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HomeMy WebLinkAbout941 S 2005 THOMAS 1. WALKER, JR, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. DOMESTIC RELATIONS SECTION PACSES NO. 836107770 ELIZABETH A. WALKER, Defendant NO. 05-941 SUPPORT IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., May , 2006. F or disposition in this child and spousal support case are exceptions to a report of the Cumberland County Support Master, filed by the Defendant/wife/mother. As indicated in her brief in support of the exceptions, the issue being pursued is [w]hether husband's monthly income for support purposes should be based upon his earning capacity rather than upon his actual monthly income? In this regard, the support master concluded that the net monthly income of the husband/father for support purposes was $2,201.07, based upon a current gross salary of $2,600.00 per month. The wife/mother's position is that a higher income figure should have been imputed to him based upon more remunerative employment in which he was engaged in 1998, 1999, and 2000. For the reasons stated in this opinion, the exceptions to the support master's report will be dismissed, and the interim order of court issued on January 20, 2006, issued in accordance with the support master's recommendations, will be entered as a final order. STATEMENT OF FACTSl Plaintiff is Thomas 1. Walker, Jr., 46, who resides at 432 Stonehedge Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2 Defendant is Elizabeth A. Walker, 44, who resides at 20 Wineberry Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3 Plaintiff and Defendant were married on December 14, 1991.4 Two children were born of the marriage: Brianna Walker (d.o.b. September 9, 1993) and Amy Walker (d.o.b. March 24, 1995). The parties separated on September 15, 2005,5 and a shared custody arrangement is in place.6 A divorce is pending.7 The complaint for child and spousal support sub judice was filed by Plaintiff, the husband/father, on October 27, 2005.8 The Cumberland County Support Master conducted a hearing on the complaint on January 17, 2006. The master's resultant report proposed a monthly spousal support obligation on the part of Defendant in the amount of $1,181.00 and a monthly child support obligation of $1,194.00, based upon net monthly incomes of $2,201.07 for Plaintiff, husband/father, and $7,330.92 for Defendant, wife/mother. The husband/father is a personal computer technician with a gross annual salary of about $31,000.00.9 The wife/mother is a "service delivery executive" for IBM, receiving gross annual compensation in the approximate amount of 1 The facts for purposes of this opinion are recited as of the master's on January 17,2006. 2 NT. 4, Support Master's Hearing, January 17, 2006 (hereinafter NT. ~; Plaintiffs Ex. 4, Support Master's Hearing, January 17,2006 (hereinafter Plaintiffs Ex./Defendant's Ex. ~. 3 NT. 47-49; 78; Plaintiffs Ex. 4. 4 NT. 4. 5 NT. 49. 6 NT. 7, 50. 7 NT. 49. 8 Complaint for Support, filed October 27,2005. 9 NT. 5; Plaintiffs Ex. 2. 2 $122,000.00.10 At one time, in another position, each party earned more than he or she is presently making. Thus, in 1999 the husband/father earned $69,853.00,11 and in 2002 the wife/mother earned $297,678.79.12 However, the master was of the view that the parties' current incomes reflected their present earning .. 13 capacItIes. The husband/father did not except to this recommendation. The wife/mother, while being satisfied with an assessment of her earning capacity without reference to a prior earnings figure which was about two and a half times her present income, objects to that aspect of the master's report as it relates to the husband/father's earning capacity.14 To a large extent, the issue is one of credibility. In broad terms, the testimony of the husband/father at the support master's hearing was that he was not highly educated,15 had deferred to the wife/mother with respect to financial matters in the marriage, 16 was laid off through no fault of his own from employment in 2000,17 assumed the role of a homemaker due to the employment-related unavailability of the wife/mother,18 and, as the marriage disintegrated, obtained the best employment that he could given his limited qualifications, recent employment history, and market conditions. 19 The wife/mother's testimony was to the effect that, notwithstanding employment 10 NT. 67, 69, 71, 79 (salary of$112,000.00 plus quarterly bonuses of$ 2,500.00). 11 NT. 41. 12 NT. 15, 76. 13 NT. 45; Support Master's Report and Recommendations, 4-5, filed January 20,2006. 14 Defendant's Exceptions to Support Master's Report and Recommendation, filed January 27, 2006. 15 NT. 4-5. 16 NT. 30, 35, 39-40. 17 NT. 8-9, 19. 18 NT. 9-10. 19 NT. 11, 16,26-27. 3 which required her to work eighty hours a week20 and to travel,21 she had remained the children's primary caretaker,22 and that the husband/plaintiff was a malingerer with respect to obtaining employment. 23 In concluding that the husband/father should not be assessed an earning capacity commensurate with his highest earning years, the master noted the following: The Plaintiff is 46 years of age, has a high school diploma and some post secondary training in electronics.24 He has no college degree.2s He had a long work history in electronic repair earning less than $35,000.00 per year until August 1998 when he was hired as a network project manager by the company that now operates the Foot Locker chain. 26 His income over three years averaged approximately $62,000.00 per year.27 The position ended in October 2000 through no fault ofhis.28 Initially the Plaintiff made reasonable efforts to obtain new employment. 29 He contacted an employment agency, searched the internet, read the classified section of the newspaper and contacted prior employers?O He was offered one position which required extensive travel and turned it down.3l Because his wife had recently changed to a sales position with IBM which required her to be away from home periodically, he chose to restrict his employment search to the local area?2 After several months of no success in obtaining employment and with his wife succeeding in her sales position, the Plaintiff became quite complacent in being a stay-at-home parent.33 In 2004 the Defendant filed for divorce, but the parties continued 20 NT. 57, 68. 21 NT. 58-59. 22 NT. 61-64. 23 NT. 60-61. 24 NT. 4-5. 25 NT. 4 26 NT. 8, 24, 28. 27 NT. 8,41. 288 19-20 , . 299 21 , . 30 NT. 9,21-23. 31 NT. 21-22. 32 NT. 17-18,21-22,28. 33 NT. 25-27, 29-30. 4 to reside together in the marital residence.34 In 2005 the Plaintiff finally returned to the workforce on a full-time basis?S He accepted a position with a former employer, Intellimark, as a P.c. Technician.36 He is doing now what he had been doing for many years prior to 1998?7 . . . The [Plaintiff] had one position as a network project manager which ended in 2000?8 In the opinion of this Master it is not realistic to expect the Plaintiff to walk into a $60,000.00 per year position after being out of the job market for four years. His current actual earnings will be utilized in computing the Defendant's support obligation. Support Master's Report and Recommendation, 4-5, filed January 20, 2006 (footnotes added). DISCUSSION On a review of a support master's report, a trial court is to employ the same standard as is applicable to review of a divorce master's report. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988). The report is advisory only, and when exceptions are filed the court must conduct its own review of the evidence to determine whether the master's recommendations to which exceptions are taken are proper. Id, Gomez v. Gomez, 11 Phila. Co. Rptr. 211, 226-27 (1984). In the process of this independent review by the court, the report is entitled to be given the "fullest consideration," particularly with respect to the credibility of the witnesses. Id In this regard, it is the master who had "the opportunity to observe and assess the behavior and demeanor of the [witnesses]." Moran v. Moran, 2003 PA. Super. 455, ,-r9, 839 A.2d 1091, 1095 (2003). The master is "in a better position than th[ e] Court to pass upon the credibility of [the] witnesses." Wiegand v. Wiegand, 259 Pa. Super. 72, 74, 393 A.2d 722, 723 (1978). 34 NT. 49-50. 35 NT. 5. 36 NT. 5,41. 37 NT. 13. 38 NT. 8,41-42. 5 With respect to a determination of a party's earning capacity for purposes of a calculation of a support obligation, it is well settled that a person's earning capacity is defined not as an amount which a person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition, training, . . . and the amount of time that the person, during the marriage, had been out of work. Arbet v. Arbet, 863 A.2d 34,43 (Pa. Super. Ct. 2004) (citations omitted). In the present case, the support master's conclusion that Plaintiff s current salary of about $31,000.00 per year is commensurate with his earning capacity is amply supported by the record, as indicated in the recitation of facts above, supported by citations to the record. An independent review of the testimony and exhibits by the court has led it to the same conclusion reached by the master. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 15th day of May, 2006, upon consideration of Defendant's exceptions to the support master's report, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order of court dated January 20, 2006, is entered as a final order. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Michael R Rundle, Esq. Support Master Debra D. Cantor, Esq. P.O. Box 1166 100 Pine Street Harrisburg, P A 17108-1166 Attorney for Plaintiff 6 Maria P. Cognetti, Esq. 210 Grandview Avenue Suite 102 Camp Hill, PA 17011 Attorney for Defendant 7 8 THOMAS 1. WALKER, JR, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. DOMESTIC RELATIONS SECTION PACSES NO. 836107770 ELIZABETH A. WALKER, Defendant NO. 05-941 SUPPORT IN RE: DEFENDANT'S EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE OLER, J. ORDER OF COURT AND NOW, this 15th day of May, 2006, upon consideration of Defendant's exceptions to the support master's report, and for the reasons stated in the accompanying opinion, the exceptions are dismissed and the interim order of court dated January 20, 2006, is entered as a final order. BY THE COURT, 1. Wesley Oler, Jr., 1. Michael R Rundle, Esq. Support Master Debra D. Cantor, Esq. P.O. Box 1166 100 Pine Street Harrisburg, P A 17108-1166 Attorney for Plaintiff Maria P. Cognetti, Esq. 210 Grandview Avenue Suite 102 Camp Hill, PA 17011 Attorney for Defendant 10