HomeMy WebLinkAbout1073 S 2004
ELIZABETH G. KUTZ
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
JAMES 1. KUTZ
NO. 1073 SUPPORT 2004
PACSES NO. 080106957
IN RE: DEFENDANT'S EXCEPTIONS AND PLAINTIFF'S CROSS EXCEPTIONS
TO THE REPORT AND RECOMMENDATIONS OF THE SUPPORT MASTER
BEFORE GUIDO, 1.
OPINION AND ORDER
Before us are the exceptions and cross exceptions filed by the defendant and
plaintiff, respectively, to the Support Master's report and recommendations. The
defendant contends that the Support Master erred 1) in determining that a $340 per month
car payment, plus insurance and fuel, are reasonable expenses for the child, and 2) in
awarding $18,700 in counsel fees and costs to plaintiff. 1 The plaintiff has filed cross
exceptions in which she alleges that the Support Master erred in the calculation of her
income and certain expenses.2
A master's report, "although advisory, is to be given the fullest consideration,
particularly on the issue of credibility of witnesses, because the master has the
opportunity to observe and assess the behavior of the parties." Moran v. Moran, 839
A.2d 1091, 1095 (Pa.Super 2003). However, since it is our "sole province and
responsibility. . . to set an award of support" it is incumbent upon us to conduct a
1 Defendant filed 28 "Exceptions to the Master's Report and Recommendation." However, the brief in
support thereof only addressed these two issues, thereby waiving the remaining issues.
2 See "Plaintiff's Exceptions to the Support Master's Report and Recommendations."
NO. 1073 SUPPORT 2004 - PACSES # 080106957
thorough review of the evidence "to determine if the recommendations are appropriate."
Goodman v. Goodman, 375 Pa. Super.504, 507, 544 A.2d 1033, 1035, (Pa.Super.1988).
In the instant case we have thoroughly reviewed the notes of testimony as well as
all exhibits admitted into evidence. We have also reviewed the entire record of pleadings
and orders leading up to the master's hearing. With one exception, we are satisfied that
all of the master's findings of fact are supported by the evidence and we adopt them as
our own. In his finding of fact number 26 the master concluded that "The plaintiff had
incurred counsel fees exceeding $22,000." This finding is not supported by the evidence.
The record shows that counsel fees and costs were $17,084.25 through the first day of
testimony.3 Plaintiff did not attempt to introduce any evidence regarding additional
counsel fees until the rebuttal portion of her case. The master sustained defendant's
objection to the proffered testimony as being improper rebuttal. 4 No further attempt was
made to introduce any evidence on the issue of counsel fees.
Likewise, all of the issues raised by the parties in their exceptions were fully
addressed by the master in his report. We found his analysis to be sound. Except for the
issue of counsel fees, we see no need to add to his discussion of those issues.
While we also adopt the master's discussion on the issue of counsel fees, we feel
the need to make one additional observation. The master did not address whether the
counsel fees and costs incurred by the plaintiff were "reasonable."s However, after
reviewing the record, we are able to conclude that they were reasonable. It is clear that
this was no ordinary support case. Many hours were spent conducting pre-hearing
3 See Plaintiff's Exhibit 4.
4 See Transcript of Proceedings, p. 325.
5 We are authorized by statute to award "reasonable attorney fees" and "other reasonable costs and
expenses incurred by the obligee." (emphasis added) 23 Pa. C.S.A. ~ 4351(a).
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NO. 1073 SUPPORT 2004 - PACSES # 080106957
discovery, including the attendance at depositions scheduled by and for both parties.6
Therefore, we find that the charges detailed in plaintiff s Exhibit 4 were reasonable
counsel fees and costs incurred in the prosecution of this action.
ORDER OF COURT
AND NOW, this 11 TH day of SEPTEMBER, 2006, after review of the record,
Defendant's exceptions to the Master's Report are GRANTED insofar as the award of
counsel feels and costs is set at $17,084.25. Defendant is directed to pay $8384.25
directly to the law firm of Purcell, Krug and Haller rather than the $10,000 recommended
by the Master. In all other respects, Defendant's exceptions are DISMISSED.
Plaintiffs cross exceptions are DISMISSED.
Except as modified herein, the Interim Order of Court dated January 23,2006, is
hereby made a FINAL ORDER OF COURT.
By the Court,
Isl Edward E. Guido
Edward E. Guido, 1.
Howard B. Krug, Esquire
Maria P. Cognetti, Esquire
DRO
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6 In his "Motion for Separate Listing" filed on February 8,2005, defendant alleged that the case involved
complex questions of law and fact. Based upon those allegations he asked the court to authorize discovery.
Despite Plaintiff's objection, this court agreed that the case is "complex and discovery shall be available to
both parties in accordance with Pennsylvania Rule of Civil Procedure 4001, et seq." (See order of court
dated, March 2,2006.
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