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HomeMy WebLinkAbout105 S 2008ANITA M. FRANK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : DOMESTIC RELATIONS SECTION TIMOTHY P. WILKINSON, : PASCES NO. 735109797 Defendant : 105 SUPPORT 2008 IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., April 26, 2011. In this spousal/child support case, Defendant husband/father has filed exceptions to a support master's report which recommended (a) dismissing a petition for modification that he filed in September, 2010, based upon a purported decrease in his income since June, 2010, and (b) granting a petition for modification that he filed in December, 2010, based upon the departure of one of the parties' children from Plaintiff's residence.' Defendant's exceptions state the following: 1. The Support Master erroneously recommended that Defendant's Petition for Modification filed on 13 September 2010 be dismissed. 2. The Support Master erroneously recommended that the modification of the support order not be effective 13 September 2010. 3. The Support Master erroneously failed to consider the substantial payments Defendant makes, in the form of mortgage payments, real estate taxes, and home owners insurance, to preserve the marital residence which is still held in the joint names of Plaintiff and Defendant. 4. The Support Master erroneously failed to recommend a downward adjustment in the Defendant's support payment because of the substantial costs he pays to preserve the marital residence. 5. The Support Master erroneously failed to recommend that the support order be paid in two parts, the first one for a monthly payment based upon Defendant's monthly salary and the second portion of the order being a percentage of any bonus or commission payments Defendant receives, net of mandatory tax withholdings .2 ' Support Master's Report and Recommendation, filed January 18, 2011. 2 Defendant's Exceptions to Report of Support Master, filed January 25, 2011. For the reasons stated in this opinion, Defendant's exceptions will be dismissed and the interim order of court dated January 18, 2011,3 issued in accordance with the support master's report and recommendation, will be entered as a final order. STATEMENT OF FACTS Plaintiff is Anita M. Frank, who lives on Brook Meadow Drive in Mechanicsburg, Cumberland County, Pennsylvania.4 Defendant is Timothy P. Wilkinson, who lives on Signal Hill Drive, in Mechanicsburg, Cumberland County, Pennsylvania.' Although not expressly of record, it would appear that the parties are still married .6 The parties are parents of Blake M. Wilkinson (d.o.b. October 2, 1992) and Tia M. Wilkinson (d.o.b. Nov. 28, 1995).7A complaint for spousal and child support was filed by Plaintiff on June 23, 2008,8 and several orders for spousal and child support against Defendant followed.9 On June 14, 2010, as the result of a stipulation of the parties,10 an order for spousal and child support was issued in which Defendant was directed to pay monthly $3,721.00 in spousal support and $2,445.00 in child support ($1,222.50 for each child).11 The order was apparently intended by the parties to eliminate a prior guideline deviation in Defendant's favor. 12 s Interim Order of Court, January 18, 2011 (Masland, J.). 4 N.T. 27, Support Master's Hearing, January 13, 2011 (hereinafter N.T. 'N.T. 4. 6 See Complaint for Support, filed June 23, 2008; see also Support Master's Report and Recommendation, ¶3, filed January 18, 2011. N.T. 3. s Complaint for Support, filed June 23, 2008. 9 See, e.g., Order of Court, October 20, 2010 (Masland, J.); Order/Notice to Withhold Income for Support, January 19, 2011 (Masland, J.). 10 Stipulation, filed June 14, 2010. " Order of Court, June 14, 2010. 'Z See Plaintiff's Brief in Opposition to Defendant's Exceptions to the Support Master's Recommendation, at 3; Brief of Defendant in Support of Exceptions to Support Master's Recommendations, at 2. 2 On September 13, 2010, Defendant filed a petition for modification of the order, alleging that his "income [as a salesperson for Dell, Inc. '13 had] declined significantly since June 2010."14 However, at a Support Master's hearing held on January 13, 2011, the evidence tended to show that (a) Defendant's gross monthly income from January 1, 2010, through June 11, 2010, had averaged $18,820.00 per month, 15 (b) this period of the year traditionally represented a "low cycle" in terms his earning capacity, 16 and (c) his gross income from June 12, 2010, through October 15, 2010, had averaged about $17,000.00 per month. 17 In addition, the evidence showed that, through a refinancing facilitated by the parties' aforesaid stipulation on June 14, 2010, Defendant had been able to reduce his payments related to the jointly -owned marital residence (where he continued to residelg) by about $1,750.00 per month.19 As a result, in terms of expenses pertaining to this residence, Defendant testified that he paid $3,931.71 per month on a mortgage, home equity loan, and taxes and insurance, 20 as compared to an earlier figure of $5,675.00.21 On December 20, 2010, Defendant filed a second petition for modification, alleging that the parties' son had not resided with Plaintiff since October 25, 2010, that Plaintiff had not reported that fact to either Defendant or the Domestic Relations Office, and that it was "improper for Defendant to pay support to the Plaintiff for the child when he [was] not residing in her home .„22 At the aforesaid support master's hearing, which ” N.T. 7. 14 [Defendant's] Petition for Modification of an Existing Support Order, ¶2, filed September 13, 2010. " N.T. 22. 16 N.T. 22-23. 17 N.T. 23. " N.T. 12; see Complaint for Support, ¶3, filed June 23, 2008; N.T. 4. 19 N.T. 24-25. 20 N.T. 12-13; see Defendant's Exhibit 4, admitted at Support Master's Hearing, January 13, 2011 (hereinafter "Def 's Ex. 21 N.T. 24. 22 [Defendant's] Petition for Modification of an Existing Support Order, filed December 20, 2010. 3 was held on both petitions, the evidence tended to support a conclusion that the parties' son, although still in high school, had moved out of Plaintiff's residence as of November 13, 2011.23 With further regard to Defendant's income, it appeared at the hearing that Defendant's gross earned income for calendar year 2010 from salary, commissions, bonuses, and holiday and vacation pay had been in excess of $197,000.00.24 Commissions, paid a month following accrual ,21 comprised about 35% of this amount .26 In the first half of the year, this commission percentage had been about 37%,27 and in the second half it had been about 33%.28 Defendant testified that his income had decreased "over a third year -over -year from 2009 to 2010,"29 because he had "not achieved [his] sales objectives and brought in the sales to [his] company in order to get the compensation that [he] had before .,,30 By contrast, Plaintiffs gross yearly earned income was about $15,270.00.31 As previously noted, the Cumberland County Support Master issued a report recommending that Defendant's petition for modification filed less than three months after entry of the support order dated June 14, 2010, and premised upon a "significant decline" in his income since entry of that order, be dismissed, and that Defendant's subsequent petition, premised upon the departure of the parties' son from Plaintiffs residence, be granted effective November 13, 2010.32 In recalculating the support 23 N.T. 6 (stipulation of counsel), 28. 24 N.T. 10. 21 See N.T. 8. 26 See Def 's Ex. 1, 3. 27 See Def 's Ex. 1. 28 See Def 's Ex. 3. 29 N.T. 11. so N.T. 11. 31 N.T. 30; Plaintiff's Exhibit 5. 12 Support Master's Report and Recommendation, filed January 18, 2011. 4 obligations of Defendant as of November 13, 2010, the master gave Defendant the benefit of a reduced net monthly income figure of $11,248.73, as well as the removal of the son as an object of support.33 Defendant's total monthly spousal/child support obligation decreased under the recommendation from $6,241.0034 to $3,574.00.35 An interim order of court in accordance with the Support Master's recommendations was issued on January 18, 2011.36 Defendant's aforesaid exceptions to the report were filed on January 25, 2011.37 DISCUSSION A party seeking to modify a support order must demonstrate that a material and substantial change of circumstances has occurred since the entry of the immediately preceding order. 38 In the present case, the slight decline shown in Defendant's monthly gross income between June 14, 2010, and September 13, 2010, did not support the premise of Defendant's first petition that his income "ha[d] declined significantly since June 2010." Accordingly, the Support Master correctly recommended a dismissal of that petition, and correctly recommended that any change in the support order be made effective as of the event which predicated Defendant's second petition—the departure of the parties' son from Plaintiff s residence. Under Pennsylvania Rule of Civil Procedure 1910.16-6(e), it is "assume[d] that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners' insurance." However, [i]f the obligor is occupying the marital residence and the mortgage payment exceeds 25% of the obligor's monthly net income (less any amount of spousal support, alimony " Support Master's Report and Recommendation, Exhibits "A" and `B," filed January 18, 2011. 34 Order of Court, June 14, 2010. " Support Master's Report and Recommendation, filed January 18, 2011. 36 Interim Order of Court, January 18, 2011 (Masland, J.). 37 Defendant's Exceptions to Report of Support Master, filed January 25, 2011. " See Mackay v. Mackay, 2009 PA Super 219, 984 A.2d 529, 537; Samii v. Samii, 2004 PA Super 108, 847 A.2d 691, 695. 5 pendent lite or child support the obligor is paying), the court may make an appropriate downward adjustment in the obligor's support obligation.39 In this case, given the enormous disparity in the parties' earned incomes, the court in the exercise of the discretion afforded it under the Rule would not deviate from the general rule that the party occupying the residence—the Defendant—should be paying the expenses related to it. Finally, even if it is assumed that Defendant argued to the Support Master that the amount of Defendant's periodic support payments should fluctuate in accordance with the fluctuation of the commission component of his paycheck ,40 the court is not persuaded that such an arrangement would be advisable. Factors militating against adoption of Defendant's position in this regard include the fact that (a) from one half-year to the next the commission percentages of his income appear to be relatively stable, (b) obvious burdens would be imposed upon enforcement and collection authorities by such a mutating payment schedule, (c) Plaintiff would not have the benefit of income predictability from the arrangement, and (d) a certain disincentive for an obligor to be more productive would seem to be built into such a system. For the foregoing reasons, the court is of the view that the Support Master correctly analyzed this case, and his Report is adopted by the court as its own. ORDER OF COURT AND NOW, this 26th day of April, 2011, upon consideration of Defendant's Exceptions to Report of Support Master, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the Interim Order of Court issued January 18, 2011, is entered as a final order. 39 Pa. R.C.P. 1910.16-6(e) (emphasis added). 40 The transcript of the Support Master's hearing does not imply such an argument. However, the arguments of counsel following the hearing were not of record. See N.T. 40. 6 Samuel L. Andes, Esq. P.O. Box 168 Lemoyne, PA 17043 Attorney for Plaintiff Steven Howell, Esq. 619 Bridge Street New Cumberland, PA 17070 Attorney for Defendant 7 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. ANITA M. FRANK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : DOMESTIC RELATIONS SECTION TIMOTHY P. WILKINSON, : PASCES NO. 735109797 Defendant : 105 SUPPORT 2008 IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT ORDER OF COURT AND NOW, this 26th day of April, 2011, upon consideration of Defendant's Exceptions to Report of Support Master, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the Interim Order of Court issued January 18, 2011, is entered as a final order. BY THE COURT, J. Wesley Oler, Jr., J. Samuel L. Andes, Esq. P.O. Box 168 Lemoyne, PA 17043 Attorney for Plaintiff Steven Howell, Esq. 619 Bridge Street New Cumberland, PA 17070 Attorney for Defendant