J-A15020-16
2016 PA Super 255
MICHAEL HANRAHAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEANNE BAKKER
Appellee No. 1638 EDA 2015
Appeal from the Order Entered June 4, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2008-16689
MICHAEL J. HANRAHAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEANNE L. BAKKER
Appellee No. 1702 EDA 2015
Appeal from the Order Entered June 4, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2008-16689
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
DISSENTING OPINION BY JENKINS, J.: FILED NOVEMBER 18, 2016
Respectfully, I disagree with the majority’s decision to reverse and
remand this case. I do not believe the trial court abused its discretion by
considering as a relevant factor that Michael Hanrahan (“Father”) set up a
$2,500,000.00 trust for his children or by requiring Jeanne Baker (“Mother”)
to put $30,000.00 of the $52,000.00 to $60,000.00 per month that Father
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was required to pay in child support into a PUTMA account. Further, I
disagree that the trial court erred by failing to award attorney fees to
Mother. Therefore, I respectfully dissent.
This Court may only reverse a trial court’s determination of child
support where the support order cannot be sustained on any valid ground.
Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super.2007). “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.” Id.
Further, the duty to support one’s child is “absolute, and the purpose of child
support is to promote the child’s best interests.” Ricco v. Novitski, 874
A.2d 75, 80 (Pa.Super.2005) (citations omitted).
The procedure for determining child support in high-income cases is
governed by the following rules:
Rule 1910.16-3.1. Support Guidelines. High Income
Cases
(a) Child Support Formula. When the parties’ combined
monthly net income is above $30,000, the following three-
step process shall be applied to calculate the parties’
respective child support obligations. The amount of
support calculated pursuant to this three-step process shall
in no event be less than the amount of support that would
have been awarded if the parties’ combined net monthly
income were $30,000. That amount shall be a presumptive
minimum.
(1) First, the following formula shall be applied as a
preliminary analysis in calculating the amount of basic
child support to be apportioned between the parties
according to their respective incomes:
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* * *
Two children:
$3,836 +11.6% of combined net income above $30,000
per month.
* * *
(2) And second, the trier of fact shall apply Part II and
Part III of the formula at Rule 1910.16-4(a), making
any applicable adjustments for substantial or shared
custody pursuant to Rule 1910.16-4(c) and allocations
of additional expenses pursuant to Rule 1910.16-6;
(3) Then, third, the trier of fact shall consider the factors
in Rule 1910.16-5 in making a final child support award
and shall make findings of fact on the record or in
writing. After considering all of the factors in Rule
1910.16-5, the trier of fact may adjust the amount
calculated pursuant to subdivisions (1) and (2) above
upward or downward, subject to the presumptive
minimum.
Pa.R.C.P. No. 1910.16-3.1 (emphasis added)
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.
(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;
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(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. No. 1910.16-5. The court must consider the enumerated deviation
factors, and it must base any deviation on those factors. E.R.L. v. C.K.L.,
126 A.3d 1004, 1009 (Pa.Super.2015).
I agree with the majority’s analysis of Pa.R.C.P. 1910.16-3.1, its
determination that reasonable needs are factored into the guideline amount
for high-income cases, and its conclusion that the trial court did not err by
failing to engage in a separate reasonable needs analysis in calculating the
child support award. I further agree with the learned majority that the trial
court properly conducted the first two steps of the preliminary analysis of
Pa.R.C.P. No. 1910.16-3.1. However, I disagree with the conclusion of
Mother and the learned majority that the trial court erred by considering
Father’s contribution of $2,500,000.00 into an irrevocable trust for his
children as a relevant factor supporting a downward deviation for support
purposes.
Pursuant to Pa.R.C.P. No. 1910.16-3.1, after conducting the first two
steps of the preliminary analysis, a trial court is required to consider the
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relevant factors announced in Rule 1910.16-5. “[T]he trier of fact must
carefully consider all the relevant factors and make a reasoned decision as to
whether the consideration thereof suggests that there are special needs
and/or circumstances which render deviation necessary.” Elias v. Spencer,
673 A.2d 982, 985 (Pa.Super.1996). “As these rules and the prevailing case
law make clear, a court generally has reasonable discretion to deviate from
the guidelines if the record supports the deviation.” Silver v. Pinskey, 981
A.2d 284, 296 (Pa.Super.2009) (citing Ricco v. Novitski, 874 A.2d 75, 82
(Pa.Super.2005), appeal denied, 889 A.2d 1217 (Pa.2005)). “In a support
guidelines case, once the court has properly consulted the guidelines, it has
the discretion to deviate from the guidelines figure, as long as the court
provides adequate reasons for the deviation.” Id.
Here, the trial court considered as a relevant factor that Father
voluntarily contributed $2.5 million into a trust fund for his children and
accordingly made a downward deviation. The majority cites Portugal v.
Portugal, 798 A.2d 246, 252 (Pa.Super.2002) for the proposition that a
father’s “voluntary contributions to his 401(k) still constituted income for
support purposes, and the trial court could not reduce his child support
obligation because of those voluntary contributions.” Majority Opinion at 14.
Although the majority finds this case analogous to the present case, the
specific facts of the two cases vastly differ. Although both the contribution
in Portugal and the contribution in the present case were voluntary, the
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similarity of the contributions ends there. Here, Father did not place the
$2.5 million into his 401(k) in an attempt to exclude it from his income; he
included the $2.5 million in his income and then created an irrevocable trust
for the benefit of his children. He is neither a trustee nor a beneficiary of
the trust.
Additionally, to support its view that the trial court erred by
considering the $2.5 million contribution, the majority cites Sutliff v. Sutliff
for the proposition that “a parent’s obligation to support minor children is
independent of the minor’s assets.” 528 A.2d 1318, 1320 (Pa.1987). In this
case, the court did not elect to make a downward deviation because the
children had great assets; it made the deviation because Father chose to
give his children a significant amount of his income to secure their futures, a
gift clearly in their best interest. Thus, I do not find the trial court abused
its discretion in considering this a relevant factor to warrant a downward
deviation.
Next, I disagree with the majority’s contention that the trial court
erred by requiring Mother to place $30,000.00 of the $52,000.00 to
$60,000.00 Father paid per month in child support.
“The duty to support one’s minor child is absolute, and the purpose of
child support is to promote the child’s best interests.” Ricco, 874 A.2d at
80. “The duty of child support, as every other duty encompassed in the role
of parenthood, is the equal responsibility of both mother and father and
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must be discharged by the parents even if it causes them some hardship.”
D.H. v. R.H., 900 A.2d 922, 931 (Pa.Super.2006), as amended (July 3,
2007) (quoting Yerkes v. Yerkes, 824 A.2d 1169, 1171 (Pa.2003)).
The majority opines that the trial court erroneously relied on Branch
v. Jackson, 629 A.2d 170 (Pa.Super.1993) for the authority to support its
order that a portion of child support monies could be placed into a PUTMA
account. See Majority Opinion, footnote 3. The majority correctly notes
that the trial court inaccurately stated that in Branch, this Court required a
father to place a certain amount into a trust for future expenses. In
actuality, this Court vacated and remanded Branch for development of the
record. I find it interesting to note, however, that upon remanding the case
in which the trial court had required the father to place a certain amount of
money into a PUTMA account, this Court stated: “Because the record does
not reveal a calculation of child’s reasonable needs, we are unable to
determine whether the order is excessive, adequate, or just right.” Branch,
629 A.2d at 171. Thus, while it is not determinative, Branch suggests that
the trial court’s mandate that the father place a certain amount of child
support into a PUTMA account could have been “just right.”
The majority then correctly notes that if a portion of the child support
were placed into a PUTMA account, Mother would have to spend down her
own personal assets on her own children before taking money from the
PUTMA account. Indeed:
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A custodian abuses his discretion and acts improperly if he
expends funds from a PUTMA account for the purpose of
fulfilling his support obligation in lieu of making the
payments out of his own income and assets, where the
parent has sufficient financial means to discharge it
himself. PUTMA accounts may not be used for support
before the parents expend their own resources.
Sternlicht v. Sternlicht, 822 A.2d 732, 741 (Pa.Super.2003), aff'd, 876
A.2d 904 (Pa.2005) (internal citations omitted).
The majority correctly cites Mackinley v. Messerschmidt for the
proposition that “children should not be made to wait for support and
parents should not be permitted to defer income to which they are entitled
until they choose to avail themselves of it.” 814 A.2d 680, 683
(Pa.Super.2002). The trial court, however, did not offend any of these legal
principals by fashioning its award of child support in the best interest of the
children.
Since the parties divorced, Father paid between $3,702.00 and
$15,878.00 per month in child support before the present child support
determination. This does not include the $70,000.00 per year Father pays
towards the children’s school tuition, camps, and activities. The parents
share physical custody of the children equally, and Father testified that he
spends about $2,000.00 per month on the children when they are in his
custody. The instant support determination requires Father to pay between
$52,000.00 and $60,000.00 per month, and it requires Mother to place
$30,000.00 of that money into a PUTMA account for the children. Thus,
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Mother may spend between $22,000.00 and $30,000.00 of Father’s support
payments per month before she must “expend her own resources.” Again,
supporting one’s children is the equal responsibility of both parents “even if
it causes them some hardship.” D.H., supra. Although Mother may
experience some hardship expending her resources after she has spent the
$22,000.00 to $30,000.00 per month she receives from Father in child
support, if she still requires money to support her children’s immediate
needs, she can access their PUTMA accounts.
By requiring Mother to place the money into the PUTMA accounts, the
trial court has considered the best interests of the children and avoided
offending legal principals. Father is not deferring income until he chooses to
avail himself of it; he is paying the children immediately. Mother can
spend significantly more than she ever has on the children per month, the
children will have money for the future to promote their best interests, and if
the children require money from the PUTMA accounts for their immediate
needs because the support they have received is not enough, they can
access the money in those accounts. Further, both parents are obligated to
support their children and the purpose of child support is to promote the
best interests of the children. Thus, I do not think the trial court erred
when it reasoned:
to simply give [Mother] the child support monies for the
2013 [s]upport year in a lump sum, is contrary to the goal
in child support matters, which is to serve the best interest
of the children and would deprive the children of a fund to
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guarantee maintenance of their lifestyle in the future when
[Father’s] income may be less or non-existent.
Trial Court Opinion, filed December 14, 2015. Unlike the majority, I see no
abuse of discretion.
Finally, I disagree with the majority’s determination that the trial court
erred by failing to award Mother attorney’s fees. I agree that the Property
Settlement Agreement is a contract governed by contract law and that it
provided, in relevant part, that “a breaching or wrongdoing party shall bear
the burden and obligation of any and all costs and expenses and counsel
fees incurred by himself or herself as well as the other party to the extent
the other party is successful in enforcing his or her rights under this
agreement.” Agreement at 19. Unlike the majority, I agree with the trial
court that neither party was successful in this litigation, and I do not believe
Father breached the contract.
Father contested the statutory amount of the child support based on
the significant increase in his income in 2012. The Agreement provided:
Child support and the proportion of Child Expenses shall be
recalculated each year… based on the parties’ respective
net incomes and Pennsylvania guidelines, provided,
however, either party may apply to the Court to
adjust child support and/or their share of Child Expenses
for the year based on relevant factors.
Agreement at 13 (emphasis added). Father challenged the amount of the
award by stating in a letter to Mother: “I simply cannot agree that the
reasonable needs of two children could be anywhere close to the preliminary
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calculation.” Father continued to pay the $7,851.00 per month that he had
been required to pay the previous year, he spent $70,000.00 on the children
in tuition, camps and activities, and he put $2,500,000.00 into an
irrevocable trust for the children. Even if he was not entitled to the
downward deviation he desired, Father did not breach the contract by
contesting the extreme increase in his child support calculation. He
continued to pay the amount of child support he had paid the previous year,
and he contributed into a trust for the children an amount that far exceeded
what the statute required him to pay.
Thus, I respectfully dissent.
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