Loading...
HomeMy WebLinkAbout2012-1037 ROBERT N. BAUM, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CONNIE R. BAUM, : 1037 CIVIL 2012 Defendant : : CIVIL ACTION - DIVORCE DEFENDANT’S EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION BEFORE GUIDO, J. OPINION AND ORDER Wife has filed exceptions to the Support Master’s Report and Recommendation. She alleges that the Master erred in failing to consider husband’s principal withdrawals from an annuity as income for purposes of computing his APL obligation. For the reasons hereinafter set forth we hold that the Master did not err. Factual Background While we adopt the Master’s Findings of Fact in their entirety, we will recite only those relevant to the issue before us. Wife is 61 years of age. Husband is 75. They were married on August 22, 2004. Husband filed a divorce complaint on February 14, 2012. In January 2003 husband purchased an annuity contract with River Source Life Insurance Company for $100,000. The annuity accrues interest at the rate of 3% per annum. During the course of the marriage husband would from time to time make withdrawals from principal. On December 31, 2011 the principal balance stood at $28,955.40. The 2012 principal withdrawals were $7000 to the date of the Master’s Hearing. DISCUSSION This sole issue in this case is whether principal withdrawals from a pre-marital annuity 1 are to be considered income for purposes of APL. Under the facts of this case we are satisfied that they are not. Wife argues that “annuities” are listed under the definition of “income” in the support statute. 23 Pa. C.S.A. § 4302. She further contends that the cases of Butler v. Butler, 339, Pa. Super 312, 488 A.2d 1141 (Pa. Super. 1985) and Mencer v. Ruch, 928 A.2d 294 (Pa. Super 2007) require the inclusion of the principal distributions in calculating Husband’s income. However, we find those cases to be distinguishable from the case at bar. The annuities in both Butler and Mencer were established to provide periodic payments to the obligor as settlement of a personal injury action. The definition of “income” includes “other entitlements to money . . . including . . . insurance compensation or settlements; awards, or verdicts.” 42 Pa. C.S.A. § 4302. Therefore, the entire corpus of the annuity met the definition of “income” under the statute. It would follow that all distributions therefrom would be considered income available for support. In the instant case Husband used pre-marital assets to purchase an “annuity.” 1 The Master properly included the interest, both accrued as well as withdrawn, as income to husband. 2 The assets themselves did not fall under the statutory definition of income. The annuity in this case is simply an investment vehicle used by husband to generate income on his liquid assets. In that sense it is not unlike a bank certificate of deposit. It is beyond dispute that interest earned on a certificate of deposit falls within the definition of income while the underlying principal does not. Therefore, the withdrawals from the “annuity” in this case cannot be 2 considered income for support purposes. ORDER TH AND NOW, this 30 day of APRIL, 2013, the Defendant’s Exceptions to the Support Master’s Report and Recommendation are DENIED and the temporary order is hereby made FINAL. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Stacy B. Wolf, Esquire Steven Howell, Esquire Domestic Relations Office :sld 2 If the annuity had been purchased with marital assets the distributions of principal would certainly not have been considered income. See Berry v. Berry, 898 A.2d 1100 (Pa. Super 2006) and Fox v. Fox, 606 Pa. 112, 995 A.2d 348 (2010). 3 4