Judges Opinions, — January 11, 2017 10:00 — 0 Comments

Ashlie N. Haag v. Bryan C. Haag No. 2016-50146

 

Civil Action-Family Law-Child Support-Spousal Support-Entitlement-Downward Deviation-Mortgage Payment-Rental Property Losses-Other Income in the Household-Minimal Housing Expenses

Defendant (“Father”) filed Exceptions to the Report and Recommendation of the Domestic Relations Master adopted by the Court awarding Plaintiff (“Mother”) child and spousal support. Father argued that the Domestic Relations Master erred in determining Mother’s entitlement to spousal support and failing to apply a downward deviation in his support obligation based upon his payment of the mortgage upon the marital residence, losses Father realized upon rental properties owned by the parties and Mother’s lack of expenses pertaining to her housing.

1. There is a common misperception that a spousal support plaintiff must prove marital fault on the part of the defendant in order to be entitled to spousal support.

2. When the obligor spouse leaves the marital abode, the financially dependent spouse need not prove anything beyond the existence of the marital relationship in order to establish a prima facie right to spousal support.

3. When the financially dependent spouse leaves the marital abode, that departing spouse has a minimal burden of proving only that the separation was justified.

4. Once the financially dependent spouse establishes desertion or justified departure from the marital abode, the burden shifts to the obligor spouse to prove that the financially dependent spouse engaged in conduct that would justify the award of a fault divorce.

5. Even where both spouses engage in mutually provocative misconduct, the financially dependent spouse still will be entitled to spousal support unless the obligor spouse proves facts that would support the award of a fault divorce.

6. The record supports the determination of the Domestic Relations Master that Mother, who is the financially dependent spouse, established that she was justified in leaving the marital residence based upon Father’s admitted frequent consumption of alcohol and anger issues.

7. Father’s efforts to seek alcohol rehabilitation following the parties’ separation cannot serve as a basis to deny Mother’s entitlement to spousal support.

8. Pa.R.C.P. Rule 1910.16-6(e) provides that if an obligor occupies the marital residence and the mortgage payment exceeds twenty-five percent (25%) of the obligor’s net monthly income, the court may make an appropriate downward adjustment in the obligor’s support obligation.

9. Father’s payment of the mortgage upon the marital residence in which he is living issue is an issue that best is addressed in the context of equitable distribution proceedings where the divorce court is at liberty to do justice in ways that are unavailable to the support court.

10. Financial issues pertaining to the parties’ rental property more appropriately are addressed in equitable distribution proceedings.

11. Pa.R.C.P. Rule 1910.16-5(b) provides that in determining whether to deviate from a recommended support amount, the court is required to consider numerous factors including unusual needs and/or fixed obligations and other income in the household.

12. Almost all parents are required to expend money for their own housing and related expenses.

13. In light of the fact that Mother and the parties’ child live with Mother’s parents rent free, Mother has other income in the household as contemplated by Rule 1910.16-5(b) in the form of her parents’ provision of housing to her free of charge, which warrants a downward deviation in Father’s spousal support obligation only.

L.C.C.C.P. No. 2016-50146, Opinion by Bradford H. Charles, Judge, August 11, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

DOMESTIC RELATIONS SECTION NO. 2016-5-0146; PACSES: 190115824

ASHLIE N. HAAG, Plaintiff

v.

BRYAN C. HAAG, Defendant

ORDER OF COURT

AND NOW this 11th day of August, 2016, upon consideration of the Exceptions filed by Bryan C. Haag (hereafter “FATHER”) to the Recommendation of the Domestic Relations Master (DRM), and after consideration of the arguments proffered by Ashlie N. Haag (hereafter “MOTHER”) and review of the file, the Order of this Court is as follows:

1. FATHER’s exception pertaining to MOTHER’s entitlement to spousal support is DENIED.

2. FATHER’s exception predicated upon his payment of the mortgage on the marital home is DENIED.

3. FATHER’s exception based upon losses incurred for the parties’ rental property is DENIED.

4. FATHER’s exception seeking a general deviation from the Support Guideline amount based upon MOTHER’s relatively minimal housing expenses is GRANTED.

Accordingly, the temporary Order of Court, dated June 1, 2016 is MODIFIED AS INDICATED BELOW. It is further ordered as follows:

This Order shall be effective March 11, 2016.

The amount of support to be paid by Defendant is: $1,152.37 per month for child support for one child, to wit, Gabriella Miriam Haag and $400.00 per month for spousal support for Ashlie N. Haag. The amount to be paid by Defendant on accumulated arrears is: $115.24 per month in child support and $40.00 per month in spousal support. The amount to be paid for each dependent and obligation amount is allocated as follows:

AMOUNT/FREQUENCY OBLIGATION TYPE BENEFICIARY

$1,152.37/mo. Child Support Gabriella

$400.00/mo. Spousal Support Ashlie

$115.24/mo. Arrears Gabriella

$40.00/mo. Arrears Ashlie

Arrears are due in full IMMEDIATELY. All terms of this Order are subject to collection and/or enforcement by contempt proceedings, credit bureau reporting, tax refund offset certification, driver’s license revocation, and the freeze and seizure of financial assets. These enforcement/collection mechanisms will not be initiated so long as Obligor does not owe overdue support. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all the means listed above.

The monthly support obligation includes cash medical support in the amount of $250 annually for un-reimbursed medical expenses incurred for each child and/or spouse. Un-reimbursed medical expenses of Obligee or children that exceed $250 annual shall be allocated between the parties. The party seeking allocation of the un-reimbursed medical expenses must provide documentation of the expenses to the other party no later than March 31st of the following calendar year in which the final medical bill to be allocated was received. The un-reimbursed medical expenses are to be paid as follows: 61% by Defendant and 39% by Plaintiff. Defendant x Plaintiff Neither party to provide medical coverage

IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):

_____The defendant is ordered to cover the dependent(s) with health care coverage whenever it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of defendant’s net monthly income and does not exceed 50% of defendants net monthly income when added to the basic child support plus additional expenses, does not exceed 50% of defendant’s net income.

_____Health care coverage is currently not available at a reasonable cost to defendant. Therefore, plaintiff is ordered apply for government-sponsored coverage, such as Children’s Health Insurance Program (CHIP). The cost of said coverage shall not exceed 5% of plaintiff’s net monthly income.

_____Health care coverage is currently not available at a reasonable cost to defendant. Therefore, plaintiff is ordered to cover the dependent(s) with health care coverage if it is available at a reasonable cost which shall be defined as a cost that does not exceed 5% of plaintiff’s net income

IT IS FURTHER ORDERED:

Within 30 days after the entry of this order, the party ordered to provide health care coverage shall provide written proof to the Lebanon County Domestic Relations Office and the other party that medical insurance has been obtained, including insurance cards and any other material necessary to utilize the coverage.

If Health Insurance is currently unavailable to the party/parties ordered to provide it, such proof shall be provided to Lebanon County Domestic Relations within 7 days of the date of this order.

If Health Insurance coverage is now available or becomes available to the party/parties ordered to provide it, the party/parties shall provide proof of the cost to Lebanon County Domestic Relations within 7 days of the date of availability.

D. X DEFENDANT ____PLAINTIFF SHALL PAY THE FOLLOWING FEES:

FEE TOTAL FEE DESCRIPTION PAYMENT FREQUENCY

$35.00/one time Judicial Computer Fee One time

ADDITIONAL RECOMMENDATIONS:

All other provisions from the court order dated not affected by this order, shall remain in full force and effect.

Any money collected pursuant to this Order shall be paid by Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court. Said money to be turned over by the Pennsylvania State Collection & Disbursement Unit to Plaintiff, Plaintiff’s assignee, or as designated, by other Order of Court.

Within thirty (30) days after the entry of this Order, the party or parties providing insurance shall submit to the person having custody of the child(ren) written proof that medical insurance coverage has been obtained or that application for coverage has been made. Proof of coverage shall consist, at a minimum, of: 1) the name of the health care coverage provider(s); 2) any applicable identification numbers; 3) any cards evidencing coverage; 4) the address to which claims should be made; 5) a description of any restrictions on usage, such as prior approval for hospital admissions, and the manner of obtaining approval; 6) a copy of the benefit booklet or coverage contract; 7) a description of all deductibles and co-payments; and 8) five copies of any claim forms.

Payments must be made by check or money order. All checks and money orders must be made payable to Pennsylvania State Collection & Disbursement Unit and mailed to P.O. Box 69110, Harrisburg, PA 17106-9110. Each payment must bear your social security number and member number in order to be processed.

IT IS FURTHER ORDERED that, upon payer’s failure to comply with this order, payer may be arrested and brought before the Court for a Contempt hearing; payer’s wages, salary, commissions, and/or income may be attached in accordance with law; this Order will be increased without further hearing by 10 % a month until all arrearages are paid in full. Defendant is responsible for court costs and fees.

BY THE COURT:

Bradford H. Charles, J.

APPEARANCES:

Horace M. Ehrgood, Esquire For Ashlie N. Haag

Collen Gallo, Esquire Bryan C. Haag

Opinion, Charles, J., August 11, 2016

Before us are four exceptions filed by Bryan Haag (hereafter “FATHER”) to the child and spousal support recommendation of a Domestic Relations Master (DRM). Because we agree with the DRM’s analysis and conclusions regarding three of the four exceptions, we will deny them. However, because we find that the DRM did not afford due weight to Ashlie Haag’s lack of housing expenses, we will modify the DRM’s recommendation to lower FATHER’s spousal support obligation.

I. FACTS

FATHER and Ashlie N. Haag (hereafter “MOTHER”) are the parents of a 3-year-old daughter. The parties were married in 2008. They separated in July of 2015.

As is almost always the case, MOTHER and FATHER provided different perspectives as to why their marriage deteriorated and ultimately fractured. From a very general sense, MOTHER portrayed FATHER as an alcoholic who became angry and sometimes combative when intoxicated. (N.T. 6-10). FATHER admitted drinking “on a frequent basis.” (N.T. 45). However, he claimed that his efforts to salvage the marriage by changing his lifestyle and undergoing treatment should mitigate the problems caused by his alcohol-fueled anger. (N.T. 40-46).

At the time of the hearing before the DRM, both MOTHER and FATHER were employed. MOTHER worked as a teacher for the Cornwall-Lebanon School District. The DRM evaluated MOTHER’s wage documentation and determined that MOTHER earned a net amount of $2,758.67 per month. In addition, the DRM noted that MOTHER provided insurance coverage for the parties and their daughter at a cost of $79.94 biweekly. At all times pertinent to this dispute, FATHER worked as a mechanical engineer and part-owner of Entech Engineering Company. The DRM determined that FATHER earned $6,104.63 per month in net income.

Following separation, FATHER occupied the marital home. Since separation, FATHER has been paying the expenses of the residence where he lived, including the mortgage, utilities and insurance cost. (N.T. 37). In contrast, MOTHER and the parties’ daughter resided with MOTHER’s parents. MOTHER indicated that she was not paying rent but that she “helped out” with expenses. (N.T. 21; DRM Report at IV.H.).

During the marriage, the parties obtained a rental property located at 754 Lehman Street in the City of Lebanon. Following separation, FATHER retained the financial responsibilities with respect to the rental property. (N.T. 35). FATHER claimed that he lost $13,605.00 per year on the rental property. The DRM agreed that the rental property “does not make a profit.” However, evidence was presented that the rent received by FATHER of $750.00 per month was only slightly less than the monthly mortgage of $837.00 that included taxes and insurance. (N.T. 36).

As a result of all evidence presented, the DRM determined that FATHER should pay $1,152.37 per month in child support. The DRM further determined that MOTHER was entitled to spousal support, and she recommended that FATHER an additional $658.08 per month in spousal support. FATHER almost immediately filed Exceptions to the recommendations of the DRM. FATHER asserted four grounds of error:

(1) That the DRM erred in determining that MOTHER was entitled to spousal support;

(2) That the DRM erred by failing to reduce his support obligation by the amount he paid for the parties’ mortgage obligation on the marital house;

(3) That the DRM erred by failing to take into consideration the losses he assumed with respect to the parties’ rental property; and

(4) That the DRM erred by failing to grant him with a deviation from the Guideline amount.

We will discuss each issue seriatim.

II. DISCUSSION

A. Spousal Support

The paradigm for analyzing spousal support was set forth by this Court in the case of Harper v. Harper. That paradigm is as follows:

Spousal support is a creature of Pennsylvania common law. The concept of entitlement to spousal support has evolved in our appellate courts over many decades. As a result, case law regarding entitlement can at first blush seem confusing and sexist.

One common misperception concerning spousal support is that entitlement based on marital fault is something that a plaintiff must affirmatively establish. In reality, the concept of entitlement has always been an affirmative defense used to defeat a claim for spousal support.

It is the marital relationship itself that creates a duty of mutual support that includes a responsibility on an obligor to provide financial assistance for a dependent spouse. “The purpose of an order of spousal support is to assure a reasonable living allowance to the party requiring support. The duty to provide spousal support is concomitant with the marital relationship…” Krakovsky v. Krakovsky, 583 A.2d 485, 488 (Pa. Super. 1990). Stated differently, “a wage-earning spouse has the obligation to support a financially dependent spouse, and that obligation does not arise out of a debt or contract, but is imposed by law as an incident of the marital status”. Larkin v. Larkin, 396 A.2d 761, 763 (Pa. Super. 1978).

Given the above, the law imposes a very light burden on a financially-dependent spouse. When it is the obligor who leaves the marital abode, the dependent spouse need not prove anything beyond existence of the marital relationship in order to establish a prima facie right to support. When the financially dependent spouse leaves the marital abode, he/she has only a minimal burden of proving that the separation was justified. See Rock v. Rock, 560 A.2d 199, 201 (Pa. Super. 1989). Under no circumstances does the financially dependent spouse have the initial burden of establishing that the obligor committed adultery, indignities or other conduct giving rise to a ground for divorce. See Larkin v. Larkin, supra.

Once a dependent spouse can establish desertion or justified departure from the marital abode, the burden shifts to the obligor to prove that the dependent spouse engaged in conduct that would justify the award of a fault divorce. See Commonwealth ex rel Reddick v. Reddick, 181 A.2d 896 (Pa. Super. 1962); Hoffman v. Hoffman, 762 A.2d 766 (Pa. Super. 2000); Capuano v. Capuano, 823 A.2d 995 (Pa. Super. 2003). Unless the obligor can establish that the dependent spouse was guilty of adultery, indignities, etc., that obligor must pay spousal support. Stated differently, a dependent spouse has a prima facie right to support “until it is proven that the conduct of the dependent spouse constitutes grounds for a fault divorce”. Crawford v. Crawford, 633 A.2d 155, 159 (Pa. Super. 1993).

It is not enough for a defendant to say “both of us are at fault”. Even where both parties engage in “mutually provocative” misconduct, the dependent spouse can still collect spousal support unless the obligor proves facts that would support the award of a fault divorce. See King v. King, 568 A.2d 627 (Pa. Super. 1989). One Common Pleas Court has extended this principle by “balancing the equities” between the parties. In Commonwealth ex rel. Harvey v. Harvey, 74 Berks L.J. 304 (1982), the court awarded support because the Defendant’s marital fault was deemed greater than the Plaintiff’s marital fault.

It is also not enough for an obligor to say: “The dependent spouse asked me to leave.” In Commonwealth ex rel. Myerson v. Myerson, 51 A.2d 350 (Pa. Super. 1947), the Superior Court reversed a lower court decision that denied spousal support because the wife had asked her husband to leave. The court stated: “While it is admitted that the [wife] asked her husband to leave, he was under no legal compulsion to do so.” Id. at 351. As stated by our sister court in Franklin County:

In the instant case, as in the Myerson and Testa cases, the defendant left the marital home because his wife asked him to do so. Applying the case law, the Defendant owes a duty of support to the Plaintiff since he consented to the separation.

Miller v. Miller, 9 Franklin L.J. 55, 56 (1987).

Sifting through the above, the law requires the following order of analysis:

(1) Who was the dependent spouse? In assessing this question, a court should examine the totality of the parties’ financial circumstances. After examining earnings, assets, child support, expenses and extraordinary needs, a determination should be made as to whether one spouse remains financially dependent upon the other.

(2) Did the financially dependent spouse leave the marital residence? If the obligor chose to leave, then the court must proceed to the third step outlined below. If the dependent spouse left the marital residence, the court must conclude that he/she was justified in doing so before moving to step number 3 below.

(3) Can the Defendant establish the affirmative defense of non-entitlement? In other words, can the obligor establish that the dependent spouse committed acts that would give rise to a fault divorce. If so, then the Defendant is relieved of any obligation of support. If not, the court should proceed to step 4.

(4) What is the amount of spousal support that should be awarded under the support guidelines? If spousal support is deemed appropriate, the parties’ financial circumstances should be examined and the support guidelines should be applied.

FATHER seems to believe that MOTHER has the burden of proving that she is entitled to receive spousal support. In Kolavani v. Kolavani, C.P.Leb.Co. No. 1983-5-1866 (Feb. 25, 2010), we addressed a similar argument by stating:

There is a common misperception that a spousal support plaintiff must prove marital fault on the part of the defendant in order to receive spousal support. In reality, a financially-dependent spouse is entitled to spousal support as a benefit of the marital relationship unless the obligor can establish the affirmative defense of non-entitlement.

Stated differently, “the truth is that the spousal support entitlement bar is neither high nor difficult to hurdle.” Babcock v. Babcock, C.P.Leb.Co. No. 2010-5-0947 (May 6, 2011).

In this case, the DRM was present to hear the testimony of both MOTHER and FATHER. In her Report, the DRM set forth two pages of analysis with respect to entitlement. The DRM then concluded:

After hearing the parties’ testimony, observing their demeanor both on and off the stand, and evaluating the testimony as a whole, the DRM finds that Plaintiff had adequate legal cause to leave the marital residence. There was nothing in either party’s testimony to establish an affirmative defense of lack of entitlement.

(DRM Report at VI.).

We were not present to observe either MOTHER or FATHER as they testified. While we certainly have the obligation to undertake a de novo review of the record, we cannot and will not replace the DRM’s credibility findings with our own. As noted by our Superior Court:

Although we are not concluded by a Master’s findings upon credibility, his judgment upon that vital factor is entitled to the fullest consideration…he possesses an advantage not granted to us. He sees the parties and their witnesses face to face and observes their appearance and demeanor as they testify. We are restricted to the cold type of the record from which temperament and personality have been subtracted…Frequently, [non-verbal demeanor] speaks more eloquently and possesses greater significance than the verbal utterance which they accompany, yet they cannot be reproduced upon the record submitted to the reviewing court.

Smith v. Smith, 43 A.2d 371 (Pa.Super. 1945).

In this case, MOTHER earns less than one-half of FATHER’s income. She is without question a “financially-dependent spouse.” The DRM determined that MOTHER had adequate cause to leave the marital residence as a result of FATHER’s alcohol abuse and anger issues. The DRM also determined that FATHER could not establish the affirmative defense of lack of entitlement. As we have reviewed the record, nothing has caused us to question any of the DRM’s findings. In fact, the record fully supports the DRM. Even without the DRM’s specific credibility determination, our independent review of the written record would cause us to conclude that MOTHER should be entitled to spousal support. Accordingly, FATHER’s first exception will be denied.

B. MORTGAGE PAYMENT

FATHER points out that he is paying the mortgage on the marital residence. He argues that his support obligation should be decreased because of his mortgage payments. FATHER points to Pa.R.C.P. 1910.16-6(e), which states that “if the obligor is occupying the marital residence and the mortgage payment exceeds twenty-five percent of the obligor’s monthly net income…, the court may make an appropriate downward adjustment in the obligor’s support obligation.” Pa.R.C.P. 1910.16-6(e). FATHER argues that his monthly mortgage payment of $1,612.57 exceeds twenty-five percent of his net income and that a mortgage deviation below the guideline amount is therefore necessary.

MOTHER responds by arguing that FATHER can claim a credit in the parties’ divorce dispute for all mortgage payments he paid subsequent to separation. MOTHER asks us to adopt the reasoning set forth in the DRM’s Report:

Defendant’s net income after paying spousal and child support is $4,294.18 per month to support one person. Plaintiff’s net income after receiving spousal and child support is $4,569.12 per month to support two people. After due consideration, the DRM declines to grant a mortgage adjustment under the circumstances.

(DRM’s Report at VIII.).

This Court has in the past addressed arguments similar to the one being proffered by FATHER. In Boyer v. Boyer, C.P.Leb.Co. No. 2001-5-0797 (Oct. 11, 2004), we stated:

In most situations, the mortgage obligation issue is one that is best addressed in the context of equitable distribution. Typically, spouses in a post-separation divorce context devise a mutually-workable method by which their ongoing debt is paid between separation and the final decree in divorce. Also typically, these post-separation payments become the subject of a request for “credits”. Our appellate courts have ruled that an out of possession spouse who pays marital debt may be awarded a credit in the equitable distribution settlement for the amount he/she pays. See 23 Pa.C.S.A. § 3502(a)(7); Smith v. Smith, 653 A.2d 1259, 1270 (Pa. Super. 1995). Ordinarily, the issue of mortgage payments and credits are best addressed in the equitable distribution world where courts are at liberty to do justice in ways that are unavailable to us in support court.

(Slip Opinion at 9).

In this case, FATHER remains in possession of the marital home. The home is his residence. Almost everyone is required to pay funds in order to maintain a residence, and FATHER is no exception to that general rule. Very few parents are afforded a downward deviation in support court based upon amounts they pay for their own housing and living expenses. FATHER should not be an exception to this general precept.

In this case, we believe that the issue of whether FATHER should be awarded credits for mortgage payments he has made since separation is one that should be determined in divorce court. If we were to employ some sort of downward deviation of support, the Special Master in divorce would be placed in a quandary. The Special Master could determine that equity requires that FATHER be given a credit for the mortgage payments he made following separation. How is the Special Master to measure the amount of those credits if we decrease support based upon FATHER’s payment of the mortgage? As an axiom, no Domestic Relations litigant should be double-penalized or double-rewarded based upon the very same post-separation payments. In this case, the only way to maintain all available options for the Special Master in divorce without risking prohibited “double-dipping” would be to deny FATHER’s request for a mortgage deviation. We will do just that.

C. Rental Property

FATHER argues that he lost $13,605.00 per year on the parties’ rental property. (N.T. 35). FATHER argues that the DRM erred by refusing to reduce his income by the amount of money he loses in maintaining the parties’ rental property. In response, MOTHER argues: “Defendant collects a rental payment of $750.00 (N.T. 55) and his mortgage is $837.00 a month (Exh. 11)….Thus his loss is $87.00 a month or about $1,044.00 per year.” (MOTHER’s Reply Brief at 8). Essentially, MOTHER characterizes FATHER’s rental property losses as de minimus and argues that the DRM appropriately failed to include those losses in her calculations.

Initially, we again note that financial issues pertaining to the parties’ rental property will be addressed in equitable distribution. If in fact, FATHER assumed a net financial loss with respect to the rental property, we assume that the Special Master in divorce will compensate FATHER in some way as part of the overall equitable distribution award. If we were to decrease FATHER’s income for purposes of support by some amount to reflect FATHER’s rental property losses, we would again be creating a difficult situation for the Special Master in divorce. For reasons we articulated in the preceding section of this Opinion, we prefer not to complicate the job of the Special Master by reducing support income by amounts that will be inevitably addressed as part of the parties’ equitable distribution dispute.

Although we could end this section with the above analysis, we also wish to state for the record that we cannot discern based upon the record before us exactly how much FATHER did lose as a result of the rental property. While the parties’ tax return may reflect a loss in the $10,000.00 range, there was testimony that FATHER’s actual monthly financial loss was less than one hundred dollars. (N.T. 36). Moreover, no exhibits were presented to reflect additional expenses beyond the mortgage payment that were incurred by FATHER since the date of separation. Given this paucity of evidence, we believe that it would be best to defer a decision regarding finances pertaining to the marital residence. We believe that it would be in the long term best interest of the Haag family unit for this issue to be addressed within the context of equitable distribution.

D. Deviation

Pennsylvania’s Support Guidelines permit a court to deviate from the Guideline formula. In deciding whether or not to grant a deviation, we are required to consider numerous factors, including the following:

(1) Unusual needs and unusual fixed obligations:

(3) Other income in the household;

(4) Ages of the children;

(8) In a spousal support or alimony pendente lite case, the duration of the marriage from the date of the marriage to the date of final separation…

Pa.R.C.P. 1910.16-5(b).

FATHER points to numerous factors in support of his argument that a deviation should be awarded. Among the factors referenced by FATHER are the following:

The fact that FATHER pays the mortgage on the marital home;

The fact that FATHER for a time paid many of MOTHER’s personal expenses after separation;

The fact that FATHER must pay money to defray the rental property loss; and

The fact that MOTHER lives with her parents and does not have regular ongoing expenses pertaining to shelter.

We reject all of FATHER’s proffered grounds for deviation except for one – that MOTHER resides with her parents and spends relatively little in living expenses as a result. This is a factor that we cannot and will not ignore.

As we stated in Section B of this Opinion, almost all parents are required to expend money for housing and related expenses. In fact, United States Census Bureau information reveals that the average American family spends thirty percent of income on housing. See www.census.gov. See also Wall Street Journal Guide “How Much You Should Spend On A Home” found at www.guides.wsj.com. In this case, though, MOTHER has been afforded housing at little or no expense for both herself and the parties’ daughter. So long as this paradigm continues, it constitutes an “unusual” situation. In the parlance of the Support Guidelines, MOTHER has an “unusually” low housing expense, and she has “other income in the household” in the form of her parents’ financial ability to pay housing expenses.

We will be deviating from the Support Guidelines as it relates to FATHER’s spousal support obligation. We will do so exclusively because MOTHER has relatively minimal housing expenses. To be clear, we will not deviate from the Guidelines based upon FATHER’s marital mortgage and rental property arguments. The sole factor we will employ to justify deviating from the Guidelines will be MOTHER’s unusually low housing expenses.

Based upon the sole but important deviation factor we have articulated above, we will be reducing MOTHER’s spousal support award from $658.08 per month to $400.00 per month. The child support award for the parties’ daughter will not be implicated by this decision. Going forward, we will also declare that if or when MOTHER obtains her own apartment or house, we would consider a request to increase spousal support back to the level recommended by the DRM.

III. CONCLUSION

In most respects, we will affirm the decision of the DRM. However, we have been persuaded that FATHER is entitled to a downward deviation of support based upon MOTHER’s unusually low living expenses. So long as MOTHER resides with her own parents without the need to pay extensive rental or mortgage payments, we believe that spousal support should be reduced. Accordingly, FATHER’s fourth exception will be granted and we will lower his spousal support obligation from $658.08 per month to $400.00 per month. An Order to accomplish this decision will be entered today’s date.

 

1) In particular, we emphasize that FATHER admitted that he consumed alcohol “on a frequent basis.” FATHER’s position appears to be that his efforts to rehabilitate himself after separation should cause us to deny MOTHER’s claim for spousal support. While we respect and commend FATHER’s efforts at rehabilitation, those efforts cannot wipe clean the events that preceded separation, nor can they provide a basis for us to deny MOTHER’s entitlement to spousal support.

 

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