Judges Opinions, — February 20, 2019 10:00 — 0 Comments

Bernadette F. Trostle v. Charles W. Trostle No. 2014-50073

Civil Action-Family Law-Child Support-Exceptions-Calculation of Income-Overtime Pay-Multiple Families-Earning Capacity

Charles W. Trostle (“Father”) filed Exceptions to the Report and Recommendation of the Domestic Relations’ Master entered regarding support of his three (3) children with Bernadette F. Trostle (“Mother”).  In his Exceptions, Father asserted that the Domestic Relations Master erred by including overtime pay in the calculation of his income because the overtime pay is received only during the holidays, failing appropriately to account for Father’s obligation to support another child and two (2) children he is expecting in his current intact family and failing to assign Mother an earning capacity based upon a forty (40) hour work week.

1.  The court must give the fullest consideration to the credibility findings of the Domestic Relations Mater, who was present to observed the demeanor of the witnesses and to hear their testimony.
2.  In light of the fact that Father failed to provider more than three (3) months of paystubs that prevented the Domestic Relations Master from considering the preferred six (6) months of income, the Domestic Relations Master appropriately included the average of pay received including overtime reflected in the paystubs provided by Father.
3.  The support amount awarded should not be reduced based upon Father’s election to father three (3) children with his current family, as the support amount directed in this case represents roughly one-third (1/3) of Father’s net income, which cannot be considered confiscatory or unreasonable.
4.  Earning capacity is not the preferred standard for defining income.
5.  Where Mother works thirty (30) to thirty-four (34) hours per week as a personal care assistant in a nursing home, an industry that can require long shifts and odd hours, it was not unreasonable for the Domestic Relations Master to utilize Mother’s actual earnings and to decline to assess Mother an earning capacity based upon a forty (40) work week in calculating Mother’s income.
L.C.C.C.P. No. 2014-50073, Opinion by Bradford H. Charles, Judge, June 4, 2018.
No appearances identified.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
DOMESTIC RELATIONS SECTION NO. 2014-5-0073 PACSES NO. 121114456
BERNADETTE F. TROSTLE, Plaintiff
v.
CHARLES W. TROSTLE, Defendant

AMENDED ORDER OF COURT
AND NOW, this 4th day of June, 2018, upon consideration of the Exceptions filed by Charles W. Trostle, and in accordance with the attached Opinion, the Exceptions of Defendant to the decision of the SPECIAL MASTER are respectfully DENIED.  The Order of Court, dated March 19, 2018, is MADE PERMANENT.  It is further ordered as follows:
This Order shall be effective February 22, 2018.
The amount of support to be paid by Defendant is: $1,038.55 per month for child support for Gavin Bernard Trostle, Shealyn Rose Trostle and Charlene Louise Trostle.  The amount to be paid by __Defendant___on accumulated arrears is: $103.86 per month.
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 annually 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:  __64_% by Defendant and _36_% by Plaintiff.  Defendant to provide medical coverage.
IT IS ORDERED THAT (ITEMS CHECKED BELOW APPLY):
__X__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,.
__X__Health care coverage is currently not available at a reasonable cost to defendant.  Therefore, plaintiff is ordered apply for/continue 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.
ADDITIONAL RECOMMENDATIONS:
_____X____All other provisions from the court order dated _3/31/14_, not affected by this order, shall remain in full force and effect as it relates to the JCF fee only.
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. 

Opinion, Charles, J., June 4, 2018
Today’s decision to deny the Defendant’s Exceptions implicates a number of discretionary considerations that this Court has previously addressed. These include: (1) what can be done when a father has so many children that supporting them all becomes burdensome; (2) how many hours of work a week is considered the modern benchmark of working full time; and (3) how shall a court consider imperfect information, particularly in light of shifting amounts of overtime.
II. DISCUSSION
Plaintiff Bernadette F Trostle (“MOTHER”) and Charles W Trostle (“FATHER”) have three children together. The parties were separated in September of 2013. On January 29, 2014, MOTHER filed a complaint for child support.
On February 22, 2018, the Domestic Relations Master (“DRM”) assigned to this matter conducted a hearing to determine child support. FATHER had been injured at work, which had affected his income. Thus, the DRM had Ordered him on July 21, 2017 to report when he could return to regular duties. When FATHER was cleared to work, another hearing was conducted before a DRM. The DRM issued findings of fact and an Order on March 19, 2018. The DRM’s conclusions about MOTHER’s income are not in dispute. MOTHER works 30-34 hours a week as a personal care assistant in a nursing home, earning $1,842.13 per month.
FATHER’s income is very much in question. FATHER works for the U.S. Post Office as a carrier earning $3,269.11 per month. FATHER challenges this figure as it included overtime pay, and overtime pay is capricious. The DRM only had 3 months of overtime figures to calculate an average for FATHER because he only supplied 3 months of records.
FATHER has one other child with his current girlfriend. She is also pregnant with twins, expected sometime in June. FATHER wrote a letter to the Domestic Relations Office (“DRO”) on April 6, 2018, which the DRO treated as exceptions within the timely filing period. FATHER’s objections include (1) that his overtime pay is inaccurate as an average, (2) that supporting 4, soon to be 6, children is excessively burdensome and (3) that MOTHER should be assigned an earning capacity commensurate with a 40 hour work week because she could be working “full time.”
In reviewing a DRM’s report, we must give “fullest consideration” to the credibility findings of the DRM, who was present to observe the demeanor of witnesses and hear their testimony. Schuback v. Schuback, 603 A.2d 194, 196 (Pa. Super. 1992)(citing Dukmen v. Dukmen, 420 A.2d 667, 670 (Pa. Super. 1980)).  A DRM’s report should not be lightly disregarded.  Pasternak v. Pasternak, 204 A.2d 290, 291 (Pa. Super. 1964).  In Brown v. Brown, C.P.Leb.Co. No. 2000-0880 (January 6, 2004), we discussed the difficulties experienced by the Court whenever support exceptions are not accompanied by a transcript.  We observed that a de novo review of the record becomes impossible without a transcript.  Therefore, we held:
In a situation where a transcript does not exist, we believe the correct standard of review should be “manifest abuse of discretion apparent on the record”.  In other words, if we can glean error from reviewing the [DRM’s] report and exhibits alone, we would have the ability to modify a [DRM’s] recommendation.  On the other hand, unless such error is apparent on the face of the record, we would be left with no choice but to uphold what the [DRM] decided.
FATHER’s first exception is that his average overtime pay is inaccurate because it is based on the busy holiday season. Overtime can be an inconsistent source of income, but it is nonetheless required to be included in support calculations. In this case, it was FATHER’s own failure to provide more than 3 months of paystubs that prevented the DRM from considering the preferred 6-month average of income. FATHER was told to bring 6 months’ worth of stubs. He did not do so. He must now live with the consequences of his choice. 1
FATHER’s second exception effectively proffers he should pay less to his first three children because he’s about to have another three with his now-girlfriend. In Pandolfi v. George, C.P.Leb.Co. No. 2004-5-0592 (May 20, 2005), we highlighted the difficulties inherent in addressing multiple family support obligations:
We begin our analysis with the premise that an obligor’s duty of support must contemplate, but not be defined by, his/her other support obligations. This point is made clear by reviewing the totality of Pennsylvania’s Child Support Guidelines.  See Pa.R.C.P. 1910.1 et seq.
Pennsylvania’s Support Guidelines were established in 1981 to “provide family courts with a basic procedure” for support cases that could be relatively consistent statewide (See Support Guidelines, Explanatory Comment—1981). Rule 1910.16-4 sets forth a formula for determining an obligor’s basic child support.  This formula is relatively easy to apply when only two parents and one child exist.  Because modern family dynamics are often more complicated, our Supreme Court has provided substantial flexibility. In particular, Rule 1910.16-5 sets forth numerous factors that a court “shall” consider in deciding whether to deviate from the arithmetic calculations of the formula.  Among these factors is “other support obligations of the parties”.  Pa.R.C.P. 1910.16-5(2).
In 1998, our Supreme Court added a specific rule dealing with “awards of child support when there are multiple families”.  Pa.R.C.P. 1910.16-7.  This rule provides not only parameters, but also examples of how economic justice can be afforded in multiple family situations.  This court has consistently taken the position that it is reversible error for a DRM to ignore Rule 1910.16-7 in fashioning a support award. See, e.g., Varela v. Sandifer, No. 1997-5-0493 (C.P. Lebanon May 6, 2003) (Charles, J.); Herr v. Wildermuth, No. 1989-20465 (C.P. Lebanon February 13, 2003) (Charles, J.); and Mengel v. Mengel, No. 2002-5-0936 (C.P. Lebanon October 8, 2004) (Charles, J.).
There are two general precepts that the rules apply to multiple family situations.  They are:
(1)  An obligor should not be subject to a usurious support order. The explanatory comment to Rule 1910.16-7 sets forth a goal to ensure that each obligor “retains sufficient income to maintain the incentive to work so that he or she can support all of the children” (Rule 1910.16-7, Explanatory Comment—1998).
(2) To the extent possible, each of the obligor’s children should be treated similarly.  Rule 1910.16-7(b) describes one of the goals of the rule by stating: “[I]n no event should either a first or later family receive preference. Nor shall the court divide the guideline amount for all of obligor’s children among the households in which those children live.” Pa.R.C.P. 1910.16-7(b).
These two precepts of Rule 1910.16-7 are often difficult and sometimes impossible to reconcile.
In cases of extremely irresponsible procreation, we have applied a concept that we labeled “enhanced earning capacity.” Summarized, this concept imposes an earning capacity upon the obligor that is based upon more than one full-time job.  In essence, “enhanced earning capacity” is designed to provide an obligor with the incentive to work a part-time job in addition to a full-time job.  The concept of enhanced earning capacity was first announced by this Court in the case of Varella v. Sandifer, C.P.Leb.Co. No. 1997-5-0493 (May 6, 2003), where the obligor chose to create twelve children.  We stated:
Since the beginning of human history, parents have been required to work harder to support their choice to have more children.  In ancient times, parents would be required to hunt longer to provide enough food for additional children. Farmers in later centuries would be required to get up earlier and work longer hours to grow the additional crops needed to feed large families.  More recently, parents of large intact families often choose to both work, sometimes at multiple jobs each.  In this case, the Defendant has chosen to create [twelve children].  We believe he should be required to work correspondingly hard.
In Varella, we did afford the father with a pro rata reduction of child support based upon all of his other child support obligations.  However, we imposed an earning capacity upon the father that exceeded the income he earned from his one full-time job.  All support calculations were then predicated upon this “enhanced” earning capacity.
In Burkhart v Neitz, C.P.Leb.Co. No. 2005-5-0291 (March 1, 2011), we affirmed the enhanced earning capacity concept and limited the concept to situations when a parent creates five or more children that he/she cannot support.  We stated:
The more children a parent has, the harder he/she must work to support them.  This axiom transcends culture and era.  It is as applicable in Indonesia as it is in America.  It is as applicable today as it was to our ancestors…
The concept of enhanced earning capacity is one that should be employed sparingly.  With respect to some occupations, requiring work in excess of forty hours could be unsustainable due to the physical demands of the job. Other full time occupations require flexible hours that are not conducive to supplemental part-time work.  In still other situations, a parent’s age or physical limitations could render work beyond forty hours per week problematic.  In addition, when a parent has a limited number of children, the proportional reduction of support that is required in a multiple family situation can be manageable because the amount of the obligor’s maximum payment is divided among relatively few children.  It is for these reasons and more that we have consistently rejected the “enhanced earning capacity” argument in prior cases where individuals have chosen to parent four or fewer children.
On the other hand, when a parent chooses to have an unreasonably high number of children, mathematics dictates that each child will suffer more.  The Support Guidelines impose limits upon the amount that an obligor has to pay on behalf of all his/her children.  The more that this support pie is divided, the smaller each child’s slice becomes.  As we see it, at some point the obligor must be required to increase the size of the support pie that is divided among his/her children.  At the risk of seeming arbitrary, we believe that the concept of “enhanced earning capacity” may in some cases be triggered when a parent produces five or more children that he/she cannot fully support.
Here, FATHER has chosen to create four- soon to be six- children. This will shortly implicate the “five or more” standard we outlined in the above cases. Given this fact, we are not offended if the DRM utilized an income figure for FATHER that is based upon inconsistent overtime. Moreover, we are not inclined to reduce FATHER’s support obligation to MOTHER based upon his rapidly growing intact family. In addition, we are cognizant of the fact that the DRM’s recommended support amount represents roughly one-third of his net income. This is hardly a confiscatory or unreasonable percentage. For all of these reasons, we will not reduce FATHER’s support obligation based upon his girlfriend’s impending birth of twins.
FATHER’s third exception has to do with the fact that MOTHER works less than forty hours per week. At the time of the July 21st 2017 Findings of Fact, FATHER’s own working hours were 35 hours per week, so we find this exception a touch ironic. Furthermore, in Keller v. Young, C.P.Leb.Co. No. 2008-5-0598 (April 4, 2012), we addressed the question “What constitutes full-time employment?”  In Keller, a mother worked an average of 35.85 hours per week as a dental technician. FATHER argued that we should prorate MOTHER’s income to a 40 hour work week and give her an earning capacity based upon that 40 hour work week calculation.  We rejected this argument and stated:
We were not able to locate any appellate decision that defined full-time employment within a child support dispute.  However, Courts have been required to discern the meaning of “full-time employment” within other contexts.  For example, in an unemployment compensation context, the Commonwealth Court stated the following:
The term “full-time work” is undefined in the law.  Part-time work is defined, however, in [34 Pa. Code § 63.35(a)] as “work other than normal full-time work of a claimant with a regular base-year employer which is ordinarily performed for less than the total number of hours or days customarily worked in the business, occupation or industry.”  In applying this definition, we are required to look to the individual circumstances of the claimant’s employment, rather than focus on the number of hours worked.  Baldwin-Whitehall School District v. Unemployment Compensation Board, 848 A2d 1021 (Pa.Cmwlth. 2004).
Also in an unemployment compensation context, the Commonwealth Court has focused upon how an employee and employer define their own relationship.  [See Bloomsburg University of Pennsylvania v. Unemployment Compensation Board, 692 A.2d 586 (Pa.Cmwlth. 1997).]…
Unlike Pennsylvania, the Federal government does look at hours worked per week in determining full-time employment.  For statistical purposes, anyone working 35 hours per week or more is considered to be a “full-time worker.”  The United States Census Bureau, Current Population Survey (March 28, 2012) at www.census.gov/spc.  The Bureau of Labor Statistics similarly uses 35 hours  per week as the line of demarcation between full-time workers and part-time workers.  See United States Bureau of Labor Statistics, Glossary at www.bls.gov/bls/glossary.htm#F.
Generally, when a phrase such as “full-time employment” is not specifically defined by statute or by appellate precedent, the ordinary English language meaning of the words must be applied.  See 1 Pa.C.S.A. § 1903.  Within the Random House Dictionary of the English language, we located a definition of full-time employment as:  “Working or operating the customary number of hours each week, day or month.”  Similarly, the Miriam-Webster on line dictionary defines full-time employment as “The amount of time considered the normal or standard amount for working during a given period.”  See www.miriam-webster.com/dictionary.
From the above, we reach the following conclusions:
(1) Full-time employment is not predicated solely upon the number of hours a person works.
(2) In determining whether someone works on a full-time basis, the Court must examine what is considered “customary or standard” for others similarly situated.
(3) Whether the employer considers the employee to be “full-time” is a factor that must be afforded great weight.
(4) Even if hours per week are used as the barometer for full-time employment, 35 hours per week appears to be the line of demarcation between full and part-time employment.
In this case, MOTHER works 30-34 hours a week in an industry that can require long shifts and odd hours. Under the circumstances, it was not unreasonable for the DRM to consider her a full-time employee.
In addition, earning capacity is not the preferred standard for defining income. Citing the Pennsylvania Superior Court case of Portugal v. Portugal, 798 A.2d 246 (Pa.Super. 2002), we have stated:
As a general rule, a person’s earnings are the benchmark by which support is gauged…Thus, absent unusual circumstances, we will not base an obligor’s support obligation upon artificially high amount that exceeds his or her actual income.
Feudale v. Regus, C.P.Leb.Co. No. 2009-5-0087 (September 7, 2010). This is not a case where MOTHER refuses to work. There is no implication that she’s off living the high life when she should be working harder to raise her three children. Under these circumstances we agree with the DRM that actual earnings are a more appropriate benchmark than earning capacity and we will not disturb the DRM’s judgment.
For all of the foregoing reasons, FATHER’s Exceptions are respectfully denied. We will not disturb the DRM’s decision and will affirm it by an Order entered simultaneous with this Opinion.
1 If in fact FATHER no longer receives overtime pay, then he could file a Petition for Modification.

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