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HomeMy WebLinkAbout1095 S 2002 AMBER PARLATI, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GERALD R. MORTON, : PASCES NO. 038105095 DEFENDANT : 1095 SUPPORT 2002 IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION OPINION AND ORDER OF COURT Masland, J., June 7, 2013:-- I. Background Having previously addressed separate but related issues in this support 1 action we will dispense with a complete recitation of the facts. As with the earlier concerns raised by the Defendant, Gerald R. Morton (Father), there is no real dispute over the facts – Father’s contentions focus on the Support Master’s interpretation of the facts. Therefore, we will adopt and incorporate the Support 2 Master’s Findings of Fact in toto. Before discussing the law and the facts, we note a few salient procedural details. Father filed a Petition for Modification on January 5, 2012; however, a hearing was not held until after the Superior Court disposed of Father’s appeal of our order of February 14, 2012. After a hearing on February 7, 2013, the Support Master issued his Report and Recommendation on the same date. On February 14, 2013 Father filed the following Exceptions: 1 See opinions and orders of court dated July 22, 2011 and February 14, 2012. 2 Support Master’s Report and Recommendation, Findings of Fact 1-15, February 7, 2013. 1095 SUPPORT 2002 1. The Defendant requested the Support Master to date the Order back to the Plaintiff’s last day of employment. The Support Master denied the Defendant’s request stating that the Order would be dated back to when the request for modification was filed. The Plaintiff stated that her last day of employment was sometime in October. When the only real proof of her last employment was August 27, 2011. (Proof provided from the Plaintiff on November 14, 2011 hearing). 2. The Support Master found that the Plaintiff shall claim the child as a dependent for tax purposes. The Defendant has paid more than half of the overall child support and the Plaintiff has no employment. 3. The Defendant requested the Support Master consider a substantial reduction due to the three other children and the support guidelines being so high that the Defendant could ever possibly keep current and be threaten [sic] with being placed in jail. The Support Master lowered the support amount by $10 dollars per week, which was helpful but not nearly enough to keep the Defendant from being worried about a prison term. Pursuant to Father’s request, argument was held on June 3, 2013. Amber Parlati (Mother) appeared at argument, but having not filed a brief, did not argue. After review of the record, the brief and argument of Father, and the case law, for the reasons stated in this opinion, Father’s exceptions will be dismissed and the interim order of court issued in accordance with the Master’s recommendations will be entered as a final order. -2- 1095 SUPPORT 2002 II. Discussion A. Effective Date of the Order Although not clear in the record or exceptions, it appears (from the brief and our familiarity with Father’s hot button issues) that Father believes Mother delayed in reporting her unemployment in order to receive additional support designed to compensate her for childcare expenses. Therefore, he requested an effective date in November 2011, as opposed to January 5, 2012, the date he filed his petition to modify. When Father began to argue this point, the Support Master explained: You’re making an argument on that; however, I will tell you legally that the effective date of the modification will be the date of filing unless there is an extraordinary reason that it shouldn’t be, ok? Let’s 3 proceed. Because Father did not accept the Master’s explanation, and (based on his track record of failing to accept anything we say) is unlikely to accept it from this court either, we set forth at length the pertinent Section of the Domestic Relations Code, 23 Pa.C.S. § 4352(e). (e) Retroactive modification of arrears.— No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, 3 Notes of Testimony, Support Master’s hearing, February 7, 2013, p. 12 (hereafter N.T. ___) -3- 1095 SUPPORT 2002 misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, properly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of the emancipation of the child for who support the payment is made. Additionally, Pa.R.C.P. 1910.17(a), which is not limited in application to arrears, provides in pertinent part: “[a]n order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.” (emphasis added). Father would have us interpret the language in the statute and rule expansively to, in essence, allow us to pick any date deemed appropriate. However, our Superior Court clarified the foregoing language, and, in finding no “legal precedent or legitimate reason” to expand retroactivity, stated succinctly: [The] policy favoring retroactivity as pronounced by 1910.17(a) and our case law, however, does not render justification for making a support order retroactive to a date which precedes the filing date of a modification petition. … [T]he applicability of this principle was intended and must be limited to situations where a trial court judge determines a party should receive support beginning a date subsequent to the filing date of the complaint. Kelleher v. Bush, 832 A.2d 483, 486 (Pa. Super. 2003). (emphasis in original) Nevertheless, even if this court possessed untrammeled powers to select the effective date of an order, our review of the record does not lead us to a conclusion that the effective date should be changed. In short, Mother testified that she began receiving unemployment “around” Thanksgiving of 2011 and that 4 the support office has all her unemployment information. If there was a delay in 4 N.T. 11 -4- 1095 SUPPORT 2002 crediting Father with the sum allocated for childcare, the record does not support Father’s belief that Mother misrepresented her status. In sum, we find nothing extraordinary in the record, whereby the interests of justice would call for an effective date other than the filing date of the Modification Petition. B. Dependency Tax Exemption Father’s argument regarding the dependency tax exemption is a reprisal of his 2011 Exceptions, with one minor twist. It appears that the basis for this exception is the fact that Mother is receiving unemployment compensation as opposed to earned income. Father is confused. The question is not whether Mother is employed, but how much income she receives. Clearly, the Master accounted for all of Mother’s income and factored in the value of the dependency exemption in the process. Regardless of the source of the income, as we have previously advised Father, pursuant to 26 U.S.C. § 152(e) the custodial parent is automatically granted the dependency tax exemption unless certain specific circumstances apply. Those circumstances did not exist when we reviewed the issue in 2011, nor do they exist today. Rightfully, Mother claimed the child on her 2005 taxes and continues to do so to this date. C. Deviation from the Guidelines Father was granted a modest downward deviation from $628.00 to $600.00 per month, based on the fact that Father has a monthly support obligation for three other children that exceeds $1,800.00. At argument, Father allowed that he had hoped for a greater deviation, but then pointed out -5- 1095 SUPPORT 2002 circumstances that may affect even this modest deviation. Father related his plans to marry the obligee of the other child support order (with whom he 5 admittedly resides) and that order will be terminated. We do not base our decision on what the future may bring and were inclined to deny this exception prior to argument. Because Father has not demonstrated any justification for a deviation greater than that recommended by the Master and has, to the contrary, undermined the basis for the deviation he received, this exception is denied. III. Conclusion As always, a Support Master’s Report is to be given the fullest consideration and should not be disturbed unless the record indicates a clear abuse of discretion based on a showing of clear and convincing evidence. Moran v. Moran, 839 A.2d 1091 (Pa. Super. 2003). Abuse of discretion is found where the evidence on record is insufficient to sustain the award, where the law is overridden or misapplied, or where the exercise of judgment is unreasonable. Lampa v. Lampa, 537 A.2d 350, 351 (Pa. Super. 1988). There was no abuse of discretion by the Master. After considering the testimony and evidence presented by both parties before the Support Master along with the exceptions and brief filed by Father, we accord the Support Master’s Report and Recommendation the fullest consideration. 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: 5 N.T. 8 -6- 1095 SUPPORT 2002 ORDER OF COURT AND NOW, this _____________ day of June, 2013, upon consideration of the Exceptions to the Support Master’s Report and Recommendation filed by Father, the record of the case presented before the Support Master on February IT IS HEREBY ORDERED 7, 2013, and after oral argument requested by Father, AND DIRECTED that Father’s Exceptions to the Master’s Report and DENIED. Recommendation are The current interim order of court dated February 7, 2013 is entered as a final order of court. By the Court, __________________________ Albert H. Masland, J. Gerald Morton, Pro se 1956 Reservoir Drive Carlisle, PA 17013 Amber Parlati, Pro se 116 Pine Grove Road New Bloomfield, PA 17068 Michael Rundle, Esquire Support Master :sal -7- AMBER PARLATI, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GERALD R. MORTON, : PASCES NO. 038105095 DEFENDANT : 1095 SUPPORT 2002 IN RE: DEFENDANT’S EXCEPTIONS TO SUPPORT MASTER’S REPORT AND RECOMMENDATION ORDER OF COURT AND NOW, this _____________ day of June, 2013, upon consideration of the Exceptions to the Support Master’s Report and Recommendation filed by Father, the record of the case presented before the Support Master on February IT IS HEREBY ORDERED 7, 2013, and after oral argument requested by Father, AND DIRECTED that Father’s Exceptions to the Master’s Report and DENIED. Recommendation are The current interim order of court dated February 7, 2013 is entered as a final order of court. By the Court, __________________________ Albert H. Masland, J. Gerald Morton, Pro se 1956 Reservoir Drive Carlisle, PA 17013 Amber Parlati, Pro se 116 Pine Grove Road New Bloomfield, PA 17068 Michael Rundle, Esquire Support Master :sal