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HomeMy WebLinkAbout2003-6469 Civil LISA T. DEYO, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SIDNEY W. DEYO, DEFENDANT 03-6469 CIVIL TERM IN RE: EXCEPTIONS OF HUSBAND TO SUPPORT MASTER'S RECOMMENDATION OF ALIMONY PENDENTE LITE TO WIFE OPINION AND ORDER OF COURT Bayley, J., January 4, 2006:-- Plaintiff, Lisa T. Deyo, age 39, and defendant, Sidney W. Deyo, age 48, were married on April 16, 1986. They separated on October 28, 2003.1 On December 15, 2003, wife filed a complaint for divorce. On January 28, 2005, she sought alimony pendente lite. An order was entered on March 9,2005, requiring husband, inter alia, to pay wife APL in the amount of $992 a month, effective January 28, 2005. An appeal was heard by a Support Master. The Master recommended that husband pay APL in the amount of $718 per month, retroactive to the date wife obtained her current employment, on April 29,2005. She is a billing supervisor with Dialysis Corporation of America earning $25,000 annually, with a net income per month of $1 ,709. Husband, a detective with the Hampden Township Police Department, has net income per month of $3,644. Husband filed exceptions which are ready for decision. 1 They did not have children. 03-6469 CIVIL TERM The Master assigned wife an earning capacity of $1 ,709 net a month based on her current earnings at Dialysis Corporation. Husband maintains that wife should have been assigned an earning capacity based on a gross income of $55,000 a year at her prior employment with HCR ManorCare. Wife has a bachelor's degree in criminal justice, and a master's degree in public administration. She holds a nursing home administrator license in Pennsylvania. In July, 2003, she started working for HCR ManorCare at their Carlisle facility as an administrator in training. Her salary was $40,000 a year. On April 28, 2004, she was transferred to the Green Tree facility of ManorCare in Pittsburgh, as an assistant administrator at a salary of $50,000 per year. Her salary became $55,000 per year as of July 9,2004, after she passed a home administrator examination. Her last day of employment with ManorCare was August 20, 2004. Wife testified that she loved her position with ManorCare, and would still be there but for the actions of her employer in August 2004. She was called to a meeting with Rick Borofski, a Regional Director of Operations for ManorCare, and a representative of Human Resources. She was informed that she was going to be terminated because she hugged a business office manager. She was told that if she resigned willingly, they would give her a "Mulligan", i.e., that if she cooperated she would not be required to pay back $25,000 in training and moving expenses.2 Feeling 2 Wife was obligated to repay those funds if she resigned, but not if she was involuntarily terminated. -2- 03-6469 CIVIL TERM that she was in a no win -3- 03-6469 CIVIL TERM situation, wife resigned, a decision she describes as coerced. Rick Borofski testified at the hearing that he became aware of "behaviors" not consistent with our leadership in the organization." He described those behaviors as inappropriate touching of other women. He saw Deyo holding the hand of another employee. Based on the look on the employee's face, he felt that she was uncomfortable with the interaction. Borofski, however, never spoke to the employee. He felt that this was a "red flag" for his mid-west conservative company, as they are "very, very strict on that behavior." He acknowledged that no investigation was conducted, and that he had no direct evidence of the alleged "behaviors." Neither he nor any representative of Human Resources ever spoke to the alleged victims of these "behaviors." After confronting Deyo, she resigned. Wife testified that after leaving ManorCare, she engaged in eight months of constant job searching until she obtained employment with Dialysis Corporation of America. She produced evidence showing that she applied for many assistant living and nursing home facility positions. Only three interviews were offered, which she attended. She believes that she is blackballed in the industry. Even with her current employment, she is looking for a better paying job, and is going to school in the evenings to obtain a nursing degree. Based on all of the evidence, we find that wife was not terminated for cause by -4- 03-6469 CIVIL TERM ManorCare, but was subject to a coerced resignation.3 Pa. Rule of Civil Procedure 1910.16-2(d), provides: (1) Voluntary Reduction of Income. Where a party voluntarily assumes a lower paying job, there generally will be no effect on the support obligation. A party will ordinarily not be relieved of a support obligation by voluntarily quitting work or by being fired for cause. Note: This provision applies that to the establishment as well as modification of a support obligation. To the extent that Klahold v. Krah, 737 Pa. Super. 150, 649 A.2d 701 (1994) implies otherwise, it is overruled. (2) Involuntary Reduction of Income. No adjustments in support payments will be made for normal fluctuations in earnings. However, appropriate adjustments will be made for substantial continuing involuntary decreases in income. . . . (4) Income Potential. Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the party's earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. (Emphasis added. ) In Ewing v. Ewing, 843 A.2d 1982 (Pa. Super. 2004), the Superior Court of Pennsylvania stated: Recently, our supreme court observed the standard to be applied 3 The Master addressed the testimony of two witnesses who talked to wife on the day that she left her employment in Pittsburgh and who testified that wife called on the telephone and said that she "quit." We agree with the following analysis: The Master believes that wife's explanation of those telephone calls and her comment are reasonable in that wife was trying to explain to her friends why she left that employment by saying that she was quitting the position in order to save face and not wanting to get into a detailed explanation of what had actually occurred on that day. In any event, wife did "quit" in her view of the circumstances because she felt threatened by termination, so perhaps her comments were not entirely out of order to her friends. -5- 03-6469 CIVIL TERM when making an inquiry under the Rule [191 0.16-2(d)(1 )]: In Pennsylvania, "[w]here a party voluntarily assumes a lower paying job, there generally will be no effect on the support obligation," and "[a] party will ordinarily not be relieved of a support obligation by voluntarily quitting work or being fired for cause." Pa.R.C.P. No.1910.16-2(d)(1). In construing this rule, the Superior Court has required that a party seeking modification after a voluntary reduction in income show (1) that the change was not made for the purpose of avoiding child support, and (2) that reduction is warranted based on the party's efforts to mitigate the lost income. See Grimes v. Grimes, 408 Pa.Super. 158, 596 A.2d 240, 242 (1991); see also Kersey v. Jefferson, 791 A.2d 419 (Pa.Super.2002). Otherwise, for calculation of a support obligation, the petitioner will be considered to have an income equal to his or her earning capacity as defined in the support guidelines." Grimes, 596 A.2d at 242. Yerkes v. Yerkes, 573 Pa. 294, 824 A.2d 1169, 1176 n. 10 (2003). The Yerkes court had before it a petition for modificationl termination of support based on a parent's confinement in prison. The court reasoned that the incarceration of a parent was akin to voluntary unemployment. Even though the Yerkes court noted this court's use of a two-part inquiry in assessing Rule 1910.16-2, it did not analyze the prongs individually, but instead determined that incarceration alone is not grounds for modificationltermination of a support order. Id. at 307, 824 A.2d at 1177. That the Yerkes court noted, but did not apply, the two-prong test for Rule 1910.16-2 was sensible in light of the facts of that case. First, the idea that the father in Yerkes committed a crime and went to prison in order to avoid child support, though possible, was highly unlikely. Second, the father's incarceration prevented him from attempting to mitigate his lost income by seeking employment elsewhere. From Yerkes, we can infer that the two pronged analysis is appropriate only where the facts give rise to such an examination. The facts of this case are akin to Yerkes in that Father's lost income here was a result of his own misconduct. Further, the notion that Father engineered his termination from AT&T in an effort to avoid his child support obligation strains belief. Mother made no such claim in the trial court or in her brief and the record offers no support for such an inference. But the analogy of Yerkes is not complete. Unlike in Yerkes, Father here indeed has the opportunity to mitigate his lost income and, we believe, should be required to do so. Thus, although prong one is -6- 03-6469 CIVIL TERM irrelevant under these facts, prong two is not. We hold today that where a parent is fired for cause, in order for the court to consider reducing the parent's child support obligation under Rule 191 0.16-2(d)(1), the parent must establish that he or she attempted to mitigate lost income. See Grimes, supra and Kersey, supra. The record in this case shows that Father testified about his efforts to mitigate his lost income following his termination. According to Father, he applied for and received unemployment compensation, he filed an arbitration petition through his union to challenge his discharge and seek reinstatement, and he sought other employment as well. Father named some of the companies and facilities to which he had applied for work and he testified that he had two interviews scheduled for the date of the hearing. In addition, he stated that he was scheduled to take the civil service exam the following week. The trial court did not consider this mitigation testimony in the context of Rule 191 0.16-2(d)(1); rather, the court believed that because Father was fired for cause, a reduction in support was not warranted. In light of our analysis above, we cannot agree with the trial court that Father's termination, despite being for cause, precludes him from receiving a reduction in his child support obligation. A reduction in child support may be warranted in this case and the trial court abused its discretion in failing to consider mitigation. In the case sub judice, wife lost her position with ManorCare by being coerced into resigning. She did not leave ManorCare for the purpose of securing APL from husband. She made an all out effort to mitigate her lost income, has been able to mitigate it to a certain extent, and seeks to improve her chances of mitigating it further. For a period of time after she left ManorCare, she lived out of her car. She has some substantial debt. She moved in with a friend, and has since moved in with another friend. She feels that she does not have adequate money to rent her own apartment. Her need for resources to pursue a divorce against her financially stable husband is obvious. See Litmans v. Litmans, 673 A.2d 382 (1996). She is entitled to APL. -7- 03-6469 CIVIL TERM Accordingly, the following order is entered.4 ORDER OF COURT AND NOW, this day of January, 2006, IT IS ORDERED that all provisions of the order awarding Lisa T. Deyo alimony pendente lite of $992 a month, effective January 28,2005, and reduced to $718 a month effective April 29,2005, ARE AFFIRMED. By the Court, Edgar B. Bayley, J. Nicole M. Staley-O'Gorman, Esquire For Plaintiff Constance P. Brunt, Esquire F or Defendant E. Robert Elicker, Esquire Divorce Master :sal 4 Husband also filed an exception alleging he was prejudiced by the manner in which the Master conducted the hearing. That exception is frivolous. -8- LISA T. DEYO, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SIDNEY W. DEYO, DEFENDANT 03-6469 CIVIL TERM IN RE: EXCEPTIONS OF HUSBAND TO SUPPORT MASTER'S RECOMMENDATION OF ALIMONY PENDENTE LITE TO WIFE ORDER OF COURT AND NOW, this day of January, 2006, IT IS ORDERED that all provisions of the order awarding Lisa T. Deyo alimony pendente lite of $992 a month, effective January 28,2005, and reduced to $718 a month effective April 29,2005, ARE AFFIRMED. By the Court, Edgar B. Bayley, J. Nicole M. Staley-O'Gorman, Esquire For Plaintiff Constance P. Brunt, Esquire F or Defendant E. Robert Elicker, Esquire Acting Support Master :sal