modification petition. 39 N.T. 36. 40 N.T. 30-31. 41 N.T. 30-31. 42 N.T. 30. 43 N.T. 30. 44 Pl.’s Ex. 11. 45 N.T. 30; Pl.’s Ex. 10. 46 See Petition for Modification of an Existing Support Order, filed Aug. 6, 2004; Support Master’s Report and Recommendation at 3, filed Oct. 14, 2004. 47 Order of Court, Sept. 15, 2004. This support obligation of $1,100.00 per month was to be paid bi- weekly and was comprised of, according to the order, payments of $1,041.00 for current support and $65.00 for arrears. 48 See Appeal of Interim Child Support Order Dated September 15, 2004, filed Sept. 28, 2004; Request for a Hearing De Novo, filed Sept. 15, 2004. 49 N.T. 1. 5 50 On October 14, 2004, the master issued his report and recommendation. Based upon the evidence presented by Plaintiff and Defendant at the hearing, the master 51 calculated a monthly net income of $2,807.08 for Defendant and $465.91 for Plaintiff, 52 resulting in a basic child support obligation of $1,177.00. Defendant’s share of this 53 child support obligation was thus determined to be $1,009.51. Following adjustments for child care expenses (upward adjustment of $8.58 for the $10.00 paid out-of-pocket by Plaintiff per month) and health insurance premiums (downward adjustment of $22.17 per 54 month), Defendant was determined to have a final child support obligation of $995.92. Additionally, the master awarded Defendant the dependency exemptions for the three children after determining that awarding the exemptions to Plaintiff would provide no financial benefit, while providing the exemptions to Defendant would result in a higher 55 net monthly income for purposes of support. An Interim Order of Court was issued implementing the master’s recommendations as follows: A.The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his children, Shayna A. Thoeny, born August 23, 1997, Alexys J. Thoeny, born July 25, 1998, and Marla D. Thoeny, born March 1, 2000, the sum of $996.00 per month. B.The Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $104.00 per month on arrearages until paid in full. 50 Support Master’s Report and Recommendation, filed Oct. 14, 2004. 51 Support Master’s Report and Recommendation, Ex. B, filed Oct. 14, 2004. In Cumberland County, a computer program—which takes into account a party’s gross income, tax-filing status, and exemptions claimed—is utilized by the Domestic Relations Office in calculating a party’s net monthly income. See Seeley-Burnham v. Burnham, 52 Cumb. 48, 52 (2003); Cunningham v. Cunningham, 49 Cumb. 219, 224 n.32 (2000). 52 Support Master’s Report and Recommendation, Ex. B, filed Oct. 14, 2004. 53 Support Master’s Report and Recommendation, Ex. B, filed Oct. 14, 2004. This figure is based upon a “Net Income as a Percentage of Combined Amount” of 85.77%. 54 Support Master’s Report and Recommendation, Ex. B, filed Oct. 14, 2004. 55 Support Master’s Report and Recommendation at 3-4, filed Oct. 14, 2004. 6 C.The Defendant shall provide health insurance for the benefit of said children as is available through his employer at a reasonable cost. D.The Defendant shall pay 85% of the unreimbursed medical expenses incurred by said children as that term is defined in Pa. R.C.P. 1910.16- 6(c). E.The Defendant shall be entitled to claim said children as dependency exemptions for federal income tax purposes commencing with tax year 2004. The Plaintiff shall execute to the Defendant any and all documentation required by the Internal Revenue Service to effectuate said exemptions. 56 F.The effective date of this order is June 7, 2004. Plaintiff filed pro se exceptions to the master’s report and recommendation. Plaintiff’s contentions in the exceptions were expressed as follows: (4) Child care: a. Adjustments for childcare were made on the Support Guidelines Worksheet, are incorrect. Rule 1910.16-6 (a) “…the expenses to be allocated between the parties shall be the full unsubsidized cost of the child care, not just the amount actually paid by the custodial parent.” b. A deviation of this magnitude is not justified in this case: i.Rule 1910.16-5 official note states in part, “A child care subsidy … should not be used to reduce the child care expenses … to the extent that the obligor has the financial resources to contribute to the actual cost of child care.” ii.Rule 1910.16-5 (b)(3) states that in deciding whether to deviate from the amount of support determined by the guidelines, other income in the household is to be considered. iii.Other income in the defendant’s household was never considered. iv.The standard for deviation under Rule 1910.16(a) is if the amount is “overly burdensome.” Although relating to deviations for multiple families, Rule 1910.16-7(a) provides a guideline for what should be considered “overly burdensome.” The basic support 56 Interim Order of Court, Oct. 14, 2004. 7 obligation does not come close to meeting this guideline. (5) Income calculation problems: a.Defendant has additional income of $803.00 per month that was not included in the calculations. This income must be included per Rules 1910-16-2(a), 1910.16-2(8). b.On pages three and four of the recommendation, the Plaintiff was calculated a net monthly income of $466.00. This figure was then used on page 4 to obtain a combined monthly income of $3,273.00. This is incorrect for the following reason: i.If defendant is claiming all three children on his tax return, the Plaintiff will not be eligible to claim the EIC. (6) Taxes: a.Page three (continuing on pg 4) states the plaintiff receives no financial benefit from claiming a child or children as dependency exemptions. b.In the paragraph immediately preceding this statement, it was established that the plaintiff would indeed have a financial benefit. c.From the records, defendant would have a taxable annual income for 2004 of approximately $26,678.00. d.From the records, plaintiff would have an annual income for 2004 of approximately $3432.00. e.Using IRS rules and forms, the benefit to the defendant if he claims all three children will be approximately $1372.00 as a reduction of taxes owed. f.Using IRS rules, the plaintiff would have a benefit of approximately $1370.00 as Earned Income Credit. g.The plaintiff has physical custody of the children, currently and historically provides for well over 50% of their financial needs, as well as providing for all of their physical, educational, emotional and medical needs. 8 h.It is clearly in the best interest of the children to guarantee those funds are available to the custodial parent for the 57 care of the children. DISCUSSION Statement of Law Review of Exceptions to Support Master’s Report. 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 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. 221, 226-27 (1984). 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, 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). Determination of Income and Support Obligation. Both parents share a responsibility to provide support to their children to the extent that their respective incomes and earning capacities allow them to do so. Mooney v. Doutt, 2001 PA Super. 12, ¶6, 766 A.2d 1271, 1273. A party’s child support obligation is to be calculated in the first instance in accordance with guidelines provided in the Pennsylvania Rules of Civil Procedure. See Pa. R.C.P. 1910.16-1(b). Pennsylvania Rule of Civil Procedure 1910.16-2, which deals with the calculation of income for purposes of determining a party’s support obligation, provides, in pertinent part, as follows: 57 Exceptions to Support Master’s Report and Recommendation, filed Nov. 18, 2004. 9 (a) Monthly Gross Income. Monthly gross income is ordinarily based upon at least a six-month average of all of a party’s income. … The statute lists many types of income including, but not limited to: (1) wages, salaries, bonuses, fees and commissions; (2) net income from business or dealings in property; (3) interest, rents, royalties, and dividends; (4) pensions and all forms of retirement; (5) income from an interest in an estate or trust; (6) Social Security disability benefits, Social Security retirement benefits, temporary and permanent disability benefits, workers’ compensation and unemployment compensation; (7) alimony if, in the discretion of the trier of fact, inclusion of part or all of it is appropriate; and (8) other entitlements to money or lump sum awards, without regard to source …. Pa. R.C.P. 1910.16-2(a). Furthermore, in determining a party’s income for the purpose of supporting a child, “the focus is on the person’s earning capacity rather than on the person’s actual earnings.” Mooney, 2001 PA Super. at ¶6, 766 A.2d at 1273. In determining a party’s earning capacity, the court should not look to what a person could theoretically earn, but what a person “could realistically earn under the circumstances[.]” Myers v. Myers, 405 Pa.Super. 290, 297, 592 A.2d 339, 343 (1991). The circumstances to be considered by the court when determining a party’s earning capacity are the party’s “age, education, training, health, work experience, earnings history, and child care responsibilities.” Portugal v. Portugal, 2002 PA Super. 132, ¶6, 798 A.2d 246, 250. Adjustments for Child Care Expenses. Pennsylvania Rule of Civil Procedure 1910.16-6(a) provides, in pertinent part, as follows: (a) Child care expenses. Reasonable child care expenses paid by the custodial parent … are the responsibility of both parents. These expenses shall be allocated between the parties in proportion to their net incomes and obligor’s share added to his or her basic support obligation. When the custodial parent is receiving a child care subsidy … the expenses to be allocated between the parties shall be the full unsubsidized cost of the child 10 care, not just the amount actually paid by the custodial parent. However, if allocation of the unsubsidized amount would result in a support order that is overly burdensome to the obligor, deviation … may be warranted. Pa. R.C.P. 1910.16-6(a). Allocation of Dependency Exemptions. Pennsylvania Rule of Civil Procedure 1910.16-2(f) provides as follows: (f) Dependency Tax Exemption. In order to maximize the total income available to the parties and children, the court may, as justice and fairness require, award the federal child dependency tax exemption to the non-custodial parent … and order the other party to execute the waiver required by the Internal Revenue Code, 26 U.S.C.A. § 152(e). The tax consequences resulting from an award of the child dependency exemption must be considered in calculating each party’s income available for support. Pa. R.C.P. 1910.16-2(f); see also Piso v. Piso, 2000 PA Super. 321, ¶¶ 8, 20, 761 A.2d 1215, 1216-17, 1220. Application of Law to Facts With respect to Plaintiff’s contention that the master erred in failing to allocate the full unsubsidized cost of child care between Plaintiff and Defendant, the court believes the master correctly allocated the child care expenses between the parties by taking into account only the amount paid by Plaintiff for child care expenses. Had the master allocated the full unsubsidized cost of child care between the parties, Defendant would have been responsible for between $1,115.00 and $1,287.00 in child care costs per 58 month. Thus, if the master had allocated the full unsubsidized cost of child care between the parties, Defendant’s support obligation would have more than doubled from 59 $995.92 per month to between $2,125.00 and $2,297.00 per month. A support obligation for Defendant of between $2,125.00 and $2,297.00 per month would have been (a) unreasonable when taking into consideration the fact that Defendant had a net 58 These figures were obtained by taking the estimated range of child care costs per month ($1,300.00 to $1,500.00) and multiplying it by 85.77%, the Defendant’s percentage of the parties’ combined net income. 59 These figures were obtained by taking the Defendant’s monthly share of the child support obligation before adjustments ($1,009.51) and adding the estimated range of child care costs that Defendant would be responsible for had the full unsubsidized costs of child care been used. 11 monthly income of only $2,807.08 and (b) inconsistent with the child care expenses actually being paid by Plaintiff. With respect to Plaintiff’s contention that the master erred in awarding the dependency exemptions for the parties’ three children to Defendant, the court believes the master correctly allocated the dependency exemptions to Defendant. Plaintiff has a 60 gross monthly income of $352.00. Once deductions and an exemption for herself are 61 taken, Plaintiff is left with no taxable income. Because Plaintiff already has no taxable income, claiming the three children as dependency exemptions cannot help lower Plaintiff’s taxable income and taxes owed, and therefore will not free-up more money for the support of the parties’ children. On the other hand, allowing Defendant to claim the three children as dependency exemptions will lower Defendant’s taxable income, and thus his taxes owed, allowing more of his monthly income to go toward support of the 62 parties’ children. Additionally, allowing Defendant to claim the parties’ three children as dependency exemptions will not affect Plaintiff’s ability to receive the Earned Income Credit. See I.R.C. §§ 32, 152. Under Internal Revenue Code § 32, the only requirement for receiving the Earned Income Credit is being an “eligible individual,” which requires, as one option, having a “qualifying child” for the taxable year in which the credit is received. I.R.C. § 32. A “qualifying child” is defined as: [W]ith respect to any taxpayer for any taxable year, an individual— (A) who bears a relationship [such as a child of the taxpayer], (B) who has the same principal place of abode as the taxpayer for more than one-half of such taxable year, (C) who [has not attained the age of 19], and (D) who has not provided over one-half of such individual’s own support for the calendar year in which the taxable year of the taxpayer begins. 60 Support Master’s Report and Recommendation, Ex. B, filed Oct. 14, 2004. 61 Support Master’s Report and Recommendation, Ex. A, filed Oct. 14, 2004. 62 Support Master’s Report and Recommendation at 3-4, Ex. A & B, filed Oct. 14, 2004. 12 I.R.C. § 152(c). Because all three of the parties’ children fall within the definition of a “qualifying child” in relation to Plaintiff, it would appear that Plaintiff may still receive the Earned Income Credit regardless of whether Defendant claims the children as dependency exemptions. Finally, with respect to Plaintiff’s contention that the master erred in calculating Defendant’s income, the court believes the master correctly calculated Defendant’s income. The master assigned Defendant a net monthly income of $2,807.08 based upon his yearly salary of $42,000.00 a year with KEI Pearson. While Plaintiff claims Defendant has additional income of $803.00 per month that was not included in this calculation, the record is devoid of any testimony or exhibits that identify the source of this additional income that Plaintiff claims exists. Therefore, the master correctly calculated Defendant’s income for purposes of support based upon the record made by the parties. ORDER OF COURT st AND NOW, this 21 day of July, 2005, after careful consideration of Plaintiff’s Exceptions to Support Master’s Report and Recommendation, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the Interim Order of Court dated October 14, 2004, is entered as a final order. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michael R. Rundle, Esq. Support Master Jodi L. Eickert 2843 Juneau Drive Missoula, MT 59804 Plaintiff, Pro Se 13 Dustin S. Thoeny 301 Eleventh Street, Apt. A New Cumberland, PA 17070 Defendant, Pro Se Derek R. Clepper, Esq. 13 North Hanover Street Carlisle, PA 17013 Courtesy Copy 14 15 JODI L. EICKERT, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : DOMESTIC RELATIONS SECTION : v. : CIVIL ACTION—SUPPORT : DUSTIN S. THOENY, : PACSES NO. 831104197 Defendant : DOCKET NO. 776 SUPPORT 2003 IN RE: EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE OLER, J. ORDER OF COURT st AND NOW, this 21 day of July, 2005, after careful consideration of Plaintiff’s Exceptions to Support Master’s Report and Recommendation, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the Interim Order of Court dated October 14, 2004, is entered as a final order. BY THE COURT, _________________ J. Wesley Oler, Jr., J. Michael R. Rundle, Esq. Support Master Jodi L. Eickert 2843 Juneau Drive Missoula, MT 59804 Plaintiff, Pro Se Dustin S. Thoeny 301 Eleventh Street, Apt. A New Cumberland, PA 17070 Defendant, Pro Se Derek R. Clepper, Esq. 13 North Hanover Street Carlisle, PA 17013 Courtesy Copy