HomeMy WebLinkAbout1098 S 2009
LISA A. MARSZALEK, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
: DOMESTIC RELATIONS SECTION
:
ANDREW A. :
MARSZALEK, III, : PASCES NO. 870111372
Defendant : NO. 1098 SUPPORT 2009
IN RE: PLAINTIFF’S EXCEPTIONS
TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., May 19, 2010.
In this child/spousal support case in which each party is proceeding pro se,
Plaintiff wife/mother has filed exceptions to a support master’s report which
recommended, inter alia, denial of her claim for spousal support on the basis of
entitlement. Plaintiff’s exceptions to the report have been expressed as follows:
1. Plaintiff takes exception to Support master’s determination in the
Discussion section of Support Master’s Report and Recommendation, p. 3,
¶3, that Plaintiff forfeits her right to spousal support under Crawford v.
Crawford, 429 Pa. Super. 540, 633 A.2d 155 (1993), because she was
involved in a sexual relationship with another man since September 2009.
2. Plaintiff takes exception to Support Master’s Recommendation G,
p. 4 of Support Master’s Report and Recommendation, that the Plaintiff’s
claim for spousal support is denied.
3. Plaintiff takes exception to the lack of finding of fact that
Defendant was physically, mentally and emotionally abusive to Plaintiff
and the three (3) children over a period of years prior to the marital
separation of May 28, 2009.
4. Plaintiff takes exception to the lack of finding of fact that
Defendant’s abusive behavior was not a minor or passing phenomenon,
but went to the heart of the cause which brought about the marital
difficulties.
5. Plaintiff takes exception to the lack of finding of fact that she is
entitled to an amount of support, whether child or spousal, as a result of
the parties’ joint decision for Plaintiff to forego [sic] pursuing her dream of
a teaching career while she stayed home to raise the children and support
Defendant and promote his career as a mechanical engineer, to great
financial detriment to her with regard to her current salary level and ability
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to support herself and the children.
For the reasons stated in the accompanying opinion, Plaintiff’s exceptions
will be denied and the interim order of court dated March 10, 2010, issued
pursuant to the support master’s report will be entered as a final order.
STATEMENT OF FACTS
Plaintiff Lisa A. Marszalek is an adult individual residing in New
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Cumberland, Pennsylvania. Defendant Andrew A. Marszalek, III, is an adult
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individual also residing in New Cumberland, Pennsylvania. The parties were
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married on November 23, 1996, and separated on May 28, 2009. As of February
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22, 2010, neither party had filed for divorce.
Three children were born of the marriage, who presently reside primarily
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with Plaintiff wife/mother. On December 23, 2009, Plaintiff filed a complaint for
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spousal and child support against Defendant. A hearing was held on the
complaint by the Cumberland County Support Master on February 22, 2010. The
evidence submitted at the hearing, in pertinent part, may be summarized as
follows:
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Plaintiff is employed as a public elementary school teacher, with an
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average gross monthly income of between $3,500.00 and $3,600.00. Defendant,
after a period in which he received unemployment benefits in the gross monthly
1
Plaintiff’s Exceptions to Support Master’s Report and Recommendation at 1-2, filed March 30,
2010.
2
N.T. 3, Support Master’s Hearing, February 22, 2010 (hereinafter N.T. __).
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N.T. 17.
4
N.T. 4.
5
N.T. 37.
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N.T. 4.
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Plaintiff’s Complaint for Support, filed December 23, 2009.
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N.T. 5.
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Plaintiff’s Ex. 1, Support Master’s Hearing, February 22, 2010.
2
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amount of $2,418.00, is employed, as of January 25, 2010, through a temporary
agency with General Electric as a mechanical engineer, at a gross monthly salary
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(with overtime and a “per diem” allotment) of about $7,950.00. In her testimony,
Plaintiff attributed the disparity in their incomes to her having delayed the start of
her teaching career to be at home with the parties’ children, pursuant to a joint
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decision of the parties.
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Defendant husband/father currently lives in the marital residence, which
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Plaintiff left on October 31, 2009. According to Defendant, Plaintiff had
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commenced an affair during their marriage, and Plaintiff conceded the existence
of such a sexual relationship as of the second week of September, 2009, which
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was still ongoing as of the hearing date. Her testimony included the following by
way of explanation:
. . . I would like it to be noted as my testimony that we have had
problems in our marriage for years that began with an active domestic
violence that I went to the emergency room for. And I have evidence that
we have had been discussing divorce back in 2007. So my relationship
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occurred over three months after we were separated . . . .
Following the hearing, the support master issued a report recommending a
child support obligation on the part of Defendant in accordance with the support
guidelines applicable to the incomes above stated, and recommending that
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Plaintiff’s claim for spousal support be denied on the basis of adultery. An
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N.T. 17-18, 20-21.
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N.T. 21-23.
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N.T. 10-11, 13.
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N.T. 20-21.
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N.T. 7. At Plaintiff’s request, the parties had separated on May 28, 2009, with Defendant
renting a room at a friend’s house. N.T. 7-9.
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N.T. 32.
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N.T. 33.
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N.T. 36-37.
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Support Master’s Report, filed March 10, 2010.
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interim order in accordance with these recommendations was issued on March 10,
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2010.
DISCUSSION
Standard of review of support master’s report. The standard of review of a
support master’s report and recommendation is well settled. The report “is to be
given the fullest consideration, especially with regard to the credibility of
witnesses,” although the findings and conclusions are advisory rather than binding.
Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988); see
McCurdy v. McCurdy, No. 02-0097 Support (slip op.) (Cumberland Co. 2002)
(Hess, J.).
Entitlement to spousal support. “A dependent spouse is entitled to support
until it is proven that the conduct of the dependent spouse constitutes grounds for a
fault divorce.” Crawford v. Crawford, 429 Pa. Super. 540, 549, 633 A.2d 155, 159
(1993). “The party seeking to nullify the obligation bears the burden of proving
the conduct claimed by clear and convincing evidence.” Id.
Adultery is a ground for divorce. Act of December 19, 1990, P.L. 1240, §2,
23 Pa. C.S. §3301(a)(2). Defenses to a claim of adultery exist where the plaintiff:
(1) has been guilty of like conduct;
(2) has admitted the defendant into conjugal society or embraces after
the plaintiff knew of the fact;
(3) allowed the defendant’s prostitution or received hire from it; or
(4) exposed the defendant to lewd company whereby the defendant
became involved in the adultery.
Id. §3307.
Although it has been said that adultery can not be asserted as a defense to a
divorce action where it occurs after the accrual of grounds for divorce on behalf of
the plaintiff, it has also been held that, as a general rule, in the absence of one of
the defenses enumerated above a defendant who has committed adultery can not
prevail in a divorce action. Berezin v. Berezin, 186 Pa. Super. 340, 142 A.2d 741
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Interim Order of Court, dated March 10, 2010.
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(1958). As the Berezin court noted, “[w]e cannot agree that the commission of
indignities by one spouse gives to the other a permanent license to commit
adultery without being subject to the sanction of divorce.” Id. at 342, 142 A.2d at
742. Thus, the court is unable to agree with Plaintiff’s position in her brief that
Defendant’s alleged indignities prior to her commission of adultery would
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constitute a successful defense to a divorce action filed by Defendant; it may
well be, in this case, that both parties could maintain successful divorce actions,
and that neither could maintain a successful spousal support action.
Earning capacity for purposes of support. “Generally, the amount of
support to be awarded is based upon the parties’ monthly net income.” Pa. R.C.P.
1910.16-2. More technically, the criterion is one of “actual earning capacity.”
Woskob v. Woskob, 2004 PA Super 37, ¶¶28-29, 843 A.2d 1247, 1255. Although
the contribution of a spouse who has made a sacrifice for the benefit of the
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household can be a factor in certain economic aspects of a divorce action, the
rules do not contemplate a calculation of a support obligation on the basis of a
hypothetical earning capacity, nor would such a rule be amenable to a practical
application. For this reason, the court is unable to agree with Plaintiff that the
support master’s recommendation of a support application should have been based
upon net income figures different from those employed.
Based upon the foregoing, the following order will be entered:
ORDER OF COURT
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AND NOW, this 19 day of May, 2010, upon consideration of Plaintiff’s
Exceptions To Support Master’s Report and Recommendation, and for the reasons
stated in the accompanying opinion, Plaintiff’s exceptions are denied and the
interim order of court dated March 10, 2010, is entered as a final order.
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Plaintiff’s Brief in Support of Exceptions to Support Master’s Report and Recommendation at
3-6.
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See, e.g., Act of December 19, 1990, P.L. 1240, §2, as amended, 23 Pa. C.S. §3502 (2009
Supp.).
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BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esq.
Support Master
Lisa A. Marszalek
1220 Edinburg Circle
New Cumberland, PA 17070
Plaintiff, pro Se
Andrew A. Marszalek, III
205 Locust Drive
New Cumberland, PA 17070
Defendant, pro Se
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LISA A. MARSZALEK, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
: DOMESTIC RELATIONS SECTION
:
ANDREW A. :
MARSZALEK, III, : PASCES NO. 870111372
Defendant : NO. 1098 SUPPORT 2009
IN RE: PLAINTIFF’S EXCEPTIONS
TO SUPPORT MASTER’S REPORT
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 19 day of May, 2010, upon consideration of Plaintiff’s
Exceptions To Support Master’s Report and Recommendation, and for the reasons
stated in the accompanying opinion, Plaintiff’s exceptions are denied and the
interim order of court dated March 10, 2010, is entered as a final order.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michael R. Rundle, Esq.
Support Master
Lisa A. Marszalek
1220 Edinburg Circle
New Cumberland, PA 17070
Plaintiff, pro Se
Andrew A. Marszalek, III
205 Locust Drive
New Cumberland, PA 17070
Defendant, pro Se