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Home My WebLink About779 S 2007 MISTIE D. LININGER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : PACSES NO. 988109477 : WILLIAM CVIJIC, JR. : NO. 779 SUPPORT 2007 Defendant : IN RE: DEFENDANT’S EXCEPTIONS TO REPORT AND RECOMMENDATION OF SUPPORT MASTER OPINION AND ORDER In this child support case, Defendant/ Father William Cvijic, Jr. filed Exceptions to the Support Master’s Report and Recommendation of August 16, 2011. (Exceptions, filed Aug. 31, 2011). Defendant contends that the Support Master erred in awarding child support to Plaintiff/ Mother Mistie D. Lininger in an amount which causes Defendants leftover net income to fall below the Self-Support Reserve described in Explanatory Comment D to Rule 1910.16-1 of the Pennsylvania Rules of Civil Procedure. The facts of this case may be summarized as follows. The parties are the parents of two minor children, Delsea G. Lininger, born August 7, 2007, and Seth P. Cvijic, born August 29, 2008. On May 9, 2011, Plaintiff/ Mother filed a complaint for support of the two children. Subsequent to a hearing held on August 15, 2011, the Support Master made the following findings of fact: Plaintiff is employed by Jacobson Companies where she had earned $16,004.00 through the pay period ending July 31, 2011. Plaintiff pays $81.08 bi-weekly for health insurance coverage for herself and the parties’ two children. The parents of Plaintiff provide childcare for the children while Plaintiff works the 3:00 p.m. to 11:00 p.m. shift. In addition, Plaintiff provides groceries to her parents in lieu of making a cash payment to them for the childcare, at a cost of approximately $50.00 per week. Plaintiff also pays other certain expenses for the children, as detailed in the Support Master’s Report and Recommendation. At the time Plaintiff’s Complaint was filed, Defendant was employed through Express Service, Inc., a temporary agency, and earned approximately $380.00 per week. However, as of the date of the hearing, Defendant has obtained new employment with Bodybuilding.com and earns approximately $418.00 per week. Following the hearing, the Support Master found that Plaintiff has a gross monthly income of $2,167.00, and, with a tax filing status of head of household and two children claimed as dependency exemptions, she has a net monthly income for support purposes of $2,091.00. At the time the complaint was filed, the Master found that Defendant had a gross monthly income of $1,647.00 while he worked for Express Service, Inc. Defendant’s tax filing status is single, and, as a result, he had a net monthly income for support purposes at that time of $1,394.00. This resulted in a support obligation of $450.00 per month, and an adjustment for child care and health insurance coverage increased the obligation to $593.00 per month. When Defendant obtained permanent employment with Bodybuilding.com in late July of 2011, his gross monthly income increased to $1,811.00, which resulted in an increase of his net monthly income for support purposes to $1,518.00. With a combined net monthly income of $3,609.00, the Support Master found the basic requirement for the support of the two children to be $1,173.00 per month. The Master also found that Defendant’s proportionate share of that amount is $493.00, and adjustments for health insurance coverage and child care increased the Defendant’s monthly obligation to $607.00 per month. Additionally, the Master recommended that Defendant was to pay to the Pennsylvania State Collection and Disbursement Unit the additional amount of $61.00 per month on arrears, 2 until paid in full. On August 16, 2011, an Interim Order of Court was entered by the Honorable M.L. Ebert, Jr., which adopted the Report and Recommendation of the Support Master. Currently before the court is Defendant/ Father’s sole Exception to the Support Master’s Report and Recommendation which provides, in its entirety, as follows: 1.Self Support Reserve; Rule 1910 16-3 [sic] net income falling below $867.00 per month. (Exceptions, filed Aug. 31, 2011). Defendant’s exception appears to allege that the Master erred in awarding child support to Plaintiff/ Mother Mistie D. Lininger in an amount which did not leave sufficient net income to satisfy the provisions of the Self-Support Reserve of Explanatory Comment D to Rule 1910.16-1 of the Pennsylvania Rules of Civil Procedure. The relevant Comment provides as follows: D. Self-Support Reserve (“SSR”). The amended schedule also incorporates an increase in the “Self-Support Reserve” or “SSR” from $748 per month to $867 per month, the 2008 federal poverty level for one person. Formerly designated as the “Computed Allowance Minimum” or “CAM,” the Self-Support Reserve, as it is termed in most other states' guidelines, is intended to assure that low-income obligors retain sufficient income to meet their own basic needs, as well as to maintain the incentive to continue employment. The SSR is built into the schedule in Rule 1910.16-3 and adjusts the basic support obligation to prevent the obligor's net income from falling below $867 per month. Because the schedule in Rule 1910.16-3 applies to child support only, Rule 1910.16-2(e)(1)(B) provides for a similar adjustment in spousal support and alimony pendente lite cases to assure that the obligor retains a minimum of $867 per month. Pa.R.C.P. No. 1910.16-1. It is well settled that both parties have a duty to support their children in accordance with their relative incomes and ability to pay. Depp v. Holland, 636 A.2d 204 (Pa. Super. 1994). The stated purpose of the Self-Support Reserve provisions of Explanatory Comment D is to “assure that low-income obligors retain sufficient net income to meet their own basic needs, as well as to maintain the incentive to continue employment.” Pa.R.C.P. No. 1910.16-1, Explanatory 3 Comment D. Rather than providing a mandatory floor of retained income, the SSR is a principle built into the Support Schedule at Rule 1910.16-3 whereby the final amount of support is determined by reference to a chart which decreases the obligation as the Combined Adjusted Net Income approaches the lower income range. The schedule is calculated on its own to provide for a minimum retained net income of $867.00. Despite the intended goal of keeping an obligor with at least $867.00 per month of retained income, the SSR is not a binding minimum, but rather establishes a rebuttable presumption that the amount provided in the schedule is correct; indeed, the Superior Court has held that “the guidelines clearly provide that the amount to be retained by the obligor from the guidelines schedule is not immutable, and the court must individualize its analysis on a case by case basis bearing in mind the rationale underlying the CAM schedule. In rare cases, the result may be that the obligor will retain less than $[867] per month.” Mooney v. Doutt, 2001 PA Super 12, ¶¶ 12, 13, 766 A.2d 1271, 1274. The Support Master in this case, however, found Defendant to have a net monthly income of $1,518.00 and a support obligation of $607.00. This amount was calculated at Exhibit “D” to the Support Master’s Report and Recommendation, which provides, in pertinent part, as follows: DefendantPlaintiff Number of Dependents in this case 2 Total Gross Monthly Income $1,811.30 $2,167.20 Less Monthly Deductions - $293.58 $76.06 Monthly Net Income $1,517.72 $2,091.14 Combined Total Monthly Income $3,608.86 Basic Child Support Obligation $1,173.00 (From Rule 1910.16-3 Basic Child Support Schedule (Table Rev. 5/2010)) Net Income as Percentage of Combined amount 42.06% 57.94% Each Parent’s Monthly Share of the Child Support Obligation $493.36 $679.64 Adjustments for Child Care Expenses, +$64.77 Health Insurance Premiums +$49.25 $607.38 $679.64 Total Obligation with Adjustments 4 (Support Master’s Report and Recommendation, Ex. D, Aug. 16, 2011). With a net monthly income of $1,518.00, and a support obligation of $607.00, Defendant is left with $911.00 per month after the child support payment. On its face, the Support Master’s Report and Recommendation leaves Defendant with a greater net income than the SSR seeks to provide. As a result, Defendant’s net income does not fall below the $867.00 per month requirements of Pa.R.C.P. 1910.16-1, Explanatory Comment D, and for this reason Defendant’s 1 Exception to the Support Master’s Report and Recommendation will be denied. In a letter to this court dated September 16, 2011, Defendant contends that he has ongoing medical issues, such as three herniated discs in his neck and lower back, rent, utilities, and food to purchase, all of which result in a left over net monthly income of less than $867.00. He claims as a result of these additional expenses he is left with insufficient net income to meet the requirements of the SSR, and he requests that we consider these expenditures in connection with the Self-Support Reserve of Rule 1910.16-1. After thorough review of the record in this case, it appears that no testimony or evidence was offered at the hearing concerning any of the above-listed expenses. (See Notes of Testimony, 11-14, Hearing, In Re: Lininger v. Cvijic, Aug. 15, 2011). Despite the potential veracity of these assertions, a trial court is bound by the facts which have been entered into the record. D.H. v. R.H. 2006 PA Super 125, ¶ 6, 900 A.2d 922, 927; See also Mackay v. Mackay, 2009 PA Super 219, ¶ 21, 984 A.2d 529, 537 (“The trial court must consider all pertinent circumstances and base its decision upon facts appearing in the record. . . .”). Additionally, 1 Additionally, it is axiomatic child support arrearages cannot properly be viewed as either deductions to gross monthly income or as additional child support payments per month; rather, these amounts are already due and owed to Plaintiff, and, therefore, we do not consider those amounts to detract from Defendant’s leftover net monthly income. See Pa.R.C.P. 1910.16-2(c) (providing the limited list of deductions to be taken from a party’s gross monthly income to arrive at net monthly income). 5 information contained within briefs and letters to the court are not considered part of record, and therefore cannot properly be considered in making a determination. Eck v. Eck, 475 A.2d 825, 827, 327 Pa.Super. 334, 339 (1984); See also Erlichman v. Erlichman, 193 A.2d 666, 666 (Pa.Super. 1963). Our decision, therefore, cannot be based on off-the-record facts, and any information contained in Defendant’s letter may not properly be the basis of our decision. ORDER OF COURT AND NOW, this day of October, 2011, upon consideration of Defendant’s Exceptions to the Support Master’s Report and Recommendation, filed August 31, 2011, and for the reasons contained in the accompanying opinion, the exception of the Defendant is DENIED and the order dated August 16, 2011, is herewith made a Final Order of Court. BY THE COURT, __________________ Kevin A. Hess, P.J. 6 MISTIE D. LININGER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : PACSES NO. 988109477 : WILLIAM CVIJIC, JR. : NO. 779 SUPPORT 2007 Defendant : IN RE: DEFENDANT’S EXCEPTIONS TO REPORT AND RECOMMENDATION OF SUPPORT MASTER ORDER OF COURT AND NOW, this day of October, 2011, upon consideration of Defendant’s Exceptions to the Support Master’s Report and Recommendation, filed August 31, 2011, and for the reasons contained in the accompanying opinion, the exception of the Defendant is DENIED and the order dated August 16, 2011, is herewith made a Final Order of Court. BY THE COURT, __________________ Kevin A. Hess, P.J. Stacy B. Wolf, Esquire For the Plaintiff William Cvijic, Jr., Pro Se 110 Bosler Avenue Lemoyne, PA 17043 Defendant :rlm