Humphreys v. DeRoss

EAKIN, Judge,

dissenting.

¶ 1 Appellant DeRoss has “disposable income” of $1,213, less attorney fees of $171.60, or just over $1,000 coming in each month. The hearing officer added $4,525 “imputed income,” because DeRoss inherited the proceeds from the sale of his deceased mother’s house, which he used to buy a better house for his present family. The result is a support order of more than two-thirds his actual income.

¶ 2 An inheritance may change the ability of an obligor to pay support, of this there is no disagreement; the issue is how to factor it in, since it isn’t really “income” in the sense of money “coming in” from one’s livelihood. Conceptually, there are several options. The first, reached by the majority through interpretation of the statute, would treat all inheritances of money as income, and recalculate support obligations accordingly; under this interpretation, inheritances other than money are not income at all.

¶ 3 Not finding the substance or concept of inheritance within the statutory definition of income, I must subscribe to another option, which would allow an inheritance in any form to be considered by the trial court in one of two ways. If articulably appropriate, the court may include the income (actual or imputed) generated by the inherited property, within the income of the appropriate. party before calculating the order. Alternatively, the amount of support would be determined without considering the inheritance, but a suitable deviation would be allowed thereafter, based on the inheritance. Either method would allow the trial court to fashion an order most appropriate to the circumstance, rather than mechanically treating all inheritances of money as income, no matter the consequences.

¶ 4 This inheritance gave appellant $83,-000 with which to generate income or reduce his expenses. However, to conclude he now has $4,525 additional income, when his actual receipts barely exceed $1,000 is confiscatory.6 Saying Mr. DeRoss has in*785come five times the amount he really receives each month is a fiction that would make the IRS swallow hard. One must conclude he will have to sell his new house to comply with the last months of the support order.7

¶ 5 The statutory definition of income is a conglomeration into which an inheritance does not easily fit. The majority’s thoughtful analysis does not find an inheritance enumerated in the definition itself; it is found in the phrase “other entitlements to money or lump sum awards, without regard to source, including lottery winnings.”8 Majority Opinion, at 777. I agree the specifics of the definition are not meant to be exhaustive,9 but that does not equate to a finding it is intended to be boundless.

¶ 6 The phrase “other entitlements to money” is not meant to encompass in the definitional stew every ingredient on the shelf of human experience. It is more an offer to “season to taste,” a catchall to prevent the inventive obligor from calling his income something else to avoid support. An inheritance is certainly not an obscure concept, escaping the considerations of the legislative chefs.

¶ 7 Inheritance law has a history much older than the calculations of child support payments; the legal passage of property upon death has been the subject of laws since there were laws. This is simply not the way our legislature would have dealt with an intent to include something as common and unambiguous as an inheritance. They would not have relied on such a broad catchall to do so - they would have said so outright.10 Since they did not, I can only conclude the intention was to exclude it.

¶ 8 As the majority also notes, the underlying goal of the support guidelines is to ensure “persons similarly situated shall be treated uniformly.” Majority Opinion, at 777. At first blush, requiring all inheritances to be treated as income would seem to afford “similar treatment,” but this is only true if one inherits similar amounts of similar property. Common sense tells us there are as many types of inheritances as there are people who inherit, yet the majority isolates cash inheritances from all other types without providing a reason to distinguish the two classes of beneficiaries. People who inherit money will be treated one way; those inheriting anything else will be treated another.

119 This disparate treatment is not logical, and leads to unfairness and absurd results. Conversely, there is logic to the exclusion of inheritances, and “[i]n interpreting statutes, it is axiomatic that the legislature does not intend an absurd or unreasonable result.” Commonwealth v. *786Beachey, 728 A.2d 912, 913 (Pa.1999); see also 1 Pa.C.S. § 1922(1) (presumptions in ascertaining legislative intent).

¶ 10 The calculation of child support should not be determined by the serendipity of the nature of property inherited. I find no logic in singling out people who inherit money and treating them differently than people who inherit land, or stocks, or jewelry. What of the heir who elects to take in kind rather than receiving money; if this is renouncing “income,” do we nevertheless impute this “income” to them, as we would to a parent renouncing a paycheck? If so, a legitimate request to take a family homestead or heirloom in kind could, in the majority’s broad interpretation of “entitlement to money,” make this a financial impossibility, defeating the continuity of family property and tradition. What of the heir who would renounce altogether in favor of a needy sibling? Let us not forget, if the custodial parent or the children themselves inherit money, it must likewise be income, reducing the obligor’s payments; if they inherit other property, a different analysis must take place.

¶ 11 Any future heir with a support obligation, reading the majority’s opinion, must ask to take any significant inheritance in kind, or delay settling the estate until the obligation expires; otherwise, their real income will become irrelevant, subsumed in an unrealistic calculation. Parents of children with support orders (or parents who ivorry their children may one day have an order) must change their wills, or face their legacy being passed through the ex-spouse of their child in the name of support. Anyone who has counseled such good people can attest to the anathema of this result. No grandparent wants to leave their worldly goods to the domestic relations office.

¶ 12 Those states that have addressed the issue through caselaw fall into the two approaches described above: (1) the income generated, actual or imputed, may be added to income; or (2) the obligation is determined from the guidelines without regard to the inheritance, but the inheritance (or income therefrom) is considered a reason for deviating from the guidelines.11

¶ 13 I believe the better rule, consistent with the goals of support law and the rights of all parties, would allow the trial court to treat an inheritance as an asset available to generate income, see, e.g., Connell v. Connell, 313 N.J.Super. 426, 712 A.2d 1266 (1998), or to deviate from the normal calculation once made, with the obligation to articulate reasons for the choice made. Our support guidelines already have provisions allowing the latter. *787Pennsylvania Rule of Civil Procedure 1910.16-4 lists two applicable factors which allow the trial court the discretion to deviate from the presumed guideline amount upon the request of either party: “(5) assets of the parties” and “(8) other relevant and appropriate factors, including the best interests of the child or children.” These clauses easily encompass an inheritance of money or property, and in a more appropriate and flexible manner.

¶ 14 Trying to fit the vast ramifications of inheritance law into the one-size-fits-all catch phrase of “entitlement to money” or “any form of payment” is like trying to wear a tent: it’s big enough, but that’s not what a tent is for. I find no reason to force such a fit, or to invite the injustices that must, as here, ensue. If the legislature wanted to include inheritances of money or property or both, it would have said so. It did not, and for good reason: it would be inequitable in application, and the law already provides the means to consider an inheritance by deviation from the guidelines.

¶ 15 Accordingly, I must dissent from the position of my colleagues.

¶ 16 DEL SOLE, MUSMANNO and ORIE MELVIN, JJ. join in this Dissenting Opinion by EAKIN, J.

. The issue challenging the amount of attachment may be waived, but it is significant the law precludes attaching more than 55% of net income. See Consumer Credit Protection Act, 15 U.S.C. § 1673(b). Here, 57% of appellant’s real income is attached, even without the attorney’s entitlement. We hold in abeyance, pending our result, the appeal in Hawley v. Reynolds, 178 Harrisburg 1998; there, treating the inheritance as income caused an order which actually exceeds the obligor’s receipts each month. Forcing an heir to live *785entirely off their inheritance by a support award greater than 100% of true income cannot be the mandated result of the law.

. Forcing him to mortgage the house is equally unfair, and impractical. The bank knows his true available income is $1000 a month, less a $692 support obligation; how much could he borrow when he lacks the means to repay?

. An inheritance is not a "lump sum award.” An inheritance is not an award of any kind, and the term "lump sum” bespeaks an amalgamation, something lumped together; it is clearly not a reference to the transfer of a decedent’s property. Lottery winnings are certainly not inheritances, so we are left with "other entitlements to money.”

. I disagree, however, with the majority’s application of the phrase "including, but not limited to” found in the first clause. This phrase is clearly not introductory to the whole of the definition, and is only meant to modify the clause "compensation for services” within whose commas it is contained.

. I find the same logic precludes including an inheritance in "any form of payment due to and collectible by an individual regardless of source,” as the concurring opinion suggests. A "payment” bespeaks compensation, or discharge of a debt or obligation, not a passing of property from deceased to heir; no one speaks of getting "paid” from a parent’s estate. While the executor was obliged to give appellant his inheritance, it was not as compensation, and was not in discharge of any debt.

. I do not believe the cases cited by the majority support its result to the degree claimed. In Crayton v. Crayton, 944 P.2d 487 (Alaska 1997), the court was calculating support for a period in the past, not a future order. While proper to consider for past obligations, the court specifically held inclusion as income of a one-time gift or inheritance would unfairly inflate future obligations; the principal amounts of gifts and inheritances is not income. See also Nass v. Seaton, 904 P.2d 412 (Alaska 1995).

In Goldberg v. Goldberg, 698 So.2d 63 (La.App. 4th Cir.1997), the issue was alimony, not child support. Further, the holding was to “consider” the inheritance; it was not held to be “income.”

In Ford v. Ford, 1998 WL 730201, 1998 Tenn. App. LEXIS 703 (Tenn.Ct.App.1998), a regular distribution of money from an inheritance was appropriately considered as income; a one-time distribution of life insurance proceeds was not. A one-time inheritance is much different than a "regular distribution,”' which is within "income from an interest in an estate” in Pennsylvania.

Only in Forsythe v. Forsythe, 41 Va. Cir. 82, 1996 WL 1065613 (Cir. Ct. of Fairfax County, Va.1996) do we find inclusion of an inheritance as "income;” in this alimony case, the parties incorporated the definition of the child support statute into their alimony agreement. The decision, of a county court, equates an inheritance to a "gift,” a term within Virginia's statutory definition, but not present in Pennsylvania.

In addition to the cases cited by the majority as contrary to its conclusion, see Bryant v. Bryant, 235 A.D.2d 116, 663 N.Y.S.2d 401 (N.Y.App.Div.1997); Helgeson v. Helgeson, 528 N.W.2d 91 (Wis.Ct.App.1994); Reech v. Reech, , 1997 WL 37740, 1997 Ohio App. LEXIS 318 (Ohio Ct.App.1997).