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Erika P. Mairs Petitioner
vs.
Thomas E. Mairs Jr. Respondent
 
Case:
File No. CN90-9014
 
Location:
FAMILY COURT OF DELAWARE NEW CASTLE
 
Date:
February 14 1994 Decided
 
Attorneys:
Curtis P. Bounds Esquire 902 Market Street P.O. Box 25130 Wilmington DE 19899 Counsel for Petitioner. Thomas E. Mairs Jr. 221 Westmoreland Avenue Wilmington DE 19804 Pro Se.
 
Court:
CONNER
 
Author:
The Hon. Justice Jay H. Conner
 

The above parties are before the Court upon the request of Ericka P. Mairs (Mother) for: (1) a de Novo review of her petition requesting Thomas E. Mairs Jr. (Father) to show cause why he should not be found in Contempt of this Court's child support Order of 9/17/90 requiring him to pay $260.00 bi-weekly for minor children Andrea born 10/23/77 Matthew born 6/20/79 and Christine born 5/17/81; and (2) to consider the petition of Thomas E. Mairs Jr. for a decrease in the amount of that $260.00 bi-weekly support obligation. Concerning the Contempt of Court petition the parties are in agreement that Father is $346.00 in arrears of his support obligation under the current Order. As for the modification proceeding his pending petition for a decrease was filed December 10 1993 thus any modification can only be retroactive to the date on which it was served on Mother which also was December 10 1993.

The parties stipulated to most of the components to be included in the Melson Formula calculation. They agreed that Mother's gross monthly income is $2 869.00 and that she is single with four dependents for tax purposes. Father is married with two dependents. The disputes are over the amount of gross income to be attributed to Father in the formula and whether the children's St. Elizabeth Parochial School tuition and related costs should be included in their primary needs.

Turning first to the question of Father's gross income in the Melson Formula Mother contends that he should be attributed with the income that he formerly earned in his employment as a security guard with the DuPont Company. This gross income was approximately $3 270.00 a month. Father argues that his current income of approximately $1 400.00 a month from his job as a security guard with Direct Mail Associates should be used. On September 3 1993 Father submitted a one sentence letter of resignation to the DuPont Company stating that "Effective September 1 1993 I Thomas Mairs resign in lieu of termination from the DuPont Company." This letter of resignation was prompted by a demand from his supervisor that he either resign or be fired. The forced resignation was requested because of an incident in late August where Father working as a security guard left the Chestnut Run gate house at approximately 2:00 a.m. to go to a bathroom which was located in another building when he could have used the bathroom in the gate house. According to Father the gate house bathroom is used by the public and was in a dirty and unsanitary condition. Father was also informed by his supervisor that a lady who was present at the gate house when he returned reported that he smelled like he had been smoking marijuana. A test administered the following day showed some trace of marijuana in his system. In explanation for the odor Father testified that earlier in the evening he had been riding with another security guard who smoked a pipe. As for the trace of marijuana in his system Father testified that he had smoked marijuana some days prior at a party. The DuPont supervisor was not called to testify nor was the lady who observed Father on the night in question. There was no evidence of the drug tests. Specifically missing was the quantity of marijuana in Father's system or any evidence of how long traces of marijuana can remain in one's system. While Court suspects that Father may have smoked marijuana on the evening in question there was no legally admissible evidence to support that suspicion. Thus no finding can be made that Father's termination was justified if it was based in part on smoking marijuana on the job. Court is therefore left to determine whether Fathers' leaving the gate house unattended was willful and wanton misconduct on the job under all the circumstances including the length of his employment with the company and his lack of any past disciplinary record. Court cannot find that Father's constructive discharge for leaving the guard house vacant for a very short duration on one occasion to go to a clean restroom in light of a perfect record of employment with the DuPont Company for over twenty-four years constitutes willful and wanton misconduct. Court is also mindful that Father was scheduled to be retired or laid off along with thirty-four to thirty-six other security guards in November of last year. The DuPont Company terminated all but eight to ten security guards assigned to the Chestnut Run complex in a work force reduction move.

For either of two reasons it would be inappropriate to attribute Father's DuPont Company income as the basic factor in calculating the amount of his new support obligation. The most obvious of the reasons for using his present income is that he would have been laid off prior to the effective date of any modification and could not have received his former wages after November 30 1993 irregardless of his performance or behavior on the job. Second although he submitted a letter of resignation this resignation was forced and his termination from DuPont constitutes a constructive discharge. That discharge was not for willful and wanton misconduct in light of Father's long term employment record. Court therefore must include Father's present income earned as a security guard with Direct Mail Associates Inc. as the main component in his column of the Melson Formula. Prior to the end of January he earned $8.00 an hour which would translate to $1386.00 a month. Subsequent to February 1 and prospectively his income was and will be $ 8.60 an hour which translates to $1 490.00 a month. Court will perform two Melson Formula calculations using these gross income figures for Father and $2 829.00 a month for Mother. In Mother's column shall be reported on line 3 $21.00 a month as a deduction for medical insurance on the children and $13.00 for life insurance insuring the lives of the children.

The remaining question before Court is whether the children's tuition and related educational costs at St. Elizabeth's Parochial School should be included as a primary need on line 11 B. Mr. and Mrs. Mairs have always agreed that the children should attend a private school. All three children have attended St. Elizabeth's school since kindergarten. Matthew and Christine even attended kindergarten at St. Elizabeth's. Andrea is in the eleventh grade Matthew is in the ninth grade and Christine the seventh grade. Since the parties have always agreed that the children should attend St. Elizabeth's and the children have done so their entire scholastic lives and the two oldest children are now in high school Court includes the average of $573.00 a month tuition and costs as a primary need.

Enclosed are two Melson Formula calculation worksheets showing Father's support obligation to be in the amount of $420.00 a month or $193.82 bi-weekly for the second half of the month of December 1993 and all of January 1994 and $462.00 a month or $213.20 bi-weekly from February 1994 prospectively. Court adds $5.00 a week ($10.00 bi-weekly) to any prospective award until such time as the $346.00 arrearage is discharged.

Mr. Bounds verbally requested that Mother's Counsel's fees be assessed against Father. The Court does not find this an appropriate case to assess against Father the Counsel's fees that she incurred solely in her representation at the de Novo proceeding that she requested. Her main argument that Father should be attributed with the income from his former employment with the DuPont Company was totally without merit since Mr. Mairs would have lost that job in November of 1993 through no fault of his own even had he not been forced to resign in September of 1993.

IT IS SO ORDERED.