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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARBARA SCHADER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RANDOLPH SCHADER,
Appellee No. 1645 EDA 2014
Appeal from the Order entered April 30, 2014,
in the Court of Common Pleas of Delaware County,
Domestic Relations, at No(s): 2011-01137
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 09, 2015
Barbara Schader (“Wife”) appeals from the trial court’s final order of
support entered against Randolph Schader (“Husband”). We affirm.
The trial court summarized the pertinent facts as follows:
The parties were married on October 12, 1985, and
have four (4) emancipated children. [Wife] filed a
Complaint in Divorce and a Complaint in Custody on June
24, 1994; thereafter the parties reconciled. On August 17,
2007, the parties formally separated. [Wife] completed
the ninth grade (9th) and thereafter received her General
Education (GED) High School Equivalency Degree and
during the marriage, [Wife] was the primary caregiver to
the parties’ four children.
[Husband] is a High School graduate, who completed
college at St. Louis Washington University before going to
Dental School at Temple University. [Husband] was
licensed as a dentist during the marriage. During the
marriage, [Husband] bought property located at 248 South
21st Street, Rittenhouse Square, Philadelphia in 1993, with
a loan from his father and as such the property was
originally titled solely in [Husband’s] name and the parties
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renovated the building to accommodate [Husband’s]
dentistry practice. [Husband] sold his general dentistry
practice located at 248 South 21st Street, Rittenhouse
Square, Philadelphia in 2005 and retained the building,
which he continues to rent out. [Husband] receives rent
from the dental office in the amount of $3,700 a month,
the second floor apartment in the amount of $2,090 a
month and the third floor apartment in the amount of
$1,600 a month.
After the separation of the parties, [Wife] was in a
severe auto accident on May 9, 2008, wherein she
sustained numerous serious and disabling injuries which
resulted in her having several operations. [Wife] requires
significant medical care to this day. There was a
stipulation between the parties that [Wife] has no earning
capacity.
It is important for the calculations of Support in this
matter to note that this Court’s Final Order of Equitable
Distribution was entered on May 30, 2013 and thereafter
this Court issued an Order Granting in Part and Denying in
Part [the parties’] Motions for Reconsideration entered
June 19, 2013. This Court also notes that [a] divorce
decree was issued on August 26, 2013 by The Honorable
Nathaniel C. Nichols and as such the parties were formally
divorced on that date.
[Husband] filed a Petition to Modify APL/Support on July
13, 2013. Thereafter, a Master issued an Order on
September 4, 2013, effective July 22, 2013, for
APL/Support in the amount of $3,759.60 plus 35% of the
mortgage, for an additional $1017.45, with a total
APL/Support obligation of $4,777.05 per month plus
$477.57 toward arrears, thus a total monthly obligation of
$5,254.75. This Court noted that as of April 7, 2014, the
support arrears are $21,068.62[.] [Wife] thereafter filed a
timely appeal from the Master’s Order.
This Court also notes that [Husband], as required by
the Court’s Final Equitable Distribution Order of May 30,
2013, is to pay [Wife’s] existing medical, dental and
prescription insurance coverage and/or make full payments
of the COBRA for [Wife’s] medical insurance for the full
term of the COBRA that is available to [Wife].
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Trial Court Opinion, 8/6/14, at 3-5 (citation and footnotes omitted).1
The trial court held a de novo hearing on April 10, 2014. After
considering all of the testimony and the parties’ exhibits, the trial court
recalculated the applicable support guidelines and issued its final support
order on April 30, 2014. Wife filed an original and amended motion for
reconsideration. On May 22, the trial court denied Wife’s reconsideration
motion. This timely appeal followed. Both Wife and the trial court have
complied with Pa.R.A.P. 1925.
Wife raises the following issues:
A. Did the [trial court] incorrectly rely on [Husband’s]
evidence and testimony related to his income, including
[Husband’s] employment and inheritance, as [Husband]
was ordered to produce the documents regarding the
Schader Estates by Order dated March 1, 2013 and as
there were no 2013 personal income tax returns, nor any
estate tax returns or documents provided to the [trial
court]?
B. Did the [trial court] fail to consider the aforesaid tax
returns and estate account documents which the [trial
court] ordered [Husband] to produce by Order dated
March 1, 2013 when the [trial court] calculated
[Husband’s] spousal support obligations from October 1,
2013 to the present?
C. Did the [trial court] fail to consider that [Husband has]
a significant inheritance and access to trust accounts and
____________________________________________
1
Wife filed a timely appeal to this Court from the trial court’s final equitable
distribution order. That appeal does not impact our decision in the present
appeal. See Schader v. Schader, No. 2492 EDA 2013.
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the income generated by them and such should have been
considered income for support purposes?
Wife’s Brief at 3.
Our standard of review is well settled:
When evaluating a support order, this Court may only
reverse the trial court’s determination where the order
cannot be sustained on any valid ground. We will not
interfere with the broad discretion afforded the trial court
absent an abuse of discretion or insufficient evidence to
sustain the support order. An abuse of discretion is not
merely an error of judgment; if, in reaching a conclusion,
the court overrides or misapplies the law, or the judgment
exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or
ill will, discretion has been abused.
Sirio v. Sirio, 951 A.2d 1188, 1192-93 (Pa. Super. 2008) (citation omitted).
Because Wife’s first two issues involve Husband’s alleged failure to
comply with a discovery order, we address them together. Our review of the
record supports Husband’s assertion that the trial court did not enter a
discovery order in this support action. Husband’s Brief at 8. Rather, as
asserted by Husband, the discovery order was issued approximately one
year earlier at the parties’ equitable distribution docket. Id. Thus, we need
not consider Wife’s first two issues further. See Trial Court Opinion, 8/6/14,
infra.
In her remaining issue, Wife asserts that the trial court abused its
discretion when determining Husband’s income available for support because
it failed to consider the fact that Husband received a significant inheritance,
and had access to trust accounts and the income generated from them.
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Pennsylvania’s Domestic Relations Code defines “income” as follows:
“Income.” Includes compensation for services,
including, but not limited to, wages, salaries, bonuses,
fees, compensation in kind, commissions and similar
items; income derived from business; gains derived from
dealings in property; interest; rents; royalties; dividends;
annuities; income from life insurance and endowment
contracts; all forms of retirement; pensions; income from
discharge of indebtedness; distributive share of
partnership gross income; income in respect of a
decedent; income from an interest in an estate or trust;
military retirement benefits; railroad employment
retirement benefits; social security benefits; temporary
and permanent disability benefits; workers’ compensation;
unemployment compensation; other entitlements to
money or lump sum awards, without regard to source,
including lottery winnings, income tax refunds; insurance
compensation or settlements; awards or verdicts; and any
form of payment due to and collectible by an individual
regardless of the source.
42 Pa.C.S.A. § 4302.
Our Supreme Court has held that, “although the corpus of an
inheritance is not included in a payor’s income available for support, it may
be considered when adjusting a support obligation pursuant to Pa.R.C.P.
1910.16-5.” Humphreys v. DeRoss, 790 A.2d 291, 288 (Pa. 2002); see
also Maher v. Maher, 835 A.2d 1281, 1286-87 (Pa. 2003) (holding
inheritance received by support payee is not income available for support).
Wife acknowledges that the corpus of Husband’s inheritance and trust
is not income for purposes of support. See Wife’s Brief at 15-17.
Nevertheless, she contends “[g]iven the trial court’s finding as to
[Husband’s] ability to access money from the trust funds, the trial court
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should have considered these amounts in establishing the appropriate
support obligation of [Husband].” Wife’s Brief at 19. Our review of the
record does not support Wife’s contention.
The trial court rejected Wife’s claim regarding its calculation of
Husband’s income, and offered its detailed reasoning as follows:
This Court did not incorrectly rely on the evidence and
testimony presented by the parties during the Hearing held
on April 10, 2014. This Court notes that the Hearing on
this Support matter was first scheduled in January of 2014
and then in March of 2014 and those Hearings were
continued at the request of [Wife’s] counsel. This Court
notes that the Hearings were not continued due to a
request for continued discovery or failure to comply with
discovery requests. This Court notes that at no time prior
to or during the Hearing did [Wife] argue that [Husband’s]
2013 tax returns were necessary such that a continuance
of the Hearing should be granted. This Court notes that
[Wife] never requested a continuance of the April 10, 2014
Hearing nor asserted during the Hearing that the 2013 tax
returns of [Husband] were vital to the case during the
Hearing. Even if [Wife] had requested a continuance for
[Husband’s] 2013 tax returns, this Court would not have
granted such a request, as this Court was able to
determine [Husband’s] current income (or income at the
time of the April 10, 2014 Hearing) based upon the
credible testimony and overwhelming and extensive
evidence presented during the April 10, 2014 Hearing.
This Court had previously, in the Final Equitable
Distribution Order, determined that [Husband’s] two
employment positions in 2012 provided him with a [yearly]
gross income of approximately $194,200; in paragraph 16
on page 25 said Order found [Husband] had a minimum
[yearly] earning capacity of $160,000. At that time, the
Court had been provided with [Husband’s] 2012 tax
return, as this Court was provided with the tax return for
2012 at the April 10, 2014 Hearing.
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This Court notes that at the time of the April 10, 2014
Hearing, [Husband] provided credible testimony that he
did not have a 2013 tax return prepared to submit to
[Wife] as the tax deadline of April 15, 2014 had not
passed. [Husband] provided credible testimony of his
employment status and his earnings from October of 2013
until the date of the Support Hearing. [Husband] also
presented as evidence his 1099 Form. Additionally, the
Office Manager at Newtown [Orthodontics], Lisandra
Maisonet, presented credible evidence of [Husband’s]
employment with Newtown as well as his earnings with
Newtown.
This Court notes that based upon the credible testimony
and evidence of [Husband], which was accepted by this
Court, [Husband] currently earns approximately $23,600 a
month in gross earnings. This gross monthly figure is
based upon his 33% percent [sic] of his production (less
lab fee) which [Husband] is paid by Newtown in addition to
the $2,600 a month [Husband] is paid by Liberty Dental.
Therefore, this Court was able to determine that from April
of 2014 until at least December 31, 2014, [Husband’s
gross income has increased to an average of $283,000
yearly, which is almost double the earning capacity this
Court set in the Final Equitable Distribution Order and
almost $89,000 over what [Husband’s] 2012 tax return
showed he earned.
***
Initially, this Court notes that there was insufficient
evidence presented at the [Hearing] regarding [Husband’s]
distributions from the trust and inheritance he received
from his father and his mother’s estates. [Husband]
candidly admitted that he was able to take yearly
distributions, which is only distributions of the interest
generated, which would generally be received on
December 31, 2013. [Husband] credibly testified that he
has not invaded the [principal] of the trust account and
has only received distributions from the interest
generated.
***
This Court did consider [Husband’s] distribution from
his inheritance and trust when calculating [Husband’s]
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earning capacity, for the time period when [Husband] was
solely employed with Liberty Dental and was receiving
unemployment as his position with Einstein [Medical
Center] had been terminated, from July 12, [2012] until
September 30, 2013.
When issuing the Final Support Order, this Court did
consider the inheritance received by [Husband] in
calculating [Wife’s] spousal support; however, this Court
determined that the inheritance should not be calculated
as part of [Husband’s] monthly income. This Court notes
that [Husband’s] credible testimony was that he was able
to receive a distribution from his inheritance and trust;
however, there was not testimony that this is [Husband’s]
consistent practice or that he receives a consistent
amount. This Court notes that [Husband’s] testimony was
that he received a distribution in a lump sum on or about
December 31, 2013, there is no guarantee of the amount
of distribution or the date of distribution.
Additionally, this Court determined that even with
[Wife] at a zero earning capacity and with [Husband] now
making almost double what the Court had previously
ascribed as his earning capacity, there was no reason to
depart from the [support] guidelines and include the one
time distribution of interest as part of [Husband’s] income.
This Court notes that the parties’ children are
emancipated, [Husband] continues to pay the mortgage on
the marital residence, over and above the spousal support
award, for the residence in which [Wife] currently resides,
[Husband] continues to pay the COBRA payments for
[Wife’s] medical benefits and [Wife] receives alimony from
[Husband]. Based upon the spousal support award of
nearly $6,400 a month, plus all the other “benefits” listed
above, this Court determined that there was no reason to
deviate from the guidelines and to consider [Husband’s]
inheritance as part of his income in determining the
spousal support award.
Trial Court Opinion, 8/6/14, at 16-22.
The above explanation refutes Wife’s claim that the trial court failed to
consider Husband’s inheritance and access to his trust accounts. We cannot
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disturb the trial court’s credibility determinations regarding Husband’s
testimony. See Doherty v. Doherty, 859 A.2d 811, 812 (Pa. Super. 2004)
(explaining that matters of credibility are solely within the province of the
trial court as fact finder). Moreover, our review of the record supports the
reasons given by the trial court for refusing to deviate from the applicable
support guidelines based upon Husband’s inheritance and trust income.
In sum, because Wife’s claims are without merit, we affirm the trial
court’s final order of support.
Order affirmed.
Judge Gantman joins memorandum.
Judge Shogan files a concur in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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