HomeMy WebLinkAbout661 S 2002
PAUL E. WEIBLEY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOMESTIC RELATIONS SECTION
BARBARA 1. WEIBLEY, :
Defendant
PACSES NO. 913104711
NO. 661 SUPPORT 2002
IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this ih day of July, 2006, upon consideration of the exceptions filed
by Defendant and Plaintiff to the support master's report, and for the reasons stated in the
accompanying opinion, the exceptions of both parties are dismissed and the interim order
of court dated March 8, 2006, is entered as a fmal order.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Michael R. Rundle, Esq.
Support Master
Jennifer L. Spears, Esq.
10 East High Street
Carlisle, P A 17013
Attorney for Plaintiff
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, P A 17013
Attorney for Defendant
PAUL E. WEIBLEY,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOMESTIC RELATIONS SECTION
BARBARA 1. WEIBLEY,
Defendant
PACSES NO. 913104711
NO. 661 SUPPORT 2002
IN RE: EXCEPTIONS TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, 1., July 7,2006.
In this child support case involving one child in the custody of the father 57% of
the time, 1 Plaintiff Paul E. Weibley (father) filed a petition for modification of the
existing support obligation of Defendant Barbara 1. Weibley (mother), based on a change
in her employment? Following a hearing held by the Cumberland County Support
Master, the master issued a report recommending an increase in Defendant's support
obligation for the child to $249.00 per month, plus $25.00 per month for arrearages.3 An
interim order to this effect was thereafter entered.4
For disposition at this time are exceptions to the master's report filed by both
parties. The exceptions of Defendant mother read as follows:
1. The Support Master should have deviated from the guidelines and
declined to award any child support, where mother and father have
substantially identical periods of custody, but for one overnight every two
(2) weeks; which in the context of the particulars in this case is de
minimus, where father sold a property and cleared over $550,000.00 in
1 For purposes of child support, the calculation of the parties' relative custodial periods is to be made on
the basis of overnights. See Pa. R. c.P. 1910 .16-4( c).
2 Petition for Modification of an Existing Support Order, filed August 1, 2005.
3 Support Master's Report and Recommendation and Finding of Facts, filed March 8, 2006 (hereinafter
Support Mater's Report,~.
4 Order of Court, March 8, 2006.
benefit to himself, and where father is the half owner of a million dollar
farm, and where father earns substantially more than mother. Deviation
from the guidelines is appropriate because father is best suited to take care
of the child without mother's financial support, and the removal of the
money from mother's finances only impinges upon her ability to provide
adequately and equally for the child.
2. The Court erred in not previously providing discovery as was filed and
requested at this docket by the Defendant. Specifically, Defendant
requested discovery as to the "retirement account" and related dispositions
of the sale of property. Plaintiff, Paul E. Weibley was unable to provide
any details about the "retirement account" at the hearing and simply kept
saying that he placed $250,000.00 in a retirement account, but could not
give the name or any particulars of such "account[.]" As a result this Court
should remand the matter to the Master for a new hearing and require that
discovery issue on those issues previously requested prior to thereto,
including the complained of account.
3. The Master erred when he found that the $350,000.00 accrued to husband
was not to be treated as income in the current year and as such should
have computed the same as income to the husband rather than merely
imputing a nominal amount of interest to the same.
4. Finally, the Master erred as a matter of law. Where Plaintiff was able to
show that husband had income from a source, which was the sale of
property, and where husband argued that he had a marital basis in the
same, the Support Master erred in requiring Plaintiff to account for the
basis, as once Defendant is shown to have income, the burden shifts to
Defendant to show why income from any source so derived is not
calculable as support.5
The exceptions filed by Plaintiff father read as follows:
1. The Support Master erred by imputing income of $521.00 per month to
the Plaintiff from the proceeds of property awarded to Plaintiff in the
parties' Marital Settlement Agreement, finding that the proceeds from the
sale of property awarded to Plaintiff as equitable distribution that Plaintiff
put into a retirement or money market account which is not interest-
producing was deferred income. The law does not require Plaintiff to
convert or invest his property in income-producing assets.
2. The Support Master erred by annualizing income earned by the Plaintiff
only in January and February of 2005 ($5,000.00 annualized to $417.00
per month), and not the remainder of the year, for interest earned from an
installment sales contract for real estate, when the date of filing of the
modification, and the date of the order was August 1, 2005. The interest
was included in prior orders but should not be reflected in the Plaintiff s
5 Defendant's Objections to the Findings of the Support Master, filed March 17,2006.
2
income from the date of modification because he no longer receives it and
to impute it in his current and future earnings creates an unjust result.
3. The Support Master erred in finding that Defendant had no net profit from
her antique business as no evidence was produced to support this finding.
To the contrary, Defendant failed to produce or testify to any specific gain
or loss regarding the business, and repeatedly stated that she did not have
the information with her, did not know how much she made or even who
she contracted with [to] sell the antiques. She also could not provide an
inventory of the antiques. 6
F or the reasons stated in this opinion, both sets of exceptions will be dismissed,
and the interim order of court dated March 8, 2006, will be entered as a final order.
STATEMENT OF FACTS
Plaintiff is Paul E. Weibley, an adult individual residing at 484 Petersburg Road,
Carlisle, Cumberland County, Pennsylvania.7 Defendant is Barbara 1. Weibley, an adult
individual residing at 105 Hilltop Drive, Mount Holly Springs, Cumberland County,
Pennsylvania. 8 Plaintiff and Defendant were divorced on May 1, 2001,9 and are the
parents of two children: Austin P. Weibley, born August 24, 1986, and Justin P. Weibley,
born December 20, 1996.10
Plaintiff father filed a complaint for child support with respect to Justin P. Weibley
on July 29, 2004.11 On September 16, 2004, an order was entered establishing a support
obligation on the part of Defendant mother of $133.76 per month for the child's support,
6 Plaintiffs Exceptions to Support Master's Report and Recommendation and Findings of Fact, filed
March 24, 2006.
7 NT. 4, Support Master's Hearing, March 2,2006 (hereinafter NT. ~.
8 NT. 33-34.
9 Complaint for Support, ~~1-2, filed July 29,2004 (hereinafter Complaint,~.
10 NT. 4; Complaint, ~4.
11 Complaint for Support, filed July 29, 2004. Plaintiff had initially filed a Complaint for Support for
both children on July 29, 2002, which was dismissed by Order of Court dated September 5, 2002, in
accordance with Plaintiff s written request.
3
based upon net monthly incomes of Plaintiff father and Defendant mother of $3,997.68
and $1,358.61 respectively.12
On August 1, 2005, Plaintiff father filed a petition to modify Defendant mother's
support obligation, alleging a change in Defendant's employment. 13 A support
conference was held on September 7, 2005, after which an interim order was entered that
increased the support obligation of Defendant mother to $300.00 per month, based on net
monthly incomes of Plaintiff father and Defendant mother of $2,973.23 and $2,053.37
respectively.14 The order reflected a "57/43% split custody" arrangement with respect to
Justin P. Weibley.15 Defendant appealed this order to the Cumberland County Support
Master on September 13,2005.
Prior to the support master's hearing, Defendant mother filed a "Petition for
Special Relief' on October 31, 2005, requesting discovery regarding the proceeds from
Plaintiff father's sale of a certain "farm" located at 1552 Holly Pike, Carlisle,
Cumberland County, Pennsylvania. 16 Specifically, the petition stated that Plaintiff had
"sold his farm and [was] in receipt of proceeds in excess of $500,000" which Plaintiff
had been "unable to account for . . . at the Support Conference on September 7th,
2005.,,17 The petition further asserted that discovery was required to determine the exact
amount of the proceeds and what Plaintiff father had done with the proceeds. Defendant
12 Order of Court, September 16, 2004. This support obligation of $133.76 per month was to be paid
monthly and was comprised of $133.76 for current support and $16.24 for arrears (arrears were set at
$387.80). The order also provided that Ullreimbursed medical expenses exceeding $250.00 annually were
to be paid 25% by Defendant and 75% by Plaintiff.
13 Petition for Modification of an Existing Support Order, filed August 1, 2005.
14 Order of Court, September 7, 2005. This support obligation of $300.00 per month was to be paid
monthly and was comprised of $300.00 for current support and $16.24 for arrears (arrears were set at
$437.97). The order also provided that Ullreimbursed medical expenses exceeding $250.00 annually were
to be paid 40% by Defendant and 60% by Plaintiff.
15 Order of Court, September 7,2005.
16 Petition for Special Relief Pursuant to Pa. R.c.P. No. 1930.5, filed October 31, 2005 (hereinafter
Petition for Special Relief, ~.
17 Petition for Special Relief, ~~4-5.
4
mother contended that she would suffer prejudice in the absence of discovery. 18 Finally,
the petition requested that the court "find that this is a complex support matter and grant
leave of court to conduct discovery.,,19
On December 12, 2005, at a hearing conducted by the court on the discovery
petition the parties stipulated to the following facts:
1. There was a support modification hearing to be heard by Master
Rundle, which has been continued generally until this matter's
been decided.
2. At the September 7th, 2005, support conference [father]
acknowledged the sale of property located at 1552 Holly Pike,
Carlisle, and was unable to give exact figures for the disposition
of the funds from that sale.
3. The marital settlement agreement dated December 1st, 2000,
distributed said property to [father], and the marital settlement
agreement was incorporated into the divorce decree of May 1st,
2001.
4. The parties dispute whether any portion of the proceeds are
income for support purposes.
5. The property was sold in 2002 by [father] pursuant to an
installment sales contract, and paid off in a lump sum in the
spnng.
6. A copy of the marital settlement agreement attached to
Plaintiffs answer is true and accurate.
7. The parties share custody 57/43 percent with. . . father having
primary custody. . . .
8. [Father] deposited some of the proceeds from the sale of the
property into a retirement account, and if necessary will argue-
will dispute that the assets should be considered in his income at
the support appeal hearing. 20
At the hearing Defendant mother specifically requested discovery regarding "how
much money [Plaintiff father] made" on the sale of the property and "some
18 Petition for Special Relief, ~~6, 9.
19 Petition for Special Relief, ~7.
20 Hearing on Petition for Special Relief, 4-5, December 12,2005.
5
documentation about what kind of retirement account" he had placed the sale proceeds
in.21 In regard to the basis of the property, the court inquired:
THE COURT: And you feel you need to know the basis of
the property?
[DEFENDANT'S COUNSEL]: The basis of the property's
going to be determined from the marital settlement agreement at
the time of value distribution.
THE COURT: So you don't need that figure.
[DEFENDANT'S COUNSEL]: I have that. What I need
to know is how much money he made . . . .22
Following the hearing, the court denied the request to designate the case as
complex for discovery purposes and to direct that discovery take place.23
On March 2, 2006, a hearing was held by the Cumberland County Support Master
on Plaintiff father's petition for modification of the support order. 24 The evidence at the
hearing may be summarized as follows:
Plaintiff father was employed at PPG Industries, Inc., as a laborer, working 40
hours a week.25 Plaintiff had earned $35,700.38 from his employment in 2005?6 In
January of 2005, Plaintiff had experienced a voluntary two week layoff?7 Through his
21 Hearing on Petition for Special Relief, 10, December 12,2005.
22 Hearing on Petition for Special Relief, 9-10, December 12,2005.
23 Order of Court, December 13,2005.
24 NT. 3.
25 NT. 5, 9.
26 NT. 25; Plaintiffs Exhibit No.1. Plaintiffs total salary was $37,730.38 of which $2,030.00 was
placed into a pretax 401 (K) account.
27 NT. 6.
6
employer, Plaintiff was providing health insurance for himself, his wife, Austin, and
Justin at a cost to him of $225.00 per month?8
Plaintiffs wife was employed part-time with the South Middleton School District
as an aide and earned approximately $2,000.00 per year.29 Plaintiffs income tax filing
status was that of married, filing jointly, with Justin being claimed as an exemption. 30
Plaintiff s investments included: a retirement fund, a mutual fund which earned
approximately $2,000.00 for the year, and a farm which he owned with his brother.31
This farm had been received through inheritance. 32 Plaintiff and his brother leased the
farm for $500 a month and the cattle on the farm for $1,500 a year.33 Plaintiff was
entitled to half of the rental income, but after payment of taxes, insurance, and
maintenance expenses Plaintiff received no income from the farm. 34
As previously mention in this opinion, Plaintiff father had received sole ownership
of a property located at 1552 Holly Pike, Carlisle, Cumberland County, Pennsylvania, as
part of Plaintiff and Defendant's Marital Settlement Agreement. 35 In 2002 Plaintiff had
subjected this property to an installment sales agreement with a sale price of
$590,000.00?6 In the spring of 2005, final settlement had taken place.37 Prior to the
28 NT. 9-10,26.
29 NT. 8, 16.
30 NT. 10.
31 NT. 7-8,10-11.
32 NT. 10-11,23.
33 NT. 11-12.
34 NT. 12-13.
35 NT. 13. The Holly Pike property was sold in 2002, "[s]o it was less than a year [after the divorce in
2001] until papers were signed and everything was taken care of." NT. 31.
36 NT. 18, 31. Of the total sales price, Plaintiff approximately received between $406,000.00 and
$410,000.00 in cash with which he purchased a truck, "paid some of [his] house off," placed "some in for
retirement," and placed some in a mutual fund. NT. 18-19.
7
settlement date, Plaintiff had been receiving monthly interest payments on the installment
sales agreement in the amount of $2,500.00, and monthly payments on principal in the
amount of $500.00.38 In 2005, Plaintiff received these payments in January and
February.39 Following the final settlement Plaintiff continued to hold a second mortgage
on the property in the amount of $55,000.00. According to the terms of the second
mortgage Plaintiff deferred receipt of interest (5% per annum) and principal for four
years.40 Of the remaining sale proceeds Plaintiff deposited approximately $60,000.00
into a mutual fund account, and $250,000.00 into a retirement account.4l
Under the Marital Settlement Agreement, entered into on December 1, 2000,
Plaintiff father had received the Holly Pike property and Defendant mother had received
approximately $150,000.00 in stock and $200,000.00 in antiques.42 Each retained
possession of their individual retirement accounts and vehicles.43 The Marital Settlement
Agreement did not itself specify the value of the property subject to distribution and no
appraisal was conducted at the time of the Agreement. 44
37 NT. 15.
38 NT. 14.
39 NT. 14-15. In answering a question as to which months in 2005 he received these payments, Plaintiff
responded, "January and February and I am going to say March, but I am not one hundred percent sure
because he was going to add that onto the settlement which we did in April." NT. 14.
40 NT. 16-17,33. The 5% per annum interest is included in the $55,000 mortgage.
41 NT. 19.
42 NT. 13, 19.
43 NT. 20.
44 NT. 30. Plaintiff father testified that, when they decided to get a divorce,
[Defendant mother] figured out that our property was worth $590,000.00. We agreed
upon that. We owed $90,000.00 to the bank for the property, which left the balance of
$500,000.00. The $150,000.00 worth of stock that I gave her was my inheritance money.
. .. She calculated that her business for her antique business, plus all the antiques in the
house, was worth another $150,000.00. She got that. Our vehicles were comparably the
8
Defendant mother was employed at Berkeley Contract Packaging, as of February
15, 2005, as an inventory specialist earning $13.00 per hour and working 40 to 45 hours
per week.45 From February 15, 2005 through December 31, 2005, Defendant had gross
wages at Berkeley of $25,703.85.46 Defendant's income tax filing status was head of
household, with Austin being claimed as an exemption.47 Defendant had also engaged in
an antique business in 2005, but had terminated the business at the end of 2005 because it
was not profitable.48 Income from the antique business in 2005 was not precisely known
at the time of the hearing, but estimated to have been less than $6,000.00.49
F allowing the hearing, the master issued his report and recommendations on
March 8, 2006.50 The master concluded that Defendant mother's monthly net income
figure was $2,006.00 and that Plaintiff father's monthly net income figure was
$3,680.00.51 According to Pennsylvania Rule of Civil Procedure 1910.16-3, these figures
same. I took mine and she took hers. Our retirement was the same within a couple of
dollars. She took hers and I took mine, and that is how we left it.
NT. 28-29.
Defendant mother testified that she did not remember valuing the marital residence at the time of
separation. She stated, "He said that I needed to take $150,000.00 or I wouldn't get anything. That was
it. He would tie it all up in court so that was it." N. T. 41-42.
45 NT. 34, 39.
46 NT. 34; Defendant's Exhibit No.1.
47 NT. 39-40.
48 NT. 35-6, 38,48. Defendant claimed a net loss from her antique business in 2004. NT. 49.
49 NT. 47-48.
50 Support Master's Report and Recommendation, filed March 8, 2006 (hereinafter Support Master's
Report, ~.
51 In Cumberland County, a computer program-which takes into account a party's gross income, tax-
filing status, and exemptions claimed-is utilized by the Domestic Relations Office in calculating a
party's net monthly income. See Seeley-Burnham v. Burnham, 52 Cumbo 48, 52 (2003); Cunningham V.
Cunningham, 49 Cumbo 219,224 n.32 (2000).
9
resulted in a basic support requirement for one child of $1,023.00.52 The master
concluded that Defendant mother's support obligation should be $249.00 per month
based on her monthly net income figure of $2,006.00. Defendant's support obligation as
calculated took into consideration the custody arrangement, whereby Defendant mother
had substantial periods of custody. 53
In determining Plaintiff father's monthly net income figure the support master
stated:
The Plaintiff has gross monthly income from employment
of $3,145.00. He had interest income in January and February
of 2005 in the amount of $2,500 per month on an installment
sales contract and interest/dividend income on mutual funds of
approximately $2,000.00. However, the Defendant has deferred
receipt of income on $305,000.00 of proceeds from the sale of
the 1552 Holly Pike property. He is holding a $55,000.00
second mortgage on the property and has deposited $250,000.00
into a "retirement account." Before the final settlement of the
sale the Plaintiff had been receiving $3,000.00 per month in
installment payments of which $500.00 represented principal
and $2,500.00 represented interest. The interest income was
includable for support purposes in September, 2004. After the
sale of the property his monthly current investment income is
limited to $167.00 from mutual funds. The Plaintiff has
deferred $229.00 per month on the second mortgage.
Had the Plaintiff deposited the $250,000.00 proceeds of the
sale into a money market account paying at that time
approximately 2.5%, he would have generated current income of
approximately $521.00 per month. Together his monthly
available income would have increase by $750.00 per month had
he not deferred receipt of income on the $305,000.00 principal.
This deferred income will be imputed to him for calculation of
the Defendant's support obligation. 54
52 Support Master's Report, 4, Ex. B.
53 Support Master's Report, Ex. B. According to the Support Guideline Worksheet, Defendant was found
to have a 35.29% obligation for support, resulting in a monthly obligation of $361.02, which was reduced
by $130.33 to account for the custody arrangement whereby Defendant had custody 43% of the time and
increased by $18.62 for health insurance premiums. Id.
54 Support Master's Report, 3.
10
Therefore, the master determined Plaintiff father's monthly net income figure was
$3,680.00 based on Plaintiff father's monthly gross earned income of $3,145.00 and
monthly gross investment income of $1,208.00.55 In footnote 4 of the report, the master
noted, regarding the monthly gross investment income calculation, that "5,000.00
received in January and February annualized [was] $417.00 per month. The investment
income earned and imputed March through December [was] $9,500.00 ($2,000.00 earned
and $7,500.00 imputed), or $792.00 per month.,,56
The court issued the following interim order in accordance with the support
master's report:
AND NOW, this 8th day of March, 2006, upon consideration of
the Support Master's Report and Recommendation. . . it is ordered
and decreed as follows:
A. The Defendant shall pay to the Pennsylvania State
Collection and Disbursement Unit as support for her child,
Justin P. Weibley, born December 20, 1996, the sum of
$249.00 per month.
B. The Defendant shall pay to the Pennsylvania State
Collection and Disbursement Unit the additional sum of
$25.00 per month on arrearages.
C. The Plaintiff shall provide health insurance coverage for
the benefit of said child as is available through his
employment or other group coverage at a reasonable cost.
D. The Defendant shall pay 35% of the umeimbursed medical
expenses as incurred by said child as that term is defined in
Pa. RC.P. 191O.l6-6(c).
E. The effective date of this order is August 1,2005.57
On March 17, 2006, Defendant mother filed exceptions to the support master's
report on four grounds. 58 Defendant's exceptions contend (1) that the "Support Master
55 Support Master's Report, Ex. A, Ex. B.
56 Support Master's Report, 4.
57 Order of Court, March 8, 2006.
11
should have deviated from the guidelines and declined to award any child support,,;59 (2)
that the court erred by not providing discovery regarding Plaintiffs retirement account;60
(3) that the support master "erred when he found that the $350,000 accrued to husband
was not to be treated as income in the current year,,;61 and (4) that the support master
erred by "requiring Plaintiff to account for the basis" in the Holly Pike property. 62
Following the filing of Defendant mother's exceptions, Plaintiff father filed
exceptions to the support master's report on March 24, 2006, contending that the master
made three errors.63 First, Plaintiff maintains that the law does not require Plaintiff to
invest his property in income-producing assets; and that, consequently, $521 per month in
investment income should not have been imputed from the portion of the sale proceeds
from the Holly Pike property placed in a retirement account. Second, Plaintiff contends
that the master "erred in annualizing income earned by the Plaintiff only in January and
February of 2005 ($5,000 annualized to $417 per month)."64 Third, Plaintiff contends
that the master erred in finding "Defendant had no net profit from her antique business as
no evidence was produced to support this finding. ,,65
DISCUSSION
Statement of Law
Review of Exceptions to Support Master's Report. When reviewing a support
master's report, the trial court is to use the same standard of review as with a divorce
58 Defendant's Objections to the Findings of the Support Master, filed March 17,2006.
S9Id. at ~1.
60Id. at ~2.
61Id. at ~3.
62Id. at ~4.
63 Plaintiffs Exceptions to Support Master's Report and Recommendation and Findings of Fact, filed
March 24, 2006.
64Id. at ~2.
6SId. at ~3.
12
master's report. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035
(1988). Accordingly, the report should be given the "fullest consideration," particularly
regarding the credibility of witnesses. Id. However, 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
With respect to the issues raised by exceptions to a master's report, "[i]t is the sole
province and the responsibility of the [trial] court to set an award of support, however
much it may choose to utilize a master's report." Goodman, 375 Pa. Super. at 507-08,
544 A.2d at 1035; see also Pa. RC.P. 191O.l2(f)-(h) (indicating that if no exceptions are
filed to certain issues in a master's report and interim order, those issues are not presented
for review).
Determination of Income and Support Obligations. Both parents share a
responsibility to provide support to their children to the extent that their respective
incomes and earning capacities allow them to do so. Mooney v. Doutt, 2001 PA Super.
12, ,-r6, 766 A.2d 1271, 1273 (2001). A parent's child support obligation is to be
calculated in the first instance in accordance with the guidelines provided in the
Pennsylvania Rules of Civil Procedure. See Pa. RC.P. 191O.l6-l(b).
Pennsylvania Rule of Civil Procedure 1910.16-2, which deals with the calculation
of income for purposes of determining a party's support obligation, provides, in pertinent
part, as follows:
(a) Monthly Gross Income. Monthly gross income is ordinarily
based upon at least a six-month average of all of a party's income. . . . The
statute lists many types of income including, but not limited to:
(1) wages, salaries, bonuses, fees and commissions;
(2) net income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust;
13
(6) Social Security disability benefits, Social Security
retirement benefits, temporary and permanent disability
benefits, workers' compensation and unemployment
compensation;
(7) alimony . . . and
(8) other entitlements to money or lump sum awards, without
regard to source . . . .
Pa. RC.P. 191O.l6-2(a).
Furthermore, in determining a party's income for the purposes of child support,
"the trial court must include any voluntary contributions that a parent makes to his/her
retirement plan." Portugal v. Portugal, 2002 P A Super. 132, ,-r18, 798 A.2d 246, 252
(2002). However, marital assets subject to equitable distribution are not included as
income when calculating support. Rohrer v. Rohrer, 715 A.2d 463, 465 (Pa. Super. Ct.
1998). The Pennsylvania Superior Court in Miller v. Miller, 2001 PA Super. 274, ,-r12,
783 A.2d 832, 835 (2001), held:
Money received from the sale of an asset awarded in
equitable distribution may not be included in an individual's
income for purposes of calculating support payments. The
single caveat to this rule is that any gain realized in the sale of
the asset may, indeed must, be included in the calculation of
mcome.
When marital property is not appraised and the value is not specified in a marital
settlement agreement then the value of the property is what the property was worth
"when the agreement was actually signed." Amis v. Reed, 54 Cumbo 243, 250 (2005). In
Reed, the court denied a petition to modify an alimony obligation based on the sale of
property obtained by equitable distribution. When the parties entered into the property
settlement agreement, they believed that the property had a value of approximately
$230,000.00; however, no appraisal was conducted and the value was not stated in the
marital settlement agreement. Id at 246. The property was sold by wife for $338,000.00
three weeks after the agreement had been executed and husband argued that the alleged
gain from the sale should be considered as income to the wife for alimony purposes. Id
at 246. The court held, "[t]he fallacy of this argument is that the marital residence was
14
not appraised [n lor was its value set in the Property Settlement Agreement. Therefore, its
value is what it was actually worth when the Agreement was signed." Id at 250.
Deviation from Support Guidelines. "The law is well settled that in support cases
there is a rebuttable presumption that the amount of an award for support which results
from the application of the guidelines is correct." Landis v. Landis, 456 Pa. Super. 727,
730,691 A.2d 939,941 (1997) (citations omitted); Act as of October 30, 1989, P.L. 654,
91, as amended, 23 Pa. c.s. 94322(b). When determining a parent's support obligations
the court may deviate from the guidelines based on the factors set forth in Pennsylvania
Rule of Civil Procedure 191O.l6-5(b):
(b) Factors. In deciding whether to deviate from the amount of
support determined by the guidelines, the trier of fact shall consider:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; . . . and
(9) other relevant and appropriate factors, including the best
interests of the child or children.
A deviation from the guidelines is "permitted only where special needs and/or
circumstances are presented such as to render an award in the amount of the guideline
unjust or inappropriate." Ball v. Minnick, 538 Pa. 441, 450, 648 A.2d 1192, 1196 (1994).
The court may deviate from the guidelines after "consider[ing] all relevant factors and
anyone factor alone will not necessarily dictate that the amount of support should be
other than the guideline figure." Id at 449, 648 A.2d at 1196.
Burden of Proof "It is the burden of the party seeking to modify an order of
support to show by competent evidence that a change of circumstances justifies a
modification." Litmans v. Litmans, 449 Pa. Super. 209, 223, 673 A.2d 382, 388 (1996)
(citations omitted). It is the burden of the party seeking to deviate from the guidelines to
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show that a deviation is appropriate. Arbet v. Arbet, 2004 P A Super. 435, ,-r16, 863 A.2d
34, 42 (2004); see also Young v. Muthersbaugh, 415 Pa. Super. 591, 596-97, 609 A.2d
1381, 1384 (1992).
Discovery. In simple support proceedings, no discovery is allowed unless
authorized by the court. Pa. RC.P. 1930.5(a). The explanatory comment to
Pennsylvania Rule of Civil Procedure 1930.5 notes that "[w]hether a support case is
complex is to be determined by motion before the court for a separate listing pursuant to
Rules 1910. 11 (j)(1) and 191O.l2(c)(1)."
Application of Law to Facts
Exceptions of Defendant Mother to Master's Report. With respect to the four
exceptions of Defendant to the support master's report, the court is of the view that they
are not meritorious. First, the contention that a deviation from the support guidelines
should have been recommended by the master is not supported by unusual circumstances
of either party which would warrant such a deviation. Second, the argument that the
court erred in declining to order pre-hearing discovery is not tenable inasmuch as the case
was not a financially complex one and the proceeds of the sale sought to be investigated
were not themselves income for purposes of a support determination.
Third, the master's failure to include $305,000.00 as income to Plaintiff from the
sale of the Holly Pike property was correct. This portion of the proceeds of the sale
represented (a) a $55,000.00 second mortgage which Plaintiff continued to hold on the
property, with payments by the mortgagor to be deferred for several years, and (b)
$250,000.00 which Plaintiff placed in a retirement account. The proceeds themselves, as
previously indicated, were not income inasmuch as they were from the sale of a
distributed martial asset, and income generated by the proceeds was imputed to Plaintiff
by the master.
Finally, Defendant's contention that "the Support Master erred in reqUInng
Plaintiff to account for the basis [of distributed martial property in the form of the Holly
Pike property, which Plaintiff sold,]" is not entirely clear in terms of its import. In any
event, the proceeds of the sale were not in themselves income to Plaintiff for purposes of
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a determination of support and the assertion of prejudice to Defendant on this subject is
not compelling.
Exceptions of Plaintiff Father to Master's Report. With respect to the three
exceptions of Plaintiff to the support master's report, the arguments presented appear to
the court to be equally unavailing. First, the contention that the master erred by requiring
Plaintiff to include as income $521 per month in interest from Plaintiffs retirement
account which was funded by proceeds from the sale of the Holly Pike property is not
supported by Pennsylvania Rule of Civil Procedure 191O.l6-2(a), which states income
includes interest and all forms of retirement.
Second, the master's annualization of interest income from the installment sale of
the Holly Pike property earned by Plaintiff in January and February of 2005 was
appropriate. The master annualized only the payments that were actually received.
Moreover, the master took into consideration that the installment sale was concluded in
2005.
Finally, with respect to Plaintiff s contention that the master erred in concluding
that Defendant mother had no net profit from her antique business, the master's
recommended finding was amply supported by Defendant's testimony at the hearing,
inasmuch as Defendant claimed a net loss from her antique business in 2004 and closed
the business in 2005 for lack of profitability.
Therefore, the following order will be entered:
ORDER OF COURT
AND NOW, this ih day of July, 2006, upon consideration of the exceptions filed
by Defendant and Plaintiff to the support master's report, and for the reasons stated in the
accompanying opinion, the exceptions of both parties are dismissed and the interim order
of court dated March 8, 2006, is entered as a fmal order.
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BY THE COURT,
sf 1. Wesley Oler, Jr.
1. Wesley Oler, Jr., 1.
Michael R Rundle, Esq.
Support Master
Jennifer L. Spears, Esq.
10 East High Street
Carlisle, P A 17013
Attorney for Plaintiff
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, P A 17013
Attorney for Defendant
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