J-A13012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRACY L. EISENMAN-GOMEZ IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK A. GOMEZ
Appellant No. 1596 WDA 2014
Appeal from the Order August 26, 2014
In the Court of Common Pleas of Washington County
Domestic Relations at No(s): 806 DR 2007
BEFORE: PANELLA, J., SHOGAN, J. and OTT, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 11, 2015
Father, Frank A. Gomez, appeals from an order entered August 26,
2014, denying exceptions he raised to the report and recommendation of the
Domestic Relations Hearing Officer issued after a hearing on the support
modification petition filed in November 2011 by Mother, Tracy L. Eisenman-
Gomez. We affirm.
The parties have been involved in divorce and support proceedings
since 2007. They have two sons, aged 19 and 16, as of the date of the
order. Numerous support and contempt proceedings have occurred over the
past 8 years. Relevant to the support and contempt proceedings, and this
appeal, is the existence of funds received by Mother from a trust set up by
her mother.
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Carol A. Eisenman (”Mother’s Mother”), a resident of Florida, had
established a revocable trust wherein Mother’s Mother was the sole trustee
and beneficiary. The trust was amended and reinstated on October 17,
2006, and all of Mother’s Mother’s assets were allegedly transferred to the
trust prior to her death. Pursuant to the trust agreement, the residue of the
trust estate passed to a trust for the benefit of Mother’s Mother’s husband
and her daughter Tammy. Upon Mr. Eisenman’s demise on May 22, 2007,
the trust estate was to be divided into four equal shares for Mother’s
Mother’s daughters and distributed outright. Between August 2007 and
December 2009, Mother received payments totaling approximately
$468,546.36 from the Carol Eisenman trust and $1,848 from a life insurance
benefit.
The following facts and procedural history, quoted from the Hearing
Officer’s report rendered after a hearing on the 2011 modification petition,
are relevant to this appeal.
The parties have previously been before this Hearing Officer on
September 23, 2008, May 6, [2009,] June 22, 2009 (when the
parties reached an agreement), and January 28, 2010.
Mother originally filed a Complaint for Support for herself and
the 2 minor children of the parties on August 22, 2007. On
September 24, 2007, the Support Complaint was dismissed by
agreement at the support conference as the parties were still
living in the same household and the Father had continued to
pay for the family’s expenses. In spite of the agreement of the
parties, Mother filed a demand for a de novo hearing. Ultimately,
a Consent Order was entered on January 3, 2008, [which]
provided that: “Pending further Order of Court, [Father] shall
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continue to pay on a timely and regular monthly basis all
reasonable household expenses.”
Following the entry of the Consent Order, Mother filed a Petition
for Contempt and a hearing was held on September 23, 2008.
Following the hearing, this Hearing Officer recommended that
the Petition for Contempt be dismissed.
By Order dated March 26, 2009, the Honorable John F. DiSalle
granted Mother’s exceptions and remanded the case for “a
determination of what amount in arrears is owed to the Plaintiff
from the Defendant for unpaid reasonable household expenses.
The defendant shall continue to pay all reasonable household
expenses, as stated above, until a monetary Support Order is
entered.”
On May 6, 2009, the parties reached an agreement wherein
Father would pay $775.00 per month for current support and
$1.00 per month for arrears for the support of the parties’ two
children based upon the stipulation of the parties that Mother’s
gross annual income was $25,000.00 and Father’s gross annual
income was $50,000.00.
On October 13, 2009, Mother filed a Petition for Modification and
a de novo hearing was held on January 28, 2010.[1] This Hearing
Officer used the previously stipulated incomes of the parties, but
added mother’s income from a trust established by her
grandfather in determining the support obligation. Father’s gross
annual income remained $50,000.00. The support obligation
changed primarily as a result of mother’s assumption of custody
of one of the parties’ children, which had previously been equally
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1
Mother testified in January 2010 that she had withdrawn money in 2009
from a family trust account which had been established by her grandfather
“when she was a little girl” to pay her bills. That is the only trust Mother
mentioned in the January 2010 proceeding. She did not mention the
existence of the Carol Eisenman Trust, funds she had received from the
Carol Eisenman Trust between August 2007 through December 2009, or her
receipt of life insurance proceeds. See Report of Hearing Officer, filed
4/23/14, at R.R. 609a.
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shared. A mortgage deviation also was considered in arriving at
the Order.
Mother filed the instant Petition for Modification on November 8,
2011. [She alleged that an increase was needed because the
children were getting older and Father left the younger child with
Mother most of the time, even though their custody agreement
stipulated to a 50/50 shared custody.] Following the mandatory
conference on January 4, 2012, [after which the petition was
dismissed,] she requested a de novo hearing and then filed a
new modification petition on July 6, 2012 to add a claim for
spousal support.[2]
On March 4, 2013, the Honorable Gary Gilman entered an Order
related to cross-motions for sanctions filed by the parties. The
Order included a directive (paragraph 7) indicating: “As Mother
failed to more timely disclose receipt of $468,546.36, which sum
shall be imputed to her as the support master determines.”
At the hearing on July 2, 2013, this Hearing Officer ruled that
the March 4th Order directed that Mother was to have the sum of
$468,546.36 imputed to her. Following that hearing, Mother filed
a Motion for Clarification, Father filed a Reply to Motion for
Clarification and New Matter [seeking spousal support,] and
Mother filed a response. By Order dated October 2, 2013, the
Honorable Gary Gilman denied Mother’s request that the Hearing
Officer “…determine how to treat the $468,546.36 for support
purposes… .” Instead, Judge Gilman’s Order provided: “Denied.
The court directs the parties and the Master to Mencer v. Ruch,
928 A.2d 294 (Pa. Super. 2007). Therein, the Superior Court
held that distributions from a trust were to be considered as
income for child support purposes.”
[However,] by Order dated October 23, 2013, Judge Gilman, sua
sponte, amended [his] October 2, 2013 Order[,] indicating:
[D]istributions from the trust that mother received
might be treated as if it were in the nature of an
inheritance and, therefore, should only be used as a
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2
Neither the lower court docket nor the certified record contains a copy of
Mother’s “new modification petition” allegedly filed on July 6, 2012.
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reason for deviating from the support guideline
amount as noted in Humphreys v. DeRoss[,790
A.2d 281 (Pa. 2002)]. The money received may not
necessarily be considered as income for support
purposes. Therefore, the hearing officer shall take
testimony regarding the source of receipt.
By way of further explanation, the method by which
mother received the $468,546.36 is more important
when determining its character than the
nomenclature. The money may have been a
distribution from the trust as a method of
transferring wealth instead of through a traditional
will in order to avoid certain legal requirements, such
as probate. As such, the transfer could also be
characterized as a gift, which is also not considered
as income. For this reason, the hearing officer should
take testimony thereon.
Report of Hearing Officer, filed 4/23/14, at 1-3, Reproduced Record (“RR”)
606a- 608a.
The Hearing Officer held further hearings at which Mother’s expert
witness, a certified public accountant and certified valuation analyst, testified
that she could not separate the trust distributions received by Mother into
interest income and principal. See N.T., 10/15/13, at 77-78. Because of her
inability to separate the distributions into principal and interest, the Hearing
Officer treated the total sum of the distributions “as an inheritance, a gift[,]
or some combination thereof.” Report of Hearing Officer, filed 4/23/14, at 4,
RR 609a. He concluded that “[i]n any case, the principal sum is not ‘income’
for purposes of determining the support obligation. See 23 Pa.C.S. § 4302;
Rule 1910.16-2; Mencer v. Ruch, 928 A.2d 294 (Pa.Super. 2007)
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Humphreys v. DeRoss, 790 A.2d 281 (Pa. 2002); and Maher v. Maher,
835 A.2d 1281 (Pa. 2003).” Id.
Prior to issuing his recommendation, the Hearing Officer noted Mother
had received income from various part-time jobs, and concluded that her
“actual earnings from employment are substantially below her earning
capacity as previously agreed to by the parties. [Thus, f]or purposes of
calculating the support obligation, Mother’s earning capacity will continue to
be $25,000 annually.” Id. The Hearing Officer noted that “[o]rdinarily, [he]
would determine what portion of the [Carol Eisenman trust] distributions
were interest and income for purposes of calculating Mother’s net monthly
income. In the present case, however, there is no dispute such a
determination is impossible based upon the evidence at hand.” Id. at 5, RR
610a. The Hearing Officer calculated Mother’s gross annual income to
include $25,000 earning capacity; $2,084 interest income; $15,355 in
dividend income; capital gains of $4,563; and capital gain distributions of
$4,000.3 He determined that her net monthly income is $3,654.77. After
reviewing Father’s income from numerous sources, the hearing officer
determined that Father’s net monthly income is $4,521.77.
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3
The Hearing Officer did not delineate from what source of funds the
dividend and interest income derived. He did note that interest from a life
insurance policy is income within the meaning of 23 Pa.C.S. § 4302. Report
of Hearing Officer, filed 4/13/14, at 5-6, RR 610a-611a.
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The Hearing Officer summarized his findings and made his
recommendation requiring Husband to pay $988.00 per month for the time
between November 8, 2011 until June 6, 2013, after which time Husband
was to pay $433.50 per month, plus arrears. This new amount reflected the
emancipation of one child and subsequent removal from the support order
and the continued shared custody of the younger child.
Father filed exceptions to the Hearing Officer’s recommendation. The
trial court denied Father’s exceptions, and ordered, among other things, the
following.
Based upon the [c]ourt’s determination [that Mother’s] net
monthly income is $3,654.77 and [Father’s] net monthly income
is $4,521.77, between November 8, 2011 and June 6, 2013,
Father shall pay $988.24 per month for current support.
Effective June 7, 2013, [following the eldest child’s
emancipation, Father] shall pay $500 allocated as $433.50 per
month for current support and $66.50 per month for arrears.
Trial Court Order, dated 8/26/14 at 1. The trial court specified that the
effective date of the order was November 8, 2011. Father timely appealed
to this Court.
Our standard of review of support orders is well-settled. A support
order will not be disturbed on appeal unless the trial court failed to consider
properly the requirements of the Rules of Civil Procedure governing actions
for support or abused its discretion in applying those rules. See Morgan v.
Morgan, 99 A.3d 554, 559 (Pa. Super. 2014) (citation omitted). “We will
not interfere with the broad discretion afforded the trial court absent an
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abuse of discretion or insufficient evidence to sustain the support order.” Id.
(citation omitted).
Father first argues that the trial court erred in its treatment of the
$468,546.36 inheritance received by Mother from her mother through a
trust. He avers the court should have considered the inheritance as “income”
for purposes of child support modification.
The Pennsylvania Rules of Civil Procedure provide support guidelines
for the calculation of net income. See Pa.R.C.P. 1910.16-2. The term
“income” is defined by statutory law and includes an exhaustive list of types
of income, including “income from an interest in an estate or trust[.]” 23
Pa.C.S.A. § 4302. Our Supreme Court has held that the corpus of an
inheritance from an estate is not “income” because the legislature
specifically defined “income” as including “income from an interest in an
estate or trust,” but did not include the principal of an inheritance or trust.
Humphreys v. DeRoss, 790 A.2d 281, 284-85 (Pa. 2002). One year later,
the same Court held that a mother’s inheritance could not be considered
when determining her income, but could be considered as an asset when
determining whether to deviate from the guidelines. See Maher v. Maher,
835 A.2d 1281 (Pa. 2003).
Husband contends that it was Wife’s burden of proof to differentiate
between principal and interest of the inheritance and thus the court should
have ruled in his favor. See Appellant’s Brief, at 29. “The burden of
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demonstrating a material and substantial change rests with the moving
party, and the determination of whether such change has occurred in the
circumstances of the moving party rests within the trial court's discretion.”
Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super. 2012).
Here, Mother’s request was for an increase in the amount of child
support Father was to pay. Thus, her only burden was to prove why an
increase was warranted. See id. See also Pa.R.C.P. 1910.19(a).4 Father, on
the other hand, was seeking a decrease in the amount of child support he
pays to Mother. We are at a complete loss to see how this would be Mother’s
burden. The current Rules and case law do not explicitly address this issue.
However, logic and common sense dictate that Father would bear the burden
of proving a substantial change in circumstance in his favor.
Father calls to our attention Pa.R.C.P. 1910.19(c), which provides:
(c) Pursuant to a petition for modification, the trier of fact may
modify or terminate the existing support order in any
appropriate manner based upon the evidence presented without
regard to which party filed the petition for modification.
(emphasis added).
In accordance with Rule 1910.19(c), as Father notes, the trial court
could modify in either party’s favor after Mother petitioned for an upward
modification. See Brickus v. Dent, 5 A.3d 1281 (Pa. Super. 2010) (holding
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4
Rule 1910.19(a) provides that “A petition for modification … of an existing
support order shall specifically aver the material and substantial change in
circumstances upon which the petition is based[.]” (emphasis added).
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that the trial court had the authority to increase father’s child support
obligation, even though mother did not file a cross-petition seeking an
increase in support). The court, however, is not required to do so.
Moreover, Rule 1910.19(c) does not change who has the burden of proof in
modification proceedings. Here, because Father was the party in Mother’s
modification hearing seeking a decrease in the support order based upon the
trust distributions, he bore the burden of proving the nature of Mother’s
inheritance payments and their impact on Mother’s income. This he did not
do. In fact, he submitted no expert testimony or any other evidence to
support his request for a change in support based on those payments.
Based on the above discussion, we conclude that the trial court
properly exercised its discretion in concluding that the distributions received
by Mother were an inheritance not included in the definition of “income” for
support purposes. See 23 Pa.C.S.A. § 4302.
Father next argues that, even though he did not file his own
modification petition, the trial court erred in not deviating from the child
support guidelines. In particular, he contends that the significant payments
Mother received from the revocable trust warranted a downward deviation.
A trial court has discretion to deviate from the guideline amount in a
support case, if the record supports the deviation. See Silver v. Pinskey,
981 A.2d 284, 296 (Pa. Super. 2009). In determining whether to deviate
from the guidelines, the trier of fact must consider the following factors:
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(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 expense not covered by insurance;
(7) standard of living of the parties and their children;
(8) in a spousal support or alimony pendent 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(b). “The trier of fact is to consider all the relevant
factors in determining whether a deviation is warranted; any one factor is
not necessarily determinative.” Suzanne D. v. Stephen W., 65 A.3d 965,
972-73 (Pa. Super. 2013) (citation omitted). There is “no legal authority
which allows the court to eliminate Father's support obligation, where he can
reasonably provide for some of Child’s needs.” Ricco v. Novitski, 874 A.2d
75, 83 (Pa. Super. 2005).5
Father avers that the trial court did not sufficiently consider the fifth
factor, “relative assets of the parties” in its modification order. He is
mistaken. As noted above, both the Hearing Officer and the trial court
considered the assets and liabilities of the parties in determining what the
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5
Ricco involved a trust in a child’s name where the father sought a
downward deviation from the guidelines because of that trust. We
concluded that “[r]eleasing Father, as the non-custodial parent, from all
support obligation to Child permits Father to evade his support obligation
through the use of the Trust, even though Father is not the custodian of the
assets of the trust.” Id. at 83.
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appropriate support order should be. Moreover, we note that this Court has
previously stated:
Above all, we are mindful of the general principle that a parent’s
duty to support his minor children is absolute, and the purpose
of child support is to promote the children’s best interests. The
court has no legal authority to eliminate an obligor’s support
obligation, where the obligor can reasonably provide for some of
the children’s needs.
Silver, 981 A.2d at 296 (citation omitted). Father has made no claim that he
cannot afford to pay his child support obligation, or that any change in his
circumstances hinders him from doing so. We thus conclude, in accordance
with the above case law, that the trial court did not abuse its discretion in
applying the child support guidelines.
Father next avers that the trial court erred by imputing an earning
capacity of only $25,000 to Mother. Specifically, he contends that it was an
abuse of discretion to ignore the Hearing Officer’s observation that Mother’s
income “would certainly be greater” if she had devoted more time to finding
work since that earning capacity was originally imputed to her in 2009.
With respect to earning capacity, Rule 1910.16-2(d)(4) provides:
If the trier of fact determines that a party to a support action
has willfully failed to obtain or maintain appropriate
employment, the trier of fact may impute to that party an
income equal to the party’s earning capacity. Age, education,
training, health, work experience, earnings history and child care
responsibilities are factors which shall be considered in
determining earning capacity. In order for an earning capacity to
be assessed, the trier of fact must state the reasons for the
assessment in writing or on the record. Generally, the trier of
fact should not impute an earning capacity that is greater than
the amount the party would earn from one full-time position.
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The Hearing Officer and the trial court chose again to impute to Mother
a $25,000 earning capacity after considering the following findings of fact.
As previously, mother continues to be employed in various part-
time positions including teaching Silver Sneakers classes, Senior
Aerobics and various odd jobs. More significantly, she was
recently hired for a part-time position with the Women’s
Business Network which pays $1,000.00 per month. The Hearing
Officer finds mother continues to be underemployed based upon
her health, education and experience. Her actual earnings from
employment are substantially below her earning capacity as
previously agreed to by the parties. For purposes of calculating
the support obligation, mother’s earning capacity will continue to
be $25,000.00 annually.
Report of Hearing Officer, filed 4/23/14, at R.R. 609a.
Father does not disagree with the factual findings of the court, but
simply argues that the trial court did not apply Rule 1910.16-2(d)(4) and
thus abused its discretion. However, the rule only requires the court to
consider the factors of age, education, training, health, work experience,
earnings history and child care responsibilities in determining earning
capacity. See Morgan v. Morgan, 99 A.3d 554, 558 (Pa. Super. 2014);
Pa.R.C.P. No. 1910.16-2(d)(4). It does not require the court to deviate in
either direction based primarily on any one factor. See Morgan, 99 A.3d at
558.
The court considered all the factors required by the rule in determining
Mother’s earning capacity, including the fact that Mother’s college degree is
in wildlife husbandry and that she never worked in that field. See N.T., RR.
at 111a, 161a. The court also considered Mother’s testimony in which she
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stated that she had worked with Father in his retail businesses until the birth
of their second child when she became a stay-at-home mom. See id. at
200a-202a. Mother has not been in the work force for many years and has
no significant training in any particular field.
Father presented no evidence pertaining to Mother’s earning capacity,
despite having had substantial time to acquire evidence or hire a vocational
expert to testify. He has made no effort to provide any indication of what he
believes Mother’s earning capacity should be. Rather, he merely relies on the
following phrase in the Hearing Officer’s report: “[M]other’s earning capacity
would certainly be greater than $25,000 if she had devoted more time to
increasing her earnings rather than promoting a healthy lifestyle.” Report of
Hearing Officer, filed 4/23/14, at R.R. 614a. The entire sentence, however,
is as follows: “The Hearing Officer recommends no spousal support award
which represents a small deviation from the guideline figure of spousal
support because mother’s earning capacity would certainly be greater than
$25,000 if she had devoted more time to increasing her earnings rather than
promoting a healthy lifestyle.” Id. Father thus fails to mention that the
Hearing Officer’s speculative conjecture is limited only to its discussion of
spousal support, and not earning capacity per se. While a husband does not
have an unlimited responsibility to provide spousal support if a wife can
reasonably provide for herself, a father has a legal responsibility,
independent of a mother’s responsibility, to provide for his children “where
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he can reasonably provide for some of the children’s needs.” Ricco, 874
A.2d at 83.
The trial court did not abuse its discretion in adopting the Hearing
Officer’s recommended earning capacity of $25,000 for Mother since that
number reflected careful contemplation of all the factors required by Rule
1910.16-2(d)(4).
Father next argues that the trial court erred by failing to provide him
with retroactive relief of his arrears to a date prior to the filing of Mother’s
November 2011, petition because Mother failed to disclose the inheritance
from the revocable trust and a life insurance benefit. He is not seeking
retroactivity to the date that Mother’s most recent petition was filed. Rather,
he avers relief should be applied as far back as 2007, when Mother first filed
for support.
Our law on retroactive modification of arrears provides:
No court shall modify or remit any support obligation, on or after
the date it is due, except with respect to any period during which
there is pending a petition for modification. If a petition for
modification was filed, modification may be applied to the period
beginning on the date that notice of such petition was given,
either directly or through the appropriate agent, to the obligee
or, where the obligee was the petitioner, to the obligor.
23 Pa.C.S.A. § 4352(e). Thus, retroactive relief could be applied to the
period beginning on the date of notice of Mother’s petition for modification.
See id.; see also Brickus, supra (a non-petitioning party could be granted
relief retroactive to the date the petitioning party filed their motion). Section
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4352(e) of our Domestic Relations Law explicitly addresses requests for
retroactivity to an earlier period as follows.
[M]odification may be applied to an earlier period if the
petitioner was precluded from filing a petition for modification by
reason of a significant physical or mental disability,
misrepresentation of another party or other compelling reason
and if the petitioner, when no longer precluded, promptly filed a
petition.
23 Pa. C.S.A. § 4352(e).
The language of the statute is clear and unambiguous that the trial
court cannot grant retroactive relief to a date prior to the filing date unless
(1) the party seeking retroactive relief files a petition for modification and
(2) that party demonstrates that they were precluded from filing for a
modification. Here, Father never filed a petition for retroactive modification
even after learning of Mother’s inheritance. As a result, retroactive relief is
neither appropriate nor warranted.
Father next argues that the trial court erred in holding that the life
insurance proceeds received by Mother did not constitute income for
purposes of determining Mother’s child support obligation. We disagree.
Generally, child support is calculated based on the parties’ monthly
income. See Pa.R.C.P. 1910.16-2. As noted above, included in the definition
of “income” is: “income from life insurance and endowment contracts; …
income from an interest in an estate or trust[.]” 23 Pa.C.S.A. §4302. As the
trial court here observed, a one-time payout to a life insurance beneficiary is
analogous to an inheritance. See Trial Court Opinion, dated 11/12/14, at 13,
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and discussion, supra. Since the legislature plainly did not use the phrase
“principal” in the definition of income, and instead specified only “income
from…” life insurance or an interest in an estate or trust, it is logical to
assume that the legislature did not intend to include the lump sum insurance
benefit. See Humphreys, 790 A.2d at 284.
Here, the recommendation of the Hearing Officer, which was adopted
by the trial court, properly determined that the insurance proceeds of
$14,082.30 that Mother received from her deceased mother’s policy were
not income for purposes of calculating support under Section 4302.6
Accordingly, we cannot conclude that the trial court abused its discretion in
rendering its child support order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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6
The Hearing Officer determined that interest for $1,848.00 that Mother
received on the life insurance policy benefit is includable as “income” under
Section 4302. See Trial Court Opinion, 11/12/14, at 14.
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