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HomeMy WebLinkAbout155 S 2012 MELISSA A. TSAPLA, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : GEROME TSAPLA, : PACSES NO. 112113071 Defendant. : DOCKET NO. 155 SUPPORT 2012 OPINION AND ORDER OF COURT PROCEDURAL HISTORY Peck, J., January 2, 2013. On February 17, 2012, the above captioned action was commenced by the filing of a complaint for support by Melissa A. Tsapla (“Plaintiff”) against Gerome Tsapla, 1 (“Defendant”). A hearing was held before a conference officer on April 24, 2012 and 2 this Court entered an interim order the same day. By letter dated May 4, 2012, Defendant appealed the order of April 24, 2012 and requested a hearing before the 3 Cumberland County Support Master. Pursuant to this request, a hearing before the Support Master was conducted on June 25, 2012. A record was made of this proceeding 4 which consisted of testimony and exhibits from both parties. The Support Master filed his Report and Recommendation on July 10, 2012 and this Court entered an interim order 5 the same day. On July 25, 2012, Defendant filed the following exceptions to the Support Master’s Report and Recommendation: (1) Defendant takes exception to the Support Master’s finding that 6 Defendant failed to establish any grounds for a fault divorce; and, 1 Compl. for Support, Feb. 17, 2012. 2 Interim Order of Ct., (Apr. 24, 2012). 3 Def.’s Letter, May 4, 2012. 4 Notes of Test. (hereinafter “N.T. at __.”), June 25, 2012; Index of Exs. 5 Support Master’s Report and Rec., July 10, 2012; Interim Order of Ct. (July 10, 2012). 6 Excps. of Def. to Support Master’s Report and Rec., July 25, 2012, p. 1, ¶ 1. (2) Defendant takes exception to the Support Master’s conclusion of law as to the application of Love v. Love, 33 A.3d 1268 (Pa. Super. 2011), and other relevant case law in his finding that Plaintiff’s signing of the Form I-864 (the “Affidavit”) and promise to sponsor Defendant did not warrant a deviation in the calculation and/or dismissal of Plaintiff’s 7 complaint for support. An order was entered on July 27, 2012, directing the transcript of the Support Master hearing be prepared and providing a schedule for Plaintiff and Defendant to file briefs in 8 support of their respective positions. On August 9, 2012, Plaintiff filed the following cross-exceptions to the Support Master’s Report and Recommendation: 9 (1) the Master erred in finding that Plaintiff was not totally disabled; (2) the Master erred in finding that Plaintiff has an earnings capacity of 10 $290.00 per week; (3) the Master erred in finding that Plaintiff has an earnings capacity of 11 $1,257.00 gross; and $1,461.00 net; and, (4) the Master erred in finding that Defendant’s support obligation is 12 $67.50 per month. An order was entered on August 9, 2012, again directing the transcript of the Support Master hearing be prepared and providing an updated schedule for Plaintiff and 13 Defendant to file briefs in support of their respective positions. No party requested oral 14 argument. FINDINGS OF FACT After complete review of the record in this case, this Court makes the following findings of fact: 7 Excps. of Def. to Support Master’s Report and Rec, July 25, 2012, p. 1, ¶ 2. 8 Order of Ct. (July 27, 2012). 9 Excps. of the Pl. to the Support Master’s Order of July 9, 2012, Aug. 9, 2012, p. 1, ¶ 1. 10 Excps. of the Pl. to the Support Master’s Order of July 9, 2012, Aug. 9, 2012, p. 1, ¶ 2. 11 Excps. of the Pl. to the Support Master’s Order of July 9, 2012, Aug. 9, 2012, p. 1, ¶ 3. 12 Excps. of the Pl. to the Support Master’s Order of July 9, 2012, Aug. 9, 2012, p. 1, ¶ 4. 13 Order of Ct. (Aug. 9, 2012). 14 Brief in Support of Def.’s Excps., Nov. 29, 2012; Brief of Pl. Re: Support Master’s Order of July 9, 2012, Dec. 10, 2012. 2 15 Plaintiff resides at 110 East Simpson Street, Mechanicsburg, Pennsylvania. 16 Defendant resides at 1771 Elton Road, Silver Spring, Maryland. The parties were 17 married on August 20, 2008. The parties separated on January 17, 2012 when 18 Defendant moved from the marital residence. Both Plaintiff and Defendant testified to the circumstances that lead to the separation: Plaintiff testified that Defendant was physical with her children and that 19 Defendant was insulting, angry, argumentative, and threatening; Defendant testified that Plaintiff’s son threatened him and that Plaintiff was violent, aggressive, angry, and 2021 insulting. The police were called to the residence a number of times. Plaintiff testified that Defendant chose to leave the home voluntarily and Defendant testified that 22 he was evicted by Plaintiff. 23 Plaintiff is forty-one years old and a high school graduate. Plaintiff has two 24 minor children from a prior relationship in her custody. Since 2005 Plaintiff was 25 employed as a field manager by SDDS Holdings, Inc. Plaintiff earned an annual salary 26 of $45,000.00. Plaintiff’s job duties included walking, bending, lifting, and periodically 27 driving a forklift. On August 31, 2011 Plaintiff voluntarily left her employment for 15 N.T. at 3. 16 N.T. at 51. 17 N.T. at 4. 18 N.T. at 22, 26, 47. 19 N.T. at 23-27, 48. 20 N.T. at 54, 57, 60. 21 N.T. at 24, 60. 22 N.T. at 47, 54, 56. 23 N.T. at 50. 24 N.T. at 14. 25 N.T. at 4, 28. 26 N.T. at 7, 28. 27 N.T. at 10. 3 28 medical reasons. Prior to her employment at SDDS Holdings, Inc., Plaintiff worked as a residential advisor in a group home and as a supervisor in a call center where she 29 earned $9.50 per hour and $11.00 per hour, respectively. Plaintiff suffers from a number of medical problems to include planter fasciitis, a condition involving pain and inflammation in the bottom of the feet, sciatica, degradation of the lower spine, and 3031 hypertension. Plaintiff takes multiple prescribed medications for pain relief. Plaintiff applied for Social Security Disability (“SSD”) benefits, was denied, and has filed an 32 appeal. Plaintiff presented evidence that she was restricted from lifting in excess of 3334 twenty pounds. Plaintiff is not seeking gainful employment at this time. 35 Defendant immigrated to the United States from Cameroon in February, 2007. Following the parties’ marriage, Plaintiff executed the Affidavit to facilitate the 36 Defendant’s receiving permanent residence status. The Affidavit imposed a contractual obligation upon Plaintiff to support Defendant at or above 125 percent of the Federal 37 Poverty Guidelines applicable to the size of his household.The Affidavit specifically 38 states that divorce does not terminate Plaintiff’s obligations to support the Defendant. 28 N.T. at 8, 12, 30-31. 29 N.T. at 28. 30 N.T. at 9, 33. 31 N.T. at 34, 36, 37. 32 N.T. at 15, 16; Def.’s Ex. 1, Social Security Administration, Notice of Disapproved Claim, Dec. 8, 2011, stating (“We have determined that your condition is not severe enough to keep you from working. We considered the medical and other information, your age, education, training, and work experience in determining how your condition affects your ability to work.”). 33 Pl. Ex. 2, p. 2. 34 N.T. at 32-33. 35 N.T. at 21, 51-52. 36 N.T. at 46-47, 52-53. 37 Def.’s Ex. 2, p. 6. 38 Def.’s Ex. 2, p. 7. 4 39 Defendant obtained his permanent-resident status prior to the separation. Defendant obtained employment with Ames-True Temper in September, 2011 and continued to be 40 employed by that company at the time of separation. At that time, Defendant earned 41 $11.28 per hour and worked forty hours per week. Defendant voluntarily quit his 42 employment following the separation. Immediately thereafter, Defendant moved to 43 Maryland where he is staying with other immigrants from Cameroon. Defendant is 44 applying for work. DISCUSSION I. Scope of Review This Court is not bound by the Support Master's recommendations because they are usually considered as only advisory and, therefore, this Court may use a broad scope of review in examining the factual findings of the Support Master. Tagnani v. Tagnani, 654 A.2d 1136, 1138 (Pa. Super. 1995); Mintz v. Mintz, 392 A.2d 747, 749 (Pa. Super. 1978). This Court has the duty to make a complete and independent review of all the evidence, including a review of the weight and credibility to be accorded to the testimony of the witnesses. Rorabaugh v. Rorabaugh, 448 A.2d 64, 69-70 (Pa. Super. 1982). Great weight, however, must be accorded to the findings of the Support Master on issues of credibility because he was the one who heard and observed the witnesses. Mintz, 392 A.2d at 749. In that situation, the findings of the Support Master should be given the fullest consideration. Id. II. Defendant’s Exceptions to the Master’s Report A.Defendant’s exception to the Support Master’s finding that Defendant failed to establish any grounds for a fault divorce 39 N.T. at 20, 52. 40 N.T. at 7, 53. 41 N.T. at 54-55; Def. Ex. 4. 42 N.T. at 55. 43 N.T. at 56. 44 N.T. at 57, 62. 5 The Support Master correctly found that Defendant failed to establish any grounds for a fault divorce. “A dependent spouse is entitled to support until it is proven that the conduct of the dependent spouse constitutes grounds for a fault divorce.” Crawford v. Crawford, 633 A.2d 155, 159 (Pa. Super. 1993). “The party seeking to nullify the obligation bears the burden of proving the conduct claimed by clear and convincing evidence.” Id. The divorce grounds relied upon by Defendant to bar the support claim of 45 Plaintiff are “indignities” under 23 Pa.C.S. 3301(a)(6). “[A] finding that the moving party is the innocent and injured spouse is a prerequisite for entitlement to a divorce on the grounds of indignities.” Beaver v. Beaver, 460 A.2d 305, 307 (Pa. Super. 1983). A review of the record supports the Support Master finding that the Defendant did not prove by clear and convincing evidence any grounds for a fault divorce. The record leads this Court to conclude that Defendant was neither the innocent nor the injured spouse. The testimony showed that Defendant was physically aggressive with Plaintiff’s children and that Defendant was insulting, angry, argumentative, and threatening towards Plaintiff. Therefore, a divorce to Defendant on the grounds of indignities to the person is not warranted. Consequently, as the Support Master correctly found, spousal support is appropriate if financially justified. B.Defendant’s exception to the Support Master’s conclusion of law that Plaintiff’s signing of the Affidavit did not warrant a deviation In Ball v. Minnick, 648 A.2d 1192, 1196 (Pa. 1994), the Pennsylvania Supreme Court stated: The presumption is strong that the appropriate amount of support in each case is the amount as determined from the support guidelines. However, where the facts demonstrate the inappropriateness of such an award, the trier of fact may deviate therefrom. This flexibility is not, however, intended to provide the trier of fact with unfettered discretion to, in each case, deviate from the recommended amount of support. Deviation will be permitted only where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate. 45 Brief in Support of Def.’s Excps., Nov. 29, 2012, p. 3. 6 This Court agrees with Defendant’s position that Plaintiff’s signing of the Affidavit warrants the Support Master considering it as a deviation in the award for support based upon the reasoning of the Pennsylvania Superior Court in Love v. Love, 33 A.3d 1268. As in Love, “the case sub judice must be decided pursuant to current law, which clearly permits parties to a property settlement agreement to enforce the terms of their agreement in the domestic relations court”. Love, 33 A.3d at 1274 (referencing 23 Pa.C.S. § 3105(a)). The Love Court found “the [a]ffidavit … was relevant evidence upon which the trial court was authorized to deviate from the support guidelines”. Id. at 1275. The Superior Court in Love found the Form I-864 affidavit to fall under the “unusual needs and unusual fixed obligations” of Pennsylvania Rule of Civil Procedure 1910.16-5(b)(1) (providing for several factors that the Support Master may consider in whether to deviate from the amount of support determined by the guidelines). Id. The Affidavit also could be considered a deviating factor of “other support obligations of the parties” under Pennsylvania Rule of Civil Procedure 1910.16-5(b)(2) and, therefore, warrants the Support Master consider the Affidavit in deciding whether to deviate from the amount of support determined by the guidelines. Plaintiff's uncontested commitment to support Defendant “at a minimum amount equal to 125 percent of the Federal Poverty Guidelines is tantamount to an exceptional circumstance that would warrant a deviation from the guideline amount”. Id. This Court, therefore, grants this exception and the matter is hereby remanded to the Support Master to submit a new proposed order without additional testimony. The Support Master is directed to identify the guideline amount and consider the Affidavit as an allowable deviation in deciding whether to deviate from the amount of support determined by the guidelines. III. Plaintiff’s Cross Exceptions to the Master’s Report A.Plaintiff’s exception to the Support Master’s finding that Plaintiff was not totally disabled It is certainly within the Support Master's province to observe a party, to accept a party’s undisputed testimony as to their physical complaints and their employment 7 experience and training, and to infer therefrom their ability to support themself through appropriate employment. Remick v. Remick, 456 A.2d 163, 167 (Pa. Super. 1983). The evidence presented by Plaintiff consisted of Plaintiff’s testimony and a description of her particular physical symptoms. Plaintiff also presented evidence that she was restricted from lifting in excess of twenty pounds, but Plaintiff presented no expert medical testimony to verify that she was totally disabled from gainful employment. Plaintiff testified that she had been denied Social Security Disability benefits. In Anderson v. Anderson, 822 A.2d 824 (Pa. Super. 2003), the support master properly rejected a party’s claim of diminished earning capacity due to his medical condition, where the party failed to provide any medical evidence in support of his argument. Like in Anderson, Plaintiff has failed to present any medical evidence in support of her argument that she is totally disabled. This Court considered Plaintiff’s denial of Social Security Disability benefits a relevant factor in its determination. Compare Remick, 456 A.2d at 167 (finding that the defendant, who received Social Security Disability benefits, presented sufficient evidence to prove she was unable to support herself). The record is insufficient to prove Plaintiff’s total disability. This Court, therefore, agrees with the Support Master’s determination that Plaintiff has the ability to find appropriate employment. B.Plaintiff’s exception to the Support Master’s finding that Plaintiff has an earnings capacity of $290.00 per week; $1,257.00 gross; and $1,461.00 net Plaintiff contends that because she is unable to work, her income should have been imputed to $0.00 per month and, therefore, takes exception to the earning capacity imputed by the Support Master. However, as discussed above this Court finds that Plaintiff is not totally disabled and therefore able to work. Plaintiff voluntarily left her employment with SDDS Holdings, Inc. for medical reasons and is not seeking gainful employment at this time. Under the circumstances where a party willfully fails to obtain appropriate employment, the support obligation is determined by his assessed earning capacity. Baehr v. Baehr, 889 A.2d 1240, 1245 (Pa. Super. 2005). “A person's earning capacity is defined not as an amount which the person 8 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 and training.” Riley v. Foley, 783 A.2d 807, 811 (Pa. Super. 2001). In determining Plaintiff’s earning capacity the Support Master considered the following circumstances: (1) Plaintiff had earned $45,000.00 per year at SDDS Holdings, Inc.; (2) Plaintiff is forty-one years of age; (3) Plaintiff is a high school graduate with six years of experience in a managerial position; (4) Prior to her most recent employment she had earned $9.50 to $11.00 per hour; and (5) Plaintiff’s physical condition. Based on these considerations, the Support Master imputed an earning capacity for support purposes of $290.00 per week based upon the current minimum wage. This then equated to a gross monthly earning capacity of $1,257.00. The Support Master then found she had a net monthly earning capacity of $1,461.00 based on her tax filing status of head of household with two minor children claimed as dependency exemptions. As explained by the Support Master, Plaintiff’s net income exceeds the gross income because of her earned income credit. This Court finds the considerations taken into account by the Support Master to determine Plaintiff’s earning capacity to be sound. As discussed above, this Court did not find Plaintiff to be totally disabled; therefore, a $0.00 per month imputed income is not justified. Based on the Plaintiff’s age, health, mental and physical condition, and training an imputed earning capacity for support purposes of $290.00 per week based upon the current minimum wage is realistic. C.Plaintiff’s exception to the Support Master’s finding that Defendant’s support obligation is $67.50 per month Plaintiff argues that with an earning capacity of $0.00 per month for Plaintiff, and an earning capacity of $1,630.00 per month for Defendant, the correct amount of support payable to Plaintiff should be $652.00 per month. As discussed above, this Court does not agree that Plaintiff’s earning capacity is $0.00 per month and finds that her earning capacity was correctly determined by the Support Master. Accordingly, the following order will be entered: 9 ORDER OF COURT nd AND NOW , this 2 day of January, 2013, upon consideration of the Exceptions of Defendant to Support Master’s Report and Recommendation, the Exceptions of the Plaintiff to the Support Master’s Order of July 9, 2012, the record of the case presented before the Support Master on June 25, 2012, the Support Master’s Report and Recommendation, the briefs filed by the parties, and the Court noting that neither party has requested oral argument in the case, IT IS HEREBY ORDERED AND DIRECTED that: (1) Defendant’s exception to the Support Master’s finding that Defendant failed to establish any grounds for a fault DISMISSED; divorce is (2) Defendant’s exception to the Support Master’s conclusion that Plaintiff’s signing of the Form I-864 affidavit promising to sponsor the Defendant GRANTED financially did not warrant a deviation in the calculation for support is and the matter is hereby remanded to the Support Master to submit a new proposed order without additional testimony consistent with the attached opinion; and (3) Plaintiff’s DISMISSED exceptions are . BY THE COURT, s/ Christylee L. Peck Christylee L. Peck, J. Michael R. Rundle, Esq. Cumberland County Support Master Michael S. Travis, Esq. 3904 Trindle Rd. Camp Hill, PA 17011 Attorney for Plaintiff Jane Adams, Esq. 17 W. South St. Carlisle, PA 17013 Attorney for Defendant 10 MELISSA A. TSAPLA, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : DOMESTIC RELATIONS SECTION : GEROME TSAPLA, : PACSES NO. 112113071 Defendant. : DOCKET NO. 155 SUPPORT 2012 ORDER OF COURT nd AND NOW , this 2 day of January, 2013, upon consideration of the Exceptions of Defendant to Support Master’s Report and Recommendation, the Exceptions of the Plaintiff to the Support Master’s Order of July 9, 2012, the record of the case presented before the Support Master on June 25, 2012, the Support Master’s Report and Recommendation, the briefs filed by the parties, and the Court noting that neither party has requested oral argument in the case, IT IS HEREBY ORDERED AND DIRECTED that: (1) Defendant’s exception to the Support Master’s finding that Defendant failed to establish any grounds for a fault DISMISSED; divorce is (2) Defendant’s exception to the Support Master’s conclusion that Plaintiff’s signing of the Form I-864 affidavit promising to sponsor the Defendant GRANTED financially did not warrant a deviation in the calculation for support is and the matter is hereby remanded to the Support Master to submit a new proposed order without additional testimony consistent with the attached opinion; and (3) Plaintiff’s DISMISSED exceptions are . BY THE COURT, ______________________ Christylee L. Peck, J. Michael R. Rundle, Esq. Cumberland County Support Master Michael S. Travis, Esq. 3904 Trindle Rd. Camp Hill, PA 17011 Attorney for Plaintiff Jane Adams, Esq. 17 West South Street Carlisle, PA 17013 Attorney for Defendant