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HomeMy WebLinkAbout60 S 1998 SUSAN K. FRITCHMAN-PICKFORD, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SCOTT D. PICKFORD, DEFENDANT PACSES NO. 946100023 60 SUPPORT 1998 IN RE: CROSS-EXCEPTIONS TO SUPPORT MASTER'S REPORT BEFORE BAYLEY. J. OPINION AND ORDER OF COURT Bayley, J., July 3, 2006:-- On March 13, 2006, following a hearing before the Cumberland County Support Master, an interim order was entered on the petition of Susan K. Fritchman-Pickford, age 49, against Scott D. Pickford, age 47, for the support of William F. Pickford, born May 3, 1993, age 13, and Mackenzie R. Pickford, born December 18, 1995, age 10. The father was ordered to pay $1,667 per month from December 5,2005 through January 26, 2006, and $1 ,519 per month thereafter.1 The order set forth that the mother shall provide health insurance for both children, and the father shall pay 69 percent of all unreimbursed medical expenses for William except for orthodontic expenses which were included in the support order. Both parents filed exceptions to the Support Master's Report. The standard of review is set forth in Goodman v. Goodman, 375 Pa. Super. 504 (1988). The report is advisory only. While it is to be given the fullest consideration, especially with regard to the credibility of witnesses, the court is required to make a review to determine if the 1 The different amounts resulted from an amendment to the Pennsylvania Support Guidelines. 60 SUPPORT 1998 recommendations are appropriate. It is the sole province and the responsibility of the court to set an award of support, however much it may choose to utilize the Master's report. The interim order of March 13, 2006, modified orders of January 8 and May 7, 2001, which required the father to pay support for William and Mackenzie of $927.26 per month, with the mother paying their health insurance coverage and any unreimbursed medical expenses. At that time, the mother was imputed a net earning capacity as an attorney of $2,400 per month, and the father had a gross annual income of approximately $65,000. The imputed earning capacity of the mother was originally set in a support order entered on March 26, 1999? At the current hearing, the evidence was that the mother started a solo law practice in 2003, and had a net profit of $1 ,733. In 2004, her net profit was $11,873. In 2005, on gross income of $20,804 with expenses of $17,680 which included $699 depreciation, her net profit was $3,124.3 Her income was supplemented by gifts from her parents, with whom she and the two children live in the Borough of Camp Hill, of approximately $20,000 in the form of payment of her bills. The health insurance she provides for the two children costs $84.55 per month. The father is employed by the Turner Construction Company where he had gross income in 2005 of $85,493, with a net per month for support purposes of $5,268.99. 2 In imputing that earning capacity the court rejected the mother's position that the nurturing parent doctrine should apply. 3 An illness, which is now resolved, required the mother to close her law office for one month in 2005, and to struggle to keep up with her work for some period afterward. -2- 60 SUPPORT 1998 I. INCOME ISSUES In the father's exceptions, he maintains that the Master erred in utilizing an earning capacity for the mother as an attorney of $2,400 per month. He argues that her earning capacity should be set at $50,000 annually. In the mother's exceptions, she maintains that the Master erred in attributing her "an earning capacity and not using her actual earnings after she had returned to the practice of law." The Master, citing Portugal v. Portugal, 798 A.2d 246 (Pa. Super. 2002), concluded: [T]he Plaintiff is earning a nominal income as a sole practitioner compared to what she may be able to earn as an associate in an established law firm or as a government employee does not justify reducing the earning capacity [previously] imputed to her. . .. Because the Defendant presented no evidence of what an attorney with the Plaintiff's education and experience could reasonably earn today, the Plaintiff's earning capacity will not be increased for the purposes of this support computation. As set forth in a prior opinion, Oler, J., in support of an order dated March 26, 1999:4 The parties were married [on September 26, 1992] in California, where they were both residing. Following the birth of their first child, Plaintiff returned to full-time employment as an attorney and the child was placed in daycare. In December of 1993, she terminated her employment to facilitate a single-marital-residence living arrangement in San Luis Obispo. She joined the local bar and "made some rounds" in search of employment, but at that point the parties decided to move to Pennsylvania. In Pennsylvania, Plaintiff did some legal work of a minor nature, and involved herself in volunteer research for an organization known as the Public Defender Information Center. Serious financial problems ensued for the parties. As noted, they separated in January of 1998. (Footnotes omitted.) 4 Fritchman-Pickford v. Pickford, 48 CLJ 163 (1999), affirmed 758 A.2d 728 (Pa. Super. 2000). -3- 60 SUPPORT 1998 Judge Oler set an imputed earning capacity to the mother of $2,400 per month, "consistent with her child support responsibilities and the preservation of her ability to share a substantial amount of time with her children," stating: [A] number of factors led the court to attribute at least a modest earning capacity to the Plaintiff. These included Plaintiff's educational background, which produced a teaching certificate, a law degree, and licenses to practice law in California and Pennsylvania; her significant employment experience as a practicing attorney, with a specialty in criminal law; her proven ability to earn an annual salary in excess of $50,000.00; the ages of the children, who are well beyond the state of infancy; the proximity and availability of Plaintiff's mother to Plaintiff and the children; the difficult financial situation of the parties; and the fact that a part of Plaintiff's desire to remain at home with the children centers upon her own needs. (Footnote omitted.) Pa. Rule of Civil Procedure 191 0.16-2(d)(4) provides: Earning Capacity. Ordinarily, either party to a support action who willfully fails to obtain appropriate employment will be considered to have an income equal to the party's earning capacity. Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity. (Emphasis added.) The mother testified that after her youngest child entered school full-time she sought employment as an attorney but was unsuccessful in obtaining a position in a law firm, the government or a company. She therefore started her own business. Given her age, education, training and work experience, the record does not support a finding that she can now equal the $50,000 a year she earned in California in the early 1990s. However, she has not sought appropriate employment in a legal field for three years despite the limited earnings from her solo practice. Accordingly, the $2,400 net per month previously imputed to her as an attorney is not unreasonable given all of the factors applicable to a determination of her earning capacity. We reject her argument -4- 60 SUPPORT 1998 that her net profit in 2005 of $3,124 should be considered for support purposes. She would be financially better off working even a minimum wage job. The father filed an exception maintaining that the Master erred in setting his net income for support purposes at $5,269 per month. This figure was based on his income from his full-time job with the Turner Construction Company. He argues that the Master failed to consider an $11,000 loss in 2005 in his product development business he operates on the side. The father produced no books, records or tax returns for the business. He acknowledged that he has not billed for any work performed by the business. The record does not support attributing any loss that he claims he incurred in this business against his income from his full-time job. II. THE GIFT ISSUE The Master stated: The Defendant's total support obligation effective December 5, 2005, under the guidelines is $1,755.00. Because of an amendment to the guidelines effective January 27, 2006, the amount is reduced to $1,599.00. A support order calculated pursuant to the guidelines is presumed to be correct, but the presumption may be rebutted by evidence that the guideline amount is unjust or inappropriate under the circumstances of the case. Landis v. Landis, 691 A.2d 939 (Pa. Super. 1997). The Plaintiff testified that her parents assist her financially in the form of monetary gifts and making payments directly for her benefit. The Plaintiff has estimated that she receives approximately $20,000.00 per year from her parents. This is not income for support purposes, but may be considered in determining whether a deviation should be made to the guideline calculation. In Humphrevs v. DeRoss, 790 A.2d 281 (Pa. 2002) the court held that where a trier of fact finds that an inheritance affects an obligor's financial obligations by making more income available for support, an upward deviation of an order is appropriate. In this case it was the obligee who was receiving inter vivos gifts as opposed to a testamentary gift which affect her financial obligations and make more of her income available for support. This suggests that a downward deviation in the order may be appropriate. A recommendation is made that the Defendant pay the sum of $1,667.00 for the period of December 5, 2005 through January -5- 60 SUPPORT 1998 26, 2006, and $1,519.00 thereafter. (Footnotes omitted.) (Emphasis added. ) The mother excepts to the Master "deviating the child support calculation downward because of [her] parent's financial assistance in helping her meet the deficit of her household." In Humphreys v. DeRoss, 790 A.2d 281 (Pa 2002), cited by the Master, the Supreme Court of Pennsylvania concluded that the statutory definition of income in 23 PaC.S. Section 4302 does not include an inheritance. Notwithstanding, the court stated that: This does not mean that an inheritance will not affect the amount of support to which a child may be entitled. The Support Guidelines provide that in deciding whether to deviate from the presumptive amount of support determined by the Guidelines, the trier of fact shall consider, inter alia, the assets of the parties and other relevant and appropriate factors, including the best interests of the children. PaR.C.P. 1910.16-5(b)(5), (9) (emphasis added). Rule 191 0.16-5(a) requires the trier of fact to provide written reasons for, and findings of fact justifying the amount of the deviation. Therefore, where the fact finder determines that an inheritance affects a payor's financial obligations by making more income available for support, an upward deviation is appropriate. Accordingly, although the corpus of an inheritance is not included in a payor's income available for support, it may be considered when adjusting a support obligation pursuant to PaR.C.P. 1910.16-5. (Footnote omitted. ) The statutory definition of income at 23 PaC.S. Section 4302 does not include gifts. In Singleton v. Waties, 420 Pa Super. 184 (1992), the mother and her child were living with her parents. In a support proceeding, the father was not permitted to introduce testimony that the maternal grandparents provided the mother with some assistance. On appeal, the Superior Court of Pennsylvania stated: We find no abuse of discretion on the part of the trial court and we echo its statement that "to impute income to Appellee based on the gifts and contributions Marissa receives from her maternal grandparents would effectively expand the burden of responsibility for support of include the grandparents as well as the parents." -6- 60 SUPPORT 1998 The same reasoning is applicable to the facts in the present case. Furthermore, the gifts from the maternal grandparents used to pay her bills, to which she had no entitlement, hardly makes more of her negligible income available for support. Accordingly, the Master should not have adjusted the order downward based on the maternal grandparents' gifts to the mother. We will enter an order requiring the father the pay child support in the amount of $1 ,755 per month from December 5,2005 through January 26, 2006, and $1,599 per month thereafter. III. HEALTH INSURANCE AND ORTHODONTIC COST ISSUE The Master noted that the mother has been providing health insurance coverage for the children since the order of May, 2001, and continues to do so. Her current monthly premium is $84.55. Based on that figure, the Master adjusted the support obligation of the father upward by $58 per month. He adjusted his support obligation upward another $82 per month to pay for orthodontic treatment for William not covered by the mother's insurance. The father has health insurance coverage available for the children through his employer. He wants to include William and Mackenzie on that plan.s The mother is satisfied with her plan and does not want it changed. The father testified that his plan and a PPO would cover the children's pediatric and orthodontic care, as well as William's visits to a heart doctor. The Master noted that "Nothing herein shall preclude the [father] from having the children placed upon his medical insurance coverage." 5 The father pays $400 per month toward the health insurance which includes coverage for two children of his fiancee. He did not testify that any additional cost would be incurred by adding William and Mackenzie to his plan. -7- 60 SUPPORT 1998 The Domestic Relations Code at 23 PaC.S. Section 4326, titled Mandatory inclusion of child medical support, provides: (a) General rule.-In every proceeding to establish or modify an order which requires the payment of child support, the court shall ascertain the ability of each parent to provide health care coverage for the children of the parties and the order shall provide health care coverage for each child as appropriate. (b) Noncustodial parent requirement.-If health care coverage is available at a reasonable cost to a noncustodial parent on an employment-related or other group basis, the court shall require that the noncustodial parent provide such coverage to the children of the parties. In cases where there are two noncustodial parents having such coverage available, the court shall require one or both parents to provide coverage. Pa Rule of Civil Procedure 191 0.16-6(b)(3), provides: Pursuant to 23 PaC.S.A. S 4326, the non-custodial parent bears the initial responsibility of providing health care coverage for the children if it is available at a reasonable cost on an employment-related or other group basis. In light of the father's insurance plan through his employer that will cover William and Mackenzie, if he places them on that plan he will not be required to continue to contribute $58 per month as part of the support order for the cost of the health insurance paid by the mother. Nor will he be required to pay the adjustment of $82 per month as part of the support order for unreimbursed orthodontic treatment for William.6 Accordingly, the support order being entered of $1 ,599 per month would be reduced by a total of $140 to $1,459 per month. He will still have to pay 69 percent of the unreimbursed medical expenses which will then include orthodontic expenses for William. 6 This option is based on there being no additional cost for the health insurance for which he will attempt to attribute any part thereof to the mother. -8- 60 SUPPORT 1998 IV. PRIVATE SCHOOL ISSUES William and Mackenzie were enrolled in the Camp Hill School District in 2004- 2005.7 The Master found: 20. William had significant problems interacting with students which resulted in both physical and emotional trauma. 21. Efforts of the Plaintiff to resolve the problem with members of the school district staff and administration were unsuccessful. 22. The parties consulted with Jessica Hart, a licensed psychologist, in March, 2005. 23. Ms. Hart had been counseling William for several years. 24. Ms. Hart recommended that William be withdrawn from the Camp Hill School District to be home-schooled or to attend another school. 25. The parties agreed in March, 2005 that William would benefit at that time by being withdrawn from the Camp Hill School District and being home-schooled. 26. The Plaintiff chose to have both children remain in the public school until the end of the school term in June, 2005.8 27. In May, 2005 an incident occurred in which William was physically assaulted by several students. 28. Mackenzie witnessed the incident. 29. In attempting to defend her brother, Mackenzie was knocked to the ground. 30. Both children expressed to the Plaintiff their desire not to return to the Camp Hill public schools for the 2005-2006 school year. 31. In September, 2005 the Plaintiff enrolled both children in the Londonderry School, a private school, for the 2005-2006 school year. 32. The cost for one child to attend Londonderry School is $6,300.00 and for two children is $10,500.00. The Master concluded that: . . . private school is found to be a reasonable need for William. The same cannot however be said for Mackenzie. Although Mackenzie was not particularly happy in the public school, the evidence does not support a reasonable need for her to attend private school. Consequently the 7 The father, like the mother, lives in the Borough of Camp Hill. 8 The mother had sole legal custody of William and Mackenzie at the time. It was changed by a court order on November 1, 2005, to joint legal custody. -9- 60 SUPPORT 1998 expenses associated with William's attendance at Londonderry School will be prorated while Mackenzie's will not.9 In setting the father's support obligation, the Master assigned him $361 per month of the $525 per month annualized costs for William attending the Londonderry School. In their exceptions, the mother maintains the Master erred in not including the cost of private school for Mackenzie in the calculation in the father's support obligation, and the father maintains it was error to include the cost of private school for William in that calculation. He argues that ordering him to contribute to the cost of private school for William goes beyond a reasonable need of the child test. In Fitzgerald v. Kempf, 805 A.2d 529 (Pa. Super. 2002), the Superior Court of Pennsylvania stated: "A private school education may be a reasonable need for a child if it is demonstrated that the child will benefit from such and if private schooling is consistent with the family's standard of living and station of life before the separation. Pellish v. Gerhart, 701 A.2d 594, 596 (Pa. Super. 1997)." In Fitzgerald, the Superior Court remanded for consideration of whether the amount the trial court required the father to pay toward private school tuition of his children was calculated correctly. In doing so, the Court noted: Because the children were not of school age at the time of separation, it is unclear whether private schooling is consistent with the parties' standard of living prior to the separation. After a thorough review of the record, we agree with the trial court that "private schooling was preferred by the mother and accepted by the father except for the reservation that he would not want to be financially responsible." 9 Pa. Rule of Civil Procedure 191 0.16-6(d), provides: The support schedule does not take into consideration expenditures for private school tuition or other needs of a child which are not specifically addressed by the guidelines. If the court determines that one or more such needs are reasonable, the expense thereof shall be allocated between the parties in proportion to their net incomes. The obligor's share may be added to his or her basic support obligation. (Emphasis added.) -10- 60 SUPPORT 1998 We find that the best interest of William warrants his attending the Londonderry School. The record does not support a similar finding as to Mackenzie, although it is obviously easier for the mother to coordinate schooling for the children with Mackenzie in the same private school as William. The need for and thus the benefit for private schooling for William arose long after the parties' separation. Given these circumstances, requiring a contribution from the father is consistent with his income, standard of living and station in life. The mother's placement of Mackenzie in private school without a demonstrated need does not warrant requiring a contribution for her from the father. ORDER OF COURT AND NOW, this day of July, 2006, IT IS ORDERED: (1) The interim order of March 13, 2006, IS VACATED and replaced with this order. (2) For the period of December 5, 2005 through January 26, 2006, defendant shall pay to the Pennsylvania State Collection and Disbursement Unit for the support of William S. Pickford, born May 3, 1993, and Mackenzie R. Pickford, born December 18, 1995, the sum of $1,755 per month. (3) Effective January 27, 2006, defendant shall pay to the Pennsylvania State Collection and Disbursement Unit for the support of William and Mackenzie, the sum of $1,599 per month. (4) Defendant shall pay 69 percent of the unreimbursed medical expenses incurred for the children as that term is defined in Pa. Rule of Civil Procedure 1910.16- 6(c); provided however, that orthodontic treatment for William shall not be considered in -11- 60 SUPPORT 1998 the calculation of the unreimbursed medical expenses as they are included in the monthly support order. (5) Defendant shall pay the Pennsylvania State Collection and Disbursement Unit the additional sum of $50 per month on arrearages until paid in full. (6) Pursuant to the limitation set forth in the opinion in support of this order, defendant may place William and Mackenzie on his health insurance coverage provided by his employer, Turner Construction Company. If he does, and provides plaintiff with (1) a complete copy of the insurance plan, and (2) the cards necessary to provide proof that William and Mackenzie are insured under the plan so services can be obtained, and he then files a signed written certification in the Cumberland County Domestic Relations Office that he has done both of those things, the support order is amended on the first of the month after the certification has been filed as follows: (a) effective that date, the defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as support for William and Mackenzie the sum of $1 ,459 per month, (b) defendant shall pay 69 percent of the unreimbursed medical expenses incurred for the children as that term is defined in Pa. Rule of Civil Procedure 191 0.16-6(c); those expenses to include orthodontic treatment for William, and (c) defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $50 per month on arrearages until paid in full. By the Court, Edgar B. Bayley, J. -12- 60 SUPPORT 1998 Barbara Sumple-Sullivan, Esquire For Plaintiff James Miller, Esquire For Defendant Michael Rundle, Esquire Support Master :sal -13-