Colonna v. Colonna

• Decision Date: 21 December 2001
• Citation: 788 A.2d 430
• Parties: Robert J. COLONNA, Appellant v. Mary M. COLONNA, Appellee
• Court: Pennsylvania Superior Court

788 A.2d 430

Robert J. COLONNA, Appellant v. Mary M. COLONNA, Appellee

Superior Court of Pennsylvania.

Argued September 5, 2001.

Filed December 21, 2001.

Chris F. Gillotti, Pittsburgh, for appellant.

William J. Helzlsouer, Dravosburg, for appellee.

Before: DEL SOLE, President Judge, McEWEN, President Judge Emeritus, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE, STEVENS, MUSMANNO and ORIE MELVIN, JJ.

ORIE MELVIN, J.:

¶ 1 Appellant, Robert J. Colonna (Father), appeals from an Order directing him as custodian of his four children to pay child support to Appellee, Mary E. Colonna (Mother), the non-custodial parent. In light of the change in primary custody of the parties' children, he asserts the trial court's refusal to terminate his child support payments in its entirety constitutes a misapplication of the law regarding the right to child support. We find that under the circumstances of this case, Father is entitled to termination of child support payments to Mother. Therefore, we reverse the April 27th 1999 Order, which awarded the non-custodial parent child support.

¶ 2 The relevant facts and procedural history of this case are as follows. Mother and Father were married on August 27, 1983 and separated in 1996. The parties obtained a final decree in divorce on March 19, 1999. The parties' separation and divorce issues of custody, support and equitable distribution have resulted in protracted legal proceedings, numerous interim orders, final decisions and appeals. Of concern in the present appeal is the current child support order.

¶ 3 Four children were born of this marriage, two girls and two boys. The oldest child is now fifteen years old, and the youngest child is nine years old. Following separation of the parties, Father filed a petition for primary legal and physical custody of the children. During the pendency of Father's custody petition, the parties consented to a temporary order for shared legal and physical custody, as the parties lived close to each other and to the childrens' school. Under the temporary consent order, the children spent three and one-half days per week with each parent. Subsequently, the parties amended the custody schedule so that the children alternated parental homes on a weekly basis.

¶ 4 In 1997, prior to the final custody determination, Mother also obtained an order for monthly support on behalf of the parties' four children. The order was based in large part upon the shared custody arrangement and Father's broad declaration that he was able to meet all of the children's financial needs and maintain two households. At the time, Father stipulated to an available net income of $85,942.00 per month. Father asserted reasonable needs in the amount of $12,839.00 per month while the children were in his custody.

¶ 5 Mother was assessed an earning capacity of $30,000.00 per year¹ and a net monthly income (including the earning capacity) of $4,607.00. The assessed monthly income was also based upon the assumption that Mother would take the standard IRS deduction, claim two children as exemptions, and file as head of household. Mother asserted reasonable needs for herself and the children in the amount of $28,208.00 per month; $21,106.00 represented that portion of the expenses and reasonable needs attributable to the children. Mother's estimate duplicated certain expenses listed by Father, which Mother did not want Father to control or pay directly. The Master eventually recommended that Father pay directly many of the expenses. In view of the expenses paid directly by Father and other expenses disallowed to either parent as exaggerated, the reasonable needs' assessment while in Mother's custody was reduced to $6,132.00 per month.

¶ 6 Pursuant to the ensuing support order dated November 19, 1997, the court directed Father to pay $6,132.00 per month in child support, plus arrearages in the amount of $49,259.00. Father was also ordered to provide all health insurance for Mother and the children, including one hundred percent of any unreimbursed portion of all health-related insurance claims. Additionally, the order required Father to repair the roof on the marital residence at a cost of $2,360.00. Father was further ordered to pay directly certain expenses related to the mortgage (interest only) on the marital residence (which was substantially encumbered); security systems; utilities; real estate taxes; property maintenance expenses; all property (homeowners and personal property) and automobile insurance; private school tuition; costs of after-school programs; camp expenses; dance and music lessons; and family memberships in various organizations and clubs.²

¶ 7 Meanwhile, the trial court named a custody evaluation expert and a case manager to assist the family. Following the custody hearings, by order dated May 4, 1998, the trial court awarded primary legal and physical custody of the children to Father during the school year, and primary legal and physical custody of the children to Mother during the summer months. Mother also has partial custody of one or more of the children every Tuesday and Thursday during the school year. During the summer, Father has identical partial custody on Tuesdays and Thursdays. The parties now alternate weekends and holidays with the children throughout the year, and each parent is entitled to two weeks with the children as "summer vacation." The custody order makes clear that primary legal custody shifts between the parties and reposes with the party who has physical custody at any given time. Mother appealed from this custody order, and this Court affirmed. Colonna v. Colonna, 742 A.2d 1138 (Pa.Super.1999) (unpublished memorandum), appeal denied, 561 Pa. 685, 751 A.2d 183 (2000).

¶ 8 On July 24, 1998, Father moved to terminate his child support payments to Mother on the grounds that he was now the childrens' primary custodian and that, on the basis of the custody award, his monthly expenses had increased and his available monthly income had decreased. By order dated September 24, 1998, Father was permitted to amend his petition to include additional claims of material and substantial changes in circumstances. A hearing was scheduled for October 5th and 7th of 1998.

¶ 9 The hearing on Father's petition for support modification proceeded for two days before a Master. At the hearing, Mother argued that she had custody of the children forty (40%) percent of the year, when viewed as a whole. Father strongly contested this assertion, estimating that the children were with Mother approximately thirty (30%) percent of the time, while they spent about seventy (70%) percent of their time with him.

¶ 10 Both parties also testified that they were forced to sell personal securities to meet their financial obligations to the children. To sustain his claim of material and substantial changes, Father testified that his company's income had decreased due to changes in technology. According to Father's testimony, he had his company take a line of credit with a bank for $485,000.00, and he sold securities worth $204,000.00 to meet his support obligations. His interest income in the form of tax-free dividends in the amount of $30,000.00 to $40,000.00 was temporarily eliminated by virtue of the court's order placing in escrow $550,000.00 in municipal bonds, pending the ultimate determinations regarding the parties' pre-nuptial agreement. Father also re-invested 14 million dollars in his business, which further reduced his available income. Father admitted that he is the chief executive officer of his companies; and in 1996, he began to reduce his involvement in the company to four to five hours per week. Father maintained that his current salary of $175,000.00 was insufficient to meet his monthly obligations under the existing support order. Father presented evidence of living expenses and reasonable needs in the amount of $14,834.23 per month.

¶ 11 Mother offered the same reasonable needs' evidence that she had offered the year before, during the 1997 child support hearing. She testified that she did not know whether her costs had changed, incident to the new custody arrangement; but she maintained generally that the current dollar amount was equal to or greater than it was the year before, when the parties equally shared custody of the children. Because the final custody order was on appeal, the Master did not have the benefit of the full record in the case, including the record from the previous support hearing.

¶ 12 Addressing the custody claim, the Master explained:

[Father] asserts that, pursuant to Judge Kaplan's May 4, 1998 order, [Mother] has custody 19% of the time during the school year and, if the children go to summer camp, 15% of the time in the summer, with camp time being credited to neither party.... [Mother] asserts that she has the children 40% of the time viewing the year as a whole.

The camp issue presents a very disturbing aspect of the case in that on the first day of trial both parents acknowledged that their children love summer camp, that they have historically gone to camp, and that the parents wanted them to go to camp in the summer of 1999. [Mother] had sent [Father] the camp application forms requesting that he pay a (non-refundable) camp deposit of $1,400. [Father] agrees to pay the entire cost of camp, estimated to be in excess of $7,000. On the second day of trial, [Mother] testified that, in spite of the fact that the children loved camp and that [Father] was paying all of the costs of camp, she was not going to send them to camp if it was not economically beneficial for her to do so. While the Master believes that [Father's] position of excluding the camp time from the custody of either party is correct, particularly since [Mother] is not paying for it, she does not want to give [Mother] a motive for depriving the children of camp. Therefore, she will include the camp time as [Mother's] custody time, giving [Father]

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