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HomeMy WebLinkAbout2006-2782 MARYELLEN L. DEPPEN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : STEPHN M. DEPPEN, : PACSES NO. 972107472 Defendant : DOCKET NO. 539 SUPPORT 2005 MARYELLEN L. DEPPEN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : : STEPHEN M. DEPPEN, : NO. 06-2782 CIVIL Defendant : IN RE: EXCEPTIONS TO THE SUPPORT MASTER’S INTERIM ORDER OPINION AND ORDER The facts in the present case were previously set forth by this Court in an opinion and order dated December 22, 2010. We review those facts necessary for the disposition of this case. Maryellen L. Deppen (Plaintiff) and Stephen M. Deppen (Defendant) are the natural parents of two children, Alexander M. Deppen and Ashton J. Deppen. Following the divorce of the parties on December 9, 2009, the defendant filed a petition for modification of a previously entered support order and a hearing was held on July 12, 2010, before Support Master Michael R. Rundle. In the Support Master’s Report and Recommendation, the Master stated in his findings of fact that plaintiff was totally disabled. Using a zero earning capacity for plaintiff, the Master recommended, inter alia, that effective April 25, 2010, the defendant shall pay as support for his children, the sum of $854.00 per month. Defendant subsequently filed exceptions to the recommendation of Support Master Rundle, as well as a brief in support of the exceptions. The defendant argued that the plaintiff is not totally disabled and as such, an earning capacity should have been attributed to her. In the December 22, 2010 opinion and order before this Court, we found that there was nothing in the record to rebut the defendant’s assertion that he was not shown a document proffered by the plaintiff, which purportedly verified her hearing loss. We determined that an accommodation which must be extended to a pro se litigant is the opportunity to examine and respond to the exhibits proffered by an opponent. Because it appeared that the defendant was not given that opportunity, we remanded the matter to the Master for a re-examination of the earning capacity of the plaintiff. A second hearing was held before the Support Master on February 16, 2011. In the Master’s findings of fact, dated February 17, 2011, it was determined that the plaintiff has been receiving social security disability income since 1995 or 1996, due to plaintiff’s profound hearing loss since she contracted meningitis at the age of five. Because of her loss of hearing, plaintiff attended elementary school for hearing impaired children. Furthermore, the plaintiff received a high school diploma from Cumberland Valley High School after completing a special education curriculum through the Capital Area Intermediate Unit in 1991. The Master also concluded that the plaintiff had either quit or been terminated from prior employment because of difficulties associated with her loss of hearing. Plaintiff offered as evidence of her hearing loss the same document which she provided in the first hearing before Master Rundle. The document was entered as plaintiff’s exhibit No. 1 but was not made part of the record because Master Rundle sustained defendant’s objection that the document was hearsay. However, it is important 2 to note that the defendant was given a copy of the document and was therefore afforded the opportunity to review it. Following the first hearing before Master Rundle, the defendant argued that plaintiff was able to work and earn up to $1,000.00 per month while still retaining her ability to receive social security disability benefits. He set forth this contention in support exceptions filed August 5, 2010, as well as in a brief in support of his exceptions to the initial recommendation of Master Rundle, dated July 15, 2010. Defendant reiterated this argument at the most recent hearing, and 1 attempted to buttress this claim with a “fact sheet from the social security office.” Master Rundle proceeded to determine what the support obligation for plaintiff would be if he were to accept defendant’s argument that plaintiff should be imputed with an earning capacity. Using plaintiff’s last employment as guidance, Master Rundle calculated what her gross monthly earnings would be if she were imputed with a forty-hour work week earning capacity at an hourly rate of $8.00 per hour. After adding her $300.00 per month alimony, the Master concluded that she would have a net monthly income for support purposes of $1,447.00. Utilizing a net monthly earning capacity for the plaintiff of $1,447.00 and a net monthly income for the defendant of $2,895.00, the defendant’s child support obligation would be $857.00 per month. This differs from the prior calculation by only $3.00 per month, as defendant’s 1 According to the transcript of the February 16, 2011 hearing, the fact sheet was marked as defendant’s exhibit No. 1. However, in the index of exhibits presented to this Court, Defendant’s exhibit No. 1 is the vocational rehabilitation services report proffered by defendant that presented plaintiff’s prior work history as well as her current ability to perform certain jobs, taking into consideration her hearing loss. This was offered as proof that plaintiff should have been assigned an earning capacity. Defendant offered the vocational report as an expert opinion. Master Rundle held that an expert opinion document is considered hearsay without the individual that rendered the opinion being present to testify and, as such, did not enter the document into the record. In regards to the fact sheet, there is no testimony in the hearing about the document being made part of the record. Defendant requested that the document be entered, and it was marked as defendant exhibit No. 1. We can opine, however, that the reasoning behind the Master’s decision to not accept the fact sheet was because he considered it too, to be hearsay. 3 obligation for child support currently stands at $854.00 per month. As such, Master Rundle again concluded in his recommendation, dated February 17, 2011, that defendant’s child support obligation is $854.00 per month. This was entered as part of an interim order of court, dated February 25, 2011. In defendant’s most recent support exceptions, dated March 18, 2011, the defendant again argues that plaintiff can earn up to $1,000.00 per month and still retain her current level of social security disability income. He has, however, failed to establish that such an earning threshold applies to the plaintiff and Master Rundle refused to accept the defendant’s contention without some evidence. In the meantime, it is clear that the plaintiff suffers from severe hearing loss. She has been receiving disability benefits for at least fifteen years. The findings of fact and recommendations made by Master Rundle are amply supported by the record. ORDER AND NOW, this day of June, 2011, the interim order dated February 25, 2011, is herewith made a final order of court. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Maryellen L. Deppen, Pro Se Plaintiff Stephen M. Deppen, Pro Se Defendant Michael Rundle, Esquire Support Master 4 MARYELLEN L. DEPPEN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : DOMESTIC RELATIONS SECTION : STEPHN M. DEPPEN, : PACSES NO. 972107472 Defendant : DOCKET NO. 539 SUPPORT 2005 MARYELLEN L. DEPPEN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : : STEPHEN M. DEPPEN, : NO. 06-2782 CIVIL Defendant : IN RE: EXCEPTIONS TO THE SUPPORT MASTER’S INTERIM ORDER ORDER AND NOW, this day of June, 2011, the interim order dated February 25, 2011, is herewith made a final order of court. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Maryellen L. Deppen, Pro Se Plaintiff Stephen M. Deppen, Pro Se Defendant Michael Rundle, Esquire Support Master :rlm