Judges Opinions Public Notices, — August 21, 2019 9:03 — 0 Comments

Public Notices 8/21/2019

Volume 57, No. 3

 

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

CHANGE OF NAME

NOTICE OF TERMINATION OF PARENTAL RIGHTS

ORPHANS’ COURT DIVISION NOTICES

 

TABLE OF CONTENTS

ADRIAN J. HOHENWARTER v  STACEY D. MULLIGAN NO. 2010-5-0828

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF CHAD LEE ESHLEMAN, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

Corey Webber, Administrator

 

Kevin D. Dolan, Esq.

Nikolaus & Hohenadel, LLP

222 S. Market Street

Suite 201

Elizabethtown, PA 17022

 

ESTATE OF PATRICIA A. LUDWICK, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrices.

 

Pamela J. Evans, Executrix

Kimberly L. Gingrich, Executrix

Wendy L. Herr, Executrix

 

Scott Alan Mitchell, Esq.

Saxton & Stump, LLC

208 Granite Run Drive., Ste 300

Lancaster, PA 17601

 

ESTATE OF VIOLA E. RAETZ, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Judy Eva Raetz Merkel, Executrix

 

John E. Feather, Jr., Esquire

Feather and Feather, P.C.

Annville, PA 17003

 

ESTATE OF RICHARD R. ROYER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Larry R. Royer, Co-Executor

Jerry L. Royer, Co-Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042

 

ESTATE OF MICHAEL D. LENTZ, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administratrix.

 

Tammy J. Boyer, Administratrix

 

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF PATRICIA A. RUTTER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

James D. Rutter, Executor

 

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF HARLAN DOSTER, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Cindy Doster, Co-Executor

5 Seltzer Avenue

Womelsdorf, PA 19567

 

Harlan Doster, Jr.

757 Old Line Road

Manheim, PA 17545

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF DOROTHY NULL FREY, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Carol F. Hollich, Co-Executrix

 

Raymond T. Frey, Jr., Co-Executor

 

Timothy D. Sheffey

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

 

SECOND PUBLICATION

 

ESTATE OF ROBERT T. BLANSHINE, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

James A. Blanshine, Executor

Ronald L. Blanshine, Executor

c/o Kling and Deibler, LLP

131 W. Main Street

New Holland, PA 17557

 

Linda Kling, Esquire

Kling & Deibler, LLP

 

ESTATE OF CARL L. CERESINI, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted by the undersigned Executrix.

 

Debra A. Carpenter-Madden, Executrix

 

Patrick M. Reb, Esquire

547 S. Tenth Street

Lebanon, PA 17042

 

ESTATE OF TODD M. MEYERHOFFER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

  1. Tyler Meyerhoffer

4300 Crossings Blvd. Apt. A-208

Lancaster, PA 17610

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

PO Box 113

Palmyra, PA 17078

 

 

 

 

ESTATE OF ENRIQUE L.M. CASTILLO, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrices.

 

Nina M. Castillo, Executrix

Lauri S. Castillo, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF LEON K. FRY, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kurt M. Yordy

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF JEFFREY L. TICE, a/k/a JEFFREY LEE TICE, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Andrea Frantz, Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF ROBERT L. BACHMAN, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the understigned Executrix.

 

Theresa L. Frederick, Executrix

99 Bethany Road

Womelsdorf, PA 19567

 

Richard V. Grimes, Jr., Esquire

99 Clubhouse Drive

Bernville, PA 19506

 

ESTATE OF DONALD E. MARTIN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been  granted to the undersigned Executrix.

 

Margaret Ulrich, Executrix

200 Mopar Avenue

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 E. Main Street

Palmyra, PA 17078

 

ESTATE OF HAROLD A. LEBO, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentry have been granted ot the undersigned Co-Executors.

 

Wayne S. Lebo, Co-Executor

Susan M. Dibeler, Co- Executor

 

Keith D. Wagner, Attorney

PO Box 323

Palmyra, PA 17078

 

ESTATE OF RICHARD L. MILLER, SR., late of East Hanover Township, Lebanon County, Pennsylvania, deceased.  Letters Testamentary have been granted to the undersigned Executor.

 

Richard L. Miller, Jr., Executor

12 Branstock Court

Lititz, PA 17543

 

Frederick S. Long, Attorney

315 S. Eighth Street

Lebanon, PA 17042

 

 

 

CHANGE OF NAME

 

NOTICE is hereby given that on August 7, 2019, a petition for change of name was filed in the Court of Common Pleas requesting a decree to change the name of LEON LAWS TO LEON GILBERT SHOCKLEY.

 

The Court has fixed the 4th day of September 2019, at 11 o’clock A.M. in Courtroom No. 2 of the Lebanon County Court of Common Pleas, located at 400 South Eighth Street, Lebanon, Pennsylvania 17042, as the time and place for the hearing on said petition when and where all persons interested may appear and show cause, if any they have, why the prayer of the petitioner should not be granted.

 

NOTICE OF TERMINATION OF PARENTAL RIGHTS

 

NOTICE IS HEREBY GIVEN THAT X.A. AND JAMES LESTER HAD A DAUGHTER, E.E.L., born IN DAUPHIN COUNTY, PENNSYLVANIA in 2017.  A HEARING WILL BE HELD IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA IN COURTROOM NO. 4, BEFORE THE HONORABLE CHARLES T. JONES, JR., JUDGE OF THE SEVERAL COURTS OF LEBANON COUNTY, PENNSYLVANIA ON THE 9TH DAY OF SEPTEMBER, 2019 at 8:30 A.M. AT THE LEBANON COUNTY MUNICIPAL BUILDING LOCATED AT 400 SOUTH EIGHTH STREET, LEBANON, PENNSYLVANIA ON THE THIRD FLOOR.  ALL PARENTAL RIGHTS OF THE FATHER TO THE CHILD SHALL BE TERMINATED BY THE COURT ON THE DATE OF THE HEARING UNLESS THE FATHER EITHER APPEARS AT THE HEARING FOR THE PURPOSE OF OBJECTING TO TERMINATION OF HIS PARENTAL RIGHTS OR HE FILES A WRITTEN OBJECTION TO SUCH TERMINATION WITH THE COURT PRIOR TO THE HEARING.

 

WRITTEN OBJECTIONS SHALL BE FILED NO LATER THAN AUGUST 30, 2019 BY FILING THEM WITH THE CLERK OF ORPHANS COURT AT THE ORPHANS COURT OFFICE LOCATED AT THE LEBANON COUNTY MUNICIPAL BUILDING, 400 SOUTH EIGHTH STREET, LEBANON, PENNSYLVANIA.  THE OBJECTIONS SHALL BE FILED IN THE COURT OF COMMON PLEAS, LEBANON COUNTY, PENNSYLVANIA, ORPHANS COURT DIVISION – NO. 2018-829.

 

ROBERTA J SANTIAGO, ESQUIRE

HENRY & BEAVER, LLP

937 WILLOW STREET

  1. O. BOX 1140

LEBANON, PA 17042

(717) 274-3644

 

ORPHANS’ COURT DIVISION NOTICES

 

Notice is hereby given that the following accounts in decedents estates, guardianships and trusts have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon County, and that the same will be presented of the Court of Common Pleas-Orphans’ Court Division of said County for confirmation NISI on

TUESDAY, September 3, 2019

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

  1. Nace, Patricia A. aka Nace, Patricia Ann, dec’d., John E. Feather, Jr., Exr., John E. Feather, Jr., Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

 

BRIAN CRAIG

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – FAMILY DIVISION

 

ADRIAN J. HOHENWARTER,  :        NO. 2010-5-0828

                   Plaintiff                          :        PACSES NO. 176117494                                                                             :

  1. :

:

STACEY D. MULLIGAN,          :       

                   Defendant                      :

 

 

APPEARANCES:

 

Scott Grenoble, Esquire               For Adrian Hohenwarter

 

Stacey D. Mulligan                         pro se

 

 

OPINION BY CHARLES, J.,  August 13, 2019

 

Both parents have a duty to support their children, even when one earns far more than the other.  In this case, the custodial parent of the parties’ two children is a physician whose income is probably within the top 5% of all wage earners in the Commonwealth of Pennsylvania.  The non-custodial parent is a professional librarian who earns a salary that is healthy but far less than the amount earned by the custodial parent.  Effectively, the obligor in this case states: “He does not need the money.  I should not have to pay it.”  Although the argument resonates to some degree, we cannot agree with the premise that a lesser-earning parent should be excused from paying support to a parent with far greater earnings.

  1. FACTS

Adrian Hohenwarter (hereafter FATHER) and Stacey Mulligan (hereafter MOTHER) are the parents of two children.  MOTHER and FATHER have been embroiled in custody litigation that has been as acrimonious as any ever encountered by this Court.  We will not relate the entire extensive history of the parties’ custody and support disputes.  However, we are well aware that effective on January 4, 2019, primary legal and physical custody of the parties’ children was awarded to FATHER.  Thereafter, on May 9, 2019, a Lebanon County Domestic Relations Master (DRM) conducted a support hearing to address the implications of the new custody paradigm.  MOTHER’s exceptions now before this Court all stem from the hearing that occurred on May 9, 2019.

Unfortunately, neither party requested a transcript of the May 9, 2019 hearing.  Therefore, we are limited to evaluating the report and record generated by the DRM.

At all times pertinent to this dispute, FATHER was self-employed as a family practice physician specializing in holistic medicine.  The DRM determined that FATHER earned $13,351 per month.  MOTHER has been employed in the Commonwealth of Pennsylvania library system.  MOTHER has earned approximately $3,600 per month.  Historically, MOTHER has provided insurance for the children.

In her report, the DRM noted that FATHER overpaid MOTHER by $8,324 during the period of time when MOTHER enjoyed custody of the children.  The DRM then applied Pennsylvania’s Child Support formula to the parties’ income and determined that MOTHER should pay $511 per month to FATHER as child support.

In neither her exceptions nor at oral argument did MOTHER challenge the manner in which the DRM calculated support under Pennsylvania’s Guideline formula.  Rather, MOTHER focused her attention on the DRM’s decision not to deviate from the Guidelines.  MOTHER characterized this case as involving “special circumstances” and she urged the Court to “look outside the formula” when fashioning a Support Order.  In addition, MOTHER stated that her expenses exceed her income.  She complained that she has been forced to apply for food stamps and other government benefits.  With a voice dripping with indignation, MOTHER effectively accused FATHER of pursuing support due to vengeance instead of need.

We have decided to author an Opinion to outline our thought process regarding this unusual and very difficult case.  After addressing the scope of our review, we will apprise both parties of the reasoning for the decisions that we will render today.

 

  1. SCOPE OF REVIEW

Lebanon County has adopted the child support procedure set forth in Pa.R.C.P. 1910.12. This procedure permits the appointment of a DRM to preside over a hearing.  The DRM is then required to file a report and a recommendation that will be adopted by the Court unless exceptions are filed.  In the event that exceptions are filed, we are then required to review the record in order to formulate a final appealable order.  See Pa.R.C.P. 1910.12.

The Superior Court has provided guidance with respect to the scope of review that we should ordinarily employ. 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 (Pa.Super. 1992); Dukmen v. Dukmen, 420 A.2d 667 (Pa.Super. 1980).  A DRM’s report should not be lightly disregarded.  Pasternak v. Pasternak, 204 A.2d 290, 291 (Pa.Super. 1964).  However, the DRM’s report is only advisory, and we are not bound by its conclusions.  Id. at 291, citing Rankin v. Rankin, 124 A.2d 639 (Pa.Super. 1956).  When we have a transcribed record to review, we must consider all of the evidence de novo and make an independent determination of the amount of support due and owing.  Id. at 291, citing Rankin v. Rankin, supra at pg. 641.

When no transcript of the hearing before the DRM is prepared, our standard of review is of necessity somewhat different. Without a transcript, we cannot conduct a de novo review of the testimony offered before the DRM. Instead, we are limited to a review of the DRM’s report and any exhibits that were submitted. Because of the limited information given to us when exceptions are filed without a transcript, we have 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.

 

Brown v. Brown, C.P.Leb.Co., No. 2000-0880 (Leb.Co. 1/6/04); Houser-Gerhart v. Gerhart, C.P.Leb.Co., No. 2000-20193 (Leb. Co.. 5/20/02).

In this case, no transcript exists. Therefore, we will employ the “manifest abuse of discretion apparent on the record” standard articulated above. We will review the DRM’s report and all exhibits that were admitted at the time of the hearing. However, we will not engage in an analysis of testimonial evidence described by the parties in briefs or at oral argument. To do so without a transcript would be unfair.

Before we depart from our discussion regarding the standard of review, we also need to point out that we cannot consider the relatively voluminous packet of information that MOTHER included with her brief.  The admissibility of the documentation presented by MOTHER was not ruled upon by the DRM, nor were any of the documents subject to cross-examination by FATHER’s counsel.  Unfortunately, it is a common tactic for parties to proffer additional documentation when they file Support Exceptions.  We have consistently refused to consider such documentation as it is well beyond the scope of our review.  Nothing about this case causes us to change that policy.

On the other hand, this jurist cannot and will not completely ignore all of the information presented to him via the parties’ custody dispute.  This jurist expended over 100 hours of time hearing, analyzing and addressing the parties’ custody arguments.  Some of what was presented in Custody Court intersects with the issues now before us in Support Court, and it would not be in the children’s best interest for us to completely ignore everything we know as a result of the parties’ custody dispute.[1]  To the extent necessary, we take judicial notice of the Opinion we authored in the parties’ custody dispute and the facts relied upon in support of that decision.

 

III.     DISCUSSION

We will begin by recognizing that Pennsylvania’s Child Support Guideline formula establishes an analytical foundation for each Child Support case.  See, e.g. ­­­­23 Pa. C.S.A. § 4322 (“Child & spousal support shall be awarded pursuant to a Statewide guideline…so that persons similarly situated shall be treated similarly.”)  However, the Guidelines do not create an immutable paradigm.  The enabling statute itself provides that the guidelines establish a “rebuttable presumption” regarding the amount of support.  As this Court articulated:

“A Court cannot always robotically adhere to rigid formulas in a child support case.  The perspective must be widened to view how all of the factors governing child support work together and impact the final calculation of a child support obligation.”

Lehman v. Walmer, No. 2008-5-0412 (Leb. Co. 2012)

 

Sometimes, a Support Court must eschew blind allegiance to the Support Guidelines in favor or an approach that is more just to the parties and their children.  See, Summerfield v. Summerfield, No. 2010-5-0700 (Leb.Co. 2011).

The Guidelines themselves contain a provision that facilitates deviation when necessary.  Pa.R.C.P. 1910.16-5 sets forth factors that a Court should consider in deciding whether to deviate from the Guideline formula amount.  Those factors include:

(1)  Unusual needs and unusual fixed obligations; …

(3) Other income in the household;…

(5) The assets and liabilities of the parties;…

(9) Other relevant and appropriate factors.

Pa.R.C.P. 1910.16-5.  Deviation has been deemed to be especially applicable in cases involving parties with disparate income.  In Colonna v. Colonna, 855 A.2d 648 (Pa. 2004), Pennsylvania’s highest Court declared: “Where the incomes of the parties differ significantly, we believe that it is an abuse of discretion for the Trial Court to fail to consider whether deviating from the Support Guidelines is appropriate…”[2]

In this case, we have identified two primary considerations and several secondary factors that must be weighed.  We will begin with the two primary considerations.

As a consideration favoring MOTHER, we are forced to recognize that FATHER has no acute need for child support.  As it is, FATHER is able to provide a lavish lifestyle for the children.  If the children have a need or desire for any item, service or activity, FATHER has the financial means to provide what the children may need and/or want.  Even without child support, MOTHER does not have the same ability.  As the children grow older and grow more accustomed to the lifestyle provided by FATHER, they will no doubt grow to want a similar lifestyle when they are with their mother.  We do not want the children to resent the fact that MOTHER will not be able to provide the same level of items, services and activities as FATHER can provide.  Given the great disparity in the parties’ income, the amount of money now in dispute is unquestionably more important in MOTHER’s household than it would be in the household of FATHER.

On the other side of the ledger is the fact that both parents have a legal, ethical and moral obligation to financially support the children they helped to create.  Pennsylvania has never recognized a “my child doesn’t need money” defense to a child support claim, nor has Pennsylvania ever required a custodial parent to itemize and prove how he/she spends child support money for the benefit of the children.[3]  In fact, Pennsylvania’s Appellate Courts have described the child support obligation of a parent as “nearly absolute.”  See, DeWalt v. DeWalt, 529 A.2d 508 (Pa. Super. 1987); Rich v. Rich, 967 A.2d 400 (Pa. Super. 2009).

As we weigh the competing primary considerations outlined above, we discern other factors that are implicated by the unique circumstances of this case.  In no particular order of importance, these additional factors include the following:

  • The DRM’s recommendation would require MOTHER to pay approximately 14% of her net monthly income to support two children. This is not an unreasonably high percentage.  In fact, this Court routinely encounters obligors who pay 40% or more of their net income in child support.
  • Although MOTHER is not nearly as wealthy as FATHER, she is not destitute or a pauper. Her monthly net income of $3,600 compares very favorably to the earnings of most parents who appear in Support Court.  Contrary to the argument MOTHER attempted to proffer at oral argument, the amount recommended by the DRM would leave MOTHER with more than $3,000 per month for her own use, which is far in excess of the Self-Sufficiency Reserve threshold set forth in Pennsylvania’s Support Guidelines.
  • From the first time this Court encountered these parties, MOTHER has portrayed herself as a victim, sometimes fairly but most times not. Although this Court will not be held hostage by MOTHER’s faux claims of victimization, we are reluctant to give credence to her victimization campaign by forcing her to pay amounts that are bluntly more important to MOTHER than they would be to FATHER.
  • FATHER’s wife, Marilyn, is herself an accomplished woman. According to the DRM, Marilyn earns $167,234 per year.  This amount constitutes additional income in FATHER’s household.[4]
  • We are aware from the parties’ custody dispute that MOTHER’s family lives in Oregon. The parties’ children should have a relationship with their grandparents.  Facilitating such a relationship will cost MOTHER more in transportation expenses than most parents are required to expend to facilitate a relationship between the children and their grandparents.  We consider this to be an ”unusual” need of the children.
  • FATHER’s overpayment to MOTHER adds an additional dynamic to this case that is unusual. Not only does MOTHER owe on-going child support to FATHER, but she also owes a duty to repay FATHER for the amounts she accepted and spent that were over and above FATHER’s legal obligation.  Not only must we craft a method by which this overpayment is addressed, but we also must keep in mind the cash flow consequences of establishing a repayment schedule.
  • Financial sacrifice is expected of every parent who appears in Child Support Court. We neither expect nor intend that an obligor will be able to seamlessly pay support without some degree of sacrifice.  To the extent that a Child Support Order will require an obligor to moderate discretionary spending, that is something no parent should resent – even though many do.  See, ERL v. CKL, 126 A.3d 1004 (Pa.Super. 2013) (Duty to pay child support exists even if it “causes hardship or requires sacrifice.”); Com. Ex rel Rothrock v. Rothrock, 34 Pa. D&C 2d 621 (1964) (Parent should be expected to “sacrifice personal comfort” to provide support for a child.)

 

After weighing the primary and secondary considerations outlined above, it is self-evident that this support dispute is anything but “normal”.  We therefore conclude that slavish adherence to Pennsylvania’s Support Guidelines would not be appropriate for the children or fair to the parties.  We will therefore employ a deviation analysis despite the fact that doing so injects a degree of subjectivity into our decision that could be viewed as risky given the history between the parties.[5]

After weighing everything, we will be establishing MOTHER’s child support obligation at $300 per month.  We are aware that this amount represents less than $200 per month per child and that this is a level of support that is very rarely approved for people who earn $3,500 per month.  While this amount is unquestionably less than would normally be imposed, it is still more than MOTHER wants to pay.

In addition to MOTHER’s support obligation, we must also be cognizant of the fact that she has the obligation to repay $8,324.89 to FATHER.  The DRM recommended that MOTHER repay this amount at the rate of $100 per month.  Even though it will take MOTHER seven years to repay FATHER at this rate, we agree with the DRM that any greater amount could unduly impact MOTHER’s cash flow requirements.  Therefore, we will adopt the DRM’s recommendation that MOTHER repay FATHER for his over-payment at the rate of $100 per month.

In the judgment of this Court, a support award of $300 per month plus a repayment requirement of $100 per month is fair given all of the circumstances presented.  We are well-aware that the amount we will be ordering represents a deviation from the amount calculated via the Pennsylvania Guideline formula.  Nevertheless, we conclude that a deviation is necessary given the significant disparity in the parties’ income and given that several of the deviation factors set forth in Pa.R.C.P. 1910.16-5 favor an award of less than what the Guideline formula would require.

The net effect of our decision is to require a cash expenditure from MOTHER of $400 each month.  This amount will impart a degree of financial pain upon MOTHER that we view as acceptable.  However, it will also enable MOTHER to enjoy the use and benefit of more of her income.  It is certainly the hope and expectation of this Court that MOTHER will utilize all or part of the difference between our Order and the DRM’s recommendation to facilitate an on-going relationship between the children and their maternal grandparents.

The decision we have reached today represents a compromise between FATHER’s request for a formula-based award and MOTHER’s request to be effectively relieved of any burden to pay child support.  Given the unique background of this case, a compromise is precisely what is demanded.  We doubt very much that either MOTHER or FATHER will be pleased by our decision.  So be it.  We have done our level best to balance all of the considerations outlined within this Opinion in order to craft a decision that is fair to the parties, and especially to their children.  It is with this observation that we will enter a Court Order consistent with the above.

 

[1] Our Supreme Court has recognized that child support cannot be analyzed in a vacuum; the interests of the children must always be kept in mind.  Colonna v. Colonna, 855 A.2d 648 (Pa. 2004).

[2] On the other hand, the Supreme Court has also stated that while deviation is generally left to the discretion of the Trial Court, “this flexibility is not intended to provide the trier of fact with unfettered discretion…[Deviation is] permitted only when special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate.” Id at page 1196.

[3] See, e.g. Marshall v. Marshall, 591 A.2d 1060 (Pa.Super 1991) (“In most cases the parties living expenses are not relevant in determining that parties’ support obligation  because a support obligation is not based on the amount of money the parties are actually spending on themselves and their children.”); and Branch v. Jackson, 629 A.2d 170 (Pa.Super. 1993) (reasonable needs of a child whose parents are wealthy may include items that would be considered frivolous to parents who are less well-off.”)

[4] We wish to emphasize that Marilyn’s income cannot and will not be considered in any Guideline formula calculation.  Marilyn is not a parent of the parties’ children and has no legal duty to support them.  That being said, the so-called “deviation rule” permits a Court to consider “other income in a household” and Marilyn’s not-insubstantial earnings certainly constitute “other income” in FATHER’s household.

[5] Given the likelihood of an appeal in this case, it would be safer for this Court to simply follow the DRM’s recommendation that adhered to Pennsylvania’s Guideline formula.  However, we do not believe such a result would be fair, especially for the parties’ children.

About the author

Lebanon County Legal Journal has written 669 articles for Lebanon County Legal Journal

Search