HomeMy WebLinkAbout1153 S 2002
CAROL 1. BISKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: DOMESTIC RELATIONS SECTION
DANIEL 1. BISKER,
Defendant
: PACSES NO. 416105135
: NO. 1153 SUPPORT 2002
IN RE: DEFENDANT'S EXCEPTIONS
TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, 1., January 4,2007.
F or disposition in this child support case are exceptions to a report of the
Support Master filed pro se by Defendant father. The exceptions provide as
follows:
Exception # 1 :
Based on the ruling of October 11, 2006 Mr. Bisker yearly in-come
was based to high.
Exception #2
Mr. Bisker would like Carol Bisker to show cancelled checks for the
morning and afternoon childcare provided by her family.
Exception #3
Mr. Bisker would like Carol Bisker to provide documentation for a
CD that she receives monthly interest for and the interest should be
included in her monthly income.!
F or the reasons stated in this opinion, Defendant's exceptions to the support
master's report will be dismissed.
STATEMENT OF FACTS
Plaintiff is Carol 1. Bisker (hereinafter the mother), an individual residing at
916 Forbes Road, Carlisle, Cumberland County, Pennsylvania? Defendant is
! Defendant's exceptions to support master's report, filed November 2,2006.
2 NT. 4, Support Master's Hearing, October 11,2006 (hereinafter NT. ~.
Daniel 1. Bisker (hereinafter the father), an individual claiming no fixed address,
but receiving mail at P.O. Box 940, Carlisle, Cumberland County, Pennsylvania.3
On December 26, 2002, the mother filed a complaint for child support
against the father with respect to two children: Megan Danielle Bisker (d.o.b.
August 4, 1996) and Tanner Johnathon Bisker (d.o.b. June 17, 1998). Following
litigation, an order was entered assigning a child support obligation to the father in
the amount of $800.00 a month.4
Both parties filed for modification of the order in 2005,5 and a support
master's hearing on these petitions was held on September 29, 2005. At that
hearing, the mother testified that she was a salaried employee of the Department of
the Navy.6 Her testimony and exhibits were to the effect that she had gross wages
of $5,198.00 per month,? and investment income of $200.00 per month,8 yielding
a gross monthly income figure, adopted by the master, of $5,398.00.9
The father testified that he had been terminated from a bartender's position
for "showing up late" in October of 2004,10 although his former employer testified
that he "actually resigned." 11 The father also testified that he had maintained a
landscape business on a part-time basis during that year.12 His testimony and
exhibits were to the effect that in 2004 he had had gross wages of $2,057.00 per
3 NT. 20.
4 Order of Court, May 16,2003; see Master's Report, filed May 13,2003.
5 Defendant's petition to modify, filed July 27, 2005; Plaintiffs petition to modify, filed August
12,2005.
6 NT. 52, Master's Hearing, September 29,2005.
7 Plaintiffs Ex. 6, Master's Hearing, September 29,2005.
8 NT. 63, Master's Hearing, September 29, 2005.
9 Support Master's Report, at 2, filed October 3,2005.
10 NT. 16-17, Master's Hearing, September 29,2005.
II NT. 51, Master's Hearing, September 29,2005.
12 NT. 17, Master's Hearing, September 29, 2005.
2
month13 and a net profit from his business of $859.00 per month,14 leading the
master to assign him a gross monthly earning capacity in 2005 of $2,916.00.15
With respect to child care expenses, the mother testified that during the
school year she paid her mother $100.00 per week16 and that during the summer
she paid the YMCA $210.00 per week (for a total of $1,890.00).17 Based upon
this testimony, and an application of the federal child care tax credit,18 the father's
proportionate share of the child care expenses19 came to $133.00 per month.20
These figures, in conjunction with the father's proportionate share ($58.00)
of $171.00 in monthly medical insurance expenses paid by the mother and
attributable to the children,21 resulted in a decreased support guideline obligation
on the part of the father of $747.00 per month.22 This amount was recommended
by the support master.23 No exceptions were filed by the father to the master's
report, and the recommended order ultimately became final. 24
On May 19, 2006, the mother filed a petition to increase the order based
upon alleged increases in her expenses for the children's health insurance and for
13 Defendant's Ex. 5, Master's Hearing, September 29,2005.
14 Defendant's Ex. 1, Master's Hearing, September 29,2005.
15 Support Master's Report, at 3, filed October 3, 2005.
16 NT. 55, 58, Master's Hearing, September 29, 2005.
17 NT. 56, Master's Hearing, September 29, 2006.
18 See Pa. RC.P. 1910.16-6(a)(l). In Cumberland County, a standard computer program is
utilized to compute taxes, childcare tax credit, etc., for purposes of support calculations. See
Par/ati v. Morton, 53 Cumberland LJ. 169 (2004).
19 See Pa. RC.P. 1910.16-6(a).
20 See Support Master's Report, Ex. "B," filed October 3, 2005.
21 See Pa. RC.P. 1910.l6-6(b); Plaintiffs Ex. 6, Master's Hearing, September 29,2006; NT. 53,
Support Master's Hearing, September 29,2005.
22 See Support Master's Report, filed October 3,2005.
23 See Support Master's Report, filed October 3,2005.
24 See Order of Court, April 24, 2006.
3
childcare?5 While this petition was proceeding through the domestic relations
system, a petition for contempt was filed by the Domestic Relations Office against
the father for failure to abide by the existing support.26 Based upon an admission
in court, the father was adjudicated in contempt by the Honorable Kevin A. Hess
on October 9,2006, and sanctioned with a period of probation and purge condition
of $1,000.00.27
The mother's petition for an increase was eventually the subject of a
support master's hearing held on October 11, 2006. At the hearing, the mother
was represented by counsel and the father proceeded pro se.
The evidence at the hearing established that the mother's gross wages had
increased to $5,346.00 per month?8 No evidence was presented to support a
finding that she continued to have investment income.
With respect to the mother's health insurance expenses attributable to the
children, the evidence established that these had increased to $196.00 per month.29
With respect to childcare expenses, the mother's testimony indicated that during
the school year she continued to pay her mother $100.00 per week30 and that
during the summer her payments to the YMCA had increased to $254.00 per week
(for a total of $2,286.00)?1 The mother's testimony as to payments of $100.00 per
week to her mother was corroborated by testimony from her mother. 32
During the course of the master's hearing, the father cross-examined the
mother with respect to her payments to her mother for child care as follows:
25 Plaintiffs Petition for Modification of an Existing Support Order, filed May 19,2006.
26 Petition for Contempt, filed August 9,2006.
27 Order of Court, October 9, 2006.
28 Plaintiffs Ex. 1, Master's Hearing, October 11, 2006 (hereinafter Plaintiffs/Defendant's Ex.
~.
29 NT. 5.
30 NT. 7.
31 NT. 8.
32 NT. 14.
4
Q Can you provide a canceled check for everyday or
every week, like a statement to show that you wrote one every
week?
A I can. I don't have it with me. But I can show that.
I have a-
Q I would like to see like the last couple of years of
every week, a one hundred dollar check. Because I don't
believe you are paying her. And I don't believe your mom
picks them up everyday.
* * * *
Q So could you provide a statement from last year and
part of this year of $100.00 a week, every, you know, Members
1 st statement that will show where the check was cashed every
week?
A I am assuming I can. I can't guarantee that because
I have to go through my records and see that I have that. But I
can provide as many as I have, yes. But I can testify right here
right now that I pay her $100.00 a week. And she can come in
here and testify that she receives it.
MR. BISKER: Well, I want to see a cancelled check from
the bank. That's all I want to see. You guys are raking me
over the coals here. I want to see a cancelled check. I don't
think that's too much to ask.
THE MASTER: Any more questions?
MR. BISKER: No more.33
33 NT. 10-11.
5
The father testified that his own income was now exclusively from his
landscaping business34 and that he had from one to three persons working for him,
depending upon business conditions.35 He stated that he was "taking care of [the
books for the business] myself right now,,,36 and estimated his profit for the year
2005 to have been $16,835.00?7
However, he conceded that he had "brought no income figures for [2005] or
for [2006] to the hearing. 38 According to his testimony, he did not bring his
business records to the hearing because he "didn't think I was going to need
them,,,39 he had not filed an income tax return for the year 2005 because "I don't
have it done,,,40 and he "[did not] know" what his income had been for the first
nine months of 2006.41
The father further testified at one point that he would bring in the
paperwork related to his business income "next week."42 At another point, he
advised that he would bring it in "next month. ,,43 In response to a question by
Plaintiff s counsel as to a prospective sale of his business, he said, "That's none of
your business."44
Following the master's hearing, the Support Master issued a master's report
recommending a reduction in the father's support obligation to $687.00 per
34 NT. 23.
35 NT. 25-26.
36 NT. 21.
37 NT. 24.
38 NT. 29.
39 NT. 22.
40 NT. 21.
41 NT. 22.
42 NT. 28.
43 NT. 32.
44 NT. 31.
6
month. 45 The reduction in the recommended obligation, notwithstanding that the
hearing had been precipitated by a petition for an increase filed by the mother, was
the result of an application of the support guidelines to the mother's increased
salary, her claimed increase in child care expenses, her increased medical
insurance payments, and the father's earning capacity as derived from the previous
year's calculation.46 In the latter regard, the master explained his unwillingness to
equate the unsupported estimate as to the father's current income with his earning
capacity in the following passage:
In October, 2005 the Defendant's net monthly income for support
purposes was based upon an earning capacity of $2,212.00. This was
computed utilizing income from 2004 as a part-time bartender and self-
employment income as a sole proprietor of a landscape business. The
Defendant continues to operate the landscape business. However, he
provided no documentary evidence of his income or expenses in the
operation of the business. As such the Master has no recourse but to
continue imputing a net monthly earning capacity to him of $2,212.00 for
47
support purposes.
An interim order incorporating the Support Master's recommendation was
issued by the court on October 11, 2006.48 The father's exceptions to the report,
quoted at the beginning of this opinion, were filed on November 2, 2006.49 He
failed to submit a brief as directed by the court within 15 days of the filing of the
hearing transcript. 50
DISCUSSION
Statement of law. When reviewing a support master's report, the trial court
is to use the same standard of review as with a divorce master's report. Goodman
v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988). Accordingly,
the report should be given the "fullest consideration," particularly regarding the
45 Support Master's Report, filed October 11, 2006.
46 Support Master's Report, filed October 11, 2006.
47 Support Master's Report, at 2, filed October 11, 2006.
48 Interim Order of Court, filed October 11,2006.
49 Defendant's exceptions to support master's report, filed November 2,2006.
50 See Order of Court, November 7, 2006; Plaintiffs briefwas received on December 15,2006.
7
credibility of witnesses. Id However, the report is advisory only, and, when
exceptions are filed, the court must conduct its own review of the evidence to
determine whether the master's recommendations, to which exceptions are taken,
are proper. Id
With respect to the issues raised by exceptions to a master's report, "[i]t is
the sole province and the responsibility of the [trial] court to set an award of
support, however much it may choose to utilize a master's report." Goodman, 375
Pa. Super. At 507-08, 544 A..2d at 1035.
In a support case, it is the responsibility of both parties to "bring to the
court the necessary data upon which the court establishes the support [0 ]rder."
Ball v. Minnick, 414 Pa. Super. 242, 262, 606 A.2d 1181, 1192 (1992) (plurality
opinion), aff'd, 538 Pa. 441, 648 A.2d 1192 (1994).
The absence of documentary support for testimony of a party as to expenses
does not, in itself, mandate a conclusion that the evidence was incompetent or
insufficient. See generally Grandovic v. Grandovic, 387 Pa. Super. 619, 622-24,
564 A.2d 960, 962 (1989); Halko v. Hensley, No. 03-224 Support (Cumberland
Co. September 24, 2003).
In the present case, the court is of the view that the master's report correctly
assessed the circumstances upon which a calculation of the father's support
obligation was to be made. The evidence presented by the father as to his current
income for support purposes was so deficient as to provide no reasonable basis for
a determination that his earning capacity had changed from what it had been less
than a year earlier. The mother's testimony, corroborated by her mother's
testimony, as to her child care expenses during the school year was properly
credited by the master, notwithstanding the absence of an exhibit in the form of
cancelled checks to further corroborate it. And the absence of a recommended
finding that the mother had investment income was justified by the absence of any
evidence, elicited on either direct or cross-examination, as to the existence of such
lllcome.
8
F or the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 4th day of January, 2007, upon consideration of
Defendant's exceptions to the Support Master's Report, and for the reasons stated
in the accompanying opinion, the exceptions are dismissed and the interim order
of court dated October 11,2006, is entered as a final order.
BY THE COURT,
sf 1. Wesley Oler, Jr.
1. Wesley Oler, Jr., 1.
Marcus A. McKnight, III, Esq.
60 West Pomfret Street
Carlisle, P A 17013
Attorney for Plaintiff
Daniel 1. Bisker
P.O. Box 940
Carlisle, P A 17013-0940
Defendant, pro Se
9
10
CAROL 1. BISKER,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: DOMESTIC RELATIONS SECTION
DANIEL 1. BISKER,
Defendant
: PACSES NO. 416105135
: NO. 1153 SUPPORT 2002
IN RE: DEFENDANT'S EXCEPTIONS
TO SUPPORT MASTER'S REPORT
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 4th day of January, 2007, upon consideration of
Defendant's exceptions to the Support Master's Report, and for the reasons stated
in the accompanying opinion, the exceptions are dismissed and the interim order
of court dated October 11,2006, is entered as a final order.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Marcus A. McKnight, III, Esq.
60 West Pomfret Street
Carlisle, P A 17013
Attorney for Plaintiff
Daniel 1. Bisker
P.O. Box 940
Carlisle, P A 17013-0940
Defendant, pro Se