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HomeMy WebLinkAbout98-0422 SUPPORTL.S. KOVE, PLAINTIFF V. H.A. NAUMOFF, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PACSES NO. 560100141 98-0422 SUPPORT IN RE: CROSS-EXCEPTIONS TO SUPPORT MASTER'S REPORT OPINION AND INTERIM ORDER OF COURT Bayley, J., January 22, 2002:-- Plaintiff, Lisa Kove, instituted this complaint against defendant, Helen Naumoff, for support for five children. Kove and Naumoff, both females, began living together as domestic partners in the mid-1980's. They arranged through a facility in Virginia for Kove to conceive by in vetro fertilization through an anonymous sperm donor. Kove gave birth to Scott James Kove on December 24, 1990. Kove and Naumoff did the same thing again, and on March 19, 1993, Kove gave birth to quadruplets; Sara Jean Kove, Lena Joy Kove, William Lloyd Kove, and Francessca Lynn Kove. Kove and Naumoff shared all aspects of raising the five children until they separated in 1997. Kove initiated this suit for child support, and Naumoff filed preliminary objections. Naumoff maintained that because she was a woman she could not be held liable for the support of the five children born to Kove. On December 15, 2000, we entered an order, supported by a comprehensive opinion, dismissing the preliminary objections.1 1 52 Cumberland L.J. 72 (2000). 98-0422 SUPPORT We held that, "Naumoff's conduct estops her from claiming that she is not liable for their support just as a man may be estopped from maintaining that he is not liable for the support of a child that he has raised as his own even through another man is known to be the biological father." The case was referred to the Domestic Relations Office "[f]or the entry of an appropriate child support order." A child support order was entered on August 23, 2001, to which an appeal was filed and heard de novo by the Cumberland County Support Master. The Master filed a report and recommendation upon which an interim order was entered on November 13, 2001. The order provides: A. The Defendant shall pay support for the children, Sara Jean Kove, Lena Joy Kove, Francessca Lynn Kove, William Lloyd Kove, and Scott James Kove as follows: (1) During the period May 22, 1998, through December 31, 1998, the sum of $546 per month; (2) During the period January 1, 1999, through December 31, 1999, the sum of $571.00 per month; (3) During the period January 1, 2000, through December 31, 2000, the sum of $869.00 per month; (4) On and after January 1, 2001, the sum of $892.00 per month. B. The Defendant shall pay 21% of unreimbursed medical expenses for said children that exceed $250.00 annually per child during the years 1998 and 1999, 29% of said expenses during the year 2000, and 30% of said expenses on and after January 1, 2001. C. The effective date of this order is May 22, 1998. D. The Defendant shall pay the sum of $50.00 per month on accrued arrearages. E. All administrative provisions of our prior order dated August 23, 2001, shall remain in full force and effect. Both parties filed exceptions to the interim order. The exceptions have been briefed and argued. -2- 98-0422 SUPPORT NAUMOFF'S EXCEPTIONS The Master utilized the Pennsylvania Support Guidelines in recommending a support order.: In support of her exceptions, Naumoff argues in her brief: 23 Pa. C.S.A. 94301 et seq. governs support matters generally. It is provided a procedural framework by Pa.R.C.P. 1910.1 et seq. Rule 1910.1 (a) states: "Except as provided by subdivision (b), the Rules of this chapter govern all civil actions or proceedings brought in the Court of Common Pleas to enforce a duty of support, or an obligation to pay alimony pendente lite." A note to Rule 1910.1 (a) states: "Note: A duty of support is imposed by the following statute: 23 Pa.C.S.94321 and 93 of the Support law of June 24, 1937, P.L.2045, 62 P.S. 91973..." The Pennsylvania Support Guidelines are contained within Rule 1910 et. seq. and the guidelines apply to any obligation of support set through 23 Pa. C.S.94321. Defendant's obligation of support is not set, then, by statute and rule, but rather by the principals of equity. Specifically, the Pennsylvania Guidelines, contained within the rules, do not apply in this case. In Spells v. Spells, 250 Pa. Super. 168 (1977), the Superior Court of Pennsylvania stated: Pennsylvania courts recognize that a person may "put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. This status, (known as 'in Ioco parentis') embodies two ideas; first, the assumption of a parental status, and second, the discharge of parental duties." Commonwealth ex rel. Morqan v. Smith, 429 Pa. 561, 565, 241 A.2d 531,533 (1968). "The rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child." Commonwealth v. Cameron, 197 Pa. Super. 403, 407, 179 A.2d 270, 272 (1962). (Emphasis added.) Pa. Rules of Civil Procedure 1910.16-1--1910.16-7. -3- 98-0422 SUPPORT As set forth in our opinion of December 15, 2000, Naumoff, based on her Ioco parentis status, has exercised her right to periods of partial physical custody with Scott, Sara, Lena, William and Francessca, just as if she were a "parent." See now, T.B.v. LRM, __ A.2d __ (2001 WL 1661280 Pa., 2001 Sept. 10). Her liability for the children is "exactly the same as between parent and child." Spells v. Spells, supra. Accordingly, where the income parameters of the support guidelines apply, as they do in this case, the guidelines are applicable. As noted by the Support Master: By treating the guideline calculation as only a presumptively correct amount of a support obligation and by mandating that factors be considered to deviate from that amount, the Supreme Court in formulating the Rules has directed triers of fact to employ principles of equity or fairness in arriving at a support obligation. Therefore, the support guidelines, which include the mandate to consider reasons to deviate from the presumptively correct support calculation, will be utilized in establishing the Defendant's support obligation in this case. Naumoff argues that because she and Kove were female domestic partners, she is not required to pay support under the support guidelines because she "can make no claim now or in the past for alimony which would reduce the amount of support paid by [her to Kove]." Naumoff's liability to support the five children is based on her relationship with them. Her argument is without merit. Naumoff argues that because she is a "non-biological parent," she is subject to a more stringent standard in seeking primary physical custody than would a biological parent, and that means that she does not have too fully support the five children. Child support and custody are not related unless, as provided in Pa. Rule of Civil Procedure -4- 98-0422 SUPPORT 1910.16-4(c)(1 ), the children spend forty percent or more of their time during a year with the obligor. Citing Adoption of K.I~.W., 718 A.2d 332 (Pa. Super. 1998), Naumoff argues that she cannot adopt the children; therefore, she should not have to support them. Naumoff's liability for support of the children is based on her Ioco parentis status. As we set forth in the opinion of December 15, 2000: After Scott was born in 1990, and the quadruplets were born in 1993, Naumoff and Kove raised them together until they separated in 1997. Naumoff acted as a parent to these children just as much as Kove, and she still does. It is Naumoff's conduct that estops her denying liability for the support of the children. The adoption law in Pennsylvania is not relevant. Naumoff argues that we should deviate from the support guidelines because of the expense she has in seeing the children, who now live in San Diego, California, and because of the amount of her litigation expenses. How much Naumoff spends on litigation is not relevant to her liability to support the children. The expenses she incurs in seeing her children have already been factored into the Support Master's recommendation. Based on the best interest of the children, the Master recommended a ten percent deviation pursuant to Pa. Rule of Civil Procedure 1910.16-5(9), stating: Maintaining regular visitation with the Defendant is believed to be in the best interest of the children as is evident from the custody order. While no blame is cast upon the Plaintiff for her relocation to California as this move was required by her employer, nevertheless the Defendant has been put to significant expense to pay her portion of the travel costs of the children. Because of the disparity in their incomes, the travel costs are -5- 98-0422 SUPPORT much more onerous a burden on the Defendant than on the Plaintiff. Consequently a 10% deviation in the support order per year is recommended. KOVE'S EXCEPTIONS Kove maintains that Naumoff should be ordered to pay more than the $50 per month toward arrearages as recommended by the Master. In conjunction with this exception, Kove argues that Naumoff should be ordered to produce income tax returns in order to aid in a determination of all resources that may be available to pay child support and arrearages. Naumoff filed a federal income tax return as a single individual in 1998. She was married in October, 1999, and since 1999, she has filed joint federal tax returns with her husband. Naumoff did not furnish her most recent federal income tax returns during these proceedings. Pa. Rule 1910.11 (c), provides, "At the conference, the parties shall furnish to the officer true copies of their most recent federal income tax returns .... "There is no married person's exception to Pa. Rule of Civil Procedure 1910.11 (c). The effective date of the recommended support order is May 22, 1998. While keeping the interim order of November 13, 2001 in effect, we will order Naumoff to comply with Rule 1910.11 (c). The Master shall consider that additional evidence in determining whether the recommended order, and the amount to be paid on arrearages is appropriate. A supplemental report shall be filed which shall include an analysis of the basis for the recommendation of the amount to be paid on arrearages. -6- 98-0422 SUPPORT AND NOW, this INTERIM ORDER OF COURT day of January, 2002, IT IS ORDERED: (1) H.A. Naumoff shall within ten (10) days of this date, furnish to the Support Master true copies of her most recent federal income tax returns for 1999 and 2000. (2) After considering this evidence, the Support Master shall file a supplemental report to include a recommendation of whether the recommended order of November 13, 2001, should be changed in any respect. (3) The supplemental report shall contain an analysis of a recommendation of the amount to be paid on arrearages. (4) Upon receipt of the Master's supplemental report, we will enter a final order with a supporting opinion. By the Court, Tiffany Palmer, Esquire For Plaintiff Carol J. Lindsay, Esquire For Defendant Michael Rundle, Support Master DRO :saa Edgar B. Bayley, J. -7-