J-A06026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DIANE FRAME IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LEWIS R. FRAME, JR.
Appellee No. 1906 EDA 2014
Appeal from the Order Entered June 5, 2014
In the Court of Common Pleas of Chester County
Domestic Relations at No(s): 00644 N 2004
Pacses Case No. 662106294
-------------------------------------------------------------------------------------
DIANE D. FRAME IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LEWIS R. FRAME JR.
No. 2125 EDA 2014
Appeal from the Order Entered June 5, 2014
In the Court of Common Pleas of Chester County
Domestic Relations at No(s): 00644 N 2004
Pacses Case No. 662106294
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED APRIL 23, 2015
Lewis R. Frame, Jr. (“Father”) appeals from the order entered June 5,
2014, in the Chester County Court of Common Pleas, retroactively modifying
his child and spousal support payments (Docket No. 1906 EDA 2014). Diane
J-A06026-15
D. Frame (“Mother”) cross-appeals from the same order (Docket No. 2125
EDA 2014).1 The appeals have been consolidated for disposition, and based
upon the following, we affirm.
The facts underlying these appeals are well known to the parties, who
have been before this Court on two prior occasions.2 For purposes of this
appeal, we note Father and Mother were married in April of 1995, and
separated in February of 2004. No divorce decree has been entered. The
parties have one child, a son born in March of 1996, who graduated from
high school in 2014. Since 2005, the parties have been litigating alimony
and child support issues, particularly with respect to Father’s income. Father
and his family are real estate developers, who own and operate a number of
business entities. Although Father has been involved in these companies
over the years, it appears he rarely received a salary, but maintained his
lifestyle through financial “gifts” he received from his parents.3
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1
Although Mother filed a cross-appeal, she does not raise any issues in her
brief, but merely responds to the claims raised by Father on appeal.
Therefore, we consider any potential cross-appeal claims waived.
2
For a detailed history of the facts and the parties’ financial holdings see
Frame v. Frame (“Frame I”) 907 A.2d 1143 [2382 EDA 2005]
(unpublished memorandum at 1-10) (Pa. Super. 2006).
3
In Mother’s first appeal to this Court, in July of 2006, we noted that the
parties’ yearly expenses exceeded $200,000. Id. (unpublished
memorandum at 2).
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On July 14, 2005, the trial court entered an order directing Father to
pay Mother child and spousal support from March 31, 2004. Mother filed an
appeal to this Court contending the trial court abused its discretion in (1)
accepting the testimony of Father’s vocational evaluator to determine
Mother’s imputed income, and (2) “crediting the testimony of [Father’s]
forensic accountant with regard to the computation of [Father’s] income.”
Frame I (unpublished memorandum at 12). A panel of this Court affirmed
in part, and reversed in part. Specifically, the panel found no abuse of
discretion on the part of the trial court in determining Mother’s imputed
income. However, with respect to Father’s income, the panel found that
Father’s forensic accountant did not have “an accurate picture of the reality
of [Father’s] financial situation.” Id. (unpublished memorandum at 14).
This Court was particularly concerned with Father’s ability to maintain a
“lavish lifestyle,” which included $50,000 of annual maintenance on his $2
million home, based upon the accountant’s imputed annual income of
$128,907. Id. (unpublished memorandum at 14-15). Therefore, the panel
remanded the case “for a new hearing before a new trial court judge to
determine or impute [Father’s] actual income and actual ability to pay based
on the reality of the financial situation presented here.” Id. (unpublished
memorandum at 16).
Upon remand, a different judge conducted three additional days of
support hearings. Thereafter, the court entered a new support order on
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September 21, 2007, from which Father appealed, and Mother cross-
appealed.
On September 9, 2008, a panel of this Court, once again, vacated the
order on appeal and remanded for further proceedings. Frame v. Frame
(“Frame II”), 963 A.2d 577 (Pa. Super. 2008). Although the panel found
Father’s issues meritless, the panel agreed with Mother that the trial court
erred in “treating the payments to Father from his parents as gifts or loans
excludable from ‘income’ [for support] as defined in [23 Pa.C.S. §] 4302.”
Id. (unpublished memorandum at 18) (emphasis supplied). The panel
emphasized that “Father … is employed by the people from whom he
receives substantial amount of cash each year in addition to his salary …
[and] his lifestyle depends on these infusions of cash.” Id. (unpublished
memorandum at 23). The panel also rejected Father’s claim that the
transfers were loans, which he was required to repay, based upon the lack of
any repayment schedule, “scant evidence” of Father’s actual repayment of
any principal, and the sheer amount of the debt (more than $2.7 million) as
compared to Father’s declared annual income ($125,000). Id. (unpublished
memorandum at 24). Therefore, this Court vacated the September 21
2007, support order and remanded the case to the trial court for a
recalculation of the parties’ obligations “by including as income available for
support the annual cash contributions received by Father from his parents,
during the marriage and beyond[.]” Id. (unpublished memorandum at 25).
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Thereafter, Father filed a petition for allowance of appeal with the
Pennsylvania Supreme Court, which entered the following order on June 23,
2009:
AND NOW, this 23rd day of June 2009, the Petition for
Allowance of Appeal is GRANTED, the order of the Superior
Court is VACATED, and the order of the trial court is
REINSTATED. See Humphreys v. DeRoss, 567 Pa. 614, 790
A.2d 281 (2002) (Section 4302 of the Domestic Relations Code
does not include “gifts” in definition of income; a party’s assets
may, however, be relevant in determination of an upward
deviation from the Support Guidelines); accord Jacobs v.
Jacobs, 884 A.2d 301 (Pa. Super. 2005); Pa.R.C.P.1910.16–5.
Frame v. Frame (“Frame III”), 974 A.2d 1160 (Pa. 2009).
Upon remand, the trial court reinstated its September 21, 2007,
support order. On April 5, 2012, Father filed a petition to vacate spousal
support, contending that he had been paying Mother alimony for a period
longer than the parties’ marriage. On May 9, 2012, upon Father’s petition
for primary physical custody, the trial court entered an order awarding
Father and Mother shared legal and physical custody of the child, then 16
years old.4 It is undisputed, however, that from August 1, 2012, until his
high school graduation in 2014, the child lived solely with Father.
Accordingly, by agreement of the parties, Father’s child support obligation
was terminated effective August 1, 2012.
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4
In Frame II, this Court noted that “Father and Mother began to share
physical custody of [child] during alternate weeks on June 17, 2005.”
Frame II, supra (unpublished memorandum at 9).
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On March 5, 2013, Mother filed a Krebs5 petition seeking to
retroactively modify Father’s support obligation. Specifically, Mother claimed
she had recently learned that Father “knowingly concealed substantial
increases in income from 2004 forward [which were] significantly greater
than he disclosed in sworn testimony in 2007 [such that Father had]
perjured himself” at the prior support hearing. Petition to Retroactively
Modify Support Order Sur Krebs, 3/5/3013, at ¶ 5. Mother also filed a
contempt petition based upon Father’s misrepresentations.
In April of 2013, Father filed competing Krebs and contempt petitions,
nearly identical to those filed by Mother a month earlier, alleging Mother had
“knowingly concealed substantial increases” in her income.6 Petition to
Retroactively Modify Support Sur Krebs, 4/5/2013, at ¶ 6; Petition for
Contempt and Sanctions (Perpetration of Fraud on Court) Sur Krebs,
4/9/2013, at ¶ 6. Following several support hearings, during which the trial
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5
Krebs v. Krebs, 944 A.2d 768, 774-775 (Pa. Super. 2008) (holding (1)
parties to a support proceeding must report any material changes that would
affect support obligations; (2) the burden is on the party filing modification
petition to prove modification is warranted and he/she filed petition
promptly; and (3) “[w]here a misrepresentation has occurred … the court
may order a modification of arrearages retroactive to the date a party first
misrepresented income if the other party promptly filed a modification
petition upon discovery of the misrepresentation.”).
6
Father also purportedly filed a petition for child support, seeking support
from Mother during the period their son began living exclusively with him on
August 1, 2012. That petition, however, is not included in the certified
record.
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court reconsidered the parties’ respective incomes and earning potentials
from 2007 until 2013, the trial court entered an order on May 30, 2014,
retroactively modifying the Fathers’ child and spousal support obligations.
Thereafter, the court entered an amended order on June 5, 2014, correcting
a typographical error in its prior order. This timely appeal, and cross-
appeal, followed.7
As noted supra, Mother did not present any issues in her brief, but
rather, merely responded to Father’s claims. Accordingly, any potential
claims on cross-appeal are waived, and we affirm the order at Docket No.
2125 EDA 2014.
Father raises the following six issues on appeal:
I. Does this Court have jurisdiction over the spousal support
portion of the appeal?
II. Did the trial court abuse its discretion in finding [Mother]
was not responsible for paying child support and denying
Father an[] upward deviation when the evidence
established that Father had sole physical custody of the
minor child?
III. Did the trial court abuse its discretion in awarding [Father]
an earning potential beyond any amount he had ever
earned and for performing a job position that he has not
performed on a full time basis, that he lacks the normal
education and credentials to hold, and that [he] never
performed without retaining paid consultants and project
____________________________________________
7
The trial court did not direct either party to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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managers handling the day-to-day operations of a family
business?
IV. Did the trial court abuse its discretion in finding that the
income earned by [Father’s] mother[’s] companies should
be attributed to [Father] and adding the income to his
earning potential where the evidence showed that
[Father’s] life style was subsidized by his parents’
generosity and substantial assets and that he does not
have the extensive ownership of his mother’s companies
that [Mother] claims?
V. Did the trial court abuse its discretion in finding that
[Father] should continue paying alimony pendente lite
when he has done so longer tha[n] the parties’ marriage
lasted?
VI. Did the trial court abuse its discretion in concluding that
[Father] failed to properly notify the Court of his income
when the evidence confirms that his income had actually
decreased and [Mother’s] income had increased?
Father’s Brief at 4-5.
Preliminarily, we note that Father’s first and fifth issues relate to the
spousal support portion of the order.8 As Father acknowledges, “[i]t is well-
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8
On July 23, 2014, this Court issued Father a Rule to Show Cause as to the
appealability of the spousal support portion of the order. See Order
7/23/2014. When Father failed to timely respond to the Show Cause order,
this Court entered an order on August 6, 2014, stating “only issues
regarding the child support portion of the order will be referred to the panel
assigned to decide the merits of this appeal.” Order, 8/6/2014. Thereafter,
on August 28, 2014, Father filed a motion seeking to vacate the partial
dismissal and reinstate his appeal, claiming neither he nor his counsel
received a copy of the Rule to Show Cause. See Motion to Vacate Partial
Dismissal and Reinstate Appeal, 8/28/2014, at ¶ 5. Thereafter, this Court
entered an order granting Father’s motion, and noting that “[t]he issue
regarding both child support and spousal support from the June 5, 2014
order will be referred to the panel assigned to decide the merits of his
appeal.” Order, 9/19/2014. Accordingly, the appealability of the spousal
support portion of the order is now ripe for our consideration.
(Footnote Continued Next Page)
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recognized that a spousal support order entered during the pendency of a
divorce action is not appealable until all claims connected with the divorce
action are resolved.” Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super.
2003) (citations omitted).
However, Father argues this Court should assume jurisdiction over the
spousal support portion of the award for two reasons: (1) the issue of
Father’s imputed income, as it related to spousal support, was already the
subject of two prior appeals to this Court, and one appeal to the
Pennsylvania Supreme Court, and (2) “the trial court’s calculation of child
support is intimately intertwined with the calculation of spousal support in
this case” because both calculations depend on the court’s purported
incorrect imputation of income to Father. Father’s Brief at 32.
First, we disagree with Father’s contention that this Court already
assumed jurisdiction of the spousal support issue in his prior appeals. A
review of our prior decisions reveals that while Father’s imputed income was
the subject of the appeals, this Court focused on the impact of Father’s
income on the child support award. See Frame I, supra (unpublished
memorandum at 16) (remanding to a new hearing before a new trial judge
after concluding, “[t]he trial court’s child support award based on the
finding that [Father’s]’s income has dried up is manifestly unreasonable and
_______________________
(Footnote Continued)
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a clear abuse of discretion.”) (emphasis supplied); Frame II, supra
(unpublished memorandum at 1-2) (“[W]e consider the appeal of … [Father]
from the order of the [trial court] dated December 28, 2007, that denied him
relief on reconsideration of the trial court’s order relating to child support
dated September 21, 2007, and entered on September 24, 2007.”)
(emphasis supplied). Therefore, we did not assume jurisdiction of the
spousal support portion of the order in the prior appeals.
Second, we also reject Father’s contention that the spousal support
award is “intimately intertwined” with the child support award simply
because they both rely upon the court’s determination of Father’s imputed
income. Indeed, in any appeal challenging the trial court’s calculation of a
party’s income or earning capacity with respect to child support, the court’s
determination will also affect a corresponding spousal support award.
Nevertheless, we note that:
The rationale behind [the rule declining to consider spousal
support orders until a divorce is final] is that, for purposes of
judicial efficiency, in the event that an initial award of interim
relief is granted in error, the court has the power to make
adjustments in the final settlement via the equitable distribution
of marital property. Thus, when all economic matters involved in
a divorce are resolved, any support order can be reviewed and
corrected when the court finalizes the equitable division of the
property.
Thomas v. Thomas, 760 A.2d 397, 398 (Pa. Super. 2000) (citations
omitted). Here, Father will have the opportunity to challenge the spousal
support award during, and on appeal from, the equitable distribution
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proceedings. Accordingly, we decline to assert jurisdiction over the spousal
support portion of the order in this appeal.9
Father’s remaining issues relate to the child support portion of the trial
court’s June 5, 2014, amended order.
When considering an appeal from a child 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 the 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.
W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa. Super. 2014) (citations omitted).
Moreover, “[t]he trial court, as the finder of fact, heard the witnesses, and is
entitled to weigh the evidence and assess its credibility.” Baehr v. Baehr,
889 A.2d 1240, 1245 (Pa. Super. 2005).
When, as here, a party seeks to modify an existing support order, the
party seeking modification has the burden of proving “a modification is
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9
We also decline Father’s invitation to treat his notice of appeal as a petition
for permission to appeal an interlocutory order pursuant to Pa.R.A.P. 1311.
It was incumbent upon Father to petition this Court for permission to appeal,
and his failure to do so precludes our review. See Gellar v. Chambers,
437 A.2d 406, 407 (Pa. Super. 1981) (quashing appeal when appellant failed
to file Rule 1311 petition for permission to appeal despite the fact that the
appellee did not object, and the trial court certified the issue for appeal
pursuant to 42 Pa.C.S. § 702(b)).
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warranted and that he/she promptly filed a modification petition.” Krebs,
supra, 944 A.2d at 774 (citation omitted). Furthermore:
“An order modifying a prior support order is ordinarily retroactive
to the date of filing of a petition for modification.” Where a
misrepresentation has occurred, however, the court may order a
modification of arrearages retroactive to the date a party first
misrepresented income if the other party promptly filed a
modification petition upon discovery of the misrepresentation.
Id. at 774-775 (citations omitted).
In his second issue, Father contends the trial court abused its
discretion when it failed to order Mother to pay Father child support during
the period of August 1, 2012, through June 2014, when Father had sole
physical custody of their son. He argues the trial court “disregarded
[Mother’s] absolute duty to provide support for Child … and foisted the entire
responsibility of providing for Child’s needs on [Father].” Father’s Brief at
34. Further, Father requests an upward deviation from the child support
guidelines because he claims Mother made no expenditures “at all” on behalf
of their son during that time. Id. at 35.
A review of the trial court’s opinion accompanying the May 30, 2014,
order, reveals that the court found both Mother and Father had failed to
report changes in their income. However, with respect to Mother, the court
noted that as a “W-2” employee, Mother “has no ability to manipulate her
salary and related compensation.” Trial Court Opinion, 5/31/2014, at 16.
The court could not say the same for Father. In fact, the trial court
described Father has having a “profound lack of credibility[,]” particularly
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with respect to the purported “loans” he periodically receives from his
parents to maintain his lifestyle. Id. at 16. Moreover, the court derided
Father for representing during the 2007 support hearings that his net
monthly income was only $10,011, when in April of 2006, he submitted a
mortgage loan application on which he attested his net monthly income was
$34,695. Id. at 6-7.
Although the trial court recognized that the “loans” from Father’s
parents could not be considered income available for support, see id. at 8, it
credited the opinion of forensic accountant Mitchell Benson, CPA, who opined
that Father had “an earning capacity of $188,268 per year for his
development and management activities.” Id. at 11. Moreover, the trial
court found that Father “is in control of the financial and business entities
associated with the Frame family, and that he controls the funds advanced
by [his mother] to him or to the business.” Id. at 12. Accordingly, from
August 1, 2012, forward, the court determined that Father had a net
monthly income of $17,500. Id. at 16, 26. During that same period, the
court calculated Mother’s net monthly income, as reflected on her tax
returns, as $7,861 in 2012, as $5,939 from January 2013 until May 2013,
and as $5,279 from June 2013 forward.10
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10
Mother’s employment with Keystone Custom Homes was terminated on
May 31, 2013. For that time forward, the trial court imputed to Mother an
earning capacity of $80,000 per year. Id. at 21.
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Moreover, while the trial court did not specifically address Father’s
request for child support during the time he had sole custody of their child, it
is evident from the court’s opinion that the trial court determined Father had
vastly more financial resources than Mother. See Id. at 14 (stating Father
“has control of all the business entities and his use of the numerous
corporate and personal credit cards ‘for convenience’ shows that this control
allows him significant amount of income available for support.”).
Furthermore, the court noted the record contained no evidence of the
reasonable needs of the child, and Father “failed to produce any credible
evidence of his expenses.” Id. at 22, 23. Accordingly, we detect no abuse
of discretion on the part of the trial court in failing to award Father child
support for the period from August 1, 2012, to June 2014.
Father’s remaining issues - III, IV and VI – challenge the trial court’s
decision to modify his child support payments to Mother, and we will
consider them together. Specifically, Father argues the trial court abused its
discretion in imputing to him an earning capacity as a real estate developer
when he lacked “any formal training or education” in the field, but had, in
fact, “lived off his parents’ generosity his entire life.” Father’s Brief at 36.
Furthermore, he contends he worked only for his family’s businesses, and
“[i]t is … common for … family members to devote long hours to the family
businesses for limited compensation[.]” Id. at 37. Moreover, Father argues
the trial court abused its discretion in “essentially pierc[ing] the corporate
veil without making any of the requisite findings.” Id. at 39. He asserts:
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There is no evidence that [Father’s] ability to pay support was
enhanced by advantages owing to his limited ownership or his
management of the family businesses, or that the entirety of the
corporate accounts was actually received by him or available to
him.
Id. at 40.
Father also contends the court abused its discretion in determining he
failed to accurately report his income when he actually lost income during
the relevant period, and Mother had concealed increases in her income. He
states “[t]his error is compounded by the fact that [Mother’s] baseless
claims that [Father] had been concealing income and assets have been
repeatedly rejected by multiple courts, only to suddenly be accepted now.”
Id. at 46.
After a thorough review of the record, the parties’ briefs, and the
relevant law, we find that the trial court’s June 2, 2014, opinion provides a
thorough and well-reasoned discussion of its ruling retroactively modifying
Father’s child support payments from January 1, 2006, until August 1, 2012.
Significantly, the court found that Father had misrepresented his income
and, particularly, his control of the Frame family businesses. Accordingly,
we adopt the sound reasoning of the trial court as dispositive with respect to
these issues. See Trial Court Opinion, 6/2/2014, at 1-28 (finding (1) Father
has an earning capacity as a “real estate developer and business manager,”
and, in fact, listed his occupation as “real estate developer” on his individual
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tax returns;11 (2) Father is “in control of all the financial and business
entities associated with the Frame family, and … controls the funds advanced
by [his mother] to him or to the businesses[;]” 12 (3) Father and his
accountant testified in 2007 that Father did “not have control of the Frame
family businesses” in contrast to their testimony during the present hearings
that Father “has total control of all the businesses and has since [his
father’s] death in 2005 (before the 2007 hearing)[;]”13 (4) Father’s
contention that the net monthly income reported on his 2006 mortgage
application was determined by a bank employee who averaged three years
of his income was incredible; (5) Father used both his personal and
corporate credit cards to pay his personal expenses which demonstrated his
control of the family businesses; (6) Father’s control of the family businesses
allowed the court to apply an upwards deviation from the support guidelines;
and (7) while Mother’s failure to report “substantial increases” in her income
“tarnishes her credibility,” Mother as “a ‘W-2’ employee … has no ability to
manipulate her salary and related compensation.”14).
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11
Id. at 9, 10.
12
Id. at 12.
13
Id. (emphasis in original).
14
Id. at 16-17. The court noted, conversely, that Father had failed to
provide his income tax returns for the years 2011 and 2012, ostensibly
because he owed his accountant money. The trial court opined: “I find it
highly suspect that the very returns that should be front and center are
(Footnote Continued Next Page)
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Based upon its findings, and, particularly, its determination that Father
has been less than candid with the court regarding his financial resources,15
the trial court recalculated both Father’s and Mother’s income for the
relevant time periods, and entered the support order at issue. Finding no
abuse of discretion, we affirm.16
_______________________
(Footnote Continued)
unavailable, despite [Father] having the burden of proof on this petition.”
Id. at 10 n.7.
15
See Baehr, supra (noting the trier of fact determines credibility).
16
Father’s contention that the claim he has been “concealing income and
assets” has been “repeatedly rejected by multiple courts” is simply untrue.
Father’s Brief at 46. In Frame I, a panel of this Court remanded the case
for a new support hearing after determining that Father’s “lavish lifestyle
and valuable possessions” would be “utterly impossible” to maintain based
on his stated earnings. Frame I, supra (unpublished memorandum at 15).
Similarly, in Frame II, this Court remanded for further proceedings after
concluding “the trial court abused its discretion by failing to recognize the
cash payments Father received from his parents as income for support
purposes[.]” Frame II, supra (unpublished memorandum at 25). While
that decision was ultimately vacated by the Pennsylvania Supreme Court in
Frame III, the Court did so because “gifts” are not considered income for
support purposes. Frame III, supra. The Supreme Court did not
comment on the legitimacy of Father’s reported income or Father’s
credibility. Furthermore, it was not until the most recent hearings, in 2014,
that Mother introduced Father’s 2006 mortgage loan application which
clearly demonstrated he had more income than he represented in the earlier
support hearings.
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Order affirmed. Mother’s Application for Relief in the Form of
Attorney’s Fees-Costs is hereby DENIED.17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2015
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17
We decline to award Mother attorney’s fees in this appeal based in part on
the trial court’s determination that she, too, failed to disclose increases in
her income.
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