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HomeMy WebLinkAbout708 S 2006 KATHRYN J. HAUBERT, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LUCAS D. COLE, : PACSES NO. 884108538 DEFENDANT : 708 SUPPORT 2006 MEMORANDUM OPINION AND ORDER OF COURT Masland, J., June 28, 2011:-- Before the court are Plaintiff’s preliminary objections to the Petition to Suspend and Terminate Support Order filed jointly by the Domestic Relations Section (DRS) and Nicole A. Lehman. The preliminary objections challenge the standing of the DRS and Nicole A. Lehman and seek to have the petition dismissed. Instead, for the following reasons, we overrule the preliminary objections and grant the petition to suspend and terminate the support order. Having reviewed the Report and Recommendation of the Master, establishing a monthly support order of $50.00 per month, we find the following findings to be particularly salient: 4. On December 20, 2010 the Plaintiff filed a complaint for support of said children. 5. The parties have resided together since December, 2003. … 9. The Defendant has another child, Dominik to [Nicole A. Lehman]. 10. The Defendant is obligated to pay support for Dominik in the amount of $267.00 per month. 11. On November 1, 2010 the Defendant was found in civil contempt for failure to comply with the support order for Dominik. 708 SUPPORT 2006 12. On December 1, 2010 the Defendant was found in criminal contempt for violating the prior order of November 1, 1 2010 and was sentenced to six months incarceration. With respect to finding #12 we note that the Master erred slightly in that the correct date of the Defendant’s incarceration was December 20, 2010, which, not coincidentally, was the date on which Plaintiff filed her complaint for support. Despite the slip in the date, this point was not lost on the Master as was noted in his Discussion: The Defendant resided in an intact household with the Plaintiff before his incarceration. It is the belief of this Master that he will again do so after his release. The Defendant has the present ability to support his children to the Plaintiff by withdrawing money from his prison account and paying it to her. Having a support order with a wage attachment in place, however, reduces the Defendant’s net income subject It is the to the 23% work release deduction by the prison. opinion of this Master that the Plaintiff has not initiated this action because the Defendant refuses to provide support for his children, but rather because the parties desire to save the Defendant the cost of room and board while he is incarcerated. Id. at 2 (emphasis added). In light of the foregoing, and with all due respect to Plaintiff’s argument on standing, we take a broad view of the statutes and rules regarding support orders. First, with respect to Pa.R.C.P. 1910.27, we are not concerned with the mere fact that the petition filed by DRS was couched in terms of suspension and termination and not modification. As did the court in Brickus v. Dent, 5 A.3d 1281 (Pa. Super. 2010), we also focus on the breadth of authority in the express wording of the rule, wherein the court “may modify or terminate the existing order in any manner based upon the evidence presented.” See Pa.R.C.P. No. 1910.27(g) (emphasis added). Support Master’s Report and Recommendation, March 7, 2011 at 1. 1 -2- 708 SUPPORT 2006 Secondly, we concur with the suggestion of the DRS that Pa.R.C.P. 1910.19(f) and the explanatory comment thereto, gives the court the ability to “modify or terminate a charging order . . . when it appears to the court . . . the order is no longer able to be enforced under state law . . .” Pa.R.C.P. No. 1910.19(f). Although the language in the 2006 explanatory comment does not describe a situation identical to the instant matter, the import of that Rule is to give courts broad authority to take action in managing their support dockets. Thirdly, and directly related to the court’s obligation to manage its support docket, is the obligation of DRS under the General Administration of Support Matters found in 23 P.S. § 4305 not only to investigate as necessary but also to “furnish the court with such information and assistance as it may require and generally perform such services as it may direct relating to support proceedings.” See 23 P.S. § 4305(a)(8). In short, DRS has an obligation to notify the court in one form or another when it has information that bears on matters in the court’s support docket. Therefore, we are not precluded from considering this matter because it comes to us in the form of a petition to terminate as opposed to a petition to modify. Nor, are we deterred by the fact that neither party took issue with the Master’s Report and Recommendation. In a termination proceeding, the court may “make a decision against either party, regardless of which party initiated the action . . . .” Brickus, 5 A.3d at 1288 (emphasis in original). Thus, we overrule the preliminary objections and turn briefly to the merits of the petition to terminate. In light of the short-term nature of the support paid to the plaintiff during the term of the defendant’s incarceration, which ended on -3- 708 SUPPORT 2006 June 20, 2011, our termination of the order shall be effective as of June 20, 2011. Although we concur with Brickus regarding the ability of DRS to file a petition to terminate, we note that Brickus involved a long-term and significant loss of funds if the relevant county authority was not able to act. Conversely, the alleged ploy between the parties herein did not result in a dollar-for-dollar loss to Ms. Lehman. Rather, it served to reduce the net earnings of the defendant, a percentage of which would be available to the county prison. By terminating the order effective immediately, but not retroactively, we hope to limit the inordinate amount of time and energy already spent on this matter. Sadly, the cost of defending a principle too often outweighs the principal. Therefore, we issue the following order. ORDER OF COURT AND NOW, this day of June, 2011, after argument thereon, OVERRULED. Plaintiff’s preliminary objections are The petition of the Domestic GRANTED Relations Section to terminate the support order is , effective immediately. The Domestic Relations Section is directed to forego recoupment of any funds received by Plaintiff during Defendant’s period of incarceration. By the Court, Albert H. Masland, J. Stacy B. Wolf, Esquire Pro Bono Attorney for Plaintiff Derek R. Clepper, Esquire Special Counsel for DRO :saa -4- KATHRYN J. HAUBERT, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LUCAS D. COLE, : PACSES NO. 884108538 DEFENDANT : 708 SUPPORT 2006 ORDER OF COURT AND NOW, this day of June, 2011, after argument thereon, OVERRULED. Plaintiff’s preliminary objections are The petition of the Domestic GRANTED Relations Section to terminate the support order is , effective immediately. The Domestic Relations Section is directed to forego recoupment of any funds received by Plaintiff during Defendant’s period of incarceration. By the Court, Albert H. Masland, J. Stacy B. Wolf, Esquire Pro Bono Attorney for Plaintiff Derek R. Clepper, Esquire Special Counsel for DRO :saa