Bomberger v. Bomberger

35 Pa. D. & C.5th 382
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJanuary 16, 2014
DocketNo. 375 CIVIL 2006
StatusPublished

This text of 35 Pa. D. & C.5th 382 (Bomberger v. Bomberger) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bomberger v. Bomberger, 35 Pa. D. & C.5th 382 (Pa. Super. Ct. 2014).

Opinion

HODGE, J,

Before the court for [383]*383disposition are competing requests to modify the existing support order entered on behalf of the plaintiff, Julie M. Bomberger (hereinafter, “wife”), andagainstthe defendant, William G. Bomberger (hereinafter, “husband”). The court will also consider husband’s petition to redirect support payments within this opinion and corresponding order of court. Prior to addressing the merits of the instant support action, the court will provide the following summation of this case’s factual and procedural history:

The parties were married on June 10, 2006. During the course of their marriage, husband was self employed as the sole owner and operator of New Castle Harley Davidson, Inc. (hereinafter, “Harley Dealership”). Husband and wife also started a second business, Paul’s Specialty Meat Market, Inc. (hereinafter, “Paul’s Market”). Wife is named as the sole shareholder of Paul’s Market, and she works primarily at this business. Wife initiated the instant support action on June 30, 2011, and husband subsequently filed a complaint in divorce on August 9, 2011. The support action was designated complex and heard before the court on August 14, 2012 and September 17, 2012. On December 18, 2012, this court entered an order requiring husband to pay wife spousal support in the amount of $13,937.32 per month.

On April 30, 3013, wife filed a petition to modify the December 18, 2012 support order, wherein wife claimed husband’s income increased. Wife requested the modification be applied retroactively from January 1, 2013.1 On May 30, 2013, husband filed a counter petition [384]*384to modify the existing support order, wherein husband alleged a decrease in income. The parties’ petitions were consolidated for this court’s consideration and heard on October 17, 2013. Following the submission of briefs, the case is properly before the court for a determination.

The court will first address the effective date of this support order. Wife requests this court enter an order retroactive to January 1, 2012. Wife’s request is based on her realization that husband’s income was higher in 2012 than previously assessed by this court. Wife stated that she filed for modification within a month of being provided documentation of husband’s earnings following discovery requests in the divorce action. Although husband has provided the court with a clear delineation of his income for 2012 and projected income for 2013, husband objects to the retroactive application. Husband argues that the effective date of the new support order should be April 30, 2013, the date of filing. Husband alternatively argues that if the court does apply a retroactive effective date, wife should only be entitled to a modified support award beginning January 1, 2013 and not January 1, 2012 as requested at the de novo hearing.

Generally, modification of support is governed by Pa.R.C.P. 1910.17. Pursuant to Rule 1910.17 a court cannot implement an effective date earlier than the filing date of the underlying petition for modification. Kelleher v. Bush, 832 A.2d 483 (Pa. Super. 2003). The instant case, however, involves an arrearage of support. Therefore, the limitations set forth in Rule 1910.17 do not apply, and section 4352 of the Domestic Relations Code does apply. See e.g. Maue v. Gilbert, 839 A.2d 430 (Pa. Super. 2003); [385]*385Kelleher v. Bush, supra. Section 4352 permits retroactive application of support if

the petitioner was precluded from filing a petition for modification by reason of a misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition.

23 Pa.C.SA. § 4352(e). Based on the foregoing authority, the court concludes that it has the authority to retroactively assign a new support obligation, provided that wife establishes justification for doing so pursuant to 23 Pa.C.S.A. §4352.

The difficultly with the instant case is that husband’s income cannot be exactly calculated on an annual basis. Husband’s income is exactly defined in the subsequent year when husband’s accounting and taxes are completed. This results in a speculative analysis of husband’s income if the issue of his income is before the court in the same year that is being evaluated. A thorough review of the transcripts from prior proceedings warrants the conclusion that husband has made a genuine effort to provide the court with an accurate estimation of his income. However, the estimates provided to the court are not consistent with the figures now available. Thus, husband did not misrepresent his income to wife or the court, but wife was precluded from obtaining husband’s exact income due to the nature of husband’s revenue sources. Additionally, wife testified that she promptly filed a petition for modification of support after discovering husband’s 2012 income. The court concludes that wife has demonstrated compelling justification for retroactive application of the modified support order pursuant to Section 4352.

[386]*386Having addressed the issue of retroactivity, the court will next consider the parties’ income from January 1, 2012 to the present for the purposes of entering a support award. The parties have previously stipulated to their respective incomes for the year 2012. In 2012, husband’s monthly net income was $49,464.00, and wife’s monthly net income was $1,788.96. The corresponding support order will assess the parties accordingly. The remaining issue before the court is husband’s 2013 income.2

It is well settled that a trial court must consider the actual disposable income of the parties when determining the financial obligation that should be imposed upon the payor spouse. Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. 2000) (quoting Labar v. Labor, 731 A.2d 1252, 1255 (Pa. 1999)). Actual disposable income is the financial resources available to the parties and not the “fictional financial picture” created by the standard federal income tax return. Id. Thus, deductions or losses, as denoted in a corporation’s book of accounting or an individual’s federal income tax return, are irrelevant when determining actual disposable income, unless such figures denote an actual deduction in available income. Id.

Husband had several sources of income in 2013. Husband received wages, income from interest, investment income, rental income and income from his Harley Dealership. The court outlines husband’s 2013 income as follows:

Wages $55,762.00
[387]*387Interest $361.00
Dividends $8,053.00
Capital Gains $878.00
Rental Income $63,490.00
Harley Dealership $1,385,495.003
$1,514,039.00

Husband’s income, as outlined about, results in husband receiving a gross income totaling $1,514,039.00 in 2013, which results in a monthly net income of $104,850.00.

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Related

Kelleher v. Bush
832 A.2d 483 (Superior Court of Pennsylvania, 2003)
Maue v. Gilbert
839 A.2d 430 (Superior Court of Pennsylvania, 2003)
Fennell v. Fennell
753 A.2d 866 (Superior Court of Pennsylvania, 2000)
Flory v. Flory
527 A.2d 155 (Supreme Court of Pennsylvania, 1987)
Calabrese v. Calabrese
682 A.2d 393 (Superior Court of Pennsylvania, 1996)
Heisey v. Heisey
633 A.2d 211 (Superior Court of Pennsylvania, 1993)
Labar v. Labar
731 A.2d 1252 (Supreme Court of Pennsylvania, 1999)
McAuliffe v. McAuliffe
613 A.2d 20 (Superior Court of Pennsylvania, 1992)

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Bluebook (online)
35 Pa. D. & C.5th 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bomberger-v-bomberger-pactcompllawren-2014.