HomeMy WebLinkAbout111 S 2008
AUDREY J. WICKS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
V.:
:
GARY D. FORMAN, : NO. 111 SUPPORT 2008
Defendant :
: PACSES NO. 357109794
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., June , 2010
Defendant has filed a timely appeal from our order of January 25, 2010, which
dismissed his exceptions to the Support Master’s Report and Recommendations and
made the interim support order final. His myriad exceptions all involved the Master’s
use of the plaintiff’s actual income rather than her earning capacity to determine the
recommended support order.
The standard we must apply in reviewing exceptions to a Support Master’s Report
and Recommendations was set forth in Goodman v. Goodman, 375 Pa.Super. 504, 544
A.2d 1033 (1988). As the Court noted, “such a report is to be given the fullest
consideration, especially with regard to the credibility of witnesses”. 544 A.2d at 1035.
However, it is “advisory only”, and we are not bound by it. Rothrock v. Rothrock, 765
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A.2d 400, 404 (2000). Rather, we “must consider the evidence, its weight, and the
credibility of the witnesses, de novo”. Id. “It is the sole province and the responsibility
of the court to set an award of support, however much it may choose to utilize the
Master’s report.” Goodman v. Goodman, 544 A.2d at 1035.
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Rothrock deals with exceptions to a divorce master’s report and recommendations. However, the
Goodman Court held that it makes no difference whether the report and recommendations are from a
support master or a divorce master; our standard of review is the same.
111 SUPPORT 2008
Plaintiff is a registered nurse. She had been employed as the director of nursing at
a skilled care facility. She was forced to take family medical leave as a result of her
daughter Lily’s frequent psychiatric hospitalizations. In addition, her other daughter
Tasha had become involved in counseling to address her suicidal tendencies. Because of
the serious mental health issues involving both daughters plaintiff was unable to return to
full time employment. When the Master asked her to explain her reasons for not working
full time she responded as follows:
(A)ccording to the service objectives that were given to me by Children &
Youth, I needed to participate in family group conferencing prior to Lily
returning home. I needed to attend her doctor’s appointments, and I
needed to participate in all of her plans in order to return home including
ISP meetings and meetings with her therapy team. . . . In fact, I will tell
you that because my daughter is placed in Chester County that I frequently
have to drive to the Lancaster Office of Pennsylvania Mentor on a school
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night with my children for therapy.
Despite numerous attempts, plaintiff was unable to find employment as a part
time nurse. She was, however, able to obtain part time employment in a retail department
store which allowed her to tend to the special needs of her children.
After hearing all of the evidence the Support Master determined that we should
use her actual earnings from the part time job to calculate a temporary support order. The
Support Master described his reasoning as follows:
She is attempting to find part-time employment as a nurse but has been
unsuccessful. She is not attempting to find full-time employment because
she is doing everything in her power to have Lily removed from placement
and relocated to her home. She has also been heavily involved with
Tasha’s psychological counseling since Tasha had displayed suicidal
tendencies earlier in the year. Under the circumstances, the plaintiff’s
actual earnings will be utilized to calculate a temporary support order
through December, 2009 with both parties given the right to request a
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review in January, 2010.
2
Transcript of Support Master Proceedings, October 6, 2009.
3
Support Master’s Report and Recommendation, p. 3.
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111 SUPPORT 2008
We reviewed the entire record including the transcript of testimony and exhibits
presented to the Support Master. We also reviewed the briefs of the parties and heard
argument thereon. We were satisfied that the order entered pursuant to the Support
Master’s Recommendations was appropriate under the special circumstances of this case.
As a result we dismissed the defendant’s exceptions.
_________________ ___________________________
DATE Edward E. Guido, J.
Audrey J. Wicks
Gary D. Forman
Joseph D. Caraciolo, Esquire
DRO
:sld
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