HomeMy WebLinkAbout250 S 2010
ALLISON M. DICK, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
ALAN T. DICK, : PACSES NO. 076111583
DEFENDANT : 250 SUPPORT 2010
IN RE: PLAINTIFF’S EXCEPTION TO SUPPORT MASTER’S
REPORT AND RECOMMENDATION
MEMORANDUM OPINION AND ORDER OF COURT
Masland, J., December 13, 2010:--
The court notes that the sole issue for its determination is the applicability
of a mortgage deviation under Pa.R.C.P. 1910.16-6(e). More specifically, should
such an adjustment be made when the record is clear that neither party has
made a mortgage payment since February of 2010, two months before the
separation of the parties. Stated simply, should the court make a mortgage
adjustment when neither party is paying the mortgage? The Master found that
there was no reason for a mortgage adjustment under these circumstances and
we agree.
The applicable portion of the Rule is as follows:
The guidelines assume that the spouse occupying the
martial residence will be solely responsible for the mortgage
payment, real estate taxes, and homeowners insurance.
Similarly, the court will assume that the party occupying the
marital residence will be paying the items listed unless the
recommendation specifically provides otherwise.
Pa.R.C.P. 1910.16-6(e) (emphasis added).
The court notes that neither counsel cited any case law regarding the
applicability of the mortgage deviation when neither party is paying the mortgage.
250 SUPPORT 2010
Perhaps, that is because the answer to the question is obvious. Regardless,
when plaintiff quoted the above section of the Rule, she placed her emphasis on
the term “will,” overlooking the import of an assumption. In short, when it is
irrefutable, that no one is paying the mortgage, this court will not assume the
opposite. When the “will” is found to be lacking, the court should not engage in a
fantasy.
We have not found a single case in any subject matter, in which a court is
directed to follow a false assumption. Rather, when assumptions are proven to
be false, courts are admonished not to follow them. To do otherwise is
chimerical. Accordingly, we will follow the recommendation of the Master and
enter the following order:
ORDER OR COURT
AND NOW, this day of December, 2010, upon consideration of
plaintiff’s exceptions, the record of the case presented before the Support Master and
the briefs filed by the parties,
IT IS HEREBY ORDERED AND DIRECTED
that plaintiff’s exception to the
ARE DISMISSED
Master’s Report and Recommendation and the current interim order
of court dated July 19, 2010, is entered as a final order of court.
By the Court,
Albert H. Masland, J.
-2-
250 SUPPORT 2010
P. Richard Wagner, Esquire
For Plaintiff
Thomas W. Gregory, Jr., Esquire
For Defendant
Michael Rundle, Esquire
Support Master
:saa
-3-
ALLISON M. DICK, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
ALAN T. DICK, : PACSES NO. 076111583
DEFENDANT : 250 SUPPORT 2010
IN RE: PLAINTIFF’S EXCEPTION TO SUPPORT MASTER’S
REPORT AND RECOMMENDATION
ORDER OR COURT
AND NOW, this day of December, 2010, upon consideration of
plaintiff’s exceptions, the record of the case presented before the Support Master and
the briefs filed by the parties,
IT IS HEREBY ORDERED AND DIRECTED
that plaintiff’s exception to the
ARE DISMISSED
Master’s Report and Recommendation and the current interim order
of court dated July 19, 2010, is entered as a final order of court.
By the Court,
Albert H. Masland, J.
P. Richard Wagner, Esquire
For Plaintiff
Thomas W. Gregory, Jr., Esquire
For Defendant
Michael Rundle, Esquire
Support Master
:saa