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HomeMy WebLinkAbout432 S 2012 CHERYL A. TORNER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : DOMESTIC RELATIONS SECTION : : PACSES NO. 608113257 MICHAEL D. TORNER : DEFENDANT : 432 SUPPORT 2012 MICHAEL D. TORNER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : DOMESTIC RELATIONS SECTION : : PACSES NO. 963113264 CHERYL A. TORNER : DEFENDANT : 439 SUPPORT 2012 IN RE: WIFE’S EXCEPTIONS AND HUSBAND’S CROSS EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATIONS ORDER OF COURT th AND NOW , this 26 day of February, 2013, upon consideration of the Exceptions to the Support Master’s Report and Recommendations filed by Wife, the Cross Exceptions to the Support Master’s Report and Recommendations filed by Husband, the record of the case presented before the Support Master on September 26, 2012, the briefs filed by the parties, and the Court noting that neither party requested oral argument in the case, IT IS HEREBY ORDERED AND DIRECTED that the Wife’s Exceptions to the DENIED Support Master’s Report and Recommendations are . IT IS HEREBY FURTHER ORDERED AND DIRECTED that the Husband’s DENIED Cross Exceptions to the Support Master’s Report and Recommendations are . The current Interim Order of Court dated September 28, 2012, is entered as a Final Order of Court. By the Court, ______________________ M. L. Ebert, Jr., J. P. Richard Wagner, Esquire Attorney for Plaintiff Barbara Sumple-Sullivan, Esquire Attorney for Defendant 2 CHERYL A. TORNER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : DOMESTIC RELATIONS SECTION : : PACSES NO. 608113257 MICHAEL D. TORNER : DEFENDANT : 432 SUPPORT 2012 MICHAEL D. TORNER, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : DOMESTIC RELATIONS SECTION : : PACSES NO. 963113264 CHERYL A. TORNER : DEFENDANT : 439 SUPPORT 2012 IN RE: WIFE’S EXCEPTIONS AND HUSBAND’S CROSS EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATIONS OPINION AND ORDER OF COURT Ebert, J., February 26, 2013 – This is a combined spousal support and child support action. Wife, Cheryl A. 1 Torner, filed a Complaint for Spousal Support on May 15, 2012. Husband, Michael D. 2 Torner, filed a Complaint for Child Support on May 17, 2012. During the scheduled Support Conference on July 23, 2012, Husband raised an entitlement defense to Wife’s spousal support claim, requiring a de novo hearing before the Support Master. This hearing was held on September 26, 2012, and testimony was given regarding both the spousal and child support complaints. After the hearing, an Order was entered 1 Docketed at 432 Support 2012, Pacses No. 608113257 2 Docketed at 439 Support 2012, Pacses No. 963113264 3 dismissing Wife’s Complaint for Spousal Support. An Interim Order for Husband’s Complaint for Child Support was also entered based upon the Support Master’s Report 4 and Recommendation. Wife filed Exceptions to the Support Master’s Report and 5 Recommendation. Husband filed Cross Exceptions to the Support Master’s Report 6 and Recommendation. Both parties submitted briefs to this Court. Neither party requested oral argument. For the reasons stated in this opinion, both Wife’s Exceptions and Husband’s Cross Exceptions to the Support Master’s Report and Recommendation are dismissed. Statement of Facts The Wife, Cheryl A. Torner, and Husband, Michael D. Torner, are the parents of 7 a minor child, Christopher L. Torner, born October 23, 1995. The child resides with 8 Husband. Christopher receives psychiatric/psychological treatment for ADHD, 9 depression, and anxiety for which Husband incurs medical expenses. The parties were married on October 12, 1985, and separated on June 30, 2010, when Wife moved 10 out of the marital residence. Wife is disabled and is entitled to disability benefits through the Social Security 11 Administration which began in November, 2010. She was entitled to receive a lump sum payment of $12,100.50 ($16,134.00 less attorney’s fees of $4,033.50) as back-pay 3 Order of Court, September 28, 2012, for docket 432 Support 2012, Pacses No. 608113257. Neither party raised exceptions to the spousal support order and therefore the Order dismissing Wife’s Spousal Support claim remains in effect without discussion. 4 Interim Order of Court, September 28, 2012, for docket 439 Support 2012, Pacses No. 963113264. 5 Exceptions to Support Master’s Report and Recommendation, filed October 18, 2012. 6 Cross Exceptions to the Support Master’s Order Dated September 28, 2012, filed November 6, 2012. 7 Support Master’s Report and Recommendation, filed September 28, 2012, ¶ 4 (hereinafter “Master’s Report, __”). 8 Master’s Report,¶ 4. 9 Master’s Report, ¶ 22-24. 10 Master’s Report, ¶ 3, 5. 11 Master’s Report, ¶ 9. 2 12 for the period of November, 2010 through July, 2012. Starting in August, 2012 Wife’s 13 monthly disability benefit is $785.00. In 2011, Wife was employed with Keller Williams 14 as a receptionist earning $12.00 per hour. This employment was involuntarily terminated by Keller Williams within two months of her hiring. As a result Wife filed for 15 and receives unemployment compensation benefits of $40.00 per week. Wife files her 16 taxes as married/separate. Her gross and net monthly income is $958.00 and is not 17 taxable because it consists entirely of government benefits. Husband is employed with the federal government and has a gross monthly 18 income of $8,903.00. He has a mandatory retirement deduction of $32.76 bi-weekly and pays $146.44 bi-weekly to provide health and vision insurance for himself, Wife, 19 and Christopher. Husband files taxes as head of household and claims Christopher 20 as a dependent. After taking into consideration his tax filing status and his mandatory 21 retirement contribution, Husband has a net monthly income of $6,610.00. Both Husband and Wife sold real estate to their older adult son. As part of the installment agreement for the sale of that property, each party receives $250.00 per 22 month. The Support Master did not consider this as additional income to the parties 12 Master’s Report, ¶ 10. 13 Master’s Report, ¶ 11. 14 Master’s Report, ¶ 12. 15 Master’s Report, ¶ 12-14. 16 Master’s Report, ¶ 17. 17 Master’s Report. 18 Master’s Report, ¶ 18. 19 Master’s Report, ¶ 19-20. 20 Master’s Report, ¶ 21. 21 Master’s Report. 22 Master’s Report, ¶ 15-16. 3 when making his support calculations, believing that the proceeds of the sale would be 23 more properly addressed in equitable distribution in the divorce action. A hearing de novo was held before the Support Master on September 26, 2012. On September 28, 2012, an Interim Order of Court was issued implementing the Support Master’s Report and Recommendation as follows: A. The Wife’s Complaint for spousal support is dismissed. B. The Wife shall pay to the Pennsylvania State Collection and Disbursement Unit for the support of her son, Christopher L. Torner, born October 23, 1995, the sum of $88.00 per month. C. The Wife shall pay to the Pennsylvania State Collection and Disbursement Unit the additional sum of $12.00 per month on arrears until paid in full. D. The Husband shall provide health insurance coverage for the benefit of said child as is available to him through employment or other group coverage at a reasonable cost. E. The monthly support obligation includes cash medical support in the amount of $250.00 annually for unreimbursed medical expenses incurred for said child. Unreimbursed medical expenses of said child that exceed $250.00 annually shall be allocated between the parties. The party seeking allocation of unreimbursed medical expenses must provide documentation of expenses st to the other party no later than March 31 of the year following the calendar year in which the final medical bill to be allocated was received. The unreimbursed medical expenses are to be paid as follows: 13% by the Wife and 87% by the Husband. F. The effective date of this order is May 17, 2012. 24 Wife filed Exceptions to the Support Master’s Report and Recommendation. Wife’s exceptions are summarized as follows: 1. The finding of fact number 14 is incorrect in that wife had received unemployment compensation, but no longer receives unemployment compensation. 23 Master’s Report. 24 Exceptions to Support Master’s Report and Recommendation, filed October 18, 2012. 4 2. To the extent that the calculations are founded upon a $40.00 per week unemployment compensation benefit, the said calculations are in error. 3. The amount of income determined for support purposes should have only included the monthly benefit through Social Security in the amount of $785.00. Essentially, Wife’s three exceptions can be summarized with one argument, that Wife’s $40.00 per week unemployment compensation benefit should not have been included as part of her income because she no longer receives that benefit. Husband filed Cross Exceptions to the Support Master’s Report and 25 Recommendation. Husband’s cross exceptions are summarized as follows: 1. The evidence established that Wife received a lump sum payment of $16,134.00 from the United States Social Security Administration. 2. The Master erred in failing to include said sum in the calculation of Wife’s income for the purposes of child support. Husband’s two cross exceptions can also be summarized with one argument, that Wife’s lump sum payment of $16,134.00 from the United States Social Security Administration should have been included in her income. Discussion I. Scope of Review When reviewing a master’s report and recommendation, a trial court is required to review the report to determine if the master’s recommendations are appropriate. Goodman v. Goodman, 544 A.2d 1033, 1035 (Pa. Super. 1988). The reviewing court has the duty to make a complete and independent review of all the evidence, including the credibility of the witnesses. Gomez v. Gomez, 11 Phila. Co. Reptr. 221, 227 (Pa.Com.Pl. 1984). However, even though the reviewing court conducts its own review, 25 Cross Exceptions to the Support Master’s Order Dated September 28, 2012, filed November 6, 2012. 5 a master’s report and recommendations are to be given the fullest consideration, especially with regard to the credibility of witnesses. Goodman, 544 A.2d at 1035. II. Wife’s Exceptions to the Support Master’s Report A. The Support Master did not err in including the $40.00 per week unemployment compensation benefit in Wife’s income for child support purposes. Wife contends that the Support Master erred in including her $40.00 per week unemployment compensation benefit as part of her income because she is no longer 26 receiving this benefit. When making a determination on exceptions to a support master’s report and recommendation, a trial court may not consider any evidence that is outside the record. Ney v. Ney, 917 A.2d 863, 866 (Pa. Super. 2007). Additionally, this Court may not take into consideration facts alleged in the parties’ briefs because briefs are not considered part of the record. Moskowitz v. Moskowitz, 10 Phila.Co.Reptr. 429, 446, 1983 WL 265480 (Pa.Com.Pl. 1983) (see footnote 15). After hearing testimony and reviewing the documents provided by each party, the Support Master determined that Wife’s income included the $40.00 unemployment 27 compensation benefit. During the hearing Wife stated that she had received 28 unemployment at $40.00 per week. While at some point Wife testified that she had no 29 other source of income, other than Social Security disability benefits, there was no credible documentation or testimony provided by Wife indicating when she stopped receiving unemployment compensation. In fact, no beginning or end date for Wife’s unemployment compensation benefit was provided at the hearing. This Court cannot 26 Exceptions to Support Master’s Report and Recommendation, filed October 18, 2012. 27 Master’s Report, ¶ 14. 28 Notes of Testimony Hr’g., 13-14, September 26, 2012 (hereinafter “N.T. ___”). 29 N.T. 7. 6 take into consideration the fact that Wife may have stopped receiving unemployment compensation benefits because that information is simply not part of the record. Based on the documentation provided and the testimony from the hearing regarding Wife’s unemployment compensation benefits, the Support Master correctly included the $40.00 per week unemployment compensation as part of Wife’s income. Wife’s exceptions are therefore denied. III. Husband’s Exceptions to the Support Master’s Report A. The Support Master did not err by failing to include Wife’s lump sum payment from the United States Social Security Administration as part of her net income. Husband contends that the Support Master erred by not including Wife’s lump sum payment from the Social Security Administration as part of her income. Usually, monthly net income is based on at least a six month average of income. Pa.R.C.P. 1910.16-2(a). Social Security Disability benefits are considered part of a party’s income. Pa.R.C.P. 1910.16-2(a)(6). Additionally, lump sum awards are typically considered income, although the method of imputing a lump sum payment as income is discretionary. Pa.R.C.P. 1910.16-2(a)(8). However, net income “is not calculated in a vacuum”. Marshall v. Marshall, 591 A.2d 1060, 1063 (Pa. Super. 1991). Before the proper amount of support can be calculated, “an individual evaluation of the income and proper deductions from gross income must be made to establish net income for support purposes”. Id. In this case, Wife was found to be disabled by the Social Security Administration and was entitled to receive the lump sum payment in question of $16,134.00, less attorney’s fees, as back-pay to compensate her for the period of November, 2010 7 through July, 2012. While Wife may have received this lump sum payment within the six months prior to the support hearing, the payment was intended to compensate Wife for a year and a half period, which almost entirely pre-dates the filing of Husband’s Complaint for Child Support. Therefore, the lump sum payment is not representative of the amount of income Wife will receive in the future from Social Security. Wife’s monthly payment from Social Security is $785.00. Factoring in her unemployment compensation, Wife’s monthly net income was properly determined by the Support Master to be $958.00. Husband’s net monthly income is $6,610.00. Given the large discrepancy between Husband and Wife’s net incomes, the fact that Wife is disabled, and that Wife’s lump sum amount is not representative of her current and future Social Security income, this Court finds that it would be manifestly unfair to include Wife’s lump sum payment from Social Security as part of her income. The Support Master correctly excluded the lump sum payment from Wife’s income and Husband’s cross exceptions are therefore denied. Conclusion After considering the testimony and evidence presented by both parties before the Support Master along with the exceptions and briefs filed by both parties, this Court finds that the Support Master’s Report and Recommendation is credible and should be awarded the fullest consideration. Wife’s Exceptions and Husband’s Cross Exceptions to the Support Master’s Report and Recommendation will be dismissed and the current Interim Order of Court shall be made final. Accordingly, the following order will be entered: 8 ORDER OF COURT th AND NOW , this 26 day of February, 2013, upon consideration of the Exceptions to the Support Master’s Report and Recommendations filed by Wife, the Cross Exceptions to the Support Master’s Report and Recommendations filed by Husband, the record of the case presented before the Support Master on September 26, 2012, the briefs filed by the parties, and the Court noting that neither party requested oral argument in the case, IT IS HEREBY ORDERED AND DIRECTED that the Wife’s Exceptions to the DENIED Master’s Report and Recommendations are . IT IS HEREBY FURTHER ORDERED AND DIRECTED that the Husband’s DENIED Cross Exceptions to the Master’s Report and Recommendations are . The current Interim Order of Court dated September 28, 2012, is entered as a Final Order of Court. By the Court, ______________________ M. L. Ebert, Jr., J. P. Richard Wagner, Esquire Attorney for Plaintiff Barbara Sumple-Sullivan, Esquire Attorney for Defendant 9