Loading...
HomeMy WebLinkAbout480 S 2012 SHERRY L. WILEMAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : DARWIN L. WILEMAN, : PACSES NO. 376113287 Defendant : NO. 480 SUPPORT 2012 IN RE: PLAINTIFF’S EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION OPINION AND ORDER In this spousal support case, Plaintiff Sherry L. Wileman filed Exceptions to the Support Master’s Report and Recommendation of August 13, 2012. (Exceptions, filed Aug. 31, 2012). Plaintiff contends that the Support Master erred in failing to consider Defendant’s Army National Guard income, in assigning to her a net monthly income, and in failing to consider certain other factors that led to the parties impending divorce. (Exceptions, filed Aug. 31, 2012). The facts of this case may be summarized as follows. Plaintiff and Defendant were married on September 26, 2004, and, in 2011, Defendant filed a Complaint in divorce. (Wileman v. Wileman, 2011-0354 CIVIL). On May 30, 2012, Plaintiff filed a Complaint for spousal support, and a hearing was held before Support Master Rundle on August 13, 2012. On that same date, the Master issued his Report and Recommendation which contained the following findings of fact: the parties were residents of Cumberland County and resided together in Shippensburg, Pennsylvania until August, 2008, at which time Defendant’s Pennsylvania National Guard unit was activated and Defendant left Pennsylvania for training outside of the state. In December, 2008, Defendant returned to Pennsylvania, but stayed with his father, not with Plaintiff, until deploying with his unit to Iraq in early January, 2009. In August, 2009, Defendant’s deployment ended, and he returned to his father’s home in Carlisle, Pennsylvania. In February, 2010, Plaintiff moved from Shippensburg to her father’s home in Carlisle. In the spring of 2010, Defendant moved to his father-in-law’s home to be with Plaintiff but stayed only a short period of time. The parties have not resided together since late spring of 2010. As of the date of the hearing before the Support Master, both parties had executed an Affidavit of Consent to the entry of a divorce decree. The Support Master found that Plaintiff was 46 years old, was not gainfully employed, was last employed in 2009 as a nursing assistant in a local nursing home, was terminated from that employment, and is not currently attempting to find employment. The Master also found that, in 2011, Plaintiff was diagnosed with chronic obstructive pulmonary disease and applied for, but was denied, Social Security Disability benefits. The Master found that Defendant is currently employed through a temporary agency at PPG Industries where he earns $11.50 per hour. For purposes of support calculations, the Support Master found that, although Plaintiff testified at the hearing that she was precluded from working by reason of her pulmonary disorder, no medical evidence of her disability was presented. As a result, the Master imputed to her an earning capacity equal to the current minimum wage of $7.25 per hour. Thus, with a gross monthly earning capacity of $1,257.00 and a tax filing status of married/separate, the Master assigned to Plaintiff a net monthly earning capacity of $1,090.00. With regard to Defendant, the Master found that he had a gross monthly income of approximately $1,993.00. With a tax filing status of married/separate, Defendant was assigned a net monthly income of $1,659.00. Pursuant to Pa.R.Civ.P. 1910.16, the Support Master calculated the spousal support as follows: 2 SPOUSAL SUPPORT CALCULATION Rule 1910.16 (PACSES FORMAT) Plaintiff Name: Sherry L. Wileman Defendant Name: Dawin L. Wileman Docket Number: 480 S 2012 PACSES Case Number: 376113287 Other State ID Number: 1. Obligor’s Monthly Net Income $1,658.69 2. Less All Other Support - - 3. Less Obligee’s Monthly Net Income $1,090.13 4. Difference $568.56 5. Less Child Support Obligation for Current Case Without Part II Substantial or Shared Custody Adjustment - - 6. Difference $568.56 7. Multiply by 30% or 40% 40.00% 8. Income Available for Spousal Support $227.42 9. Adjustment for Other Expenses - - AMOUNT OF MONTHLY SPOUSAL 10. SUPPORT OR APL$227.42 (Support Master’s Report and Recommendation, Ex. B, Aug. 13, 2012). In the Report and Recommendation, the Support Master noted that, because the parties had executed Affidavits of Consent to the divorce, it was expected that the divorce would be finalized no later than the end of August. Thus, the support order was to terminate effective August 31, 2012, and the Defendant was to pay the sum of $227.00 per month on arrears commencing September 1, 2012. To reflect the foregoing, the Master issued the following Recommendation: RECOMMENDATION A. For the period of May 30, 2012 through August 31, 2012 the Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit as spousal support the sum of $227.00 per month. 3 B. Effective September 1, 2012 the Defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the sum of $227.00 per month on accrued arrears until paid in full. (Support Master’s Report and Recommendation, Aug. 13, 2012). On August 31, 2012, Plaintiff filed the instant Exceptions to the Support Master’s Report and Recommendation, which alleged the following: 1. Darwin works a reg 40 hr a week every week at Allen Distribution + then gets an additional 300.00 from Army National Guard. He has two incomes. 2. I am listed as having an income + I am disabled and have a dr. order and haven’t had an income. My papers make it look like I am willingly not working. 3. He is the one who cheated + was physically abusive that led to PFA. (Exceptions, filed Aug. 31, 2012). Upon receipt of Plaintiff’s Exceptions to the Support Master’s Report and Recommendation, we entered an Order of Court, dated September 11, 2012, in which Plaintiff was directed to file a brief in support of her exceptions not later than fifteen days from the date the transcript of the hearing was filed, and which notified Plaintiff that any issue not briefed would be deemed to have been waived. The transcript of the hearing was filed October 22, 2012, and, to date, no brief in support of the underlying Exceptions has been received. Despite our lack of a brief, we will address each of Plaintiff’s exception in turn. Initially, we note that “a master's report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 2003 Pa. Super. 455, ¶ 9, 839 A.2d 1091, 1095. Plaintiff’s first exception alleges that, in addition to the compensation received through his work with the temporary agency, Defendant also receives an additional “$300.00” as 4 compensation for his employment as a Guardsman. After review of the record in this case, we have found no reference to any such compensation which Defendant is alleged to be receiving from the National Guard, nor has Plaintiff referred us thereto. The notes of testimony from the hearing before the Support Master indicate that at some point Defendant was enlisted in the Pennsylvania National Guard; that in August, 2008 his unit was activated; and that from January, 2009 through August, 2009 Defendant was deployed to Iraq. Nothing in the record indicates that Defendant continues to be entitled to “$300.00” from the National Guard, either in the form of additional compensation, drill pay, veteran’s benefits, or for any other reason. As a result, we find no error with the Master’s determination that Defendant has a net monthly income of $1,659.00 as derived solely through his employment with the temporary agency. For these reasons, Plaintiff’s first exception will be denied. Plaintiff’s second exception takes issue with the Support Master’s imputation to her of a net monthly income. An award of support must be “fair, non-confiscatory, and attendant to the circumstances of the parties.” Myers v. Myers, 405 Pa.Super. 290, 582 A.2d 339 (1991). “The function of the court in a proceeding for spousal support is not to punish a husband. . . but to fix an amount which is ‘reasonable and proper for the comfortable support and maintenance of. . . [his] wife.’” Strawn v. Strawn, 444 Pa.Super. 390, 395, 664 A.2d 129, 132 (1995) (quoting Myers v. Myers, 405 Pa.Super. 290, 296, 592 A.2d 339, 592 (1991)). Spousal (and child) support are to be awarded pursuant to a statewide guideline as established by general rule of the Pennsylvania Supreme Court. 23 Pa.C.S.A. § 4322(a); See Pa.R.Civ.P. 1910.16 (Amount of Support. Support Guidelines). “The support ‘guideline’ is to be ‘based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support.’” Strawn, 444 Pa.Super. at 395, 664 A.2d at 132 (quoting 23 Pa.C.S.A. § 4322(a)). “In 5 determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.” Id. (emphasis original). Earning capacity is defined “not as an amount which the person 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.” Myers, 405 Pa.Super. at 297, 592 A.2d at 342. In Strawn, supra, a case oft cited for its analysis of support matters and pro se litigants, the Superior Court reversed the lower court’s decision to uphold the master’s determination of a zero earning capacity for a wife where the master failed to consider the wife’s “age, her health, her mental and physical condition, or any training she might have received.” Strawn, 444 Pa.Super. at 396, 664 A.2d at 132. In that case, the lower court made its determination of earning capacity simply upon a finding of the master that the wife “is unemployed and has not worked during the entire course of the 16 years of marriage,” as well as a determination that the pro se husband had waived the issue of the wife’s earning capacity by failing to question the wife about her earning capacity at the master’s hearing. Strawn, 444 Pa.Super. at 395-96, 664 A.2d at 132. The Superior Court held that, although pro se status “generally confers no special benefit upon a litigant” where the statutorily mandated factors are not drawn out by the parties “the master should have questioned. . .the party seeking support, as to factors relating to her earning capacity.” Id. In a footnote, the Superior Court noted the following: We are not suggesting that the court act as counsel for defendants in support actions. However, it was an abuse of discretion for the lower court in this case to make an award of support in the absence of evidence related to appellee's earning 6 capacity. The parties in domestic relations actions are frequently unable to afford counsel and, unlike defendants in criminal actions, defendants in domestic relations actions are not entitled to have counsel appointed for them. It was inappropriate in this case for the lower court to rely on the waiver doctrine to avoid a proper assessment of appellee's earning capacity. Strawn, 444 Pa.Super. at 396, 664 A.2d at 132. Applying the foregoing, we find that the Master appropriately questioned Plaintiff in order to obtain what was required by our statutes and precedents in order to make a proper assessment of her earning capacity. As noted above, the Master found that Plaintiff was 46 years old, was not gainfully employed, was last employed in 2009 as a nursing assistant in a local nursing home from which she had been terminated, and is not currently attempting to find employment. At the hearing, Plaintiff testified that she is precluded from working by a pulmonary disorder, but failed to present any medical evidence or documentation of a disability. For these reasons, the Master imputed to her an earning capacity equal to the current minimum wage of $7.25 per hour, resulting in a gross monthly earning capacity of $1,257.00 and a net monthly earning capacity of $1,090.00. Giving the fullest consideration to the Master’s findings, particularly on the question of credibility of witnesses, as we must, we find no error with the Master’s determination that wife “realistically [could] earn under the circumstances, considering . . . her age, health, mental and physical condition and training” a net monthly income equal to the current minimum wage. The Master determined Plaintiff’s age, her previous employment, her health, and her training and, absent any evidence to the contrary, determined that she could realistically find employment at the current minimum wage. Quite simply, the Master made the requisite findings and made a realistic determination of Plaintiff’s earning capacity; thus, we find no error with the Master’s determination, and Plaintiff’s second exception will be denied. 7 Plaintiff’s third and final exception alleges that Defendant “is the one who cheated + was physically abusive that led to PFA.” (Exceptions, filed Aug. 31, 2012). As noted above, “The function of the court in a proceeding for spousal support is not to punish a husband. . . but to fix an amount which is reasonable and proper for the comfortable support and maintenance of. . . [his] wife.” Strawn, 444 Pa.Super. at 395, 664 A.2d at 132 (1995) (internal citations omitted). Moreover, marital infidelity and alleged abuse are simply not applicable factors in making a determination of spousal support. For these reasons, the Master did not err in failing to incorporate Plaintiff’s allegations into the Report and Recommendation, and, as a result, Plaintiff’s third exception will be denied. To reflect the foregoing, the following order will be entered: ORDER rd AND NOW, this 3 day of January, 2013, upon consideration of Plaintiff’s Exceptions to the Support Master’s Report and Recommendation, and for the reasons contained in the opinion filed of even date herewith, the exceptions of the Plaintiff are DENIED. BY THE COURT, _______________________ Kevin A. Hess, P.J. 8 SHERRY L. WILEMAN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : DARWIN L. WILEMAN, : PACSES NO. 376113287 Defendant : NO. 480 SUPPORT 2012 IN RE: PLAINTIFF’S EXCEPTIONS TO THE SUPPORT MASTER’S REPORT AND RECOMMENDATION ORDER rd AND NOW, this 3 day of January, 2013, upon consideration of Plaintiff’s Exceptions to the Support Master’s Report and Recommendation, and for the reasons contained in the opinion filed of even date herewith, the exceptions of the Plaintiff are DENIED. BY THE COURT, _______________________ Kevin A. Hess, P.J. Michael Rundle, Esquire Support Master Sherry L. Wileman 444 Fairground Avenue Carlisle, PA 17013 Darwin L. Wileman 175 E. High Street Carlisle, PA 17013 :rlm