HEATHER L. BREDBENNER,

	Plaintiff

vs

JESSE M. BREDBENNER,
		Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - LAW
DOMESTIC RELATIONS DIVISION

PACSES #146102835
CASE NO: DR-00398-00 

APPEARANCES:  
ELWOOD R. HARDING, JR., ESQUIRE, Attorney for Plaintiff
GREGORY T. MORO, ESQUIRE, Attorney for Defendant

FEBRUARY 12, 2003.  JAMES, J.

OPINION

     This case is before the court to consider plaintiff’s exceptions and defendant’s cross-exceptions to a special master’s recommendation dated December 3, 2002 regarding defendant’s modification petition seeking a decrease in his child support and alimony pendent lite obligation.  The modification petition was filed August 8, 2002, and was denied by the conference officer on August 28, 2002, who indicated that “defendant voluntarily took a reduction in income.”  Defendant requested a de novo hearing which was held before the special master on December 2, 2002.  
     On December 3, 2002, the master confirmed the conference officer’s recommendation but directed plaintiff to carry health insurance on the children.  The master found that (1) defendant “voluntarily reduced income when he left Haddon”; (2) defendant “has assets available – W.C. settlement – to supplement current income to enable him to meet current order”; and (3) plaintiff “has assets and other income in her household.  She has reasonable ability to provide health ins. coverage for herself and children.”
     Plaintiff’s exceptions contest the findings regarding plaintiff bearing the health insurance obligation and the master’s failure to use the workers’ compensation settlement as income, other than to note that it will help him to meet his support obligations since he voluntarily left his employment.  Defendant’s cross-exceptions contest the finding that his departure from his employment was voluntary, noting that he had lost an eye in an accident at work and that his departure was for good reasons, i.e., he had a fear of losing his other eye.
     The relevant facts of the case are as follows:  The parties are the parents of two minor children, Baillee, born September 8, 1990, and Christopher born February 20, 1994, both of whom live primarily with plaintiff.  The parties have been separated for over two years but are not divorced.  Plaintiff is now living with another man, and they own the home where they are residing as joint tenants with right of survivorship.  The home is valued at $156,000.00 and has a $100,000.00 mortgage.  They also own a rental property as joint tenants.  Plaintiff is employed as a bookkeeper earning approximately $300.00 each week.  Since defendant left his Haddon employment, plaintiff’s cost for health care coverage for herself is $154.80 each month. If her children are also covered, the total cost is $277.00 each month.
     From 1993 until August of 2002, defendant had worked at Haddon as a mechanic where he earned about $16.00 per hour and had health insurance benefits.  He was injured in a work accident in April 2002 and lost vision in one eye and missed six weeks from work.  Subsequently, he was still able to work at Haddon at the same job.  However, he feared that he would lose his other eye.  He could have taken a lower paying safer job at Haddon with health insurance benefits, but he chose to resign and take a laboring job with an excavating company at $10.00 per hour. No health benefits are available at that job until possibly the summer of 2003.  
     In the meantime, in October of 2002, he received a gross amount of $95,000.00 for a workers’ compensation claim for loss of the eye, which included settlement for his specific loss of the eye, wage benefits, and medical benefits.  From this amount he paid $13,300.00 for attorneys fees, $45,000.00 to his wife (i.e., plaintiff for her interest in the marital home), and miscellaneous expenses, giving him a net sum of $33,016.31.  He was hoping to keep most of this amount in case he needed medical attention for his eye in the future.    
         The first issue is whether defendant quit his job, without justification, in order to take a lower paying job.  “Steps taken to reduce income for the purpose of avoiding or decreasing support are ineffective insofar as diminishment of the obligation is concerned.”  Coffey v. Coffey, 394 Pa.Super. 194, 200, 575 A.2d 587, 589 (1990).  In order to “modify a support obligation based upon reduced income, a petitioner must first establish that the voluntary change in employment which resulted in a reduction of income was not made for the purpose of avoiding a child support obligation and secondly, that a reduction in support is warranted based on petitioner’s efforts to mitigate any income loss.  In effect, petitioner must present evidence as to why he or she voluntarily left the prior employment and also as to why the acceptance of a lower paying job was necessary.  Otherwise, for calculation of a support obligation, the petitioner will be considered to have an income equal to his or her earning capacity as defined in the support guidelines.” Grimes v. Grimes, 408 Pa.Super. 158, 163, 596 A.2d 240, 242 (1991).
     In this case, defendant left his employment of nine years for fear of injuring his other eye.  This court finds that defendant did not leave the work place to purposely avoid his child support obligation.  However, this court finds that defendant left his job precipitously without first trying to find a job with equal income and without considering fully the other options that he had at Haddon which would have provided continuing health insurance benefits even if he took a Haddon job that was safer and paid less.  Therefore, he did not completely fulfill the second prong of Grimes.
     However, because of the circumstances, i.e., defendant’s loss of an eye and the lack of clear judgment that most likely attended that trauma, a deviation is appropriate.  “If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.”  Pa.R.C.P. 1910.16-5(a).  The reasons may include “other relevant and appropriate factors….”  Pa.R.C.P. 1910.16-5(b)(9).
     In this case the court specifically notes that a deviation of 25% is appropriate.  This court finds the following:
1.	Defendant left his job for reasonable reasons under the circumstances.  
2.	Defendant has a long history of good employment.
3.	Although he did not comply with the second prong of Grimes by spending more time looking for a comparably paying job, he did secure employment quickly, although not at the pay level of his prior job.
4.	Defendant did not act in bad faith.
5.	If defendant had taken the “cage” job at Haddon, his pay would have been reduced by almost 40% to $9.80, although he would still have had health insurance benefits.
     Thus, the basic support for the two children shall be $662.18 per month (i.e., a 25% downward deviation from the existing order of $882.90).   The basic support for alimony pendent lite shall be $81.02 per month (i.e., a 25% deviation from the existing order of $108.03).  
     The second issue is whether the cost of health insurance should be borne by plaintiff.  Defendant would still have health insurance if he had stayed at Haddon, even at a lower paying position.  He should continue to pay for the cost of health insurance for plaintiff (until they are divorced) and for the children. 
     The final issue is whether the workers’ compensation settlement is income.  Pa.R.C.P. 1910.16-2 defines income. Subsection (8) includes “other entitlements to money or lump sum awards, without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements; awards and verdicts; and any form of payment due to and collectible by an individual regardless of source.”  Clearly, workers’ compensation awards are income for purposes of determining child support.  See Witherow v. Witherow, 288 Pa.Super. 519, 432 A.2d 634 (1981).  Moreover, Pennsylvania courts have decided that lump sum settlements, in tort cases and in workers’ compensation cases must be considered as income: 

In Witherow v. Witherow, 288 Pa.Super. 519, 432 A.2d 634 (1981), we held that the trial court abused its discretion in refusing to consider a $26,000.00 lump sum workers’ compensation award when determining the husband’s ability to pay child support.  Such consideration was necessary to allow evaluation of the ‘full nature and extent’ of the parent’s proprietary interests and financial resources.  Id., 288 Pa.Super. at 521, 432 A.2d at 634 (emphasis in original).  

Similarly, in Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985), we held that a court must consider an entire tort award receive by the father in determining his financial resources for child support.  We held that Witherow was not distinguishable simply because the workers’ compensation award in that case represented replacement for lost earnings, whereas the tort award in Butler included compensation for pain and suffering.  As we stated in Butler and reaffirm here:                                                                                                                                                              

The award as actually received by appellant is a single fund which appellant may expend in his discretion.  The whole tort award is subject to all appellant’s debts.  It would, indeed, call into question the sanity of the law if this court were to rule that the tort award is available to pay debts to “the butcher, the baker and the candlestick maker but not debts to appellant’s child support.” Id., at 339 Pa.Super. at 317, 488 A.2d. at 1143.

Darby v. Darby, 455 Pa.Super. 63, 69, 686 A.2d 1346, 1349 (1996), citing Babish v. Babish, 361 Pa.Super. 118, 121, 521 A.2d 955, 957 (1987).
     Likewise, in the case at bar, the entire award is a single fund to be used by defendant in his discretion.  As such it is income for child support purposes.  The note to Pa.R.C.P. 1910.16-2(a)(8) states:
     The trial court has discretion to determine the most appropriate method for imputing lump-sum awards as income for purposes of establishing or modifying the party’s support obligation.  These awards may be annualized or they may be averaged over a shorter or longer period of time depending on the circumstances of the case.  They may also be escrowed in an amount sufficient to secure the support obligation during that period of time.  ….

The net amount of the award after attorney’s fees was $81,700.00.  The $45,000.00 that defendant paid to plaintiff should not be subtracted from the total net amount of the settlement since that was money that she was otherwise owed by defendant for her equity in the marital residence.  Thus, $81,700.00 is available for support which amounts to $6808.00 each month.  The total monthly income of the parties (including what defendant would have earned at Haddon) is $9635.00 (plaintiff’s income of $792.00 plus defendant’s income of $2035.00, plus $6808.00).  Based on a combined monthly income of $9635.00, Pennsylvania’s guidelines show a combined monthly support obligation of $2221.00.  Defendant’s percentage share would be 92% or $2043.00.  For twelve months only, his child support should be $1380.82 per month ($2043.00 less $662.18) plus the ongoing monthly amount of $662.18.  
     Based on the circumstances of this case, plaintiff has not demonstrated any need for additional alimony pendent lite based on her circumstances, her assets, and the equities involving defendant’s loss of an eye.    

    
HEATHER L. BREDBENNER,	IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIALDISTRICT COLUMBIA COUNTY BRANCH, 
	Plaintiff		PENNSYLVANIA
	          DOMESTIC RELATIONS DIVISION

			CIVIL ACTION - LAW
vs
			PACSES #146102835

JESSE M. BREDBENNER,	CASE NO: DR-00398-00
	
Defendant

ORDER

	AND NOW, this 12th day of February 2003, after consideration of Plaintiff’s exceptions and defendant’s cross-exceptions to the special master’s report and recommendations dated December 3, 2002, the court orders the following:
1.	Effective August 8, 2002, defendant shall pay plaintiff $662.18 per month for the support of his two minor children and $81.02 per month as alimony pendent lite.  
2.	Effective November 1, 2002, defendant shall pay plaintiff an additional $1380.18 per month for twelve month for the support of his two minor children.  Said $1380.18 per month for twelve months shall be paid in a lump sum of $16,562.16 within thirty (30) days of the date of this order.
3.	Effective August 8, 2002, defendant shall provide health insurance coverage for the two minor children and for plaintiff, as he had been, or, in the alternative, plaintiff shall carry said insurance, whichever is less expensive.  If plaintiff carries the insurance, defendant shall reimburse her monthly for the cost of the insurance.  In addition, defendant shall reimburse plaintiff for any such cost that she may have already incurred.  In addition, the parties shall equally share any unreimbursed expenses that exceed $250.00 annually per child.  Plaintiff is responsible for the first $250.00 for each child and for herself annually, provided that if any such expenses would have been covered by any lapsed insurance, defendant shall be responsible for all of such cost.
4.	In all other respects, the special master’s report and recommendation, as amended hereby, is adopted and the parties are DIRECTED AND ORDERED to comply with the terms thereof.
5.	The parties shall equally pay the cost of the hearing transcript in the amount of $58.50 each (total $117.00) within thirty (30) days of this date.

		BY THE COURT:

		_________________________________ 
		HONORABLE THOMAS A. JAMES, JR., J.