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HomeMy WebLinkAbout198 S 2009 CHERI L. SHEAFFER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V.: : THOMAS S. SHEAFFER, : NO. 198 SUPPORT 2009 Defendant : : PACSES # 116110721 IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The defendant has filed numerous exceptions to the Support Master’s Report and 1 Recommendation. His myriad exceptions relate to the Master’s alleged error in 1) using the defendants 2008 income rather than his year to date and projected income for 2009; and 2) improperly allocating all personal expenses paid by the corporation as income to the defendant. The standard we must apply in reviewing exceptions to a Support Master’s Report and Recommendation was set forth in Goodman v. Goodman, 375 Pa.Super. 504, 544 A.2d 1033 (1998). 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 2 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 1 The exceptions were initially assigned to President Judge Bayley who has since retired. The delay in ruling upon these exceptions was the result of the confusion surrounding the reassignment of this case to the undersigned. 2 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. 198 SUPPORT 2009 PACSES # 116110721 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. We have reviewed the entire record including the transcript of testimony and the exhibits presented to the Support Master. For the reasons stated below we are satisfied that the order entered pursuant to his Report and Recommendation was appropriate. Factual Background The parties were married in 1972. They separated in September 2007. In March of 2009 plaintiff filed the instant complaint for spousal support. Defendant has run the trucking company Towaway Express, Inc. for almost twenty five years. It is a subchapter S corporation with defendant as its sole shareholder, president and CEO. Plaintiff had also been an employee of the company. However, she 3 was terminated on the same day she filed this complaint for spousal support. The parties have historically paid many personal expenses from the corporation. These expenses included mortgages on two jointly owned residences as well as monthly 4 credit card bills. In addition the corporation paid rent to defendant for its office space in a property owned jointly by the parties. Use of Defendant’s 2008 Income The Master elected to use the defendant’s income from 2008 to calculate his support obligation. The defendant alleges that this was error because of the uncontradicted evidence of the downturn in his business during the first 9 months of 3 The record is not clear whether the support complaint was filed before or after she was terminated. 4 The parties’ accountant properly allocated these personal expenses as income to defendant each tax year. 2 198 SUPPORT 2009 PACSES # 116110721 2009. After having reviewed the notes of testimony and exhibits, we find this “uncontradicted evidence” to be less than credible. While it is true that the economy suffered a severe downturn in late 2008 and into 2009, defendant’s actions belie his protestations of poverty. In the first instance, his cost cutting measures did not take place until at or about the time the support complaint was 5 filed. In addition he did not appear to change his lifestyle. The corporation continued to pay his personal expenses, including the mortgages, credit cards and real estate taxes, which were all up to date. He was making large payments against the principal due on a 6 personal line of credit. He was even able to spend most of the winter months in the Caribbean. There are other factors which cast doubt upon the reliability of defendant’s “uncontradicted evidence”. The evidence was based upon defendant’s own testimony and/or information furnished by him or his employee. In addition, he was both defensive and evasive during cross examination. In view of the above we are satisfied that it was appropriate to use the defendant’s 2008 income in calculating the support order. Improper Allocation of Income Defendant contends that the Master erred in allocating all of the corporate distributions as income to him. He argues that since many of those distributions went to pay joint expenses, a portion should have been allocated as income to plaintiff. We disagree. 5 In addition to terminating plaintiff’s employment, he reduced his own salary as well as the amount of rent he was paid for the corporate office space. We agree with the Support Master’s conclusion that the latter two actions were a voluntary reduction of income. 6 He had made a $10,000 principal payment the month before the hearing. 3 198 SUPPORT 2009 PACSES # 116110721 Defendant has complete control of the corporation. He is the sole stockholder and CEO. The personal expenses are paid at his direction. Just as he chose to reduce his salary (and terminate plaintiff), he could choose to increase his salary and have the corporation stop paying the personal expenses. Therefore, the distributions for the payment of personal expenses, including joint obligations, were properly allocated as income to the defendant. For the reasons set forth above we find that the Support Master properly calculated the defendant’s income. Therefore, his exceptions will be dismissed. ORDER OF COURT TH AND NOW, this 15 day of JULY, 2010, for the reasons stated in the accompanying opinion the defendant’s exceptions to the Support Master’s Report and Recommendation are DISMISSED. The interim order of court dated September 29, 2009, is hereby made a FINAL ORDER. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Samuel L. Andes, Esquire Kelly M. Knight, Esquire Domestic Relations Office :sld 4