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HomeMy WebLinkAbout1056 S 2008 LISA M. BROSIUS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : PACSES NO. 368110487 JOHN T. BROSIUS, : Defendant : NO. 08-6170 CIVIL LISA M. BROSIUS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : PACSES NO. 697110500 JOHN T. BROSIUS, : Defendant : NO. 1056 SUPPORT 2008 IN RE: EXCEPTIONS TO THE INTERIM ORDER OF COURT BASED UPON THE SUPPORT MASTER’S REPORT AND RECOMMENDATION OPINION AND ORDER In this support and alimony pendente lite case, defendant/father/petitioner, John T. Brosius, filed exceptions to the interim order of court, dated March 30, 2010, based upon the Support Master’s Report and Recommendation on April 19, 2010. On March 13, 2009, the Honorable Edgar B. Bayley had entered an interim order based on the Support Master’s Report and Recommendation under which defendant was required to pay $1,385.00 per month in support for his children, Hanna M. Brosius and Claire M. Brosius, and $2,124.00 per month in alimony pendente lite. The interim order became final when defendant did not file written exceptions thereto within twenty days. The 2009 interim order was based upon the Support Master’s Report and Recommendation (the “2009 Report”) which used defendant’s 2008 income because his predicted 2009 income was too speculative as a result of his self-employment. 2009 Report, Discussion, p.3. NO. 08-6170 NO. 1056 S 2008 In November of 2009, defendant became certain of his income for that year and filed a petition to modify the amounts of his monthly alimony pendente lite and child support obligations for 2009. A hearing was held on March 16, 2010, and on March 30, 2010, the Master issued his Report and Recommendation (the “2010 Report”). On March 30, 2010, the Honorable Albert H. Masland entered an interim order based on the support Master’s 2010 Report and Recommendation under which the Master reduced defendant’s obligations, but only as of November 19, 2009, the date of the filing of the petition to modify. Defendant has now filed Exceptions to the Interim Order of Court Based Upon the Support Master’s Report and Recommendation seeking to have the reduction in his 2009 obligations retroactively applied to the beginning of 2009. Both parties have a duty to support their children in accordance with their relative incomes and ability to pay. Depp v. Holland, 636 A.2d 204 (Pa.Super. 1994). In applying the Pennsylvania Support Guidelines, the Master, in his Report and Recommendation underlying the March 13, 2009 Order, found that defendant had gross income in 2008 of $314,728.00. 2009 Report, March 13, 2009, Findings of Fact, ¶ 14 (hereinafter “2009 Report, Findings of Fact, ¶ __”). The Support Master also considered defendant’s claim that his income for 2009 would go down. The Support Master found that “[i]n 2008 the Husband lost several major accounts,” and that [b]ecause of the loss of said accounts and the current economic climate, the Husband anticipates that his 2009 income will be significantly less than his 2008 income.” See 2009 Report, Findings of Fact, ¶¶ 17, 18. Defendant claimed that he had lost several important accounts and that the Support Master should take into account his anticipated loss of earnings and lesser income when calculating the amount of his child support and alimony pendente lite 2 NO. 08-6170 NO. 1056 S 2008 obligations. Id, see also 2009 Report, Discussion, p.3. The Master rejected the use of defendant’s forecasted lesser income, concluding that it would be too speculative to rely on the uncertain numbers: The Husband has argued that he anticipates a significantly lower income in 2009 because of the loss of major accounts. While this may, in fact, occur, at the present time any estimated income is purely speculative. Should his forecast prove to be true, he may certainly file a petition for modification of his support obligations. 2009 Report, Discussion, p.3. As a result of the speculative nature of defendant’s forecasted income, the Master based defendant’s support and alimony pendente lite obligations for 2009 on defendant’s 2008 income, with the proviso that defendant could file a petition for modification of his support obligations when his income was no longer speculative. Id. Defendant’s 2009 income did, in fact, go down, and as a result, on November 19, 2009, defendant filed a petition to modify the 2009 order. The Support Master conducted a hearing on March 16, 2010, and issued a new Interim Order of Court and Report and Recommendation on March 30, 2010. The Master did make reductions in defendant’s alimony pendente lite and child support obligations, which the Master made effective as of November 19, 2009, the date of the filing. See 2010 Report. The Master rejected, however, the defendant’s request to have the reductions retroactively applied to January 1, 2009. Id. On April 19, 2010, defendant filed Exceptions to the Interim Order of Court Based Upon the Support Master’s Report and Recommendation sub judice. Defendant argues that the Support Master erred in not making the reductions in defendant’s monthly alimony pendente lite and child support obligations retroactive to January 1, 3 NO. 08-6170 NO. 1056 S 2008 2009. Defendant states that retroactively applying his financial obligation is necessary first because he was precluded by the Master from filing a petition to modify prior to his income for 2009 being known with certainty, and, second, because without the retroactive modification plaintiff will continue to receive a windfall for approximately ten and one-half months every year until defendant’s self-employed income is known. See Defendant/Petitioner’s Exceptions, ¶¶ 14- 16. We note, initially, that defendant did make his request known to the Master at the March 1 16, 2010 hearing. His testimony indicated that he was concerned with the inability of the Master to set his obligations correctly as a result of his self-employment and unknown income until later in the calendar year. N.T. 24. Pennsylvania Rule of Civil Procedure 1910.17 governs the effective date of Support Orders and Change of Circumstances. That rule provides in pertinent part as follows: (a) An order of support shall be effective from the date of the filing of the complaint or petition for modification unless the order specifies otherwise. However, a modification of an existing support order may be retroactive to a date preceding the date of filing if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. The Master concluded that it would be too speculative to rely on the uncertain numbers in calculating defendant’s obligations based on an uncertain income: 1 Q Are you asking for a retroactive modification to the beginning of ’09? A Yes. Q Is that because your’09 income was as forecasted less than what the Court held you to? A Yes. 4 NO. 08-6170 NO. 1056 S 2008 The Husband has argued that he anticipates a significantly lower income in 2009 because of the loss of major accounts. While this may, in fact, occur, at the present time any estimated income is purely speculative. Should his forecast prove to be true, he may certainly file a petition for modification of his support obligations. 2009 Report, Discussion, p. 3. Defendant did as the Master suggested. As it was not until November of 2009 that his income was certain, he waited until then to file a petition to modify his support obligation. Defendant claims that he was precluded from filing his petition to modify before November 2009 because he is self-employed and was uncertain about his actual income for that year. The Rules of Civil Procedure would permit us to extend the retroactive effect of this support order for a “compelling reason.” The defendant’s argument is that such a “compelling reason” is present here. While we understand his argument, we are satisfied that Pennsylvania Rule of Civil Procedure 1910.17 does not operate to extend retroactivity in this case. The defendant, in sum, argues that the effective date of his support order should be different because he is self-employed. But, as the plaintiff notes, defendant is “not the first self- employed litigant to confront the issue of computing his future income based on past results.” In fact, such computation is the norm for self-employed persons. Were we to grant relief in this case, we would be required to do so in all similar cases. Such a procedure is simply not practicable and is not, we believe, contemplated by the Rules of Civil Procedure. The defendant complains that the most recent calculation in support results in a windfall to the plaintiff. He overlooks the fact that should his fortunes improve, the plaintiff will be held to the same rule with regard to the effective date of the order, to her detriment. We do not mean to say that two 5 NO. 08-6170 NO. 1056 S 2008 wrongs make a right, but simply suggest that the application of Rule 1910.17 is equally disadvantageous to both parties. As a final matter, it appears that the Master should have calculated the parties’ net incomes by applying a local income tax rate of 2% instead of 1%. The defendant claims that the Master erred in that calculation because both parties reside in the Borough of Camp Hill which does, in fact, impose a 2% local income tax. The parties are in agreement on this issue and, as a result, defendant’s Exceptions to the Interim order of Court Based Upon the Support Master’s Report and Recommendation, with respect to this issue, will be granted. ORDER th AND NOW, this 30 day of September, 2010, this matter is remanded to the Domestic Relations Office for an adjustment, if any, to the support order resulting from the application of the appropriate local income tax percentage. In all other respects, the order of March 30, 2010, is herewith made a final order of court. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Sandra L. Meilton, Esquire For the Plaintiff Elizabeth S. Beckley, Esquire For the Defendant Andrew B. Brown, Esquire 6 LISA M. BROSIUS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : PACSES NO. 368110487 JOHN T. BROSIUS, : Defendant : NO. 08-6170 CIVIL LISA M. BROSIUS, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : PACSES NO. 697110500 JOHN T. BROSIUS, : Defendant : NO. 1056 SUPPORT 2008 IN RE: EXCEPTIONS TO THE INTERIM ORDER OF COURT BASED UPON THE SUPPORT MASTER’S REPORT AND RECOMMENDATION ORDER th AND NOW, this 30 day of September, 2010, this matter is remanded to the Domestic Relations Office for an adjustment, if any, to the support order resulting from the application of the appropriate local income tax percentage. In all other respects, the order of March 30, 2010, is herewith made a final order of court. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Sandra L. Meilton, Esquire For the Plaintiff Elizabeth S. Beckley, Esquire For the Defendant