Loading...
HomeMy WebLinkAbout464 SUPPORT 2010 MELISSA L. SCHMUCK, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : : : : v. : : DOMESTIC RELATIONS SECTION : HORACE G. SCHMUCK, JR., : : PACSES NO. 846111723 Defendant, : DOCKET NO. 00464 SUPPORT 2010 ORDER OF COURT th AND NOW , this 30 day of May, 2012, upon consideration of the Plaintiff’s Exceptions to the Support Master’s Report and Recommendations, the record of the case presented before the Support Master on December 20, 2011, the briefs filed by the parties, and the Court noting that neither party has requested oral argument in the case, IT IS HEREBY ORDERED AND DIRECTED that the following Order is entered: 1.Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his children, Horace G. Schmuck III, born December 6, 1998, and Margret E. Schmuck, born May 29, 2000, the sum of $845.00 per month 2.Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as spousal support the sum of $243.00 per month. 3.Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $108.00 per month on arrearages. 4.Defendant shall provide health insurance coverage for the benefit of said children as is available to him through employment or other group coverage at a reasonable cost. 5.The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for said children. Unreimbursed medical expenses of the children that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide st documentation of expenses to the other party no later than March 31 of the year following the calendar year in which the final medical bill to be allocated was received. The unreimbursed medical expenses are to be paid as follows: 74% by Defendant and 26% by Plaintiff. By the Court, M. L. Ebert, Jr., J. Hannah Herman-Snyder, Esquire Attorney for Plaintiff Mark Bayley, Esquire Attorney for Defendant 2 MELISSA L. SCHMUCK, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : : : : v. : : DOMESTIC RELATIONS SECTION : HORACE G. SCHMUCK, JR., : : PACSES NO. 846111723 Defendant, : DOCKET NO. 00464 SUPPORT 2010 OPINION AND ORDER OF COURT Ebert, J., May 30, 2012- Background Before this Court are Plaintiff’s exceptions to Support Master’s Report and 1 Recommendation (“Master’s Report”) of December 30, 2011, modifying support. Plaintiff’s 2 exceptions to the Master’s Report are reproduced below: 1.The Plaintiff, Melissa L. Schmuck takes exception to the Support Master’s finding that Defendant did not voluntarily reduce his income, earned while employed with the Marines, and that his status with the Marines ended through no fault of his own. 2.The Plaintiff, Melissa L. Schmuck, takes exception to the Support Master’s finding not only that Defendant did not voluntarily reduce his income, but the finding that Defendant made a good faith effort to mitigate his income loss since his reduction in income based on his employment with the Marines ended. 3.The Plaintiff, Melissa L. Schmuck, takes exception to the Support Master’s conclusion of law pertaining to and analysis of Defendant’s earning capacity, as he did not take into consideration what Defendant truly could earn based on his age, health, physical and mental condition, education and training 4.The Plaintiff, Melissa L. Schmuck, takes exception to the Support Master’s conclusion of law as to Defendant’s earning capacity of $34,000.00 as he was making actual earnings of more than that at his last employment with the Marines, 1 Support Master’s Report and Recommendation, filed Jan. 5, 2012 [hereinafter Master’s Report __]. 2 Exceptions of Plaintiff to Support Master’s Report and Recommendation, filed Jan. 24, 2012. 1 as well as his employment in 2008, which remained available to him upon the end of his Marine service. The gist of Plaintiff’s argument revolves around the Master’s determination of Defendant’s loss of previous employment, good faith effort to mitigate loss, and earning capacity. After review of the record, briefs, and case law, this Court endorses the Master’s recommendations in all respects. Findings of Fact Although Plaintiff takes exception to the Master’s analysis within the “Discussion” section of the Master’s Report, the factual determinations are not in dispute and thus, this Court 3 adopts the Master’s Finding of Fact section. Based upon Plaintiff’s exceptions, the following portions of the Master’s analysis are in dispute: Since the entry of the order in May 2011, both the Defendant’s active duty status in the Marine Corps and his contract as a member of the Marine Corps Reserves through no fault of his own has ended . (Master’s Report, Discussion, p.2 ¶ 1). When the order was entered in May 2011, the Defendant’s support obligation was based upon his income as an active duty Marine. This status ended in July 2011, through no fault of the Defendant . He no longer has the income he had in May. (Master’s Report, Discussion, p.3 ¶ 2). good faith efforts He has made to obtain employment. (Master’s Report, Discussion, p.3 ¶ 3) $34,000.00 Talking all factors into consideration, an annual earning capacity of will be imputed to the Defendant for Support Purposes. (Master’s Report, Discussion, p.3 ¶ 3). good faith effort to mitigate his income loss He has made a since his service with the Marine Corps was terminated. (Master’s Report, Discussion, p.3 ¶ 3). 3 Master’s Report, 1-2. 2 Discussion “While [the Master’s Report] is to be given the fullest consideration, especially with regard to the credibility of witnesses, a trial court is required to review the report to determine if the recommendations are appropriate.” Goodman v. Goodman, 544 A.2d 1033, 1035 (Pa. Super. 1988). Support Guidelines allow for an adjustment of support payments when (1) an involuntary reduction of income occurs in an employment situation over which the party has no control, and (2) the reduction was not “willfully undertaken in an attempt to avoid or reduce the support 4 obligation.” See Pa.R.C.P. No. 1910.16-2(d)(2). “[W]hen a parent has not voluntarily reduced his income to circumvent his support obligation, the Court can consider reducing the parent’s child support obligation.” Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010). In the case sub judice, this Court finds the Master’s recommendations to be persuasive and appropriate. Therefore, this Court makes the following findings: A.Defendant’s active duty status in the Marine Corps and his contract as a member of the Marine Corps Reserves has ended through no fault of his own. The testimony of Defendant, Gunnery Sergeant Jason Trader (“Trader”), and Gunnery Sergeant John Crouser (“Crouser”) support the Master’s finding that Defendant’s loss of active duty status and contract as a member of the Marine Corps Reserves was through no fault of Defendant. Defendant testified that he had started putting together an active duty package to 5 maintain his current employment status back in February 2011. Trader stated that the earliest possible time available to begin processing Defendant was in June because Defendant was 6 essentially “waiting for kind of his turn in line.” When Defendant met with Trader in June “all 4 Although Plaintiff’s argument is based on Pa.R.C.P. 1910.16-2(d)(1) for a voluntary reduction of income, this Court finds section (d)(2) to be applicable. 5 In Re: Schmuck v. Schmuck, Proceedings Held before Michael R. Rundle, Support Master on Dec. 20, 2011, filed Feb. 14, 2012, 10 [hereinafter NT __]. 6 NT 48. 3 of his paperwork was already submitted” in a “full complete package” and he was only waiting 7 on the medical examination. Trader was of the opinion that Defendant “did everything he could in his power” to maintain active duty status. Trader further testified that Defendant was “one of the more prepared people that I ever ran into” and “every time I asked him to do anything, he did it exactly when he needed to” regarding the process of maintaining active duty status. In July, after Defendant’s active duty status ended, Defendant was in contact with 8 Crouser in an attempt to gain re-entry into the Marine Corps. When asked what steps Defendant had taken to gain re-entry Crouser stated: So far he has provided me with all the documentation that I have requested from him in order to be screened out to prove that he is fit for further duty and to continue with the Reserve command. He has gone through every process that I asked him to as far as interviewing with a unit in Wyoming, Pennsylvania and the Wilkes-Barre/Scranton area. He has also gone through every bit of joint paperwork and screening paperwork that was consistent with being able to come 9 back into the Marine Corps and into the Reserves from being off contract. When asked if Defendant had acted in a timely manner Crouser stated: Yes. [Defendant] has. He was extremely proficient in being able to get me all of the documentation that I needed within a reasonable time frame, and all of his documentation when items were changed or anything needed to be redone, he was very quick to produce those documents and to give me the information I needed in 10 a very timely manner. When asked if there was anything else Defendant could do to improve his chances of gaining re- entry into the Reserves and then being placed back on active duty status Crouser stated, “Absolutely nothing. He has done more than is necessary for his chance to be the best that they 11 can possibly be at this time.” 7 NT 48-49. 8 NT 53. 9 NT 54. 10 NT 54. 11 NT 55. 4 This Court finds that Defendant was not at fault for his loss of active duty status in the Marine Corps and contract for Marine Corps Reserve. The record reflects testimony that would support the Master’s recommendation that Defendant was not at fault for the loss of his employment with the Marines. Defendant genuinely wanted to maintain active duty status and 12 was unable to maintain his status due to circumstances beyond his control. Therefore, Defendant’s reduction of income was involuntary. We hasten to add that this Court will take into account the present day perils which face an active duty member of the armed forces. The choice of a Veteran service member not to reenlist is certainly not the same as voluntarily quitting a job at Wal-Mart. As discussed in the next section of this opinion, this Defendant cannot be said to have purposely sought to avoid employment. B.Defendant has made a good faith effort to mitigate any income loss and the Master’s recommendation of an annual earning capacity of $34,000 is appropriate. Although Support Guidelines Rule 1910.16-2(d)(2) does not require a good faith effort to involuntary mitigate reduction of income, assuming, arguendo, such a requirement was needed, Defendant’s actions did in fact demonstrate a good faith effort. Defendant began applying for non-military employment on September 21, 2011, soon after being informed that his military re- 13 64 jobs entry package may not be approved in a timely fashion. Defendant applied to and 14 received offers from only Uticom and Walmart. Defendant accepted those positions and is currently working 40 hours per week at $11.50 per hour for Uticom and working part time at 15 Walmart for approximately 22 hours per week at $8.10 per hour. 12 Additionally, no claim has been made that Defendant is willfully attempting to reduce or avoid support and this Court finds no evidence of an attempt to reduce or avoid support in the record. 13 NT 12-13. 14 NT 12-13. 15 NT 6-7. 5 Plaintiff would like this Court to impute Defendant’s previous employment as a diesel mechanic toward Defendant’s earning capacity, but as the Master correctly points out, “although Defendant earned in excess of that amount [$34,000] in 2008, he has not had employment as a 16 diesel mechanic in approximately one and a half years.” The Master’s Report took into consideration Defendant’s full-time and supplemental part-time employment, for a total of 62 hours per week, when determining Defendant’s annual earning capacity of $34,000. Therefore, Defendant has made a good faith effort to mitigate any income loss, and an appropriate earning capacity for the Defendant has been determined. Accordingly, the following Order of Court is entered: ORDER OF COURT th AND NOW , this 30 day of May, 2012, upon consideration of the Plaintiff’s Exceptions to the Support Master’s Report and Recommendations, the record of the case presented before the Support Master on December 20, 2011, the briefs filed by the parties, and the Court noting that neither party has requested oral argument in the case, IT IS HEREBY ORDERED AND DIRECTED that the following Order is entered: 6.Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for his children, Horace G. Schmuck III, born December 6, 1998, and Margret E. Schmuck, born May 29, 2000, the sum of $845.00 per month 7.Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as spousal support the sum of $243.00 per month. 8.Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $108.00 per month on arrearages. 9.Defendant shall provide health insurance coverage for the benefit of said children as is available to him through employment or other group coverage at a reasonable cost. 16 When Defendant was asked whether he had anything to do with being a diesel mechanic in the last few years, Defendant responded, “No, I did not, other than just basic supervision of the shop, and shop maintenance chief that I appointed in charge of my maintenance shop.” NT 20. 6 10.The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for said children. Unreimbursed medical expenses of the children that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide st documentation of expenses to the other party no later than March 31 of the year following the calendar year in which the final medical bill to be allocated was received. The unreimbursed medical expenses are to be paid as follows: 74% by Defendant and 26% by Plaintiff. By the Court, M. L. Ebert, Jr., J. Hannah Herman-Snyder, Esquire Attorney for Plaintiff Mark Bayley, Esquire Attorney for Defendant 7