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HomeMy WebLinkAbout1093 S 2001 ELIZABETH J. GOTH, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PHILLIP C. GOTH, DEFENDANT 1093 SUPPORT 2001 IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT OPINION AND ORDER OF COURT Bayley, J., April 21, 2006:-- On December 21, 2005, an interim order of child support was entered against Phillip C. Goth based on the report and recommendation of the Cumberland County Support Master. Elizabeth J. Goth filed exceptions to the report. The interim order included a finding by the Support Master that the father's "net monthly income for support purposes from James G. Davis Construction, Corp., is $6,967.52." In exceptions to the report, the mother maintains that the evidence in the record reflects the father's earning capacity for support purposes is higher than $6.967.52 a month. The father filed for modification of a prior order based upon three changed circumstances.1 The hearing before the Support Master was on December 15, 2005. 1 (1) A child moved from the mother's home to the father's home, (2) another child graduated from high school and was eighteen years old, and (3) the mother's income for support purposes decreased when she was involuntarily terminated from her employment through no fault of her own. The interim order sets a new support obligation for May 15, 2005 through June 9, 2005, June 10, 2005 through July 14, 1093 SUPPORT 2001 An attorney appeared for the father, but the father did not appear. The record contains a 2004 S Corporation tax return of Goth Construction Services, Inc., whose shareholder is Phillip C. Goth. On gross sales of $123,600, the father secured ordinary income of $12,256, which he was required to report on his 2004 individual tax return.2 The Master stated in his report: Evidence was presented that the Defendant continued to operate Goth Constructions Services, Inc. in 2004. There was no evidence that the Defendant continued to operate the business in 2005. However, the Defendant filed to appear for the hearing to testify. Therefore, a recommendation is made that if a federal income tax return is filed for said company for 2005, the Defendant shall be required to forward a copy of any such return with all accompanying schedules to his Domestic Relations conference officer and to the Plaintiff within seven days of the filing. (Footnote omitted.) (Emphasis added.) The problem is that there is no evidence that the father did not have benefit from his corporation in 2005.3 The mother believes that he did, noting that he had substantial salaried income from employment in 2004, as well as the income from the corporation. The fact that the parties stipulated that the father's net income from his employment with James G. Davis Construction, Corp., is $6,967.52 per month does not resolve the issue of whether he had additional income from Goth Construction Services, Inc. The mother further suggests that the father established an earning capacity from 2005, and July 15, 2005 forward. 2 The individual tax return is not in the record. 3 The attorney for the father has made certain representations, but that is not evidence. -2- 1093 SUPPORT 2001 his two income sources in 2004 that should be imputed for support purposes even if he did not have subsequent income from his S Corporation in addition to his full-time employment.4 While that may be true, it is not necessarily true. See Haselrig v. Haselrig, 840 A.2d 338 (Pa. Super. 2003). What is true is that the Support Master had a duty to conduct a full inquiry before making a factual determination of the father's earning capacity. Id. He could not do that because the father did not appear at the hearing. We will remand the case to the Support Master for another hearing. The father shall appear and produce the records of Goth Construction Services, Inc., including any tax returns subsequent to 2004, to allow a determination of whether he has received any benefit from the beginning of 2005 forward, and if so, whether such benefit is income for support purposes. Furthermore, pursuant to Haselrig v. Haselrig, supra, a full inquiry shall be conducted so that a factual determination can be made of the father's earning capacity for support purposes. The current interim order shall remain in effect until a new interim order is entered either in the same amount or a changed amount as warranted by the additional evidence. ORDER OF COURT AND NOW, this day of April, 2006, the case is remanded to the Support Master to conduct another hearing consistent with this opinion, at which 4 The earning capacity of a person is not the amount that the person could potentially earn, but rather the amount the person could realistically earn under the circumstances considering the health, age, mental and physical condition, training the amount of time the person has been employed. Malenfant v. Malenfant, 433 Pa. Super. 139 (1994). -3- 1093 SUPPORT 2001 hearing Phillip C. Goth shall attend. -4- 1093 SUPPORT 2001 Samuel L. Andes, Esquire For Plaintiff Thomas M. Clark, Esquire 130 West Church Street Dillsburg, PA 17019 F or Defendant Michael R. Rundle, Esquire Support Master :sal By the Court, Edgar B. Bayley, J. -5- ELIZABETH J. GOTH, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PHILLIP C. GOTH, DEFENDANT 1093 SUPPORT 2001 IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT ORDER OF COURT AND NOW, this day of April, 2006, the case is remanded to the Support Master to conduct another hearing consistent with this opinion, at which hearing Phillip C. Goth shall attend. By the Court, Edgar B. Bayley, J. Samuel L. Andes, Esquire For Plaintiff Thomas M. Clark, Esquire 130 West Church Street Dillsburg, PA 17019 F or Defendant Michael R. Rundle, Esquire Support Master :sal