J-S39034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.S.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
S.C.B. :
:
Appellant : No. 1464 MDA 2017
Appeal from the Order Entered August 23, 2017
in the Court of Common Pleas of Cumberland County,
Civil Division at No(s): 2016-01738
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 14, 2018
S.C.B. (“Wife”) appeals from the trial court’s child and spousal support
Order, which adopted the Report and Recommendation of the Support Master
(hereinafter, “the Master”) and dismissed Wife’s exceptions thereto. J.S.B.
(“Husband”) has filed an Application to Quash the appeal. We quash in part
and affirm in part.
The trial court summarized the factual and procedural history as follows:
The parties were married on October 12, 2013. They have
one child together [(“Child”),] who was born [in] August [] 2014.
After [spending] time in marital counseling, the parties separated
in the wake of an argument that occurred at their home on
February 4, 2016. … [] [T]he parties ceased cohabitating as of
February 8[, 2016]. Wife continued to reside in the marital home,
which she had purchased prior to the parties’ marriage, and
retained primary custody of [Child].
Wife filed a [C]omplaint seeking child support on August 4,
2016. One week later, Husband filed a [C]omplaint seeking
spousal support[,] and requested a hearing on alimony pendente
lite [(“APL”)]. [Following a hearing before a conference officer
with the Cumberland County Domestic Relations Office, the
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conference officer entered an “Interim Order” dated September
16, 2016 (hereinafter “the Interim Order”). Therein, the
conference officer set Wife’s monthly spousal support obligation
to Husband as $827.14, and set Husband’s monthly child support
obligation to Wife as $927.22, for a net obligation [of] $100.08
per month from Husband to Wife. The conference officer rounded
this figure to $100 per month.] Wife was unsatisfied with the
conference officer’s determination, and requested a de novo
hearing before the [] Master. [At the November 21, 2016 hearing
(hereinafter “the Master’s hearing”),] Wife appeared pro se[,] and
argued that Husband was not entitled to spousal support[,] and
was ineligible for APL[,] because he could not demonstrate “need.”
[By a Report and Recommendation entered on December 30,
2016,] [t]he [] Master adopted the conference officer’s
calculations [in the Interim Order] and determined a net obligation
of $100 per month from Husband to Wife. Wife filed [E]xceptions
to the [] Master’s Report and Recommendation.
Trial Court Opinion and Order, 8/23/17, at 3-4 (footnotes, citation to record,
and some paragraph breaks omitted). Importantly to the instant appeal, the
divorce action between the parties is pending, and their economic claims have
not yet been resolved.
By Opinion and Order dated August 23, 2017 (hereinafter, the “Order
on appeal”), the trial court dismissed Wife’s Exceptions and adopted the
Master’s Report and Recommendation. Wife timely filed a Notice of Appeal.
She thereafter filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
errors complained of on appeal, followed by a Supplemental Concise
Statement.
On November 29, 2017, this Court issued a Rule to Show Cause why
Wife’s appeal should not be quashed as having been taken from an Order that
is interlocutory and non-appealable. Specifically, we stated, in relevant part,
as follows:
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It appears that a divorce decree has not yet been entered below.
A spousal support order entered during the pendency of a divorce
action is not appealable until all claims connected to the divorce
action are resolved. Leister v. Leister, 684 A.2d 192 (Pa. Super.
1996) [(en banc) (holding that spousal support/APL orders, when
entered during the pendency of a divorce action, are interlocutory
and unappealable, even if entered pursuant to a separately-filed
complaint for support)]; [accord] Thomas v. Thomas, 760 A.2d
397 (Pa. Super. 2000); Shellhamer v. Shellhamer, 688 A.2d
1219 (Pa. Super. 1997); see also Pa.R.A.P. 341(b)(1) ([providing
that] a final order is any order that disposes of all claims and all
parties). To the extent the trial court’s decision addressed spousal
support, it appears the [O]rder [on appeal] may not be
immediately appealable.
Order, 11/29/17 (paragraph break omitted).
Wife filed a timely Response to the Rule to Show Cause. Therein, she
argued that the Order on appeal is an unallocated Order awarding spousal
support and child support, and therefore, is immediately appealable as to all
claims covered in the Order on appeal.1 This Court thereafter entered an
Order discharging the Rule to Show Cause, referring a determination as to the
finality of the Order on appeal to the merits panel.
On January 27, 2018, Husband filed an Application to Quash Wife’s
appeal. Therein, he asserted, in relevant part, as follows:
30. In the instant case, the [Interim] Order of September 16,
2016[,] is in fact, allocated. The Order clearly provides a
calculation for spousal support and [a] separate calculation for
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1 In support, Wife cited Pennsylvania Rule of Civil Procedure 1910.16, which
provides, in relevant part, that “[a]n unallocated order in favor of the spouse
and one or more children shall be a final order as to all claims covered in the
order.” Pa.R.C.P. 1910.16(b); see also Pa.R.C.P. 1920.56 (setting forth the
same language in the context of allocation of “an order awarding child support
combined with spousal support, alimony pendente lite or both[.]”).
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child support, clearly delineating between the two support
obligations.
31. The [Interim] Order … distinctly discusses an offset of
Husband’s child support obligation owed to Wife[,] as a result of
Wife’s spousal support obligation owed to Husband, based upon
when a custodial parent owes spousal support, pursuant to
Pa.R.C.P. 1910.16-4(e).
32. The [Interim] Order … is allocated[,] as indicated in the title
of the Order, which is not a misnomer based upon the contents of
the Order. The spousal support and child support obligations are
clearly allocated. This appeal is based on an interlocutory order
that is not appealable.
Application to Quash, 1/27/18, ¶¶ 30-32 (some capitalization omitted).
Additionally, Husband requested this Court to order Wife to pay his attorneys’
fees, asserting that she initiated the appeal in bad faith. Id. ¶¶ 33-38. The
per curiam Court deferred ruling on the Application to Quash to this panel.
Wife now presents the following issues for our review:
1. Did the lower court err when it awarded spousal support[,]
when the actual issue in these proceedings[,] as framed by
[Wife,] was whether [Husband] needed APL?
2. Did the lower court err by refusing to credit [Wife] for increased
health insurance expenses?
3. Did the lower court err by failing to allocate [Husband’s] child
support obligation and [Wife’s] support obligation, thus
depriving [Wife] of an otherwise applicable tax deduction?
4. Did the lower court err by not granting an upward deviation in
[Husband’s] child support obligation since[,] at the time of the
award, he spent less than thirty percent of the custodial time
with [] [C]hild?
Brief for Wife at 3.
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First, we must address Husband’s Motion to Quash. Wife’s appeal
implicates the parties’ respective spousal/APL and child support obligations
under the Order on appeal. Because a divorce decree has not yet been
entered, the spousal support/APL portion of the Order on appeal is
interlocutory and not appealable. See Leister, supra. However, this Court
has held that during the pendency of a divorce action, “the portion of a trial
court order attributable to child support is final and immediately appealable[.]”
Capuano v. Capuano, 823 A.2d 995, 998 (Pa. Super. 2003).
Thus, we grant Husband’s Motion to Quash in part, and deny in part.2
Specifically, we quash the appeal pertaining to spousal support/APL (i.e.,
raised in Wife’s first and third issues3), and proceed to the merits of this appeal
insofar as it relates to child support.
Our standard of review is as follows:
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 not 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
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2 We deny Husband’s request for attorneys’ fees.
3 Though Wife’s third issue references child support, the primary thrust of this
issue does not concern the support of Child or Husband’s support obligation.
Nevertheless, the record belies Wife’s claim in connection with this issue, as
Wife’s monthly spousal support obligation to Husband was, in fact, allocated
at $827.14, and set Husband’s monthly child support obligation to Wife was
allocated at $927.22.
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principal goal in child support matters is to serve the best interests
of the children through the provision of reasonable expenses.
J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super. 2015) (citation and brackets
omitted). Moreover, “[a] master’s report and recommendation are to be given
the fullest consideration, especially on the issue of the credibility of
witnesses.” Kraisinger v. Kraisinger, 928 A.2d 333, 344 (Pa. Super.
2007) (citation omitted).
In her second issue, Wife contends that the trial court erred when it
failed to credit her, in calculating the amount of Husband’s child support
obligation, for Wife’s increased health insurance expenses, which she expends
on behalf of Child. Brief for Wife at 9. Wife points out the Master’s statement
at the Master’s hearing concerning these expenses: “[W]e will leave open for
the record that there [sic] may be a change in [Wife’s health insurance
expenses] effective January 1, 2017. So we can certainly introduce evidence
to that effect.” Id. (quoting N.T., 11/21/16, at 5). According to Wife,
following this statement, she presented evidence to the Master that her health
insurance expenses for the 2017 year increased by $80 per month. Brief for
Wife at 9. Therefore, Wife urges, remand is warranted so that she can be
credited for these increased expenses. Id.
In its Opinion, the trial court addressed Wife’s claim as follows:
The parties were in agreement about the insurance costs for 2016.
N.T.[, 11/21/16,] at 5. The [] Master anticipated Wife’s concern
about increased costs and allowed the record to remain open for
introduction of evidence to that effect. Id. However, Wife did not
then introduce this evidence [(hereinafter “insurance cost
evidence”)] and did not testify further on her cost of insurance.
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Thus, any information about increased costs would have been
unavailable to the Master as he made his calculations. Therefore,
we find that the Master’s determination of Wife’s health insurance
costs was supported by the record.
Trial Court Opinion and Order, 8/23/17, at 8. We agree with the trial court’s
rationale and determination, which is supported by the record, and therefore
affirm on this basis in rejecting this issue, see id., with the following
addendum.
Wife asserts that the trial court’s finding that she did not present to the
Master insurance cost evidence is incorrect. Brief for Wife at 9. In support,
she cites to a pro se document, contained in the reproduced record, entitled
“Brief in Support of Mother’s Demand for Hearing De Novo, which she alleges
she “provided … on December 6, 2017[,]” that included insurance cost
evidence. Id. (citing Reproduced Record at 4-19). However, this document
is not contained in the certified record, and there is no indication on the trial
court’s docket that Wife properly filed this document. Accordingly, we cannot
consider it on appeal. See Keystone Tech. Grp., Inc. v. Kerr Grp., Inc.,
824 A.2d 1223, 1228 n.6 (Pa. Super. 2003) (stating that “[i]t is axiomatic that
an appellate court is limited to considering only those facts which have been
duly certified in the record on appeal and, for purposes of appellate review,
what is not of record does not exist.”).
In her fourth issue, Wife argues that the trial court erred in failing to
apply an upward deviation concerning Husband’s child support obligation,
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given that he spent less than 30% of the custodial time with Child. Brief for
Wife at 11.
Before addressing the merits of this claim, we must determine whether
Wife preserved it for our review. Generally, “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a); see also Twilla v. Twilla, 664 A.2d 1020, 1027 (Pa. Super.
1995) (finding an issue waived in an equitable distribution matter where the
appellant/wife failed to raise it before the trial court in her exceptions to the
master’s report). Likewise, Pa.R.C.P. 1920.55-2, governing exceptions to
masters’ reports, provides, in relevant part, that “[m]atters not covered by
exceptions are deemed waived unless, prior to entry of the final decree, leave
is granted to file exceptions raising those matters.” Pa.R.C.P. 1920.55-2(b).
Accordingly, Wife has waived this issue.4 However, even if this issue was not
waived, we would determine that it does not entitle Wife to relief for the
following reasons.
Wife points out that the Explanatory Comment to Pennsylvania Rule of
Civil Procedure 1910.16-4 (governing calculation of support obligations)
states, in relevant part, as follows:
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4Further, the fact that Wife raised this issue in her Supplemental Rule 1925(b)
Concise Statement, and the trial court briefly addressed it in its Supplemental
Rule 1925(a) Opinion, does not preserve the claim for appellate review, in the
absence of Wife having earlier raised it before the trial court. See, e.g.,
Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (holding that “a 1925(b)
statement can [] never be used to raise a claim in the first instance.”).
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The basic support schedule incorporates an assumption that the
children spend 30% of the time with the obligor and that the
obligor makes direct expenditures on their behalf during that time.
Variable expenditures, such as food and entertainment that
fluctuate based upon parenting time, were adjusted in the
schedule to build in the assumption of 30% parenting time.
Upward deviation should be considered in cases in which the
obligor has little or no contact with the children. However,
upward deviation may not be appropriate where an obligor has
infrequent overnight contact with the child, but provides meals
and entertainment during daytime contact.
Pa.R.C.P. 1910.16-4, cmt. (2010) (emphasis added) (hereinafter referred to
as “the 2010 comment”). Wife maintains that here, Husband exercised only
approximately 7% of the custodial time, and “there was no evidence that he
provided any … additional support for [] [C]hild.” Brief for Wife at 11, 12
(emphasis omitted)). Thus, Wife contends, “the straight child support
calculations should not have been applicable, as [Husband] did not meet the
30% threshold.” Id. at 11-12.
Our Rules of Civil Procedure provide for a downward deviation in child
support obligations if the obligor exercises custody of the children over 40%
of the time. See Pa.R.C.P. 1910.16-4(c)(1); see also Pa.R.C.P. 1910.16-
5(b) (delineating the factors that a trial court should consider in deciding
whether to deviate from the amount of support determined by the guidelines).
Notably, however, the Rules do not explicitly provide for an
upward deviation if an obligor were to exercise less custody. The 2010
comment states only that a court should consider upward deviation in cases
in which an obligor has “little or no contact with the children.” Pa.R.C.P.
1910.16-4, cmt. (2010).
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In the instant case, Husband’s contact with Child is more than the “little
or no contact” contemplated by the 2010 comment. See Morgan v. Morgan,
99 A.3d 554, 560 (Pa. Super. 2014) (holding that the trial court did not abuse
its discretion in denying a mother’s request, pursuant to the 2010 comment,
for an upward deviation concerning the father’s child support where father
exercised less than 5% of the custodial time, and emphasizing that the 2010
comment “only suggests that upward deviation be considered; it does not
require it.”).
Accordingly, even if this issue was not waived, we discern no abuse of
the trial court’s discretion in determining that an upward deviation of
Husband’s child support obligation was unwarranted under the circumstances.
Order affirmed in part; appeal quashed in part. Motion to Quash granted
in part, and denied in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/14/2018
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