HomeMy WebLinkAbout340 S 1994
LOUANN S. SPEESE-STANLEY,: IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOMESTIC RELATIONS SECTION
MICHAEL G. McCLOSKEY,
Defendant
P ACSES NO. 700000058
NO. 340 SUPPORT 1994
IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 29th day of August, 2006, upon consideration of Plaintiff s
Exceptions to Support Master's Report and Recommendation, and for the reasons stated
in the accompanying opinion, the exceptions are dismissed and the interim order of court
dated May 5, 2006, is entered as a final order.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Michael R. Rundle, Esq.
Support Master
Louann S. Speese-Stanley
110 East Main Street
Shiremanstown, P A 17011
Plaintiff, pro se
Michael G. McCloskey
P.O. Box 3183
Camp Hill, PA 17011
Defendant, pro se
LOUANN S. SPEESE-STANLEY,: IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v.
DOMESTIC RELATIONS SECTION
MICHAEL G. McCLOSKEY,
Defendant
P ACSES NO. 700000058
NO. 340 SUPPORT 1994
IN RE: PLAINTIFF'S EXCEPTIONS TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, 1., August 29,2006.
In this child support case, Plaintiff Louann S. Speese-Stanley (mother) has filed
pro se exceptions to a Support Master's report, raising issues as to several factual matters
and challenging the Master's final recommendation in his report filed June 9, 2006.
Plaintiff requests, generally, that Defendant Michael G. McCloskey (father) be required
to pay some support for his daughter, Breanna McCloskey. Plaintiff s specific exceptions
read as follows:
Exceptions to Support Master's Findings of Fact:
[1.] Defendant has always used a post office box as a mailing address
and has never provided an adequate physical address to Plaintiff.
[2.] The Order of Court dated May 23, 2001 [in which Defendant's
support obligation was set at $376.00 per month] was not made by
agreement of the parties. It was ordered by the Judge.
[3.] Defendant still has a legal construction company.
[4.] The Defendant has been under the care of a psychiatrist and/or
counselor for many years prior to said accident [which occurred on
October 13, 1999].
[5.] Defendant claims he has no income and all his funds have been
depleted but no explanation is given as to how he is able to maintain a
telephone number or how he manages to pay for ordinary living costs.
[6.] The fact that Breanna attends Milton Hershey School at no cost
does not negate ordinary living expenses which she incurs while in the
care of Plaintiff.
Exceptions to Support Master's Recommendation:
[1.] I object to the recommendation on the grounds that the Defendant
should be ordered to pay at least some support for his daughter, Breanna
McCloskey. 1
F or the reasons stated in this opinion, the exceptions will be dismissed, and the
interim order of court dated May 5, 2006, will be entered as a final order.
STATEMENT OF FACTS
Plaintiff is Louann S. Speese-Stanley, the mother of Breanna McCloskey, born
January 26, 1993? Defendant is Michael G. McCloskey, the father of Breanna
McCloskey. Plaintiff resides at 110 East Main Street, Shiremanstown, Cumberland
County, Pennsylvania.3 Defendant's mailing address is P.O. Box 3183, Camp Hill,
Cumberland County, Pennsylvania.4 Plaintiff and Defendant are no longer married. 5
In May of 1994, Defendant was ordered by the Court to pay alimony and child
support in the total amount of $135.00 per week.6 The following year, in March of 1995,
the support payments were adjusted, reducing Defendant's payments from $135.00 per
week to $47.00 per week for child support, and $10.00 per week for alimony.7 In June of
the same year, the alimony obligation was terminated, and Defendant's child support
obligation was raised to $57.00 per week.8
In October of 1999, Defendant was injured in an automobile accident.9 As a result
of the accident, Defendant has suffered from both physical and mental consequences.10
1 Plaintiffs Exceptions to Support Master's Report and Recommendation, filed June 19,2006.
2 NT. 3.
3 NT. 24, Plaintiffs Testimony.
4 NT. 4, Defendant's Testimony.
5 Support Master's Report and Recommendation, June 9, 2006; NT. 7, Defendant's Testimony; NT. 24-
25, Plaintiffs Testimony.
6 Order of Court, May 20, 1994.
7 Order of Court, March 6, 1995.
8 Order of Court, June 15, 1995.
9 NT. 7, 9, Defendant's Testimony.
10 NT. 9-14, Defendant's Testimony.
2
Specifically, Defendant now has only limited dexterity in his dominant hand, 1 1 and
suffers from post-traumatic stress disorder (PTSD) and depression, inter alia. 12
In December of 1999, Defendant's child support obligation was modified to
$296.00 per month, plus an additional $10.00 per month in arrearages.13 On May 23,
2001, the obligation was adjusted to $386.00 per month. 14 On March 29,2006, Defendant
filed a petition to modify the May 23, 2001 support order. 15
On May 5, 2006, following a Domestic Relations Office conference on the
petition, 16 an interim order was entered by the court in accordance with the
recommendation of the conference officer suspending Defendant's child support
obligation, based upon financial hardship and a medically-diagnosed inability to work 17
At Plaintiff s request, a hearing on Defendant's petition to modify was held on June 8,
2006, by the Cumberland County Support Master. 18
On June 9, 2006, following the June 8th hearing, the Support Master issued a
Report and Recommendation.19 The Support Master recommended that the May 5th
interim support order remain effective?O On June 9, 2006, an interim order was entered
by the court in accordance with the Master's recommendation.21
Following the issuance of this order, Plaintiff Speese-Stanley filed exceptions to
the Support Master's June 9, 2006 Report and Recommendation, in accordance with
11 NT. 9-11, Defendant's Testimony.
12 NT. 12-14, Defendant's Testimony.
13 Order of Court, December 23, 1999.
14 Order of Court, May 23,2001. This support obligation of$386.00 per month was comprised of
$376.00 for current support and $10.00 for arrears (arrears were set at $2,209.19).
15 Defendant's Petition for Modification of an Existing Support Order, filed March 29,2006.
16 Pa. RC.P. 1910. 11 (a)-(d); Pa. RC.P. 1910.12(a).
17 Pa. RC.P. 1910.12(e); Order of Court, May 5, 2006. The May 5,2006, order also set arrears at
$4,729.93 and ordered Defendant pay $100.00 per month towards the arrears balance until paid in full.
18 Plaintiffs request for a de novo hearing, filed May 12,2006.
19 Support Master's Report and Recommendation, June 9, 2006.
20 Support Master's Report and Recommendation, June 9, 2006.
21 Interim Order of Court, June 9, 2006.
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Pennsylvania Rule of Civil Procedure 1910. 12(f).22 These exceptions have been recited
above.
DISCUSSION
Statement of Law
Review of the Support Master's Report and Recommendation. A support master's
report and recommendation is to be given "the fullest consideration, especially with
regard to the credibility of witnesses." However, the trial court must determine, based
upon a review of the record, whether the Support Master's recommendations are proper.
Goodman v. Goodman, 375 Pa. Super. 504, 508, 544 A.2d 1033, 1035 (1988) (citations
omitted). Although the court will accord great deference to the recommendations made in
the Support Master's report, the court is not bound by them. Pa. RC.P. SI91O.12(d)
(hearing officer shall file a recommendation regarding the entry of a support order)
(emphasis added); Tagnani v. Tagnani, 439 Pa. Super. 596, 600, 654 A.2d 1136, 1138
(1995). If the master's findings of fact are supported by the record, the court may accept
them. However, it is the court's duty to set a support obligation, "however much it may
choose to utilize a master's report." Goodman, 375 Pa. Super. at 507-08, 544 A.2d at
1035.
Determination of Child Support Obligation. The obligation to support a child falls
upon both parents, to the extent that their income and ability to pay will permit. Mooney
v. Doutt, 2001 PA Super. 12, ,-r6, 766 A.2d 1271, 1273 (2001). The determination of a
parent's ability to pay is based upon the parent's earning capacity, and not his actual
earnings. Id at ,-r6, 766 A.2d at 1273. Earning capacity is defined as the amount that a
person may realistically be expected to earn under the circumstances, "considering his or
22 Plaintiffs Exceptions to Support Master's Report and Recommendation, filed June 19, 2006; Pa.
RC.P. 1910.12(f) ("Within ten days after the date of the report by the hearing officer, any party may
file exceptions to the report or any part thereof, to rulings on objections to evidence, to statements or
findings of facts, to conclusions of law, or to any other matters occurring during the hearing. Each
exception shall set forth a separate objection precisely and without discussion. Matters not covered by
exceptions are deemed waived unless, prior to entry of the final order, leave is granted to file
exceptions raising those matters. If exceptions are filed, any other party may file exceptions within ten
days of the date of service of the original exceptions.").
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her age, health, mental and physical condition and training." Riley v. Foley, 2001 P A
Super. 266, ,-r5, 783 A.2d 807, 811 (2001) (citations omitted). A parent's ability to pay
shall be determined based on his or her property, earning capacity, and income at the time
of the hearing, not the past. Costello v. LeNoir, 462 Pa. 36, 40, 337 A.2d 866, 868 (1975)
(citations omitted). Whether a person was once able to work is not determinative of
whether a person is presently able to do so. Dyer v. Dyer, 370 Pa. Super. 377, 382, 536
A.2d 453, 456 (1988).
In situations where a parent experiences a substantial change in circumstances,
such that the parent is unable to meet his or her support obligation, that parent may
petition the Court for a modification of his or her support order. See 23 Pa. C.S. S4352(a)
(petition for modification "shall be granted if [petitioner] demonstrates a substantial
change in circumstances"); see also Pa. RC.P. SI91O.19(c) ("trier of fact may modify or
terminate the existing support [obligation], . . . based upon the evidence presented"). The
petitioning party bears the burden of proof in demonstrating a substantial change in
circumstances. Pa. R C.P. S 10 19 .19( a) (petitioning party "shall specifically aver the
material and substantial change in circumstances upon which the petition is based".);
Yerkes v. Yerkes, 573 Pa. 294, 298, 824 A.2d 1169,1171 (2003) (citations omitted).
Application of Law to Facts
Support Master's Findings of Fact. Plaintiff avers, in her first exception, that
Defendant has never provided an "adequate physical address." Plaintiff does not appear
to be contesting the Support Master's finding that Defendant's mailing address is P.O.
Box 3183, Camp Hill, Pennsylvania. A review of the hearing transcript reveals that
Defendant does not "specifically reside anywhere.,,23 In this regard, the Master's finding
is consistent with the record, and in any event the Defendant's "[in]adequate physical
address" does not undermine the Master's conclusion as to his inability to work.
Plaintiffs second exception asserts that the May 23, 2001 support order was not
entered by agreement of the parties, as stated in the Support Master's Report and
23 NT. 4, Defendant's Testimony.
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Recommendation.24 During the hearing, Defendant indicated that he had agreed to pay
the amount of child support ($376.00 per month) that was ordered?5 A review of the May
23, 2001 support order itself indicates that the parties did, indeed, agree to the support
order. In any event, this factual issue does not resolve the question of Defendant's present
financial ability to pay child support.
Plaintiff s third exception relates to the Support Master's finding that Defendant
had been "self-employed in the construction field prior to [the vehicle] accident. ,,26
Plaintiff claims that Defendant still has a "legal construction company.,,27 If, by "legal
construction company," Plaintiff means to say that the company is still an incorporated
entity, Defendant does not deny this much. But if Plaintiff means to say that Defendant's
company could provide a source of income for Defendant, her exception is rebutted by
the hearing transcript. Defendant testified that he had not been gainfully employed for the
past five years, and that the last time he was employed was prior to his 1999 vehicle
accident.28 Additionally, Defendant's current physical and mental condition preclude him
from obtaining gainful employment.29 Although Defendant's construction company may
still continue to exist, it appears that it does so only nominally, and does not provide a
source of income for Defendant. The facts established in the record support a finding that
the Defendant currently lacks the ability to develop an earning capacity.
Plaintiff s fourth exception, in which she claims that Defendant had been under
the care of a psychiatrist prior to his accident in 1999, is not compelling. Defendant
testified during the June 8, 2006 hearing that he had been seeing a psychiatrist at the
24 Plaintiffs Exceptions to Support Master's Report and Recommendation, filed June 19, 2006; Support
Master's Report and Recommendation, June 9, 2006, Footnote 1.
25 NT. 6, Defendant's Testimony.
26 Support Master's Report and Recommendation, June 9, 2006, Finding of Fact NO.8.
27 Plaintiffs Exceptions to Support Master's Report and Recommendation, filed June 19,2006.
28 NT. 7, 19, Defendant's Testimony.
29 NT. 9-14, 16-17; Defendant's Exhibits Nos. 1,2.
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same medical facility - Hershey Medical Center - since 1999.30 Defendant's Exhibit No.
1 - a Physician's Information Request filled out by Defendant's physician - listed the
date of Defendant's first treatment as having been on November 17, 2000.31 Plaintiff has
not placed the court in a position, based on the record, to conclude that Defendant was
under the care of a psychiatrist and/or counselor prior to the accident.
Plaintiff s fifth exception relates to the Support Master's finding that Defendant
had no income and that his funds had been depleted. Plaintiff contends that Defendant
gave no explanation as to how he was able to "maintain a telephone number or how he
manage[d] to pay for ordinary living costS.,,32 In the Master's hearing, Defendant testified
that he lived with friends and family, going between residences, and that he was "barely
surviving.,,33 During the hearing, Defendant was not initially permitted to explain how he
had been able to make support payments over the previous five years.34 He later
explained, however, that, as a result of a settlement from the accident, he had some funds
which were used to make payments following the May 23, 2001 support order. 35
According to Defendant, the settlement funds thereafter were exhausted, and Defendant
had no other source of income other than help from friends and family, to whom
Defendant had become indebted.36 Defendant managed to survive through the assistance
of friends and family, and had, on occasion, resorted to living out of his car. 37 It seems
clear from the hearing transcript that Defendant's primary source of support comes from
friends and family, who assist him in covering his ordinary living costs. The facts
30 NT. 14, Defendant's Testimony.
31 Defendant's Exhibit No.1, Physician's Information Request, June 8, 2006.
32 Plaintiffs Exceptions to Support Master's Report and Recommendation, filed June 19,2006.
33 NT. 4, Defendant's Testimony.
34 NT. 7, Defendant's Testimony.
35 NT. 11, Defendant's Testimony.
36 NT. 16, 18-19, Defendant's Testimony (Defendant states that the funds ran out "about a year ago."
NT. 19).
37 NT. 19, Defendant's Testimony.
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established in the record support a finding that Defendant's income and property, at the
time of the hearing, had been exhausted.
Plaintiff s sixth exception relates to the Support Master's finding that Breanna was
attending school at no cost, but lived with Plaintiff at home during school breaks.
Plaintiff contends that, although her daughter attended school at no cost, Plaintiff
continued to incur ordinary living expenses when Breanna was home on weekends and
during school vacations.38 In her brief, Plaintiff states that Defendant has claimed that,
because Breanna attends school at no cost, he should not have to pay for her ordinary
living expenses.39 A review of the hearing transcript, however, reveals no such claim by
Defendant. Rather, Defendant inquired as to the child support expenses that he was
expected to pay.40 The Support Master's finding, that Breanna had attended Milton
Hershey School at no cost for the past two years and that Breanna lives at home with
Plaintiff during school breaks, is supported by Plaintiff s testimony.41 The Support
Master did not find that Plaintiff did not incur any expenses while Breanna attended
Milton Hershey School or while Breanna lived at home. Plaintiff s sixth exception,
therefore, is without merit. That Breanna attends school at no cost, and lives with
Plaintiff during school vacations and weekends, is supported by the facts established in
the record.
Support Master's Recommendation. Finally, Plaintiff excepts to the Support
Master's recommendation that the May 5, 2006 interim support order be entered as a
final order, which would result in a suspension of Defendant's support obligation.
38 Exceptions to Support Master's Report and Recommendation, June 26,2006.
39 Plaintiffs Brief, filed July 17, 2006.
40 NT. 30, Cross-examination of Plaintiff ("How is [Milton Hershey School] paid for?" "So it
doesn't cost any money?" "Who is paying the food and stuff for [Breanna] while she is
there?" "So what is the money that I am supposed to be paying for going for?"
41 NT. 30-31, Cross-examination of Plaintiff.
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Plaintiff stated that "Defendant should be ordered to pay at least some support for his
daughter, Breanna McCloskey.,,42
The Support Master found that, based on the evidence, he was unable to impute an
earning capacity at this time to Defendant "in light of his present mental condition."43
The hearing transcript supports this finding, and it is the conclusion of this court as
well.44 Of particular relevance is the fact that Defendant, because of his present mental
and physical condition, is at the present time unable to secure employment, and is
therefore unable to generate income with which to provide support. Defendant's mental
condition includes post-traumatic stress disorder and depression.45 Defendant's physical
condition, although not expressly addressed in the Support Master's final
recommendation, includes a limited degree of dexterity in Defendant's dominant hand, a
condition for which he has been in treatment since his 1999 vehicle accident. 46 The
Support Master's recommendation that Defendant's child support obligation be
temporarily suspended is adopted as this court's conclusion as well, based upon an
independent review of the record.
Therefore, the following order will be entered:
ORDER OF COURT
AND NOW, this 29th day of August, 2006, upon consideration of Plaintiff s
Exceptions to Support Master's Report and Recommendation, and for the reasons stated
in the accompanying opinion, the exceptions are dismissed and the interim order of court
dated May 5, 2006, is entered as a final order.
42 Plaintiffs Exceptions to Support Master's Report and Recommendation, filed June 19,2006.
43 Support Master's Report and Recommendation, 3.
44NT. 11-13, 16-17,23, Defendant's Testimony.
45 Support Master's Report and Recommendation, Findings of Fact Nos. 10, 12; NT. 11-13, 16-17,23,
Defendant's testimony; Defendant's Ex. No.2, Correspondence from treating physician (opining that
Defendant is "unable to work due to the emotional consequences"ofhis accident).
46 Support Master's Report and Recommendation, Findings of Fact No.9; NT. 9-11, Defendant's
Testimony.
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BY THE COURT,
sf 1. Wesley Oler, Jr.
1. Wesley Oler, Jr., 1.
Michael R. Rundle, Esq.
Support Master
Louann S. Speese-Stanley
110 East Main Street
Shiremanstown, P A 17011
Plaintiff, pro se
Michael G. McCloskey
P.O. Box 3183
Camp Hill, PA 17011
Defendant, pro se
10