O'Connor v. O'Connor

43 Pa. D. & C.3d 453, 1985 Pa. Dist. & Cnty. Dec. LEXIS 24
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedDecember 9, 1985
Docketno. A06-62010-S-15
StatusPublished

This text of 43 Pa. D. & C.3d 453 (O'Connor v. O'Connor) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Connor v. O'Connor, 43 Pa. D. & C.3d 453, 1985 Pa. Dist. & Cnty. Dec. LEXIS 24 (Pa. Super. Ct. 1985).

Opinion

BIESTER, JR., J.,

— This is a support case in which the wife, Sara W. O’Connor, sought support for herself from her husband Timothy O’Connor. Mr. O’Connor is chairman of the board and owner of 40 percent of the stock of a relatively closely held corporation and receives a salary income of $100,000 a year. He also receives the [454]*454usual perqs. attributable to a significant part-owner of a closely held corporation. After a hearing held on September 13, 1985, the undersigned entered an order in the amount of $575 per week for support of the wife. The respondent has filed an appeal from that order, hence this memorandum opinion.

The wife is 47 years of age. Her education terminated at one year of college and she has had no outside-the-home work experience for most of the marriage and is therefore not a person well-adapted to enter the labor market. She is seeking employment, but has not so far been able to obtain it. She also pointed out that she is still in some state of shock and has some trouble dealing with her whole home and marital situation. Obviously at some point she is going to be able to obtain employment and should obtain employment, but she has adequately explained so far why she has failed to do so.

The husband complains on appeal of the following matters:

1. “The court, in entering the order complained on appeal, improperly calculated defendant’s net income.

2. The order of the court complained of on appeal exceeds one-third of defendant’s net income.

3. The order of the court complained of is punitive and confiscatory.

4. The court, in entering the order complained of, failed to take into consideration the fact that defendant is paying the college education expenses of the parties’ two children.

5. The court, in entering the order complained of, failed to take into consideration the parties’ standard of living prior , to the parties’ separation.

6. The order of the court complained of is excessive.

[455]*4557. The court, in entering the order complained of, improperly considered the possible and, therefore, necessarily speculative, income tax consequences of the order when calculating defendant’s net income.”

We will consider each one of the matters complained of seriatim.

With respect to the calculation of defendant’s net income, we would point out that we ate not bound by defendant’s expression of net income on income tax returns or weekly paystubs and particularly are we not so bound where the defendant is essentially in business for himself and receives substantial so-called business expenses which enable him to live -quite well before spending all of his taxable income. See Com. v. Miller, 202 Pa. Super. 573, 198 A.2d 373 (1964), and Com. ex rel. Maier v. Maier, 274 Pa. Super. 580, 418 A.2d 558 (1980). Defendant conceded that he received an unlimited expense account for travel and entertainment and received an automobile from the company. The defendant also received during about three months of the year free use of an apartment in Allentown just after the separation from his wife and before the purchase of his new home. We do not regard that latter perq. as a continuing one although the apartment is sometimes used by the parties’ son particularly when working for the father’s company during the summer. Defendant conceded that the car rental was $261 per month. We assume that since there is no amount set forth on his income arid expense statement allocable to that car [all amounts on that statement are apparently for his 1970 Liricoln which he testified is more often in the garage than not] we assume the various expenses allocable to that automobile, the Honda, are provided by the company and we estimate those expenses to be in addition to [456]*456the rental expense of the car itself approximately $100 a month more for gas, oil and other matters, maintenance and repairs. Because there .may be some income tax allocation for personal use of the car we had set the figure on a monthly basis at $300 per month as beneficial income arising out of the use of that car.

With respect to the unlimited expense account for travel and entertainment we note that defendant testified that he eats out frequently and that when he does so it is on his expense account. These matters are always difficult to estimate and we have been extremely conservative in estimating the truly income-beneficial effect of that unlimited expense account and deem Mr. O’Connor to have a beneficial personal interest in that account in the amount of $4,000 per year.

If one looks at his income statement he shows a weekly income of $1,923. His payroll deductions are $350 for Federal withholding, $53.65 for Social Security, $19.23 for local wage tax, $45.19 for Pennsylvania Income tax and other $1.92. That provides him with'deductions on his paystub of $469.99 or a net pay showing on his paystub of $1,453.01. He therefore has at least an after-tax but before-perqs. annual income of $75,556.52. If one'adds to that amount the car and travel and entertainment allocations we have earlier made one arrives at the figure of $83,156.52. That provides him with a weekly after-tax income of $1,600. We believe that this computation represents not only a proper calculation of the defendant’s net income, of rather threshold net income before any tax effect or our order, we believe it most probably understates that income.

Defendant coihplains that our order exceeds one-third of his net income. As one computes the $1,600 a week income we have found and divided that by [457]*457three, one arrives at a figure of $533.05. Apparently it is the $41.95 additional which defendant complains of with respect to this particular concern. We believe that that additional $42 may easily be made up by defendant in a variety of ways. For example, among the monthly expenses he has is $400 per month for the maintenance of horses. One-half of that expenditure would easily make up the $42 and sometimes a person has to live with certain priorities in life. We have pointed out that the net pre-tax income is $1,600 per week before there is any tax impact of our order. No matter how speculative that tax impact may be,, certainly it will readily consume the $42 without any doubt whatsoever. Under such circumstances our order is clearly far less than one-third of his net taxable income as one computes the tax effect of our order.

With respect to the complaint that our order is punitive and confiscatory we would point out that even under defendant’s own computation of income arid expenses he has a net available amount of $490 a week. We do not find him in every respect a credible witness. We noted for example that he listed $25 per week for lunches and $50 additional a week for food. In light of his expense account we find those figures rather high under the circumstances. We would also point out that defendant’s credibility must be considered in light of the following circumstances. The parties have been married for over 20 years. The parties owned a home at Thompson Mill Road in Bucks County. Defendant advised his wife that since he was buying a new company in Allentown it would be necessary for them to move closer to the Allentown area and for that reason he suggested that they list their property for sale which the wife readily agreed to.

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Related

Commonwealth Ex Rel. Maier v. Maier
418 A.2d 558 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Miller
198 A.2d 373 (Superior Court of Pennsylvania, 1964)

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Bluebook (online)
43 Pa. D. & C.3d 453, 1985 Pa. Dist. & Cnty. Dec. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-oconnor-pactcomplbucks-1985.