HomeMy WebLinkAbout776 S 2003 (2)
JODI EICKERT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOMESTIC RELATIONS SECTION
PACSES NO. 831104197
DUSTIN S. THOENY,
Defendant
NO. 03-776 SUPPORT
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., September 28, 2005.
In this child support case, the pro se plaintiff, Jodi L. Eickert, has filed an
untimely 1 appeal to the Pennsylvania Superior Court from this court's dismissal of
her exceptions to a support master's report? The sole issue which is being
pursued by Plaintiff on appeal is expressed in a statement of matters complained
of on appeal as follows:
Disability Illcome was not considered in the Judge's
decision.3
Among Plaintiffs many exceptions to the master's report, under the
heading "Income calculation problems," was the contention that "Defendant has
additional income of $803.00 per month that was not included in the calculations.
This income must be included per Rules 191O-16-2(a), 1910.16-2(8)." It is
possibly this contention that she is pursuing on appeal.
The order of court dismissing Plaintiff s exceptions to the master's report
was accompanied by a detailed opinion addressing each of Plaintiff s contentions
in the exceptions. With respect to Plaintiff s contention regarding the additional
income of $803.00 per month, the court noted in its opinion that
1 The order from which Plaintiff has appealed was entered on July 21, 2005. (Order of Ct., Ct.
Com. PI. Cumberland County, July 21, 2005.) Her notice of appeal was filed on August 26,
2005. (PL's Notice of Appeal, Super. Ct., Aug. 26, 2005.) Defendant has apparently filed a
motion in the Superior Court to quash the appeal as untimely. This issue is beyond the scope of
this opinion.
2 PL's Notice of Appeal, filed Aug. 26,2005.
3 PL's Statement of Matters Complained of on Appeal, filed Sept. 12,2005.
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.
To the extent that the court's earlier opinion may benefit from amplification
on the point raised by Plaintiff on appeal, this supplemental opinion is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The facts of this case have been recited in detail in the court's opIlllOn
which accompanied the dismissal of Plaintiff s exceptions to the support master's
report and will not be here repeated. A thorough review of the record of the
master's hearing, undertaken by the court upon receipt of Plaintiff s statement of
matters complained of on appeal, has again failed to reveal any evidentiary
support, either in testimony or exhibits, for inclusion of an additional amount of
$803.00 per month in Defendant's gross income for purposes of a calculation of
his child support obligation.
DISCUSSION
It is well settled that, in reviewing exceptions to recommended findings of
fact in a support master's report, a court is limited to the evidentiary record made
at the master's hearing. 4 Matters dehors the evidentiary record, including facts
asserted in briefs of the parties on the exceptions or otherwise, can not be
considered for purposes of the review. 5
4 See Eck v. Eck, 475 A.2d 825, 827, 327 Pa. Super. 334, 339 (1984) (noting that a trial court
reviewing a divorce proceeding may not enter an order on the basis of off-the-record facts);
Moskowitz v. Moskowitz, 10 Phila. Co. Rptr. 429,446 (Ct. Com. PI. Philadelphia County Dec. 16,
1983), aii'd, 1984 Pa. Super LEXIS 6472 (Oct. 26, 1984) (holding that "[a court] may not take
into consideration facts alleged in the briefs since briefs are not part of the record [of a support
hearing], and the Court may not consider facts not established by the record").
5 See Eck, 475 A.2d at 827, 327 Pa. Super. at 339 (holding that "[a] trial court may not consider
facts or evidence dehors the record in making a determination" as to alimony in a divorce
proceeding"); Com. ex rei. Bowers v. Widri~, 464 A.2d 1299, 1302, 318 Pa. Super. 198, 205
(1974) (holding that a custody hearing court must not consider facts or evidence dehors the
2
Based upon the foregoing, it is believed that the order of court dismissing
Plaintiff s exceptions to the master's report with respect to the calculation of
Defendant's income was properly entered.
BY THE COURT,
1. Wesley Oler, Jr., 1.
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, P A 17013
Courtesy Copy
record; "[t]o employ information from investigative reports when person who prepared reports
did not attend hearing and was not subject to cross-examination constitutes reversible error and
mandates new hearing"); Burnham v. Burnham, No. 01-624 Support, slip op. at 4 (Ct. Com. PI.
Cumberland County Nov. 15, 2002) (declining to consider defendant father's alleged alimony
claim against plaintiff mother, because said alimony claim was never filed or adjudicated and
thus was dehors the record of support case). See also Cunnin~ham v. Cunnin~ham, 378 Pa. Super.
280,283-88,548 A.2d 611,613 (1988); Com. ex rei. Michael R. v. Robert R.R., 314 Pa. Super.
335,339,460 A.2d 1167, 1170 (1983); In re Lon~, 313 Pa. Super. 47, 53, 459 A.2d 403,406
(1983); Palmer v. Tokarek, 279 Pa. Super. 458,476,421 A.2d 289,298 (1980); Wood v. Tucker,
231 Pa. Super. 461,463,332 A.2d 191,192 (1974).
3