HomeMy WebLinkAbout669 S 2012
BETTE B. FILIP, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
: DOMESTIC RELATIONS SECTION
v. :
: PACSES Case Number: 149113395
THOMAS S. FILIP, :
Defendant : No. 00669 Support 2012
IN RE: PLAINTIFF’S COMPLAINT FOR SPOUSAL SUPPORT
BEFORE OLER, S.J.
OPINION and ORDER OF COURT
OLER, S.J., February 8, 2013.
In this domestic relations case, Plaintiff wife filed a complaint for spousal support
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on July 20, 2012. Following a conference, a domestic relations conference officer
recommended that Defendant husband pay Plaintiff $4,445.00 per month, based upon a
monthly net income figure for support purposes of $861.10 on the part of Plaintiff, a
monthly net income figure for support purposes of $10,466.51 on the part of Defendant,
and a deviation from the guidelines in Plaintiff’s favor of $604.00 per month based upon
Plaintiff’s health insurance costs. In the conference summary, the officer noted that the
issue in dispute was “[h]usband’s income.” From the interim order entered in accordance
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with the officer’s recommendation, Defendant husband filed a request for a hearing.
A hearing on Plaintiff’s complaint for spousal support was held by the
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undersigned judge on November 13, 2012. Briefs have been submitted on behalf of both
parties.
For the reasons stated in this opinion, Defendant’s monthly obligation to Plaintiff
for spousal support will be set at $4,990.00.
1
Plaintiff’s Complaint for Support, filed July 20, 2012.
2
Interim Order of Court, dated September 14, 2012 (Guido, J.).
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Defendant’s request for a hearing, filed September 19, 2012.
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The Cumberland County Support Master recused himself from participation in this case, and the matter
was assigned to the undersigned judge in his capacity as a senior common pleas court judge. Order of
Court, September 20, 2012 (Hess, P.J.).
STATEMENT OF FACTS
Plaintiff is Bette Burd Filip, 66, a resident of Carlisle, Cumberland County,
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Pennsylvania. Defendant is Thomas S. Filip, 66, also a resident of Carlisle, Cumberland
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County, Pennsylvania. The parties married on June 24, 1972, separated in October of
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2007, and have no minor children. A divorce action between them has been pending
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since October of 2008.
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Plaintiff wife has not been employed outside the home since 2001. The net
monthly income/earning capacity figure of $861.10 attributed to her for purposes of the
support guidelines by the domestic relations conference officer does not appear to be a
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significant issue. Her health insurance payments, the majority of which are made
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through deductions from her social security income, are about $530.00 per month. She
shattered her pelvis in October of 2011, suffers from abnormal blood pressure, and has
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developed memory problems. Her expenses far exceed her income. Plaintiff’s federal
income tax filing status will be “married, filing separately,” due to Defendant’s decision
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not to participate in a joint return.
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N.T. 9, 73-74, 84. Hearing, November 13, 2012 (hereinafter N.T. __). The parties’ counsel have not
requested that the notes of testimony from the hearing be transcribed and filed (N.T. 99), as a result of
which the citations in this opinion to pages in the transcript are approximate.
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N.T. 3, 9, 84.
7
N.T. 7.
8
N.T. 75.
9
N.T. 8.
10
Filip v. Filip, 2008-6279 Civil Term (Cumberland County, Pennsylvania).
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N.T. 9. She was employed on a part-time basis in Defendant’s dental office. Id.
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See Summary of Trier of Fact, dated August 29, 2012.
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N.T. 79-80.
14
N.T. 74.
15
N.T. 82; Plaintiff’s Ex. 7 (Plaintiff’s income and expense statement), Hearing, November 13, 2012
(hereinafter Plaintiff’s/Defendant’s Ex. __).
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N.T. 29, 95. Notwithstanding Plaintiff’s invitation, the court is not disposed to review the merits of
Defendant’s decision in this regard, which he testified was recommended by his accountant. N.T. 29. The
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Defendant husband is a dentist, effectively self-employed through a solely-
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owned professional corporation. His income sources consist of (a) his corporate
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salary, (b) undistributed net earnings of the corporation, (c) income from a two-
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person partnership that owns the building in which he practices, and (d)
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dividend/interest payments. Specifically, in 2011 (a) Defendant’s reported gross salary
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was $132,050.00, (b) reported undistributed net earnings of the corporation were
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$7,552.00, (c) reported partnership income was $47,329.00, and (d) reported
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dividend/interest income was $208.00.
Several additional points may be mentioned. First, Defendant’s reported gross
salary did not include $8,113.00 paid by the professional corporation covering medical
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insurance for him and others. Second, it appears that either Defendant, and/or his
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professional corporation, are now paying $511.79 monthly for his health insurance.
Third, the reported partnership income had been reduced by a depreciation figure, the
selection of an option with respect to tax filing status can involve both financial and personal
considerations, and as a general rule an examination of these considerations in a spousal support
proceeding of the present character would prove to be a time-consuming, collateral and, in all likelihood,
unproductive exercise.
17
N.T. 20.
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N.T. 4. The business entity is Thomas S. Filip, DMD, P.C. Id.
19
Plaintiff’s Ex. 4 (parties’ 2011 joint federal income tax return),
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N.T. 22; Plaintiff’s Ex. 2 (professional corporation’s 2011 federal income tax return).
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N.T. 10.
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N.T. 15.
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N.T. 25.
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N.T. 21; Plaintiff’s Ex. 4 (parties’ 2011 joint federal income tax return [W-2 form]).
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N.T. 22; Plaintiff’s Ex. 2 (professional corporation’s 2011 federal income tax return).
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N.T. 14-16; Plaintiff’s Ex. 1 (partnership’s 2011 federal income tax return); Plaintiff’s Ex. 4 (parties’
2011 joint federal income tax return, Schedule E);
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Plaintiff’s Ex. 4 (parties’ 2011 joint federal income tax return).
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See N.T. 23; Plaintiff’s Ex. 2 (professional corporation’s 2011 federal income tax return).
29
See N.T. 36-37; Defendant’s Exs. 1-2.
3
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share of which attributable to Defendant’s one-half interest was $21,698.00. Fourth,
with the exception of the tenancies of Defendant and his partner in the building owned by
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the partnership, the rental units of the structure are currently vacant. Fifth, according to
Defendant’s testimony, his wages from the professional corporation in 2012 were
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expected to be less than those in 2011. Finally, Defendant’s federal income tax return
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filing status will be “married, filing separately.”
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Defendant resides in the parties’ six-bedroom marital home with a
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companion, making payments related to the residence (a) on a line of credit secured by
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an encumbrance on the residence in the monthly amount of about $4,400.00, (b) for real
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estate taxes in the monthly amount of about $739.00, and (c) for homeowners’
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insurance premiums in the monthly amount of about $149.00. His companion does not
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pay rent, nor does she contribute to the aforesaid expenditures related to the property.
In its capacity as fact-finder, the court found both parties to be credible, although it
regarded as speculative some predictive aspects of the testimony. In their post-hearing
briefs, the parties have raised issues, inter alia, as to the correct calculation of
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N.T. 15; Plaintiff’s Ex. 1 (partnership’s 2011 federal income tax return, Form 8825). An inexplicable
“distribution” of $80,500.00 was also shown on the K-1 Schedule applicable to Defendant’s share of the
partnership, attached to the partnership’s 2011 federal income tax return. N.T. 15; Plaintiff’s Ex. 1
(partnership’s 2011 federal income tax return, Form 1065). Whatever this “distribution” represented, it
does not appear to have been regarded by the parties as income in their joint 2011 federal income tax
return, nor does the record provide a basis for believing that it would be a recurring event.
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N.T. 52.
32
N.T. 45.
33
N.T. 29.
34
See Defendant’s Ex. 4 (real estate property tax bill).
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N.T. 44.
36
N.T. 5.
37
N.T. 38-39.
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N.T. 39-40; Defendant’s Exhibits 4, 5.
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Defendant’s Ex. 5.
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N.T. 7.
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Defendant’s net income/earning capacity for purposes of support, the proper allocation of
responsibility for medical insurance premiums, and whether Defendant should be favored
with an adjustment in his obligation to Plaintiff based upon his payment of expenses
related to the marital residence.
DISCUSSION
General. “The amount of . . . spousal support . . . to be awarded . . . shall be
determined in accordance with the [Pennsylvania] support guidelines[, including] the
formula set forth in [Pennsylvania Rule of Civil Procedure] 1910.16-4 and the operation
of the guidelines as set forth in these rules.” Pa. R.C.P. 1910.16-1(b). Under
Pennsylvania Rule of Civil Procedure 1910.16-2, “[g]enerally, the amount of support to
be awarded is based upon the parties’ monthly net income.”
Monthly net income. In general, to arrive at a monthly net income figure only the
following items are to be deducted from gross income: “federal, state, and local income
taxes; . . . F.I.C.A. payments (Social Security, Medicare and Self-Employment taxes) and
non-voluntary retirement payments; . . . union dues; and . . . alimony paid to the other
party.” Pa. R.C.P. 1910.16-2(c)(1).
In the case of a calculation of income derived from self-employment, a court may
disregard a tax-reported deduction for depreciation of real estate connected with the
business inasmuch as no out-of-pocket expense is usually involved and the putative loss
can be speculative. See generally Cunningham v. Cunningham, 378 Pa. Super. 280, 548
A.2d 611 (1988); Commonwealth v. Miller, 202 Pa. Super. 573, 198 A.2d 373 (1964). In
accordance with this principle, and based upon the foregoing recitation of facts,
Defendant’s annual gross income is determined to be $208,837.00 ($132,050.00 salary,
$7,552.00 undistributed corporate earnings, $47,329.00 reported partnership income,
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$21,698.00 depreciation add-back, and $208.00 interest/dividends), yielding a gross
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According to the briefs submitted by the parties, Defendant is of the view that his annual gross
income/earning capacity should be determined to be $177,380.00, and Plaintiff is of the view that it
should be determined to be $300,714.00.
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monthly income figure of $17,403.00. Utilizing the standard computer program
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employed by the Domestic Relations Office in support cases, the court has calculated
Defendant’s monthly net income for support purposes, absent adjustment, to be
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$12,192.93.
Health insurance costs. As a general rule, Pennsylvania Rule of Civil Procedure
1910.16-6(b) contemplates, as Defendant’s brief indicates, that “the total combined
. . . [will] be allocated between them
expense of medical insurance for both parties
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proportionately to their respective incomes.” Although in the court’s discretion
an alternative approach is available in certain cases where 90% or more of the
burden of such expense is to be borne by the obligor due to the disparity in the
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parties’ incomes—an approach whereby the obligor may be assigned
responsibility for the entire cost of medical insurance for both parties and the
obligor’s net income may be recalculated downward—this alternative by its terms
contemplates a case in which “the obligor is paying the cost of [both parties’]
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health insurance coverage”; its applicability to a case in which an obligee is
providing her own coverage, in whole or in part, through a compulsory social
security deduction is more problematic.
On balance, the court is of the view that the general rule regarding responsibility
for the parties’ combined expense of medical insurance is a fair one in this case.
Accordingly, Defendant will be required to pay 93% of the parties’ monthly combined
42
See Parlati v. Morton, 53 Cumberland L.J. 169 (2004) (use of computer software for support-related
calculations).
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Defendant’s taxes have been estimated on the basis of an income that did not include the depreciation
add-back.
44
Defendant’s Memorandum of Law, at 5-6.
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Pa. R.C.P. 1910.16-6(b)(4).
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Id.
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expense of medical insurance ($1,042.00), or $969.00, by way of an upward adjustment
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in his monthly support obligation by $457.00.
Adjustment based upon obligor’s payment of expenses related to marital
residence. Under Pennsylvania Rule of Civil Procedure 1910-16.6(e), for purposes of a
support determination it is assumed “that the spouse occupying the marital residence will
be solely responsible for the mortgage payment, real estate taxes, and homeowners’
insurance.” However,
[i]f the obligor is occupying the marital residence and the mortgage payment exceeds
25% of the obligor’s monthly net income (less any amount of spousal support . . . the
obligor is paying), the court may make an appropriate downward adjustment in the
obligor’s support obligation. . . . For purposes of this subdivision, the term “mortgage”
shall include first mortgages, real estate taxes and homeowners’ insurance and may
include any subsequent mortgages, home equity loans and any other obligations incurred
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during the marriage which are secured by the marital residence.
In the present case, the aforesaid monthly expenses involving the marital residence
and being paid by Defendant total $5,288.00 ($4,400.00 line of credit payment, $739.00
real estate taxes, and $149.00 homeowners’ insurance), which would satisfy the
percentage criterion for a downward adjustment in Defendant’s support obligation.
However, in view of the disparity in the parties’ incomes and Defendant’s use of the
residence in part for the benefit of a third party of his choosing, a departure from the
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general principle adopted by the Rules does not seem to the court to be warranted.
For the foregoing reasons, and in accordance with the Tax Detail Report, Support
Guideline Worksheet, and Spousal Support Calculation attached hereto, Defendant’s
obligation for spousal support will be fixed at $4,990.00 per month, effective July 20,
2012.
ORDER OF COURT
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This figure represents the balance of Defendant’s share of the combined expense after a deduction of
the $512.00 monthly amount which he is paying for his own medical insurance.
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Pa. R.C.P. 1910.16-6(e).
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The court’s negative exercise of its discretion in this regard does not, of course, preclude consideration
of Defendant’s payments tending to preserve or enhance the value of the marital residence in a final
resolution of the parties’ economic claims.
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th
AND NOW, this 8 day of February, 2013, upon consideration of Plaintiff’s
complaint for spousal support filed in the above-captioned matter, and for the reasons
stated in the accompanying opinion, Defendant’s monthly spousal support obligation to
Plaintiff is set at $4,990.00, effective July 20, 2012.
The Domestic Relations Office is directed to generate a standard support order in
accordance with the said opinion for entry by the court.
BY THE COURT,
/s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., S.J.
Barbara Sumple-Sullivan, Esq.
549 Bridge Street
New Cumberland, PA 17070
Attorney for Plaintiff
Melissa Peel Greevy
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorney for Defendant
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