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Home My WebLink About98-804 supportDIANA TAYLOR, PLAINTIFF V. JON S. TAYLOR, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : PACSES NO. 701100357 : : 804 SUPPORT 1998 IN RE: SPOUSAL SUPPORT OPINION AND ORDER OF COURT BAYLEY, J., March 9, 1999:-- Plaintiff, Diana Taylor, and defendant, Jon S. Taylor, were married on September 10, 1988. They separated on November 24, 1997. There were no children. On September 22, 1998, wife filed a complaint against husband for spousal support. An order was entered on October 22, 1998, following a domestic relations conference in the amount of $70 per week effective September 22, 1998. Husband appealed and a de novo hearing was held on March 1, 1999. Husband works as a laboratory technician for Frito-Lay. His net weekly income is $400. Wife works full-time as a receptionist at Health Ministries, a temporary job obtained through the Restart Temporary Agency. hours a week with a net weekly income of $225.1 She earns $7.50 per hour for 35 Wife graduated from high school in 1976. She worked in Los Angeles, California as a bank teller and property manager. Wife moved to Cumberland County in 1992, and started work in a temporary position for the United State Post Office. She then obtained a full-time job with the Pennsylvania Motor Federation where she started at $7.00 per hour for a 40 hour 1. The difference in the net income of husband and wife is $175. The spousal support of $70 per week was calculated at 40 percent of that figure. Pa. Rule of Civil Procedure 1910.16-3(a). 804 SUPPORT 1998 week. She worked her way up to $11.30 per hour as a license and title division clerk. Wife worked for the Pennsylvania Motor Federation for five years until she was fired on May 24, 1998, for a conflict of interest. The conflict involved helping a friend who was starting a business to compete with the Pennsylvania Motor Federation. Wife testified she would not have helped her friend if she had realized that she could lose her job. Wife sought employment doing similar work with the Pennsylvania Department of Transportation, but she was not hired. She started with the Restart Temporary Agency and worked for a warehouse company at $7.00 per hour for 40 hours a week before she took the assignment at Health Ministries. The sole issue in this appeal is husband's contention that spousal support should be calculated on the income wife was earning at the Pennsylvania Motor Federation before she was fired rather than Husband cites Pa. Rule of Civil Procedure 1910.16-5(c), that her current income. provides: (1) Voluntary Reduction of Income, Where a party voluntarily assumes a lower paying job, there generally will be no recomputation of the support payment. A party ordinarily will not be relieved of a support obligation by voluntarily quitting work or by being fired for misconduct. (Emphasis added.) (5) Income Potential. Ordinarily a party who wilfully 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.. -2- 804 SUPPORT 1998 Wife cites Klahold v. Kroh, 437 Pa. Super. 150 (1994). filed a complaint seeking child support on January 27, 1992. In Klahold, a mother The father challenged paternity which was ultimately dismissed so a support order following a DRO conference was not entered until July 23, 1993. That order, which was affirmed by the trial court, was set on the father's earning capacity of $11.72 per hour. The father had worked for Super Rite Foods and earned $11.72 per hour until he was terminated in June, 1992. By the time the support case was litigated he was not able to obtain a job earning more than $5.25 per hour. A three judge panel of the Superior Court of Pennsylvania, with one judge concurring in the result and another judge concurring in the result and filing a dissenting opinion, reversed the support order with a remand to the trial court to set the order on the father's actual earnings of $5.25 per hour, not the $11.72 per hour that he had previously earned at Super Rite Foods. The opinion in support of the order of reversal stated: The language of Rule 1910.16-5(c) seems clear that it only applies to cases where an initial support order has already been entered and, because of some kind of a voluntary reduction of income since the entry of the initial order, the obligor now seeks to have his or her support 'obligation recomputat[ed].' Because the case involved a new support order and not a preexisting support order, it was held that Rule 1910.16-5(c)(1) was not applicable; therefore, the trial court erred in basing the father's earning capacity solely on his job with Super Rite Foods. In a concurring and dissenting opinion, Judge Del Sole stated: The Majority opines that this Rule only applies 'where an initial support order has already been entered and, because of some kind of a -3- 804 SUPPORT 1998 voluntary reduction of income since the entry of the initial order, the obligor now seeks to have his or her support 'obligation recomputat[ed]." This narrow rendering of 1910.16-5(c)(1) places too much emphasis on the term recomputation. Even if Rule 1910.16-5(c)(1) has only, thus far, been applied in cases where a party is seeking modification of a preexisting support order, that is no reason to preclude its application in cases where it is the first time that a support order is being entered. Such reasoning implies that a person who already has a support order cannot voluntarily quit work to obtain a reduction in the support obligation; but, a person anticipating the entry of the initial support order, can wilfully obtain a lower paying job to deliberately reduce the obligor's income without being held to the previous higher earning capacity. The Majority primarily relies upon section (1) of Rule 1910.16- 5(c); however, the trial court cited section (5) of Rule 1910.16-5(c) as well. Section (c)(5) states, in part: Income potential. Ordinarily, a party who wilfully fails to obtain appropriate employment will be considered to have an income equal to the party's earning capacity. I think a more liberal construction of Rule 1910-16-5(c) is appropriate, and I would not limit its application as the Majority has today. We are not bound by the decision in Klahold that was supported by only one of three judges.2 We agree with the comments of Judge Del Sole in his dissenting opinion. In the case sub judice, wife's wilful conduct has resulted in her earning less than what she was earning at the Pennsylvania Motor Federation. When wife was working at her earning capacity during the six months between the parties' separation on November 24, 1997, and her being fired on May 24, 1998, she never instituted a spousal support action against her husband. Obviously, the event that triggered this case is the reduction in her income due to her own fault. While wife has, to her 2. See In re Interest of O.A., 717 A.2d 490 (Pa. 1998). -4- 804 SUPPORT 1998 credit, attempted to mitigate her loss by obtaining other full-time employment, albeit at less than her earning capacity,3 her husband should not have to make up the difference in support merely because she was fired before she instituted this support action. We will calculate a spousal support order based on wife's earning capacity of $366 net per week." The spousal support is $13.60 per week which is forty percent of $34 which is the difference between husband's net weekly income of $400 and wife's net weekly earning capacity of $366. ORDER OF COURT & AND NOW, this (~' day of March, 1999, IT IS ORDERED: (1) The spousal support order entered on October 22, 1998, is vacated and replaced with this order. (2) Defendant, Jon S. Taylor, is ordered to pay spousal support to plaintiff, Diana Taylor, in the amount of $13.60 per week effective September 22, 1998. By the Cou ,rt~/'/ 3. See Grimes v. Grimes, 408 Pa. Super. 158 (1991). 4. Wife lives with her two children who are not husband's children. One child is emancipated and one is dependent. We have calculated her net income on a gross of $11,30 per hour for a 40 hour week by using a tax status of head of household with one dependent. -5- 804 SUPPORT 1998 Michael Rundle, Esquire Special Counsel for DRO Gary Kelley, Esquire For Defendant R.J. Shadday, Domestic Relations Officer :saa -6-