HomeMy WebLinkAbout213 S 2009
RUSMIRA GRAHIC, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
SEMIR GRAHIC, : PACSES NO. 899110731
Defendant : DOCKET NO. 213 SUPPORT 2009
IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., August 13, 2009.
In this child support case in which the parties are the parents of two minor
children, Harris Grahic and Armin Grahic, where Harris resides with Defendant, Semir
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Grahic (Father), and Armin resides with Plaintiff, Rusmira Grahic (Mother), an Interim
Order of Court was issued on April 28, 2009, following a domestic relations office
conference, directing Father to pay child support in the basic amount of $346.20 per
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month, plus $540.55 in arrearages due immediately. Mother filed an appeal from the
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Interim Support Order on May 14, 2009. A hearing was held before the Cumberland
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County Support Master, Michael R. Rundle, Esq., on June 9, 2009, after which the
Support Master issued a report with the following recommended order:
A.For the period of March 18, 2009 through April 30, 2009 the
Defendant shall pay to the Pennsylvania State Collection and
Disbursement Unit as support for his child, Armin Grahic, born
July 8, 2002, the sum of $454.00 per month.
B.Effective May 1, 2009 the Defendant shall pay to the Pennsylvania
State Collection and Disbursement Unit as support of said child the
sum of $585.00 per month.
1
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, April 28, 2009.
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Plaintiff’s Appeal, filed May 14, 2009.
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Order of Court, May 18, 2009.
C.The Defendant shall pay to the Pennsylvania State Collection and
Disbursement Unit the additional sum of $21.67 per month on
arrears.
D.The Defendant shall provide health insurance coverage for the
benefit of said child as is available to him through employment or
other group coverage at a reasonable cost.
E.The monthly support obligation includes cash medical support in
the amount of $250.00 annually for unreimbursed medical
expenses incurred for said child. Unreimbursed medical expenses
of the child that exceed $250.00 annually shall be allocated
between the parties. The party seeking allocation of unreimbursed
medical expenses must provide documentation of expenses to the
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other party no later than March 31 of the year following the
calendar year in which the final medical bill to be allocated was
received. The unreimbursed medical expenses are to be paid as
follows: 76% by Defendant and 24% by Plaintiff.
F.Commencing with tax year 2009 the Defendant shall be entitled to
claim said child as a dependency exemption for federal income tax
purposes, and the Plaintiff shall execute and deliver to him in a
timely manner any and all documentation required by the Internal
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Revenue Code to effectuate said exemption.
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An Interim Order in accordance with this recommendation was thereafter entered.
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Father filed Exceptions on June 29, 2009. Father’s Exceptions read as follows:
1.In the Support guideline worksheet, the support master made an
error determining my gross monthly income to be $ 4,633.90. On
a Findings of fact sheet under #11 it is clear that I earn $ 21.68 per
hour. In order to make $ 4,633.90 monthly, I would have to work
excessive overtime hours (at least 45 overtime hours each month.)
My regular hours are 76 hours biweekly, and my company does
not offer overtime regularly. My job is more of a seasonal nature,
where I can work overtime, if available, during spring and
summer, but for a rest of a year I cannot work even my regular
hours, due to the lack of work. In addition, at out first child
support conference that was held on April 28, 2009. Program
coordinator has explained to us that I am not required to work
more than 40 hours per week.
2.Plaintiff’s gross monthly income , for a period while she was
employed, was set by master at $ 1,105.00, but Program
5
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, June 10, 2009.
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Defendant’s Exceptions, filed June 29, 2009.
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coordinator determined that amount to be $ 1,351.12, using the
same facts she have provided. I think master made an error by not
calculating in her income EIC of $ 2,917.00, since he stated in
Findings of fact sheet under #10, that Plaintiff’s tax filing status is
head of household with one child claimed as a dependency
exemption.
3.Master also made an error making adjusted support sum effective
May 1, 2009. Plaintiff was still working through month of May,
and was laid off in the last week of May, 2009. I have warned the
Master about this fact, but he made it effective May 1, 2009
anyway. I would like to point out that our first hearing was held
April 28, 2009, and at that time Plaintiff did not mentioned any
layoff or possibility of losing her job.
4.In the line # 19 of Support Guideline Worksheet, Master entered
counterclaim for split custody for older child that lives with me,
but I have full custody of Harris Grahic, and I think that
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counterclaim amount should be greater.
A July 2, 2009 Order of Court was entered pursuant to Rule 1910.12 of the
Cumberland County Rules of Procedure, wherein Defendant was ordered to submit a
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brief by July 25, 2009. Defendant failed to submit a brief by that date, or at anytime
thereafter.
For the reasons set forth in this opinion, Father’s exceptions will be denied.
STATEMENT OF FACTS
Plaintiff Mother is Rusmira Grahic, an adult individual residing on Westfields
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Drive in Mechanicsburg, Cumberland County, Pennsylvania. Defendant Father is Semir
Grahic, an adult individual residing on Charles Road in Mechanicsburg, Cumberland
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County, Pennsylvania. Mother and Father were married on January 29, 1993 and were
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divorced on December 16, 2008. However, they continued to live together until
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Defendant’s Exceptions, filed June 29, 2009.
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Order of Court, July 2, 2009. The transcript from the June 9, 2009, Support Master’s hearing was filed
on July 10, 2009. Under the order, the exceptant’s brief was due within 15 days of the filing of the
transcript, or by July 25, 2009.
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Notes of Testimony 3, Support Master’s Hearing, June 9, 2009 (hereinafter N.T. __).
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N.T. 16.
12
Plaintiff’s Complaint for Support, filed March 18, 2009.
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February 25, 2009. They are the parents of two minor children, Armin Grahic, born July
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8, 2002, and Harris Grahic, age 16. Mother and Father have split-custody of their
children, whereby Armin resides permanently with Mother and Harris resides
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permanently with Father. Father has a higher proportionate share of the support
obligation with respect to split-custody of their children; therefore, he pays child support
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to Mother in support of Armin.
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Mother originally filed a claim for child support on March 18, 2009. At that
time, Mother was employed by Europa Restaurant & Food Market in Mechanicsburg,
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Pennsylvania, earning $8.50 per hour while Father was employed by ProPlastix
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International, Inc., in Millersburg, Pennsylvania, earning $21.68 per hour. As a result,
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Father’s support obligation was set at $346.20 per month by an April 28, 2009 Order.
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Mother appealed the decision on May 14, 2009, citing a change in her employment
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status.
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Mother was laid off from her job in May of 2009 and now receives
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unemployment benefits in the amount of $171.00 per week. Mother is a student at
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N.T. 6.
14
Plaintiff’s Complaint for Support, filed March 18, 2009.
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N.T. 4.
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N.T. 4.
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See Interim Order of Court, June 10, 2009; N.T. 8.
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Plaintiff’s Complaint For Support, filed March 18, 2009.
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N.T. 5-6. Mother stated that she usually worked between 15 and 30 hours per week. N.T. 6. The
Support Master calculated her average monthly income based on a 30-hour work week. See Interim
Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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N.T. 16-17, Defendant’s Exceptions, filed June 29, 2009.
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Interim Order of Court, April 28, 2009.
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Plaintiff’s Appeal, filed May 14, 2009.
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N.T. 8.
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N.T. 18. The record indicates that Mother volunteered in May of 2009 for Europa Restaurant & Food
Market, but was not being paid for her services. At this time she had already begun receiving
unemployment compensation. N.T. 5, 21.
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N.T. 9.
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Harrisburg Area Community College and is presently enrolled in summer classes four
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mornings per week. Since becoming unemployed, Mother has made only one attempt at
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seeking employment due to health issues with her son, Armin. Father pays for health
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insurance for himself and the parties’ children, in the amount of $101.21 bi-weekly.
The Support Master concluded that Mother lost her employment through no fault
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of her own, in May of 2009. The Support Master found that, prior to being laid off,
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Mother had net monthly income for support purposes of $1,156.00. This was calculated
by combining her gross monthly income of $1,105.00 with the Earned Income Tax Credit
attributable to her filing as a head of household with one dependent child, less
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deductions. The Support Master determined that, for the period of March 18, 2009
through April 30, 2009,based on his average monthly income of $4,634.00, Father had a
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net monthly income for support purposes of $3,717.00. The Support Master concluded
that:
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With combined net monthly income of $4,872.00, the basic
requirement for the support of one child is $930.00 per month. The
Defendant’s proportionate share of that amount is $709.00. However,
after adjustments for health insurance coverage provided by the Defendant
and for the split custody support claim for the other child, the Defendant’s
support obligation for the child in the Plaintiff’s custody is $454.00 per
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month.
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N.T. 14.
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N.T. 10-11.
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N.T. 17; see Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10,
2009.
29
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
30
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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The Support Master made a harmless error in calculating the parties’ combined net monthly income.
The correct amount should be $4,873.00. However, the basic requirement for support of one child
remains at $930.00 per month. See Pa. R.C.P. §1910.16-3.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009. This
support obligation was for the period of March 18, 2009 through April 30, 2009. Father was allowed an
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adjustment to his support obligation due to the parties’ split-custody arrangement of $220.60.
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Further, the Support Master determined that Mother’s loss of employment in May
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of 2009 was a change of circumstance justifying a modification to the support order.
The Support Master concluded that Father’s support obligation should be increased to
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$585.00 per month, commencing May 1, 2009. He determined this by taking into
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account Mother’s unemployment benefits of $171.00 per week as her only means of
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income. Effective May 1, 2009, the Support Master increased Father’s net monthly
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income to $3,760.31, due to a decrease in allowable deductions. Father was allowed an
adjustment to his support obligation due to the parties’ split-custody arrangement of
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$149.46.
In calculating both Mother and Father’s deductions for taxes and similar items,
including Mother’s Earned Income Tax Credit, the Support Master utilized the “standard
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computer program employed by Cumberland County for this purpose.”
Finally, the Support Master concluded that Father should be permitted to claim
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both children as dependency exemptions, due to Mother’s limited income.
On June 29, 2009, Father filed Exceptions to the Support Master’s Report and
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Recommendation. On July 2, 2009, this court issued an order requiring each party to
35
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009; N.T. 9.
The Support Master incorrectly stated Mother received $171.00 per month in unemployment benefits.
The record indicates that she receives these benefits on a weekly basis. However, her monthly income
was correctly calculated on the support guideline worksheet accompanying the Support Master’s Report
and Recommendation. See Interim Order of Court, Ex. A – Support Master’s Report and
Recommendation, June 10, 2009.
38
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
39
Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009; Pa.
R.C.P. §1910.16-4.
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Fitzgerald v. Fitzgerald, 57 Cumb. 197, 202 (2008); see also Cunningham v. Cunningham, 49 Cumb.
219, 224 n. 32 (2000).
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Interim Order of Court, Ex. A – Support Master’s Report and Recommendation, June 10, 2009.
43
Defendant’s Exceptions, filed June 29, 2009.
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submit a brief relating to the issues raised in Father’s Exceptions. This order stated
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that “[a]ny issue not briefed by the Defendant shall be deemed waived.” Father has
failed to file a brief in compliance with this order, and therefore has waived the issues
raised in his exceptions.
DISCUSSION
Father has failed to submit a brief in support of his Exceptions, and has therefore
waived the issues raised in his Exceptions. In addition, as will be discussed hereafter, the
Exceptions are untenable on the merits in any event.
While 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 relating to the credibility of witnesses. Id.
However, the report is advisory only, and, when exceptions are filed, the court must
perform its own evidentiary review 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,
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’s first exception is that the Support Master miscalculated his gross monthly
income. The Support Master properly calculated Father’s average gross monthly income
of $4,633.90. The Support Master based this on Father’s year-to-date gross income as of
May 16, 2009, of $21,387.40. The Support Master averaged Father’s year to date gross
income over the ten year-to-date bi-weekly pay periods, thus determining a $2,138.74
average bi-weekly gross income. The Support Master then multiplied this by 26, the
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Order of Court, July 2, 2009.
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number of bi-weekly pay periods per year, to calculate Father’s yearly gross income,
$55,607.24. The Support Master finally divided this by 12 to establish Father’s average
monthly income of $4,633.90.
Father maintains that he is not required to work overtime. However, because
Father has chosen to work overtime, the earnings attributable to such work is properly
included in calculating his average monthly income. See Gaster v. Gaster, 1996 WL
932766 (Pa.Com.Pl.), 32 Pa. D. & C.4th 539, 551-52 (Dauphin County 1996).
Father’s second exception is that Mother’s gross monthly income, while she was
employed, was miscalculated by the Support Master. The Support Master properly
calculated Mother’s average gross monthly income of $1,105.00. The Support Master
based this on Mother’s $8.50 per hour wage at an average 30-hour work week. The
Support Master determined that Mother earned $255.00 per week. The Support Master
then multiplied this by 52 weeks in a year to calculate Mother’s yearly gross income,
$13,260.00. The Support Master finally divided this by 12 to establish Mother’s average
monthly income of $1,105.00. The Support Master properly calculated Mother’s total
taxes for support purposes, as -$50.64. This number is negative due to the Earned
Income Tax Credit.
Father incorrectly states that the Support Master erred by excluding an Earned
Income Tax Credit of $2,917.00 in Mother’s net income for the period she was
employed. This amount of $2,917.00 is the maximum Credit allowable for tax year 2008.
The Support Master correctly used the appropriate monthly proportion of the Earned
Income Tax Credit, $197.00, as determined by the standard computer program employed
by Cumberland County for this purpose. As previously noted, it is common practice for
the Cumberland County domestic Relations Office to use a standard computer program
for the purpose of calculating taxes and similar items deductible from gross income under
Pennsylvania Rule of Civil Procedure 1910.16-2.
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Order of Court, July 2, 2009.
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“Typically, a computer program is utilized by the Domestic Relations Office to
derive the proper tax and F.I.C.A. figures based upon a party’s gross income, filing status
and exemptions taken.” Seely-Burnham v. Burnham, 52 Cumb. 48, 52 (2002); see
Cunningham v. Cunningham, 49 Cumb. 219, 224 n.32 (2000).
The use of a standard tax computer program to calculate these
deductions, which is routine practice in domestic relations cases, avoids
problems inherent in relying upon such potential contrivances as
individual withholding schemes, which do not always correspond to the
taxpayer’s actual obligations.
Murray v. Kalinoski, No. 01-1097 Support (Cumberland Co. August 15, 2007) (slip op. at
5 n.38), quoting Parlati v. Morton, 53 Cumb. 169, 174-75 (2004).
Therefore, in the present case, it is not realistic to expect the Support Master to
engage in the “investigative, speculative and labor-intensive task of preparing future tax
returns for the parties using tax and accounting techniques and assumptions other than
those incorporated in the standard computer tax program, in the course of preparing his
report.” Fitzgerald v. Fitzgerald, 57 Cumb. 197, 208 (2008). Accordingly, this court is
unable to agree with Father that the Support Master erred in calculating Mother’s Earned
Income Tax Credit.
Father’s third exception is that the Support Master erred in making the adjusted
support sum effective May 1, 2009. The record indicates that Mother volunteered in May
of 2009 for Europa Restaurant & Food Market and was not being paid for her services.
The record indicates that in May of 2009 Mother was receiving unemployment
compensation. Therefore, the Support Master correctly determined that May 1, 2009 was
the appropriate date to commence the adjusted support obligation of $585.00.
Father’s fourth exception is that he believes he is entitled to a larger adjustment to
his support obligation for having sole custody of his older child, Harris. However, as
indicated below, the Support Master correctly determined this adjustment to be $220.60
for the support obligation during the period of March 18, 2009 through April 30, 2009
and $149.46 for the support obligation commencing May 1, 2009.
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With regard to the support obligation for the period of March 18, 2009 through
April 30, 2009, the Support Master combined Father’s net monthly income of $3,717.00
with Mother’s net monthly income of $1,156.00 to determine their combined net monthly
income. Based on Pennsylvania rule of Civil Procedure 1910.16-3, the Support Master
determined the basic support obligation for one child to be $930.00. The Support Master
next divided each parent’s net monthly income by the combined net monthly income, to
calculate their proportionate shares of the child support obligation. The Support Master
concluded that Father had a proportionate share of 76.28% and Mother had a
proportionate share of 23.72%. The Support Master then multiplied these percentages by
the basic support obligation of $930.00, determining Father’s proportionate share was
$709.40 and Mother’s was $220.60.
For the support obligation effective May 1, 2009, the Support Master combined
Father’s net monthly income of $3,760.31 with Mother’s net monthly income of $741.00
to determine their combined net monthly income. Based on Pennsylvania rule of Civil
Procedure 1910.16-3, the Support Master determined the basic support obligation for one
child to be $908.00. The Support Master next divided each parent’s net monthly income
by the combined net monthly income, to calculate their proportionate shares of the child
support obligation. The Support Master concluded that Father had a proportionate share
of 83.54% and Mother had a proportionate share of 16.46%. The Support Master then
multiplied these percentages by the basic support obligation of $908.00, determining
Father’s proportionate share was $758.54 and Mother’s was $149.46.
Pennsylvania Rule of Civil Procedure 1910.16-4(d) states that “[w]hen calculating
a child support obligation, and one or more of the children reside with each party, the
court shall offset the parties’ respective child support obligations and award the net
difference to the obligee as child support.” Therefore, the Support Master correctly
utilized Mother’s proportionate share of the child support obligation as an offset for split
custody of their two children.
For the foregoing reasons, the following order will be entered:
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ORDER OF COURT
th
AND NOW, this 13 day of August, 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 June 10, 2009
Interim Order of Court is adopted as a Final Order.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esq.
Support Master
Joanne Marino McGreevy, Esq.
137 S. West St.
Carlisle, PA 17013
Attorney for Plaintiff
Rusmira Grahic
5 Westfields Drive
Mechanicsburg, PA 17050
Plaintiff
Semir Grahic
4831 Charles Road
Mechanicsburg, PA 17050
Defendant, Pro Se
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RUSMIRA GRAHIC, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : DOMESTIC RELATIONS SECTION
:
SEMIR GRAHIC, : PACSES NO. 899110731
Defendant : DOCKET NO. 213 SUPPORT 2009
IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 13 day of August, 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 June 10, 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
Joanne Marino McGreevy, Esq.
137 S. West St.
Carlisle, PA 17013
Attorney for Plaintiff
Rusmira Grahic
5 Westfields Drive
Mechanicsburg, PA 17050
Plaintiff
Semir Grahic
4831 Charles Road
Mechanicsburg, PA 17050
Defendant, Pro Se