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Home My WebLink About98-839 supportJULIANNE WINTERS TRENT K. MARTIN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 0839 SUPPORT 1998 IN RE: CHILD SUPPORT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., July 27, 1999:-- Julianne Winters and Trent K. Martin were married on February 14, 1984, in San Antonio, Texas. Their daughter Cassandra J. Martin was born on March 21, 1985. On October 2, 1998, Julianne Winters, who now lives in Cumberland County, filed this complaint against Trent K. Martin for child support for Cassandra. Martin lives in Bacliff, Texas. An order was entered on November 12, 1998, directing the father to pay support for Cassandra in the amount of $432.44 per month effective October 2, 1998. The amount of the order was consistent with the current Pennsylvania support guidelines.~ The mother appealed. A hearing was conducted on June 21, 1999. We find the following facts. On May 6, 1985, the mother while living in Monroe County, Pennsylvania, instituted an action against the father for the support Cassandra in the Court of Common Pleas of Monroe County. The father was then living in Burkeville, Newton Pa. Rules of Civil Procedure 1910.16-1 et seq. 0839 SUPPORT 1998 County, Texas. The case was referred by the court in Monroe County to the District Court of Newton County, Texas. On October 18, 1985, the District Court in Newton County issued an order against Trent K. Martin: [t]o show cause, if any he may have, why [he] should not be ordered to pay a reasonable sum for the support and maintenance of the child... and to make those payment through the Monroe County Domestic Relations Office, Courthouse, Strasburg, Pennsylvania 18360. On February 28, 1990, the District Court of Newton County entered an "ORDER OF DISMISSAL," stating that it: [c]ame on to be considered the above entitled and numbered cause, as provided by the Texas Rules of Civil Procedure and the Rules of Procedure of the Second Administrative Judicial District, and after due notice to the parties through their attorneys of record of the proposed action of dismissal, and there being no objection thereto, it is ORDERED that the same is in all things dismissed at the cost of plaintiff, for which let execution issue if not timely paid. (Emphasis added.) The mother and father were divorced in an action instituted by the mother in Bucks County, Pennsylvania on June 21, 1988. The mother had moved from Monroe County to the State of New Jersey and then to Bucks County. When the divorce was entered the father was living in Lumberton, Texas. When the mother obtained the divorce she did not seek any economic relief. At the hearing before this court the mother testified that she contacted the Domestic Relations Office of the Monroe County Court on numerous occasions about the support action she filed on May 6, 1985, but was always told that they did not know where the father was. She testified that she never learned of the order of February 26, -2- 0839 SUPPORT 1998 1990, dismissing her case in Newton County, Texas, until recently when a copy of the order was obtained by her current attorney. The mother filed no action to secure child support after she filed in Monroe County on May 6, 1985, until she filed this action in Cumberland County on October 2, 1998. There is no evidence as to why there was no objection to the order of February 26, 1990, in the District Court of Newton County, Texas, that dismissed the reciprocal child support action instituted by the mother in Monroe County, Pennsylvania, on May 6, 1985. The mother testified that she did not further pursue the child support until recently because she was having financial difficulties, an explanation that to us makes no sense because she could, without an attorney, pursue such an action by filing a claim in the Domestic Relations Office of any county in Pennsylvania where she lived. She testified that she knew where the father lived in Texas when she obtained her divorce that she filed in Bucks County, Pennsylvania, on June 21, 1988, and she has known where he has lived since then. The mother seeks an order deviating upward from the Pennsylvania Support Guidelines. Her position as stated in her brief is: Pa.R.C.P. 1910.16-1 (d) permits a trier of fact to deviate from the support guidelines if it is found that 'an amount determined from the guidelines would be unjust and inappropriate.' 42 Pa.R.C.P. 1910.16- l(d). In this case it would be 'unjust and inappropriate' to enter an order for a child support payment that does not deviate upwards from the guidelines .... [T]he evidence presented.., established that Defendant could be found to have had a 'duty of support' beginning at the time of Plaintiff's initial complaint in April 1985 .... [T]he support action in Texas should not bar consideration of Plaintiff's initial action to obtain support. -3- 0839 SUPPORT 1998 Plaintiff is not seeking a support order that 'back dates' as it were the support obligation to the date of the first support complaint. On the other hand, Plaintiff maintains that she is entitled to a child support order that factors into the designated payment an amount of money to compensate her for the hardship of having the sole financial responsibility for her child until October 2, 1998. Pa. Rule of Civil Procedure 1910.17(a) provides "An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise." This Section mandates making support orders retroactive to the date of the filing of the complaint absent specific and appropriate justification for making the effective date subsequent to the date of the filing of the complaint. Calibeo v. Calibeo, 443 Pa. Super. 694 (1995). We could not make the order in this case retroactive to a date prior to the filing of the complaint on October 2, 1998. Pa. Rule of Civil Procedure 1910.16-1(d) provides: If it has been determined that there is an obligation to pay support, there shall be a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of support to be awarded. The support guidelines are a rebuttable resumption and must be applied taking into consideration the special needs and obligation of the parties. The trier of fact must consider the factors set forth in Rule 1910.16-5. The presumption shall be rebutted if the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate. (Emphasis added.) Pa. Rule of Civil Procedure 1910.16-5 provides: (a) If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation. {b) In deciding whether to deviate from the amount of support -4- 0839 SUPPORT 1998 determined by the guidelines, the trier of fact shall consider: (1) unusual needs and unusual fixed obligations; (2) other support obligations of the parties; (3) other income in the household; (4) ages of the children; (5) assets of the parties; (6) medical expenses not covered by insurance; (7) standard of living of the parties and their children; (8) in a spousal support or alimony pendente lite case, the period of time during which the parties lived together from the date of marriage to the date of final separation; and (9) other relevant and appropriate factors, including the best interest of the child or children. See Landis v. Landis, 691 A.2d 939 (Pa. Super. 1997). We do not accept the mother's legal position that our authority to enter a support order that deviates upward from the support guidelines encompasses awarding her an amount of money to compensate her for the hardship of having the sole financial responsibility for her child until October 2, 1998. Setting the award of child support based on the current earning capacity of the father and the mother is not unjust or inappropriate. Accordingly, the following order is entered. ORDER OFCOURT AND NOW, this ~r~ day of July, 1999, this court's order of November 12, 1998, directing the father to pay support for Cassandra J. Martin, born March 21, 1985, in the amount of $432.44 per month effective October 2.., 19~IIIIIIIIIIIIIIIII~~IRMED. Edgar B. Bayley, J. .~ -5- 0839 SUPPORT 1998 Elizabeth A. Hoffman, Esquire 2201 North Second Street Harrisburg, PA 17110 For Julianne Winters Richard F. Klineburger, III, Esquire 1313 Race Street Philadelphia, PA 19107 For Trent Martin :saa -6-