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HomeMy WebLinkAbout659 S 2003 CHRISTINE L. MCCORMICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : WILLIS MCCORMICK, II : PACSES NO. 987105662 Defendant : DOCKET NO. 659 SUPPORT 2003 IN RE: EXCEPTIONS TO REPORT OF THE SUPPORT MASTER BEFORE EBERT, J. ORDER OF COURT nd AND NOW this 22 day of August, 2011, having considered the testimony and evidence presented by the parties, this Court finds that the Master’s Report and Recommendation is credible and should be awarded the fullest consideration, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff’s exceptions to the DENIED Master’s Report and Recommendations are and the current Interim Order of Court dated February 3, 2011, is entered as a Final Order of Court. By the Court, ____________________________________ M. L. Ebert, Jr., J. Karl E. Rominger, Esquire Attorney for Plaintiff 155 South Hanover Street Carlisle, PA 17013 Mark F. Bayley, Esquire Attorney for Defendant 17 West South Street Carlisle, PA 17013 2 CHRISTINE L. MCCORMICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : WILLIS MCCORMICK, II : PACSES NO. 987105662 Defendant : DOCKET NO. 659 SUPPORT 2003 IN RE: EXCEPTIONS TO REPORT OF THE SUPPORT MASTER BEFORE EBERT, J. OPINION AND ORDER OF COURT Ebert, J., August 22, 2011 – PROCEDURAL HISTORY An order was entered in this support action on August 5, 2008, following a hearing before the Support Master for the Cumberland County Domestic Relations Office, Michael R. 1 Rundle. Plaintiff filed a petition for modification of that order on September 30, 2010. A hearing was held before Support Master Rundle on January 31, 2011. The Support Master’s 2 Report and Recommendation was filed on February 3, 2011. Plaintiff filed her Exceptions to 3 Report of the Support Master (“Exceptions”) on February 23, 2011. STATEMENT OF FACTS Plaintiff, Christine L. McCormick, and Defendant, Willis J. McCormick, are parents of three minor children, Matthew R. McCormick, born November 10, 1993, Marissa L. 4 McCormick, born June 3, 1996, and Melanie C. McCormick, born May 4, 1998. As of the hearing held on January 31, 2011, Defendant had not had contact or visitation with his children 1 Support Master’s Report and Recommendation, filed Feb. 3, 2011, 1 [hereinafter Supp. Master’s Report Rec. __.]. 2 Supp. Master’s Report Rec. 1. 3 Exceptions to Report of the Support Master, filed Feb. 23, 2010. 4 Supp. Master’s Report Rec. 1. 56 since January of 2009. Recently, he has filed an action to establish partial custody. Pending any partial custody being awarded, Support Master Rundle recommended an upward deviation in 7 the support order, raising Defendant’s support obligation to $1,500 per month. The Plaintiff had been employed as a special education aide at Cumberland Valley 8 School District. Plaintiff voluntarily left her job in January 2011 to obtain a bachelor’s degree 9 in elementary education from Shippensburg University. Plaintiff offered no evidence that she 10 made any effort to mitigate her loss of income as a result of leaving her job. Additionally, since 2006, no earning capacity has been imputed to Plaintiff for the summer months because her 11 young children have been in need of summer child care which prevented her from working. 12 During the upcoming summer, Plaintiff intends to take two college courses. However, because the children will be ages 17, 15, and 13 this summer, Support Master Rundle reported that the need for child care is reduced and Plaintiff should be able to earn an additional $3,000 during the 13 summer months. DISCUSSION When a court reviews exceptions, “a master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Childress v. Bogosian, 12 A.3d 448, 455-56 (Pa. Super. 2011). All that is required of this court, in reviewing Plaintiff’s Exceptions, is to conduct an independent 5 Notes of Testimony, Proceedings held before Support Master, filed Mar. 8, 2011, 6 [hereinafter N.T. __.]. 6 Supp. Master’s Report Rec. 3. 7 Supp. Master’s Report Rec. 3. 8 Supp. Master’s Report Rec. 1. 9 Supp. Master’s Report Rec. 1. 10 Supp. Master’s Report Rec. 2-3. 11 Supp. Master’s Report Rec. 3-4. 12 N.T. 16. 13 Supp. Master’s Report Rec. 4. 2 review of the record to determine whether it adequately supports the findings and recommendations of the Support Master. Neil v. Neil, 731 A.2d 156, 159 (Pa. Super. 1999). In her Exceptions, Plaintiff raises multiple issues with the Support Master’s Report and Recommendation, each of which will be addressed separately. Plaintiff’s first claim is that the lack of contact between Defendant and the children since January 2009 entitles Plaintiff to a larger upward deviation in support than was granted. Plaintiff’s first claim is based on the Explanatory Comment contained in the 2010 amendments to the support guidelines in Rule 1910.16-4 of the Pennsylvania Rules of Civil Procedure, which provides as follows: The basic support schedule incorporates an assumption that the children spend 30% of the time with the obligor and that the obligor makes direct expenditures on their behalf during that time. Variable expenditures, such as food and entertainment that fluctuate based upon parenting time, were adjusted in the schedule to build in the assumption of 30% parenting time. Upward deviation should be considered in cases in which the obligor has little or no contact with the children. Pa.R.C.P. 1910.16-4. Plaintiff maintains that a large deviation is warranted as a matter of policy, because Defendant’s involvement with the children has been substantially less than the 30% assumed by the support guidelines in Pa.R.C.P. 1910.16-4. Support Master Rundle acknowledged in his Report and Recommendation that Defendant has not had physical custody of the children since January 2009, and recommended an upward deviation in the support obligation of approximately 5%. The Plaintiff argues that the significant disparity between her income and Defendant’s income warrants a 25% upward deviation. A fair reading of the record before the Master, and the fact that he noted that Father had recently “filed an action to establish partial custody” indicates that there has been significant custody litigation between the parties and that logically the Mother has objected to allowing the Father to have any custody. Accordingly, it would seem equitable that one cannot withhold custody, while at the same time 3 claiming that the other party has been shirking with regard to its parenting time such that a very large upward deviation is warranted. There is nothing to indicate that the Support Master’s recommendation is not supported by record, nor does this court find any reason to override the Master’s judgment on this issue. Plaintiff next claims that the Support Master erred in finding Mother’s net monthly earning capacity to be $1515.00. The Support Master found that Mother voluntarily left her job, because she is pursuing a degree to further her career. To modify a support obligation based on reduced income, the petitioner must demonstrate first that the voluntary change in employment which resulted in a reduction in her income was not sustained in order to avoid a support obligation, and second that she attempted to mitigate any loss in her income. Kersey v. Jefferson, 791 A.2d 419, 423 (Pa. Super. 2002). Voluntarily choosing to forego current employment in pursuit of an education should not be treated any differently by the court than voluntarily choosing to change jobs and salary, and the ability to support one’s children as a result of that choice must be considered by the parent. Id. at ¶ 11. As noted by Support Master Rundle in his Report and Recommendation, Plaintiff has offered no evidence that she made any effort to mitigate the loss of income she sustained by leaving her job. In her Brief in Support of Exceptions, Plaintiff asserts that mitigating her losses was impossible because she has been the sole caregiver to the children. However, the mere assertion that it was impossible for Plaintiff to mitigate her reduction in income, without further testimony or documentation in support thereof, does not sufficiently establish Plaintiff’s burden in modifying her support obligation. Grimes v. Grimes, 596 A.2d 240, 243 (Pa. Super. Ct. 1991). Therefore, this court will not disturb Support Master Rundle’s conclusion that Plaintiff 4 should continue to be imputed with an earning capacity equal to her actual earnings at the time of filing. Third, Plaintiff argues that she should not be imputed with an earning capacity during summer months because she is the sole caregiver for the children and because she plans to take two college courses during the upcoming summer. In determining a party’s earning capacity, factors to consider include age, education, training, health, work experience, and child care responsibilities. Pa.R.C.P. 1910.16-5(c)(4). Plaintiff maintains that her ability to earn an income during the summer months should not be viewed differently than it has in the past, even though the children have grown older and will be ages 17, 15, and 13 this summer. Support Master Rundle indicated that his imputing the capacity to earn an additional $3,000 to Plaintiff during the summer months was based on the fact that her child care responsibilities would be reduced as the children get older. Furthermore, Support Master Rundle already addressed the fact that Plaintiff has been the sole caregiver for the children by granting an upward deviation in the support order. Therefore, his assessment of Plaintiff’s summer earning capacity is adequately supported by the record. Accordingly, the following order will be entered: ORDER OF COURT nd AND NOW this 22 day of August, 2011, having considered the testimony and evidence presented by the parties, this Court finds that the Master’s Report and Recommendation is credible and should be awarded the fullest consideration, 5 IT IS HEREBY ORDERED AND DIRECTED that Plaintiff’s exceptions to the DENIED Master’s Report and Recommendations are and the current Interim Order of Court dated February 3, 2011, is entered as a Final Order of Court. By the Court, ____________________________________ M. L. Ebert, Jr., J. Karl E. Rominger, Esquire Attorney for Plaintiff 155 South Hanover Street Carlisle, PA 17013 Mark F. Bayley, Esquire Attorney for Defendant 17 West South Street Carlisle, PA 17013 6