Judges Opinions, — August 13, 2014 10:39 — 0 Comments

Miller vs. Bixler No. 2012-5-0212

Civil Action – Exceptions to DRM Report – Credibility – Standards of Review – De Novo – Manifest Abuse of Discretion – Deduction for Health Insurance – Spousal Support – Equitable Distribution – Deviation – Effect of Use of Line of Credit.

1. In reviewing a DRM’s report, the Court must give fullest consideration to the credibility findings of the DRM, who was present to observe the demeanor of witnesses and hear their testimony.

2. A DRM’s report should not be lightly disregarded. However, the DRM’s report is only advisory, and the Court is not bound by its conclusions.

3. When the Court has a transcribed record to review, it must consider all of the evidence de novo and make an independent determination of the amount of support due and owing.

4. When no transcript of the hearing before the DRM is prepared, the Court’s standard of review is of necessity somewhat different. Without a transcript, it cannot conduct a de novo review of the testimony offered before the DRM. Instead, it is limited to a review of the DRM’s report and any exhibits that were submitted. Because of the limited information given to the Court, when exceptions are filed without a transcript, it has held that in a situation where a transcript does not exist, the correct standard of review should be manifest abuse of discretion apparent on the record. In other words, if the Court can glean error from reviewing the DRM’s report and exhibits alone, it 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, it would be left with no choice but to uphold what the DRM decided.

5. In this case, no transcript exists. Therefore, the Court employed the manifest abuse of discretion apparent on the record standard articulated above.

6. Pa.R.C.P. 1910.6-6(b) requires that health insurance premiums be apportioned and deducted from the basic support obligation.

7. In cases in which the obligor is paying the cost of health insurance coverage and the obligee has no income or minimal income such that the obligor will bear 90% or more of the proportional share of the cost of the health insurance premiums, the trier of fact may, as fairness requires, deduct part or all of the cost of the premiums actually paid by the obligor to provide coverage for the other party or the children from the obligor’s gross income to determine net income for support purposes.

8. Considering that Husband earns significantly more than Wife and pays the entire cost of the health insurance premium, the Court could not conclude that the DRM abused her discretion when she decided to deduct the cost of the premiums directly from Husband’s gross income.

9. Rule 1910.16-6 provides that if no statutory duty of support is owed to a party who is covered under the policy, including children who are not the subjects of the support action, the portion of the premium attributed to them must be excluded from allocation.

10. Since the difference between the DRM’s deduction for health insurance and the actual cost to cover Husband and Wife alone was negligible, the Court did not disturb the DRM’s decision to deduct $424.76 from Husband’s gross income.

11. Two of the stated purposes of Pennsylvania’s Divorce Code are to effectuate economic justice between parties who are divorced or separated and mitigate the harm to the spouses caused by the legal dissolution of the marriage. To accomplish these purposes, courts are afforded discretion to distribute property equitably instead of simply equally.

12. 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. It is awarded pursuant to statewide guidelines as established by general rule by the Supreme Court.

13. Although the Court agreed that ceding the issue before it to the later equitable distribution proceeding could sort out the parties’ financial issues in the long term, it decided that doing so would not address the immediate problem that Husband’s month-to-month cash flow had been significantly affected by Wife’s actions.

14. Pa.R.C.P. 1910.16-5(b) provides that a deviation may be made from the Guideline amount based on, inter alia, (1) unusual fixed obligations, (5) the relative assets and liabilities of the parties and (9) other relevant and appropriate factors.

15. In this case, the DRM believed the Defendant’s paying the full amount of the increase on the additional amount of money withdrawn by Plaintiff from the couples’ line of credit had the same effect as if he were making a direct payment to Plaintiff or paying a car loan for her, so he should be given a dollar-for-dollar credit for this amount. The Court concluded that this was a fair method to credit Husband for contributions he now must make to Wife outside of the Court’s Support Order. Further the Court disagreed with Plaintiff’s assertion that there was insufficient evidence to support the DRM’s decision. Consequently, it held that the DRM did not err in determining that Husband was entitled to an offset of $305.17 and that this deviation was fair.

Exceptions. C.P. of Lebanon County, Civil Action-Law, No. 2012-5-0212.

Greer Anderson, Esquire, for Plaintiff

Colleen Gallo, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

DOMESTIC RELATIONS SECTION NO. 2012-5-0212, PACSES NO.: 430113120

DANA L. MILLER, Plaintiff

v.

RICHARD L. BIXLER, Defendant

ORDER OF COURT

AND NOW, to wit, this 23rd day of January, 2014, upon consideration of the Exceptions filed by Dana L. Miller (hereafter “WIFE”) and in accordance with the attached Opinion, the Exceptions filed by WIFE are hereby DENIED. The temporary Order of Court, dated October 11, 2013, is MADE PERMANENT AS INDICATED BELOW. It is further ordered as follows:

This Order shall be effective June 10, 2013.

The amount of support to be paid by Defendant is: $485.61 per month in spousal support for Dana L. Miller. Effective September 6, 2013, Defendant shall pay spousal support of $420.01 per month. The amount to be paid by Defendant on accumulated arrears is: $42.00 per month.

The JCS Fee of $23.50 shall be paid by: N/A.

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: 59% by Defendant and 41% by Plaintiff. X Defendant __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 defendant’s net monthly income when added to the basic child support plus additional expenses.

Health care coverage is currently not available at a reasonable cost to defendant. Therefore, Plaintiff is ordered to apply for government-sponsored coverage such as the children’s health insurance program (“CHIP”). The cost of said coverage shall not exceed 5% of plaintiff’s net income.

___Health care coverage is currently not available at a reasonable cost to defendant. Therefore, Plaintiff is ordered 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: None.

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.

IMPORTANT LEGAL NOTICE

PARTIES MUST WITHIN SEVEN DAYS INFORM THE DOMESTIC RELATIONS SECTION AND THE OTHER PARTIES, IN WRITING, OF ANY MATERIAL CHANGE IN CIRCUMSTANCES RELEVANT TO THE LEVEL OF SUPPORT OR THE ADMINISTRATION OF THE SUPPORT ORDER, INCLUDING, BUT NOT LIMITED TO, LOSS OR CHANGE OF INCOME OR EMPLOYMENT AND CHANGE OF PERSONAL ADDRESS OR CHANGE OF ADDRESS OF ANY CHILD RECEIVING SUPPORT. A PARTY WHO WILLFULLY FAILS TO REPORT A MATERIAL CHANGE IN CIRCUMSTANCES MAY BE ADJUDGED IN CONTEMPT OF COURT, AND MAY BE FINED OR IMPRISONED.

PENNSYLVANIA LAW PROVIDES THAT ALL SUPPORT ORDERS SHALL BE REVIEWED AT LEAST ONCE EVERY THREE (3) YEARS IF SUCH REVIEW IS REQUESTED BY ONE OF THE PARTIES. IF YOU WISH TO REQUEST A REVIEW AND ADJUSTMENT OF YOUR ORDER, YOU MUST DO THE FOLLOWING: CALL YOUR ATTORNEY. AN UNREPRESENTED PERSON WHO WANTS TO MODIFY (ADJUST) A SUPPORT ORDER SHOULD CONTACT THE DOMESTIC RELATIONS SECTION.

ALL CHARGING ORDERS FOR SPOUSAL SUPPORT AND ALIMONY PENDENTE LITE, INCLUDING UNALLOCATED ORDERS FOR CHILD AND SPOUSAL SUPPORT OR CHILD SUPPORT AND ALIMONY PENDENTE LITE, SHALL TERMINATE UPON DEATH OF THE PAYEE.

A MANDATORY INCOME ATTACHMENT WILL ISSUE UNLESS THE DEFENDANT IS NOT IN ARREARS IN PAYMENT IN AN AMOUNT EQUAL TO OR GREATER THAN ONE MONTH’S SUPPORT OBLIGATION AND (1) THE COURT FINDS THAT THERE IS GOOD CAUSE NOT TO REQUIRE IMMEDIATE INCOME WITHHOLDING; OR (2) A WRITTEN AGREEMENT IS REACHED BETWEEN THE PARTIES WHICH PROVIDES FOR AN ALTERNATE ARRANGEMENT.

UNPAID ARREARS BALANCES MAY BE REPORTED TO CREDIT AGENCIES. ON AND AFTER THE DATE IT IS DUE, EACH UNPAID SUPPORT PAYMENT SHALL CONSTITUTE, BY OPERATRION OF LAW, A JUDGEMENT AGAINST YOU, AS WELL AS A LIEN AGAINST REAL PROPERTY.

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 BY CHARLES, J., January 23, 2014

We author this Opinion today to address how a unilateral withdrawal of funds from a joint account pending a divorce should factor into a spousal support award. Our task is not an easy one. On one hand, the wife in this case withdrew $18,500.00 from the parties’ home equity line of credit, leaving her husband to pick up the bill while he simultaneously paid her spousal support. On the other hand, she explains that she needed a vehicle to get to work after the separation, and since she was unemployed during her marriage, her resources were understandably limited. We also recognize that the joint line of credit will inevitably arise during equitable distribution of the marital property, and any consideration we give to it here affects the Divorce Master’s proceedings.

Since we feel that the Domestic Relations Master did not abuse her discretion and considered all pertinent information to create a fair spousal support award, we will be affirming her decision. Our reasoning will be set forth below.

I. FACTS AND PROCEDURE

On June 4, 2012, Plaintiff Dana L. Miller (hereafter WIFE”) filed a Complaint for Support against Defendant Richard L. Bixler (hereafter “HUSBAND”) seeking spousal support. A Hearing was held on August 23, 2012, before a Domestic Relations Master (hereafter “DRM”). The DRM issued her Report and Recommendation on October 19, 2012, granting WIFE spousal support in the amount of $1,013.50/month for current support and $101.35/month towards arrears.

On June 10, 2013, HUSBAND filed a Petition for Modification of Support Order, alleging that WIFE withdrew the sum of $18,500 from the parties’ line of credit. He argued that his Order should be modified because the withdrawal ultimately increased his monthly obligation by over $300.

A Hearing on HUSBAND’s Petition for Modification took place on September 5, 2013 before the DRM. On October 11, 2013, the DRM issued her Report and Recommendation. In the Report, the DRM noted that, in addition to the change in the line of credit, WIFE had obtained new employment and HUSBAND’s health insurance costs increased.

The DRM concluded that HUSBAND earned $2,760.05 biweekly. To determine HUSBAND’s income for the purposes of her Report and Recommendation, the DRM prepared a two-step calculation to account for the increase in health insurance cost as of September 6, 2013. Before September 6, 2013, HUSBAND paid $319.10 biweekly for health insurance. Since September 6, 2013, HUSBAND has been paying $424.76 biweekly for health insurance. The DRM subtracted the cost of the insurance directly from HUSBAND’s gross monthly income to reach his net income. Accordingly, the DRM calculated a net income of $3,846.76/ month for HUSBAND from June 10, 2013 to September 5, 2013, and a net income of $3,684.09/month from September 6, 2013 forward.

The DRM also found that WIFE obtained new employment at the VA Medical Center, earning $13.41/hour. Health insurance would cost her $238.47/month, but she did not pursue coverage because the current Support Order requires HUSBAND to provide insurance. Accordingly, the DRM calculated a net income of $1,869.80/month for WIFE from June 10, 2013 forward.

Based on the net incomes of both parties, the DRM calculated HUSBAND’s total monthly spousal support obligation under the support guidelines to be $725.72/month. The DRM then considered the unusual needs, fixed obligations, assets of the parties, and other relevant factors to determine whether HUSBAND should receive a downward deviation of his support obligation. Specifically, the DRM noted that after the date of the first spousal support Order, WIFE withdrew $18,500.00 from the parties’ joint home equity line of credit and purchased a car with the proceeds. HUSBAND continued to make all payments on this obligation, and his Petition indicated that the payment on this line of credit increased by $305.17/month as a result of WIFE’s actions.

At the Hearing, WIFE testified that she paid about $16,000.00 for the car and did not remember what she did with the rest of the money. She acknowledged she did not pay any amounts toward the home equity line of credit to replace the money that she took out, nor did she even consider doing so. Essentially, WIFE now owns her vehicle free and clear, and HUSBAND is stuck with increased debt because the line of credit is secured by the home in which he lives.

WIFE argues that the joint line of credit issue was an equitable distribution matter to be addressed exclusively at the Special Master’s Hearing held on October 9, 2013. The DRM disagreed and explained that saving the issue for equitable distribution did not address the immediate problem that HUSBAND’s month-to-month cash flow that has been significantly affected by WIFE’s actions.

Since the support guidelines provide that an Order may be adjusted based on, inter alia, “(1) unusual…fixed obligations…(5) the relative assets and liabilities of the parties…and (9) other relevant and appropriate factors,” the DRM believed that a modification was an appropriate course of action for this case. The DRM reasoned that HUSBAND’s payment of the full amount of the increase on this loan has the same effect as if he were making a direct payment to WIFE or paying a car loan for her, and he therefore should be given a dollar-for-dollar credit for this amount. The DRM therefore calculated a spousal support obligation of $485.61/month from June 10, 2013 to September 5, 2013, and a spousal support obligation of $420.01/month from September 6, 2013 forward, with a payment of $42.00/month toward arrears.

WIFE filed timely Exceptions to the DRM’s Report on October 30, 2013, which we will address seriatim.

II. DISCUSSION

WIFE filed four Exceptions to the DRM’s Report and Recommendation, which raise the four following issues:

(1) Whether the DRM erred in calculating HUSBAND’s net income.

(2) Whether the DRM erred in considering WIFE’s assets and joint line of credit withdrawal when determining whether there should be a deviation from the basic support amount.

(3) Whether the DRM apportioned an accurate amount of the home equity payment to WIFE.

(4) Whether the DRM adequately considered WIFE’s unusual needs and relative assets.

A. Standard of Review

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 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 (Charles, J. 1/6/04); Houser-Gerhart v. Gerhart, C.P.Leb.Co., No. 2000-20193 (Charles, J. 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.

B. HUSBAND’s Net Income

WIFE initially argues that the DRM erred in determining HUSBAND’s net income, in part, by deducting health insurance premiums paid by HUSBAND from his gross income. She explains that calculation of net income is governed by Pa.R.C.P. 1910.6-2(c), which specifically lists the items that can be deducted from gross income. Health insurance premiums are not listed under that section. Instead, they appear under Pa.R.C.P 1910.6-6(b), which requires that health insurance premiums be apportioned and deducted from the basic support obligation.

Pa. R. Civ. P. 1910.16-6(b)(1) does provide that a party’s payment of a premium to provide health insurance coverage on behalf of the other party “shall be allocated between the parties in proportion to their net income, including the portion of the premium attributed to party who is paying it, as long as a statutory duty of support is owed to the party who is paying the premium.” Pa. R. Civ. P. 1910.16-6(b)(1). However, the statute continues: “In cases in which the obligor is paying the cost of health insurance coverage and the obligee has no income or minimal income such that the obligor will bear 90% or more of the proportional share of the cost of the health insurance premiums, the trier of fact may, as fairness requires, deduct part or all of the cost of the premiums actually paid by the obligor to provide coverage for the other party or the children from the obligor’s gross income to determine net income for support purposes.” Pa. R. Civ. P. 1910.16-6(b)(4).

Here, HUSBAND earns significantly more than WIFE and pays the entire cost of the health insurance premium. Considering these facts, we cannot conclude that the DRM abused her discretion when she decided to deduct the cost of the premiums directly from HUSBAND’s gross income. The statute clearly gives the DRM discretion to deduct the premiums directly from the payor’s gross income under certain circumstances, and we see no evidence in the DRM’s Report nor in the record that this situation would fall outside the scope of Rule 1910.16-6(b)(4).

WIFE also argues that the DRM failed to consider the portion of the health insurance premium that covers the parties’ two adult children to whom no duty of support is owed. She reasons that because the policy covers multiple individuals, the DRM erred in deducting the entire premium from HUSBAND’s gross income. Instead, WIFE posits that the DRM should have apportioned the health insurance premium and subtracted only the portion that is attributable to WIFE from the support obligation.

Rule 1910.16-6 provides that if no statutory duty of support is owed to a party who is covered under the policy, including “children who are not the subjects of the support action, the portion of the premium attributed to them must be excluded from allocation.” Pa. R. Civ. P. 1910.16-6(b)(2). However, we also note that the DRM’s Report shows a deduction of $424.76 biweekly for the cost of family health, vision, and dental insurance, while Exhibit 5 of the record shows a biweekly cost of $415.85 to cover HUSBAND and WIFE alone. This indicates a difference of $8.91 biweekly between the DRM’s deduction and what it actually costs to cover HUSBAND and WIFE alone. We also note that the latter amount does not include the $38.60 that HUSBAND pays biweekly for dental and vision.

The difference between the DRM’s deduction and what it actually costs to cover HUSBAND and WIFE alone is negligible. We therefore will not disturb the DRM’s decision to deduct $424.76 from HUSBAND’s gross income.

C. Consideration of WIFE’s Assets and Joint Line of Credit Withdrawal WIFE argues that the DRM erred in considering WIFE’s assets and her withdrawal from the parties’ joint line of credit when fashioning the support order. She argues that 23 P.S. 3502 sets forth specific factors a divorce master must consider in determining equitable distribution, and while the contribution and dissipation of marital property is a factor in determining equitable distribution under the Divorce Code, it is not a factor in determining support. WIFE explains that the DRM was therefore in error when she considered WIFE’s assets and her home equity line of credit withdrawal because these should be left to the Divorce Master. Further, she argues that the DRM’s decision may interfere with the Divorce Master’s determination of equitable distribution.

Two of the stated purposes of Pennsylvania’s Divorce Code are to “effectuate economic justice between parties who are divorced or separated” and “mitigate the harm to the spouses…caused by the legal dissolution of the marriage.” 23 Pa.C.S.A. § 3102(a). To accomplish these purposes, courts are afforded discretion to distribute property “equitably” instead of simply “equally.” Similarly, “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).

Obviously, the goals of the Divorce Code and common law spousal support are not mutually exclusive. However, they are mutually dependent, and this sometimes creates tension such as is apparent in this case.

In this case, WIFE asks to ignore an $18,500.00 withdrawal from the parties’ line of credit. She points out that her $18,500.00 withdrawal will undoubtedly be considered at a later date when marital property is equitably distributed. While WIFE’s argument has superficial appeal, creating a bright line rule as suggested by WIFE could in some cases create economic hardship, which is something that both the Divorce Code and the common law principle of spousal support were designed to minimize.

We reject WIFE’s request that we ignore a significant cash flow obligation simply because the issue will arise during equitable distribution. As the DRM notes in her Report, ceding the issue exclusively to equitable distribution could sort out the parties’ financial issues in the long term, but it will not address the immediate problem that HUSBAND’s month-to-month cash flow has been significantly affected by WIFE’s actions. It is not uncommon when marriages dissolve for there to be an overlap between marital property subject to equitable distribution and accounts from which spousal support could be paid. In cases like this where the nature of the spousal support will impact property subject to equitable distribution, we cannot simply ignore a significant change in a parties’ cash flow. The best we can do is articulate in detail what we have decided and why so that the Special Master in divorce can know how to factor our decision into his or her equitable distribution recommendation.

The DRM noted the following in her Report:

Defendant petitioned for modification on the grounds that, since the current order was set, Plaintiff withdrew $18,500.00 from the joint line of credit secured by the marital residence and bought a car with the proceeds. Defendant is making all payments on this obligation, and his petition indicates that the payment on the line of credit increase by over $300.00 per month as a result of Plaintiff’s action.

At the hearing, Plaintiff testified that she paid about $16,000.00 for the vehicle and does not remember what she did with the rest of the money. She said she has not made any payments on the home equity line of credit to replace the money she took out, nor has she given any consideration to doing so. Defendant testified that his monthly payment on this loan has increased by $305.17 per month to cover the withdrawals that Plaintiff made. Plaintiff owns this vehicle free and clear, and Defendant is stuck with the increased debt because the line of credit is secured by the home in which he lives.

Pa.R.C.P. 1910.16-5(b) provides that a deviation may be made from the Guideline amount based on, inter alia, ‘(1) unusual…fixed obligations…(5) the relative assets and liabilities of the parties…and (9) other relevant and appropriate factors.’ The DRM believes this is an appropriate course of action. Defendant’s paying the full amount of the increase on this loan has the same effect as if he were making a direct payment to Plaintiff or paying a car loan for her, so he should be given a dollar-for-dollar credit for this amount.

(DRM’s Report and Recommendation, 10/11/2013).

Based on the foregoing facts, the DRM characterized the unilateral withdrawal from the parties’ line of credit as a direct contribution to WIFE since HUSBAND makes the monthly payments on this account. We conclude that this is a fair method to credit HUSBAND for contributions he now must make to WIFE outside of this Court’s Support Order. Therefore, it was within the DRM’s discretion to use this direct contribution to deviate from the guideline amount and we will not disturb the DRM’s recommendation.

D. Amount of Joint Line of Credit Withdrawal

WIFE next argues that, regardless of whether HUSBAND is entitled to a credit for payments made towards the home equity line of credit, he did not present sufficient evidence of precisely how much WIFE’s $18,500.00 withdrawal increased his monthly line of credit payment. It was conceded at the September 5, 2013 Hearing that the Petition for Modification was based solely on WIFE’s withdrawal of $18,500.00, and not the additional withdrawals totaling over $26,000.00 made prior to the original support hearing. WIFE argues that the DRM’s offset recommendation of $305.17 is an errant reference to HUSBAND’s testimony that the home equity line of credit payment was $305.17 before WIFE’s withdrawal of $26,800.00 and after HUSBAND’s withdrawal of $4,000.00. WIFE argues that the DRM did not explain how she reached this offset figure, but it is clear that she based it off of the total withdrawal amount of $26,800.00. Therefore, she argues, the DRM erred in determining that HUSBAND is entitled to an offset of his support in the amount of $305.17 because HUSBAND did not present sufficient evidence on which such a modification could be based.

We disagree with WIFE’s assertion that there is insufficient evidence to support the DRM’s decision. The withdrawal and payment history regarding the home equity line of credit is somewhat convoluted. After careful review of the exhibits on record, we have constructed the following timeline to aid our analysis:

6/5/2012: Complaint for Support Filed
6/18/2012 to 7/19/2012: WIFE withdraws $3,300.00 (Exh. 6)
6/26/2012: HUSBAND’s monthly payment totals $276.57 (Exh. 7)
7/30/2012: HUSBAND withdraws $4,000.00 to pay taxes (Exhs. 6 and 8)
8/2/2012: HUSBAND’s monthly payment totals $305.17 (Exh. 7)
8/6/2012: WIFE withdraws $2,000.00 (Exh. 6)
8/23/2012: Hearing on WIFE’s Complaint for Support
9/4/2012: Husband’s monthly payment totals $398.44(Exh. 7)
9/10/2012: WIFE withdraws $18,500.00 (Exh. 6)
10/1/2012: HUSBAND’s monthly payment totals $671.03 (Exh. 7)

We agree with WIFE that is impossible to determine from the documentary evidence precisely how much WIFE’s withdrawals affected HUSBAND’s monthly payment. This does not mean, however, that we are required to assume that WIFE’s withdrawals had no impact. WIFE unilaterally withdrew thousands of dollars from the parties’ joint account since 2012 with admittedly no intention of making any payments towards the balance, all while collecting spousal support from HUSBAND. This situation absolutely had a financial impact on HUSBAND.

This jurist was not present at the hearing conducted before the DRM. Without a transcript, there is no way for this Court to discern what was and was not stated. The documents that we could review reveal an increase in HUSBAND’s monthly line of credit payment following WIFE’s withdrawal of $18,500.00. This increase was slightly less than $300.00. The DRM’s Report indicates that she relied on HUSBAND’s testimony that “his monthly payment on this loan has increased by $305.17 per month to cover withdrawals that P made.” Given that the DRM relied upon verbal testimony that we cannot evaluate and given that documentation exists to corroborate that HUSBAND did significantly increase his monthly line of credit payment following WIFE’s withdrawals, there is simply no way for us to second guess the DRM’s factual determination.

The nature of Pa.R.C.P. 1910.16-5(b) evinces that the DRM has flexibility in choosing a fair deviation amount. Some of the other factors under the Rule that require consideration include the “(7) standard of living of the parties and their children; (8) in a spousal support or alimony pendente lite case, the duration of the marriage from the date of marriage to the date of final separation; and (9) other relevant and appropriate factors, including the best interests of the child or children.” Such factors do not come with a dollar amount attached to them, and therefore a mechanical, precise calculation is impossible. Instead, the DRM must use her best judgment to consider these factors and determine a fair support amount.

Rule 1910.16-5(b) requires the DRM to “specify, in writing or on the record, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.” We feel the DRM in this case did just that, and established a fair deviation amount based on the information given to her. We therefore find that the DRM did not err in determining that HUSBAND is entitled to an offset of his support in the amount of $305.17.

E. WIFE’s Unusual Needs and Relative Assets

WIFE’s final argument is that the DRM failed to consider all relevant factors listed under Rule 1910.16-5(b) to determine a fair deviation amount. She explains that, while the DRM considered the increase in the monthly home equity line of credit payment for HUSBAND, she did not appear to consider WIFE’s unusual need for a vehicle. WIFE presented testimony that she needed dependable transportation to commute to work, and that she was unable to finance a car because she remains an obligor on the parties’ mortgage. It should also be noted that WIFE earns considerably less than HUSBAND, as stated in the Support Recommendations and the hearing transcript, and her resources are limited. WIFE filed for support in June of 2012, but did not receive her first payment until November of 2012. Further, WIFE testified that HUSBAND would not allow her to continue to use the car she had at the time of separation, nor was that car practical for her commute from Lebanon to Reading, Pennsylvania. The DRM, she argues, therefore erred in failing to consider all circumstances in determining the deviation in her recommendations.

We cannot agree with WIFE’s assertion. Spousal support is awarded pursuant to statewide guideline as established by general rule by Supreme Court. Strawn v. Strawn, 444 Pa. Super. 390, 664 A.2d 129 (1995). The support formula is designed “to provide the receiving spouse with sufficient income to obtain the necessities of life.” Stamerro v. Stamerro, 2005 PA Super 424, 889 A.2d 1251, 1259 (Pa. Super. Ct. 2005), citing Wagoner v. Wagoner, 538 Pa. 265, 270, 648 A.2d 299, 301 (1994). Thus, WIFE’s spousal support that she receives from HUSBAND fairly supplements her income so that she can pay for her food, transportation, housing, and other daily needs we deem necessary in our society.

We sympathize with WIFE; WIFE was unemployed for many years before the separation, and she did not receive her first spousal support payment until November of 2012 – four months after she began working in Reading. However, to allow WIFE to withdraw a lump sum of $18,500.00 to pay for transportation and then simultaneously allow WIFE to collect spousal support which also provides income for her transportation is unjust to HUSBAND. The DRM used the information she was provided to credit HUSBAND for the spousal support he essentially paid up front when WIFE decided to withdraw thousands of dollars from the joint line of credit and leave HUSBAND with the bill. It is for this reason we conclude that the DRM did not err in her analysis of all of the relevant factors in determining the deviation amount.

III. CONCLUSION

For the foregoing reasons, we conclude today that the DRM appropriately calculated HUSBAND’s net income and properly deviated from the Guideline amount of support. It was within the DRM’s discretion to deduct the cost of health insurance directly from HUSBAND’s gross income rather than from the support obligation. This deduction is clearly permitted under Rule 1910.16-6(b)(4) under these circumstances since HUSBAND pays the entire cost of health insurance. Though HUSBAND also provides health insurance for the parties’ adult children, the deduction the DRM used and the actual cost of health insurance for just HUSBAND and WIFE are too close in value to say that the DRM abused her discretion.

Next, the DRM appropriately calculated and applied a deviation from the Support Guideline amount. WIFE withdrew thousands of dollars from the parties’ joint line of credit pending her spousal support award, and now HUSBAND is left to pay back this money with interest. These payments equate to a direct contribution to WIFE, and should therefore be deducted from HUSBAND’s support obligation. The DRM used the information available to determine when and by how much HUSBAND’s line of credit payment increased, and considered all other relevant factors – including WIFE’s need for transportation – to fashion a support recommendation that we find to be essentially fair. Accordingly, we will be affirming the DRM’s decision.

 

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Ben has written 980 articles for Lebanon County Legal Journal

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