IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

SHANNON CARUSO                        :  NO. 2011-5-0679

                                                          :

1. v.                                             :

: 

EDWARD KOSMELA                       :  

 

 

APPEARANCES:

Jennifer Wentzel, Esquire              For Shannon Caruso

DOMESTIC RELATIONS OFFICE

 

Robert B. Keys, Jr., Esquire For Edward Kosmela

KEYS AND BURKETT

 

 

OPINION BY CHARLES, J., February 27, 2012

 

This is a child support dispute where the salient question is whether Shannon Caruso (hereafter “MOTHER”) should be awarded an earning capacity based upon full-time work.  Largely because of the procedural posture of this case, we are unable to determine an answer to this salient question. Because we do not wish to speculate, we will be returning the above-referenced case to the Domestic Relations Master (DRM) with the instruction that a telephonic hearing be conducted.  The reasons for this decision will be set forth below.

 

 

I.        FACTUAL AND PROCEDURAL BACKGROUND

MOTHER is a resident of the state of Georgia.  FATHER resides in Lebanon County, Pennsylvania. On July 20, 2011, MOTHER filed a Complaint seeking support for one child.  Because the parties resided in different states, the Uniform Interstate Family Support Act (UIFSA) was triggered.

Pursuant to the UIFSA, MOTHER forwarded a Uniform Support Petition that included an eleven page verified written statement entitled “General Testimony” (hereafter “WRITTEN TESTIMONY”). MOTHER’s WRITTEN TESTIMONY revealed that she has three years of college education and is employed as a “Caremaster Medical” earning $500.00 per month in gross income.  Within a section of the WRITTEN TESTIMONY entitled “Financial Information”, MOTHER stated that she worked “as needed” and earned gross income of $500.00 per month. She presented no information regarding taxes or other payroll deductions.  She also claimed monthly expenses totaling $830.00.  In a section entitled “Other Pertinent Information”, MOTHER wrote nothing at all.

A hearing was conducted before a DRM on December 9, 2011. FATHER presented testimony at the hearing.  MOTHER was not present and did not participate in any way.

On December 9, 2011, the DRM filed a report and recommendation.  Detailed information was included in the report regarding FATHER’s occupation and earnings.  Probably because MOTHER provided so little information in her written testimony, the DRM included very little detail about MOTHER within her report.  The DRM did, though, conclude that MOTHER earned $748.00 per month in net income.  The DRM determined this income based upon a series of paycheck stubs that were presented as Exhibit 2.[1] As a result of everything presented, the DRM applied Pennsylvania’s child support formula and recommended a support order for FATHER of $274.63 per month.

FATHER filed seven exceptions.  Within a brief filed by his attorney, FATHER withdrew six of these exceptions and chose to proceed exclusively upon his argument that MOTHER should have been afforded a full-time earning capacity. In response to FATHER’s exceptions, MOTHER submitted a post-hearing memorandum that indicated that she suffered from medical problems that prevented her from working on a full-time basis.  The sole issue framed by FATHER’s exceptions is now before us for disposition.

 

II.       SUMMARY OF UIFSA

“The Uniform Interstate Family Support Act (UIFSA) was enacted to provide a uniform method for handling interstate child support obligations and to provide out-of-state petitioners with a simplified procedure to present his or her case.”  67 A C.J.S. Parent and Child § 247. Under the UIFSA, a parent has the ability to seek child support through an appropriate agency or tribunal of his/her home state.  See 23 Pa.C.S.A. § 7401; 23 Pa.C.S.A. § 7304.  The support request is then transferred to an appropriate tribunal within the obligor’s home state.  23 Pa.C.S.A. § 7305.  The so-called “responding tribunal” is then tasked with the obligation to issue, enforce or modify a child support order.  23 Pa.C.S.A. § 7305(b)(1).

The UIFSA requires that a petitioner include biographical information as well as the relief sought by the petitioner.  23 Pa.C.S.A. § 7311.  The UIFSA also requires that the petition be verified.  23 Pa.C.S.A. § 7311(a).  However, the UIFSA does not specifically delineate what information must be included within the initiating documentation.  Rather, the UIFSA simply states that forms must be consistent with federal law. 23 Pa.C.S.A. § 7311(b).  We have no doubt that the form employed by Georgia meets this relatively low standard.

 

III.      SUMMARY OF PENNSYLVANIA LAW REGARDING EARNING

          CAPACITY                                                                                       

 

Under the UIFSA, substantive Pennsylvania law controls with respect to establishment of an amount of support. See 23 Pa.C.S.A. § 7305. Under Pennsylvania law, a support order can in some instances be based upon earning capacity and not upon actual earnings. See Pa.R.C.P. 1910.16-2(d).  Pennsylvania’s child support rules provide as follows:

Rule 1910.16-2. Support Guidelines. Calculation of Net Income.

…

 

(d)     Reduced or Fluctuating Income.

 

….

 

(4)     Earning Capacity. If the trier of fact determines that a party to a support action has willfully failed to obtain or maintain appropriate employment, the trier of fact may impute to that party an income equal to the party’s earning capacity.  Age, education, training, health, work experience, earnings history and child care responsibilities are factors which shall be considered in determining earning capacity.  In order for an earning capacity to be assessed, the trier of fact must state the reasons for the assessment in writing or on the record.  Generally, the trier of fact should not impute an earning capacity that is greater than the amount the party would earn from one full-time position.  Determination of what constitutes a reasonable work regimen depends upon all relevant circumstances including the choice of jobs available within a particular occupation, working hours, working conditions and whether a party has exerted substantial good faith efforts to find employment.

 

In determining whether an earning capacity should be employed for a support litigant, this Court has consistently taken the position that in most situations, an individual’s actual earnings define his/her earning capacity.  See, e.g. Woshob v. Woshob, 843 A.2d 1247 (Pa. 2004); DeMasi v. DeMasi, 597 A.2d 101 (Pa. Super. 1991); Peeler v. Peeler, No. 2009-5-0549 (C.P.Leb.Co. August 18, 2010; Shimer v. Sweinhart, No. 2005-50354 (February 26, 2010).  On the other hand, we have also recognized that when a support litigant is unwilling to work to his/her potential, an earning capacity in excess of the individual’s actual income can and should be calculated. See, e.g. Deitz v. Ventroba, No. 2009-5-0522 (C.P.Leb.Co. August 2, 2010); Sexton v. Johnson, No. 2007-5-0537 (C.P.Leb.Co. June 22, 2010).

When an earning capacity is appropriate, numerous factors must be considered.  Without being inclusive, these factors include an individual’s age, health, education, employment history and any limitations imposed upon the custodial spouse by virtue of childcare responsibilities.  See, e.g. Pa.R.C.P. 1910.16-2(d)(4).  This Court has held that it is reversible error for a DRM to assess earning capacity without considering all of the above factors.  See, e.g. Escobar v. Amador, No. 1999-5-0829 (C.P.Leb.Co. December 30, 2010); Seibert v. Gunnell, No. 2010-5-0630 (C.P.Leb.Co. August 15, 2011).

 

IV.     ANALYSIS

There is an obvious tension between the UIFSA and Pennsylvania’s standards governing an analysis of earning capacity. The UIFSA mandates a procedure for determining child support that focuses upon simplicity and ease of presentation.  With respect to earning capacity, Pennsylvania law requires a much more detailed analysis of factors that transcend the bare bones biographical information required under the UIFSA.

Fortunately, technology provides a simple methodology to ease the tension outlined above. No longer do we have to rely exclusively upon a written statement. Videoconferencing, teleconferencing, and computer interface technologies now enable people to interact even when they are located thousands of miles apart. In this case, it would be relatively easy to schedule a hearing via teleconference so that MOTHER can provide testimony and be cross-examined regarding all of the factors needed to establish an earning capacity.

Pennsylvania law authorizes testimony via teleconference or videoconference in domestic relations cases.  A Pennsylvania Rule of Court specifically states:  “With the approval of the Court upon good cause shown, a party or witness may be deposed or testify by telephone, audio, visual or other electronic means at a designated location in all domestic relations matters.”  Pa.R.C.P. 1930.3.  Fortunately, the UIFSA contains omnibus provisions that enable us to employ the authority granted in Pa.R.C.P. 1930.3. For example, § 7102 of the UIFSA declares that remedies contained therein are to be viewed as “cumulative and do not affect the availability of remedies under other law”.  23 Pa.C.S.A. § 7102.  Similarly, § 7305(b) of the UIFSA provides a broad grant of authority for a responding tribunal to “grant any other available remedy”.  23 Pa.C.S.A. § 7305(b).  Given these omnibus provisions, we do not view Pa.R.C.P. 1930.3 as inconsistent with the UIFSA.

In this case, we will invoke the authority granted to us by Pa.R.C.P. 1930.3. We will therefore direct that MOTHER provide testimony to the DRM via videoconference or teleconference. By an Order entered simultaneous with this opinion, we will be remanding the above-referenced case to the DRM with instructions that a new hearing be scheduled in order to receive MOTHER’s testimony.  MOTHER shall be permitted to offer testimony and documentary evidence to support her claim of disability.  She shall also be subject to cross-examination and questioning regarding topics such as her health, education, background, training, work experience, earnings and working conditions.  Thereafter, the DRM is to render a fact-based decision as to whether MOTHER’s income should be based upon actual earnings or a higher earning capacity.

We wish to emphasize that the decision we have rendered today does not mandate that videoconference and teleconference testimony be received in all UIFSA cases.  In many situations, the information provided in a petitioner’s written statement may be enough for a DRM to render an appropriate decision. However, when a DRM is not able to glean enough information from the petitioner’s written statement, Pa.R.C.P. 1930.3 authorizes a process that can enable the DRM to obtain the information needed to make a fair and fact-based determination.  When requested, this Court will not hesitate to authorize the receiving of testimony via technology such as videoconferencing and teleconferencing.[2]