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HomeMy WebLinkAbout94 S 2009 JULIE A. BURNER, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : SCOT I. BURNER, : PACSES NO. 768110643 Defendant. : DOCKET NO. 94 SUPPORT 2009 --------------------------------------------------------------------------------------------------------------------- SCOT I. BURNER, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : JULIE A. BURNER, : PACSES NO. 162113140 Defendant. : DOCKET NO. 265 SUPPORT 2012 IN RE: EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE HESS, P.J. OPINION and ORDER In this child support case, on May 24, 2012, Scot I. Burner filed Exceptions to the Support Master’s Report and Recommendation of May 8, 2012. (Exceptions filed May 24, 2012). At the hearing in front of Support Master Rundle, the two matters captioned above were heard together, and one consolidated Report and Recommendation was issued thereon. Mr. Burner has filed identical exceptions, in both cases, to the Master’s Report and Recommendation. Accordingly, we will address the matters concurrently. The procedural history of this case relevant to its disposition is as follows. Plaintiff and Defendant are the parents of two minor children, Benjamin S. Burner, born October 5, 1994, and Collin M. Burner, born September 2, 1996. Scot I. Burner (hereinafter “Father”) is the primary physical custodian of Collin, with the Mother, Julie A. Burner, having temporary physical custody on two overnights bi-weekly. The parties have equal shared custody of Benjamin. By Order of Court, dated July 28, 2001 and entered to 94 Support 2009, the Father’s support obligation for Benjamin was set at $186.00 per month. On February 8, 2012, the Father filed a petition for modification of the July 28, 2001 Order of Court. On March 22, 2012, the Father filed a Complaint for support of both children at 265 Support 2012. A Hearing before Support Master Rundle pertaining to both matters was conducted on May 3, 2012, and the Master issued his Report and Recommendation on May 8, 2012. The Support Master found that the Mother had total annual gross earnings in 2011 of $50,457.00 while working for MetLife Bank from January through April and for Mortgage Network from May through December. In April, 2012, the Mother changed employment and began working for American Neighborhood Mortgage, and, as of March of the current year, had gross earnings of $11,999.00. Furthermore, the Support Master found that the Mother had income from interest and dividends for the 2011 tax year totaling $3,659.00, and that while she had income from capital gains and rental income in 2011, she would not have that income in 2012. The Master found that the Mother’s tax filing status was head of household with Benjamin claimed as a dependency exemption. Based on the foregoing, for purposes of calculating support, the Master found the Mother to have a net monthly income of $3,674.00. As to the Father’s income, the Support Master found that the Father is employed by and is part owner of Dayton Parts, LLC. As such, the Master found that in 2011 the Father had gross earnings from Dayton Parts of $146,230.00, of which $94,000.00 was salary and the balance was bonus; furthermore, the Father was found to have pass-through income as part owner of Dayton Parts totaling $28,514.00, from which he took a distribution of $19,663.00. The Father also was found to be the owner of Capital City News, LLC, a business which operates a kiosk in the 2 Capital City Mall, which, for the 2011 tax year, resulted in an operating loss of $18,004.00 for tax purposes, and from which the Father reported a deduction for depreciation of $19,778.00. Moreover, the Master found that in 2011 the Father reported net rental income of $3,303.00 which included a depreciation expense of $2,167.00. The Father is also the owner of Burner Properties, LLC, and from that ownership he reported an operating loss in 2011 of $5,504.00. The Master also found that the Father is a limited partner in Argosy Real Estate, LP, and from that ownership he reported a loss in 2011 of $7,681.00. The Father was also found to have interest and dividend income of $927.00 annually. As to health insurance coverage, the Master found that the Father provides coverage for himself and both children at a cost of $151.75 per month. The Master found the Father’s tax filing status to be head of household with Collin claimed as a dependency exception. As a result of these findings, the Master assigned to the Father a monthly net income for support purposes of $10,418.00. Upon consideration of the foregoing, the Master issued his Report and Recommendation, which contained the following recommendations: A. The father shall pay to the Pennsylvania State Collection and Disbursement Unit for the support of his son, Benjamin, born October 5, 1994, the sum of $456.00 per month. B. The father shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $44.00 per month on arrears. C. The father shall provide health insurance coverage for the benefit of both Benjamin and Collin as is available to him through employment or other group coverage at a reasonable cost. D. 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 each child that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide documentation of expenses to the st 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 3 medical expenses are to be paid as follows: 74% by the father and 26% by the mother. E. The effective date of this order is February 8, 2012. F. The father’s Complaint filed to 265 Support 2012 is dismissed. (Support Master’s Report and Recommendation, filed May 8, 2012). On May 24, 2012, the Father filed the instant Exceptions to the Support Master’s Report and Recommendation, which alleged the following: 1.The Support Master erred in awarding support for the party’s son, Benjamin S. Burner. 2.The Support Master erred in determining the amount of support awarded for the party’s son, Benjamin S. Burner. 3.The Support Master erred in failing to take into consideration the amount of time the party’s son, Benjamin S. Burner, is in the custody of [the Father]. 4.The Support Master erred in failing to take into consideration the capital gains and rental income Wife earned in 2011 and has refused to work at previous level of income. 5.The Support Master erred in assessing Wife’s earning capacity. 6.The Support Master erred in finding that Father has net monthly income of $10,418.00. 7.The Support Master erred in finding that Father had a monthly support obligation for the party’s son, Benjamin S. Burner, of $456.00. 8.The Support Master erred in calculating the combined net monthly income. 9.The Support Master erred in calculating Father’s proportionate share of support for one child. 10.The Support Master erred in calculating the percentages owed by Mother and Father for unreimbursed medical expenses. 11.The Support Master erred in finding that Father provides health insurance coverage for himself and both children at a cost of $151.75 per month. Father pays approximately $200.00 for said health insurance. 12.The Support Master failed to take into consideration that Father pays for all school lunches for both children which equates to approximately $150.00. 4 13.The Support Master erred in dismissing Father’s Complaint filed to 265 Support 2012. (Plaintiff’s Exceptions to the Support Master’s Report and Recommendation, filed May 24, 2012); (Defendant’s Exceptions to the Support Master’s Report and Recommendation, filed May 24, 2012). We will address each exception in turn. Initially, we note that “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.” Moran v. Moran, 2003 Pa. Super. 455, ¶ 9, 839 A.2d 1091, 1095. The Father’s first three exceptions allege that the Master erred in awarding support for the party’s son, Benjamin S. Burner, that the Master erred in calculating the amount of support awarded for Benjamin, and that the Master erred in “failing to take into consideration the amount of time the party’s son, Benjamin S. Burner, is in the custody of Plaintiff.” Thus, the first three exceptions take issue with the Master’s determination of the Father’s monthly support obligation for Benjamin, which, as noted above, was found to be $456.00. Additionally, the Father’s seventh exception likewise alleges that the Master erred in setting the Father’s monthly support obligation for Benjamin. 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). Initially, we note that the Father does not argue the issue of his support obligation relative to Benjamin in his brief in support of the instant exceptions. We find that a cursory review of the Master’s guideline calculations compels us to deny the Father’s first, second, third, and seventh exceptions. The amount of the Father’s net monthly support obligation was calculated by the 5 Master in the Support Guideline Calculation, attached at Exhibit B to the Report and Recommendation, and which provided, in pertinent part, as follows: Support Guideline Calculation CHILD SUPPORTDefendantPlaintiff [father] [mother] (1) Number of Dependents in this case 01 01 (2) Total Gross Monthly Income $10,418.00 $3,671.00 (3) Less Monthly Deductions - $0.00 $0.00___ (4) Monthly Net Income $10,418.00 $3,671.00 (5) Combined Total Monthly Income $14,089.00 (6) Plus Monthly Social Security Benefit for Child/Children (7) Adjusted Monthly Net Income $14,089.00 (8) Basic Child Support Obligation $1,720.00 (9) Basic Child Support Less Monthly Social Security Benefit for Child/Children $1,720.00 (10) Net Income Percentage of Combined Amount 73.94% 26.06% (11) Each Parent’s Monthly Share of the Child Support Obligation $1,271.77 $448.23 (12) Adjustment for Shared Custody -$341.59 (13) Adjustment for Child Care Expenses (14) Adjustment for Health Insurance Premiums -$26.35 (15) Adjustment for Unreimbursed Medical Expenses (16) Adjustment for Additional Expenses (17) Total Obligation with Adjustments $903.83 (18) Less Split Custody Counterclaim $448.23 (19) Obligor’s Support Obligation $455.60 (Support Master’s Report and recommendation, Ex. B, May 8, 2012). Thus, the Master did consider the amount of time the party’s son, Benjamin, was in the custody of the Father, as evidenced by a downward adjustment located at Line 18. We fail to find error with the Master’s calculations in support of the finding of a monthly support obligation totaling $456.00, and we find no basis for the Father’s contention that he need not be obligated to 6 provide monthly support for his son. For these reasons, the Father’s first three exceptions and his seventh exception will be denied. The Father’s fourth and fifth exceptions allege that the Master erred in assessing the Mother’s earning capacity and that the Master “fail[ed] to take into consideration the capital gains and rental income Wife earned in 2011 and has refused to work at previous level of income.” Contrary to the Father’s assertion, the Master did consider the capital gains and rental income of the Wife, and concluded that the inclusion of those sums in the Mother’s net monthly income for support purposes was inappropriate. Specifically, the Master’s Report and Recommendation provided as follows: 11. The mother had total annual gross earnings in 2011 of $50,457.00. 12. The mother changed employment from Mortgage Network to American Neighborhood Mortgage in April, 2012. 13. The mother had gross earnings through March of $11,999.00. 14. The mother had income from interest and dividends in 2011 of $3,659.00. 15.The mother had income from capital gains and rental income in 2011 but will not have this income in 2012. (Support Master’s Report and Recommendation, filed May 8, 2012). The record is clear that the Master based this finding upon testimony elicited from the Mother at the May 3, 2012 hearing on the matter. As to her earning capacity, the Mother testified that she is engaged in the business of originating mortgages, and, although she previously owned and operated her own business at a substantial profit to herself, she testified that the laws of banking have since changed, an event which ultimately required her to close her business. (Notes of Testimony, In Re: Burner v. Burner, May 3, 2012, 39 (hereinafter “N.T. __”)). Moreover, the Mother testified that among the changes to the various banking laws, the 7 government has set strict limitations on the amount one can earn from the origination of a loan. (N.T. 40). This, in turn, caused the Mother’s income to fall, and she testified that she now is employed by another company where her income is based simply on loan volume. (N.T. 40). Thus, unlike the time when she owned her own business, she no longer has the ability to determine on her own how much per loan she will receive in income. As a result, to compare the Mother’s previous earning capacity with the realities of today’s loan origination market would be inappropriate. For this reason, the Master accepted as credible the Mother’s testimony that her earning capacity was approximately $50,000.00 per year. (N.T. 42). As to the matter of capital gains and rental income, the Master found that the Mother will not have this income in 2012, and, therefore, declined to include it in her earning capacity. This finding was based on the Mother’s testimony that such income was derived from rental property owned jointly by her and the Father in 2011, in which she no longer has an ownership interest as her interests in the properties have since been sold to the Father. (N.T. 42-43). The Mother testified that the parties were having difficulty in splitting the rental income and preparing the tax returns together, and, therefore, they decided that the Father would “buy out” the Mother. (N.T. 43). As a result, the Master found that the Mother no longer holds an ownership interest in the income producing properties, and the Master correctly concluded that it would be inappropriate to attribute such income to her going forward. For these reasons, we find no error with the Master’s determination of the Mother’s earning capacity, nor with his finding that such rental and capital gains income should not be attributed to the Mother in future years. As a result, the Father’s fourth and fifth exceptions will be denied. The Father’s sixth exception alleges that the Master erred in finding that the Father has a net monthly income for support purposes of $10,418.00. We note, again, that this exception, like 8 many of the others, was not argued in the brief submitted by the Father concerning the instant exceptions, and, in any event, find no error in the Master’s determination of the Father’s net monthly income. As noted by the Master, the Father’s income is “complex,” as he receives income from a variety of sources, each with a different character. The Master found that the Father has annual income as an employee of Dayton Parts totaling $146,230.00, as evidenced by the Father’s 2011 tax return. The Master found that the Father has pass-through income from his part ownership of Dayton Parts totaling $28,514.00, of which only $19,663.00 was received as a distribution and was treated by the Master as income for support purposes. Additionally, the Father was found to have income from his ownership of Capital City News, LLC totaling $1,774.00 after adding back the depreciation expense of $19,778.00. See Labar v. Labar, 557 Pa. 54, 60, 731 A.2d 1252, 1255 (1999) (“[D]eductions allowed under the federal tax laws, that do not represent actual reductions in a support obligor’s personal income, will not be allowed in the disposable income calculation.”). The Master found that the Father also had rental income of $5,470.00 after adding back the depreciation expense to the net profit. The Father was also found to have had income from interest and dividends totaling $927.00. Thus, the Master found the Father to have had a total gross annual income for support purposes of $174,064.00, or an average monthly gross income of $14,505.00. With a tax filing status of head of household and claiming the parties’ son, Collin, as a dependent, the Master found the Father to have a net monthly income for support purposes equaling $10,418.00. The Father’s eighth exception alleges that the Master erred in calculating the combined net monthly income. As evidenced in the Support Guideline Calculations, supra, the Master found the Father to have a net monthly income for support purposes totaling $10,418.00, and the Mother was found to have a net monthly income for support purposes of $3,671.00, for a total of 9 $14,089.00. We find no error with the Master’s calculations, and the Father’s eighth exception will be denied. The Father’s ninth exception alleges that the Master erred in calculating the Father’s proportionate share of support for one child. With a combined net monthly income of $14,089.00, and with the Father having been assigned a net monthly income for support purposes of $10,418.00, the Master correctly apportioned the Father’s share of support for one child at 73.94%. We find no error with the Master’s assignment of a support obligation proportionate with the Father’s net monthly income relative to the parties’ net monthly income. The Father’s tenth exception alleges that the Master erred in calculating the percentages owed by Mother and Father for unreimbursed medical expenses. As noted above, the Master determined that the Mother has an obligation to reimburse the Father for 26% of the unreimbursed medical expenses incurred on behalf of Collin, to the extent that such expenses exceed $250.00 annually. The apportionment of unreimbursed medical expenses at 26% was consistent with the Master’s determination of the parties’ net monthly incomes in comparison to the parties’ individual net monthly incomes. As noted above, the Father was assigned 74% of the support obligation, and the Mother was assigned the remaining 26%, each in accordance with their relative abilities to pay. We find no error with the Master’s determination of the apportionment of unreimbursed medical expenses. The Father’s eleventh exception alleges that the Master erred in finding that Father provides health insurance coverage for himself and both children at a cost of $151.75 per month, contending instead that the Father pays approximately $200.00 for health insurance. The record is clear, however, that the Master based the findings of fact on the testimony elicited from the Father at the hearing, which provided, in pertinent part, as follows: 10 Q: Who provides health insurance for the kids? A: I pay 100 percent. Q: Does that cost you any money? A: Yes. Q: Approximately how much does it cost you? A: If I was single at my work versus being a father with two children, it’s a difference of roughly $150 per month. It also raises my deductible as well. I have a dollars-deductible plan. So it goes from a $1,500 to a $3,000 deductible or something like that. (N.T. 11). Thus, the Master correctly determined that, based on the Father’s testimony, the Father incurs an additional expense of approximately $150.00 per month to provide health insurance for his children. Moreover, the expense incurred in the provision of health insurance was accounted for at Line 14 of the Master’s Support Guideline Calculations wherein the Father received a downward adjustment in his support obligation for the payment of the insurance premiums. For these reasons, the Father’s eleventh exception will be denied. The Father’s twelfth exception alleges that the Master erred in failing to take into consideration that the Father “pays for all school lunches for both children which equates to approximately $150.00.” Although the Father may in fact be incurring the expenses for school lunches, the Support Guideline Calculations do not recognize discretionary payments, such as school lunches or cell phone bills, in calculating an obligor’s support requirement. Pa.R.Civ.P. 1910.16-4; see also Pa.R.Civ.P. 1910.16-6 (listing the additional expenses permitted to be allocated between the parties). For these reasons, the Father’s twelfth exception will be denied. The Father’s thirteenth and final exception alleges that the Master erred in dismissing Father’s Complaint filed to 265 Support 2012. In his Report, the Master indicated that “[b]ecause the father receives an adjustment for the mother’s obligation for Collin in this case, 11 his Complaint for support will be dismissed.” (Support Master’s Report and Recommendation, filed May 8, 2012). As the matter of the support of Collin was addressed in the calculations, and, indeed, the Father was credited with a downward adjustment for such support, we find no error with the Master’s dismissal of the Father’s Complaint. Moreover, it is noted that the Father does not raise the issue of the dismissal in his brief in support of the instant exceptions. For these reasons, the Father’s thirteenth exception will be denied. ORDER th AND NOW, this 28 day of September, 2012, upon consideration of the Exceptions filed to the Support Master’s Report and Recommendation issued in the consolidated cases captioned above, and for the reasons contained in the opinion filed of even date herewith, the exceptions filed by the Father, Scot I. Burner, are hereby DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Andrew C. Sheely, Esquire For the Plaintiff Ira H. Weinstock, Esquire For the Defendant Michael R. Rundle, Esquire Support Master :rlm 12 JULIE A. BURNER, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : SCOT I. BURNER, : PACSES NO. 768110643 Defendant. : DOCKET NO. 94 SUPPORT 2009 --------------------------------------------------------------------------------------------------------------------- SCOT I. BURNER, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : JULIE A. BURNER, : PACSES NO. 162113140 Defendant. : DOCKET NO. 265 SUPPORT 2012 IN RE: EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE HESS, P.J. ORDER th AND NOW, this 28 day of September, 2012, upon consideration of the Exceptions filed to the Support Master’s Report and Recommendation issued in the consolidated cases captioned above, and for the reasons contained in the opinion filed of even date herewith, the exceptions filed by the Father, Scot I. Burner, are hereby DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Andrew C. Sheely, Esquire For the Plaintiff Ira H. Weinstock, Esquire For the Defendant Michael R. Rundle, Esquire Support Master :rlm