J. A01043/15
2015 PA Super 108
J.P.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
W.E.D., : No. 775 WDA 2014
:
Appellant :
Appeal from the Order Entered April 14, 2014,
in the Court of Common Pleas of Allegheny County
Family Court Division at No. FD 96-003833-005
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND DONOHUE, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2015
This is an appeal from a child support order entered in the Court of
Common Pleas of Allegheny County requiring appellant, W.E.D. (“Father”),
to pay $1,365 per month for the support of his two children retroactive to
May 1, 2013. We affirm.
Father and appellee, J.P.D. (“Mother”), are the parents of two children,
V.D., born in 2003, and W.D., born in 2006. The parties divorced on
November 3, 2008. Pursuant to the parties’ Property Settlement
Agreement, a consent order was entered on September 11, 2008 awarding
Mother the allocated monthly amount of $1,500 for child support and $300
for alimony for a period not to exceed 60 months, the term to expire on
August 31, 2013.
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On May 1, 2013, Father filed a petition seeking modification of his child
support order due to the upcoming expiration of the alimony term. On
September 6, 2013, the parties appeared before Hearing Officer Peggy
Ferber. At the conclusion of the hearing, Hearing Officer Ferber terminated
the alimony and modified the child support order to $1,500 per month on an
interim basis pending conclusion of the proceedings.
The hearing continued on December 5, 2013. The parties appeared
with their experts who had assessed Father’s earning capacity for the
purpose of calculating his child support obligation. Father’s expert assessed
him an earning capacity of $45,725 per year. Father’s expert took into
account the earnings of a computer operator and network administrator with
Father’s level of experience. Father has no formal education and is no
longer personally certified, factors which lessen his potential to earn a higher
paying salary. Father testified he works approximately 50 hours a week and
earns a salary of $20,000. Mother’s expert assessed an earning capacity of
$70,833 per year to Father.
There was no issue regarding Mother’s income. Mother is employed as
an elementary school teacher and beginning in September of 2013 was
scheduled to earn a salary of $51,903 for the 2013-2014 school year.
Mother testified her net monthly income was $2,979.39 and her monthly
budget ranges from $3,820 to $4,320.
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Following the hearing, Hearing Officer Ferber entered a
recommendation and temporary order directing Father to pay $926.65
monthly to Mother retroactive to May 1, 2013. Mother filed timely
exceptions in which she argued the hearing officer erred in crediting the
testimony of Father’s expert over that of her expert; the hearing officer
failed to add back 100% of Father’s expenses that Father testified were paid
by his current wife; and the hearing officer erred in failing to grant a
deviation under Pa.R.C.P. 1910.16-(b)(3), (5), and (7). Father filed
cross-exceptions stating the hearing officer erred in determining his annual
income.1
Following oral argument, the trial court sustained, in part, Mother’s
and Father’s exceptions. The trial court determined Father’s income for child
support purposes should be calculated at $3,694 per month. This figure was
arrived at by using Father’s expert’s earning capacity of $45,725 per year,
$8,880 per year in non-taxed car and phone benefits were added to Father’s
yearly gross income, and applying applicable taxes. Mother’s net monthly
income was increased to $3,135 per month. At Mother’s request, the trial
court assigned both dependency exemptions from the children to her for tax
purposes. Using $3,394 per month for Father and $3,135 per month for
Mother, and after applying the appropriate shared custody adjustment,
1
While the hearing officer stated she found Father’s expert more credible
than Mother’s expert, she proceeded to use the earning capacity favored by
Mother’s expert.
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Father’s guideline child support per month equaled $665. However, the trial
court added an upward deviation of $701 due to the substantial additional
income in Father’s household. As of May 1, 2013, Father’s total child
support award was set at $1,365. Father filed a timely appeal.
The sole issue for our consideration is as follows:
Did the trial court err and abuse its discretion in
ordering a deviation from the presumptively correct
recommended guideline amount of child support
when the deviation ordered was in an amount
greater than 100% of the actual guideline amount of
child support, contrary to the evidence presented at
trial and in an amount that is punitive and
confiscatory?
Father’s brief at 6.
Our standard of review in child support matters is well settled:
Appellate review of support matters is
governed by an abuse of discretion standard. 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. An
abuse of discretion is [n]ot merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence
of record. The principal goal in child support matters
is to serve the best interests of the children through
the provision of reasonable expenses.
R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013) (citations and quotation
marks omitted).
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Support actions are governed by the Pennsylvania Rules of Civil
Procedure 1910.1 through 1910.50. Initially, Pa.R.C.P. 1910.16-1(d)
provides:
Rule 1910.16-1. Amount of Support. Support
Guidelines
(d) Rebuttable Presumption. If it has been
determined that there is an obligation to pay
support, there shall be a rebuttable
presumption that the amount of the award
determined from the guidelines is the correct
amount of support to be awarded. The support
guidelines are a rebuttable presumption and
must be applied taking into consideration the
special needs and obligations of the parties.
The trier of fact must consider the factors set
forth in Rule 1910.16-5. The presumption
shall be rebutted if the trier of fact makes a
written finding, or a specific finding on the
record, that an award in the amount
determined from the guidelines would be
unjust or inappropriate.
Pa.R.C.P. 1910.16-1(d). Next, as directed, we turn to Pa.R.C.P. 1910.16-5
which provides:
Rule 1910.16-5. Support Guidelines. Deviation
(a) Deviation. If the amount of support deviates
from the amount of support determined by the
guidelines, the trier of fact shall specify, in
writing or on the record, the guideline amount
of support, and the reasons for, and findings of
fact justifying, the amount of the deviation.
Note: The deviation applies to the
amount of the support obligation
and not to the amount of income.
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(b) Factors. In deciding whether to deviate from
the amount of support determined by the
guidelines, the trier of fact shall consider:
(1) unusual needs and unusual fixed
obligations;
(2) other support obligations of the
parties;
(3) other income in the household;
(4) ages of the children;
(5) the relative assets and liabilities of
the parties;
(6) medical expenses not covered by
insurance;
(7) standard of living of the parties
and their children;
(8) in a spousal support or alimony
pendente lite case, the duration of
the marriage from the date of
marriage to the date of final
separation; and
(9) other relevant and appropriate
factors, including the best interests
of the child or children.
Pa.R.C.P. 1910.16-5.
On appeal, Father argues the upward deviation, which was an amount
greater than 100% of the actual guideline amount of child support, is
punitive and confiscatory as well as contrary to the evidence presented at
trial. We first consider the evidence presented which the trial court
summarized as follows:
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Father testified that he does not pay for any of
his own expenses, such as mortgages, car payments,
utilities, or entertainment. The couple earns
approximately one million dollars in annual net
income. Wife owns several successful recruiting
companies in many different industries including
accounting, engineering, office professionals and
business. Father and his new wife own multiple
properties including their residential home, which
was purchased for $360,500; a weekend townhouse
in Seven Springs, which Father testified cost more
than $100,000; as well as a lot bought from Wife’s
parents which was purchased for approximately
$240,000. Father also testified he leases a 2011
Cadillac for a monthly payment of $940.
Additionally, Father testified that Wife takes
care of all finances in the home. Father could
provide little information when asked about
household expenses, admitting he does not even
open the mail. Not only does Wife’s income provide
Father with all his daily needs, Wife’s income
provides Father the opportunity to travel and take
vacations. Based on Father’s testimony, Father has
demonstrated that the other household income in
the home provided by his Wife is more than
sufficient to pay for any essential needs as well as a
multitude of luxuries. Thus, it is clear that Father’s
entire income is available for child support purposes.
Trial court opinion, 7/9/14 at 7.
In his brief, Father states that “[w]hile he does not actually write the
checks, he contributes to the payment of the expenses.” (Father’s brief at
16.) Additionally, he complains “it was unreasonable for the Trial Court to
determine, as it did, that Father contributes nothing to the expenses of his
household, does not pay for any of his own expenses or necessities, or does
not rely on his income to support himself or his wife.” (Id.)
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Our review indicates Father’s own testimony belies his argument.
Father was asked if he paid his own expenses, and he replied, “I pay no
household bills.” (Notes of testimony, 12/5/13 at 53.)
Question: You don’t pay the mortgage, the taxes or
anything like that?
Father: I don’t even open the mail. My wife does all
that.
....
Question: So you have absolutely no idea how much
your family spends each month?
Father: I don’t pay the bills. We have been through
this many, many times.
Id. at 53, 55.
Based on the evidence presented, we find the record supports the trial
court’s determination that all of Father’s income was available for child
support.
Having determined that the evidence presented at trial was not
contrary to the trial court’s finding that all of Father’s income was available
for child support, we turn to the crux of this matter, that is, the upward
deviation amount that is more than 100% of the guideline amount. Father
points out the trial court relies on the case of Suzanne D. v. Stephen W.,
65 A.3d 965 (Pa.Super. 2013); however, Father posits the case is factually
distinguishable.
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In Suzanne D., one of the primary issues was whether the substantial
monetary gifts that Father received from his grandfather should be
considered income for child support purposes. The record indicated that
Father’s monthly income was almost doubled by his grandfather’s gifts. Id.
at 973. In deciding the monetary gifts could not be considered income for
child support purposes, we observed that the domestic relations statute does
not define gifts as income.2 Id. at 972. We explained: “Monetary gifts
from family members are a common practice, and would not have been
unknown to the drafters of the statute. Had the General Assembly wished to
include gifts as income for support, it would have done so.” Id.
2
“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 source.
23 Pa.C.S.A. § 4302.
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However, this court reasoned that the monetary gifts could be
considered in awarding an upward deviation under Pa.R.C.P. 1910.16-5(a).
The trial court determined these substantial monetary gifts had been made
regularly since 2004, and based on grandfather’s testimony, the gifts would
continue. In addition to the disparity in income between Father and Mother,
the court also noted grandfather paid for other expenses incurred by the
children; such as, medical expenses, extracurricular activities, private school
tuition, as well as Father’s legal expenses. (Id. at 973.) The trial court
concluded an upward deviation of $500 per month was called for.3 We found
no abuse of discretion in this regard.
Instantly, Father complains his and Mother’s incomes are not
disparate, but rather comparable. While that may be true, Mother does not
live with a new spouse who nets one million dollars per year in income.
Similar to the grandfather in Suzanne D., Father’s new wife, Susan,
provides a substantial amount, if not all, of the income for household
expenses as well as paying for Father’s and the children’s medical expenses
through her business. The trial court recognized the $701 deviation was
large, but explained:
Pa.R.C.P. 1910.16-5(b)(3) provides that other
household income may be a factor to consider when
deciding whether to deviate from the support
guidelines. In this particular case, the other
3
Father was ordered to pay $1,347 per month for one year, and $1,547 per
month thereafter. The $500 upward deviation was approximately a
32½% deviation.
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household income provided by Father’s new wife,
Susan, allows Father to have a higher percentage of
his income available to pay his child support
obligations. The support guidelines presume that
part of the obligor’s income will be spent on his/her
own expenses and necessities. Testimony from
Father at the December 5, 2013 hearing, revealed
that Father does not pay for any of his own expenses
or necessities and therefore does not rely on his
income to support himself or his wife.
Trial court opinion, 7/9/14 at 6. The trial court noted Father would not be
paying over 50% of his net monthly income toward child support. (Id. at
8.) Father’s total combined child support obligation is $1,365 per month
that includes the $665 guideline child support plus $701 upward deviation.
The trial court observed that this amount is approximately 37% of Father’s
earning capacity which allows Father to retain over 50% of his earning
capacity for himself. (Id. at 9.) We find no abuse of discretion. See Ricco
v. Novitski, 874 A.2d 75, 82 (Pa.Super. 2005), citing Ball v. Minnick, 606
A.2d 1181, 1191 (Pa. 1992) (It is well settled that “a court has reasonable
discretion to deviate from the guidelines if it appears to be necessary and
the record supports the deviation.”).
Father’s contention that the upward deviation awarded by the trial
court is unjust and confiscatory rings hollow. “Both parents have an equal
obligation to support their children in accordance with the capacity and
ability of each to do so.” Sutliff v. Sutliff, 489 A.2d 764, 771 (Pa.Super.
1985), affirmed, 528 A.2d 1318 (Pa. 1987).
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A parent is required to sacrifice personal luxuries to
provide his or her children with their needs. The
only limitation is that a support order should allow
for reasonable living expenses of the paying parent
and not be punitive or confiscatory.
Id. (internal citations omitted). We would be hard-pressed, on this record,
to find that the upward deviation does not allow for Father’s reasonable
living expenses. While Father complains the 100% upward deviation is
outrageous, again, based on this record, we disagree. Father can well afford
an additional $701 per month for the support of his two children. If Father’s
circumstances change, i.e., his household income decreases, he can always
petition for modification.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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