J. A15020/16
2016 PA Super 255
MICHAEL HANRAHAN, : IN THE SUPERIOR COURT OF
Appellant : PENNSYLVANIA
v. :
:
JEANNE BAKKER :
:
: No. 1638 EDA 2015
:
MICHAEL J. HANRAHAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEANNE L. BAKKER, :
Appellant :
: 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.
OPINION BY DUBOW, J.: FILED NOVEMBER 18, 2016
Michael Hanrahan (“Father”) and Jeanne Bakker (“Mother”) both
appeal from the Order dated June 1, 2014, and entered June 4, 2014, in the
Court of Common Pleas of Delaware County that granted Motions for
Reconsideration filed by both parties and amended the May 6, 2015 child
support Order.
Upon careful review, we affirm in part and reverse in part. In
particular, we reverse the trial court’s Order as it pertains to: (i) requiring a
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portion of the child support obligation to be placed in a Pennsylvania Uniform
Transfers to Minor’s Act1 (“PUTMA”) account; (ii) evaluating Pa.R.C.P
1910.16.5(b)(7) based on the children’s potential standard of living post-
minority; (iii) determining a $2,500,000 downward deviation in Support Year
2013 because of Father’s voluntary contribution to a trust for his children;
and (iv) denying Mother’s request for attorney’s fees. We remand to the
trial court to enter an Order in compliance with this Opinion.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts and procedural history of this case are as follows.
Father and Mother, both attorneys, were married on November 14, 1992 and
divorced on July 9, 2009. They are the parents of two minor children and
share joint legal and physical custody of the children on an alternating
weekly basis. On April 9, 2009, Father and Mother entered into a Property
Settlement Agreement (“Agreement”) which was incorporated into their July
9, 2009 Divorce Decree.
The Agreement stated the following, in relevant part, concerning the
parties’ child support obligations:
The parties agree to exchange tax information for each tax year
by no later than April 15 of the year following the tax year.
Child support and the proportion of Child Expenses shall be
recalculated each year as of May 1 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
1
20 Pa.C.S. §§ 5301-5321.
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on relevant factors. As to each child, child support shall continue
until Emancipation.
Property Settlement Agreement at 13.
In addition, the Agreement stated the following, in relevant part,
concerning attorney’s fees:
Each party further hereby agreed to pay and to save and hold
harmless the other party from any and all attorney’s fees, and
costs of litigation that either may sustain, or incur or become
liable for, in any way whatsoever, or shall pay upon, or in
consequence of any default or breach by the other of any of the
terms or provisions of this Agreement by reason of which either
party shall be obliged to retain or engage counsel to initiate or
maintain or defend proceedings against the other at law or
equity or both or in any way whatsoever; provided that either
party (or both parties) who seeks to recover such attorney’s
fees, and costs of litigation will only recover attorney’s fees and
costs of litigation to the extent that party is successful. It is the
specific agreement and intent of the parties 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.
Property Settlement Agreement at 19.
In 2009, Father’s income was $4,010,938 and Mother’s income was
$183,635. Father complied with the terms of the Agreement and paid
Mother a monthly child support obligation of $15,878 per month from May 1,
2010 through April 30, 2011.
In 2010, Father’s income was $1,083,312 and Mother’s income was
$138,988. Father complied with the terms of the Agreement and paid
Mother a monthly child support obligation of $3,702 per month from May 1,
2011 through April 30, 2012.
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In 2011, Father’s income was $2,303,031 and Mother’s income was
$145,593. Father complied with the terms of the Agreement and paid
Mother a monthly child support obligation of $7,851 per month from May 1,
2012 through April 30, 2013.
In 2012, Father’s income was $15,591,840 and Mother’s income was
$105,201. Father disagreed with the terms of the Agreement and on March
6, 2013, wrote Mother a letter stating:
As we discussed, I was fortunate enough to make a substantial
amount of money last year. Based on this income, the
preliminary calculation that is the first step in the child support
determination in high income cases will yield a result that is way
beyond any realistic estimate of the reasonable needs of the
children. In the past, you and your counsel have insisted on
using the preliminary calculation as if it were a definitive
determination of the amount of child support. Though I
considered the amounts excessive, I acquiesced to avoid conflict.
However, I simply cannot agree that the reasonable needs of
two children could be anywhere close to the preliminary
calculation amount this year.
Letter from Father to Mother dated 3/6/13. While Father disagreed with a
new child support calculation, he agreed to continue to pay the $7,851 of
child support per month that he paid the previous support year. (N.T.
1/27/15, p. 216).
Additionally in 2012, Father deposited $2,500,000 into an irrevocable
non-grantor trust for the benefit of the two children. He also paid
approximately $70,000, in addition to monthly child support monies,
towards the children’s private school tuition, camps, and activities. (N.T.
1/27/15, pp. 119, 142-43, 268-70). Further, “in 2012, [Father’s] law firm
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distributed income to him, as a partner, and it was agreed that he, and the
other partners, would individually make contributions in the amount of
$150,000 and he did contribute that amount, to establish scholarships in
honor of William Prichett, who was the founder of the firm . . . [and] his
income was increased by $150,000 because of the contribution that was
going to be made.” Amended Order, 6/1/15, at 8-9.
On December 20, 2013, Mother filed a Petition for Enforcement of
Property Settlement Agreement and of Divorce Decree of July 9, 2009
(“Mother’s Petition”). On February 4, 2014, Father filed a Counterclaim to
Mother’s Petition. Both parties continued to file timely answers, replies,
counterclaims, and new matter pertaining to Mother’s Petition.
On September 23, 2014, Mother filed a Motion in Limine for Exclusion
of Expert Testimony Regarding the Applicability of Pennsylvania Child
Support Guidelines. On October 28, 2014, the trial court granted Mother’s
motion and precluded Father from introducing expert testimony regarding
the applicability of the Pennsylvania Child Support Guidelines (“Guidelines”).
On January 27, 2015, the trial court held a hearing on Mother’s
Petition at which both Father and Mother testified. On May 6, 2015, the trial
court issued an Order including Findings of Fact and Conclusions of Law.
Both parties filed Motions for Reconsideration, which the trial court granted.
On June 1, 2015, the trial court issued an Amended Order which
directed, in relevant part: (1) Father to pay Mother a total of $52,289 per
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month in child support for the period of 5/1/13 to 8/8/13 and a total of
$59,206 per month in child support for the period of 8/9/13 to 4/30/14; 2 (2)
Mother to set up a separate PUTMA account for the benefit of each child and
name herself custodian; and 3) Mother to deposit $30,000 per month of the
child support monies received for each month for the period of 5/1/13 to
4/30/14 into the PUTMA accounts. See Amended Order, dated June 1,
2015, at 25-27.
Father and Mother both filed a timely Notice of Appeal. Father,
Mother, and the trial court all complied with Pa.R.A.P. 1925.
MOTHER’S ISSUES ON APPEAL
1. Whether the trial court erred and/or abused its discretion by
requiring [Mother] to set up a separate [P]UTMA account for
the benefit of each child naming herself as custodian of the
accounts and ordering [Father] to direct her to deposit
$30,000 per month of the child support monies for the period
May 1, 2013 to April 30, 2014 into the [P]UTMA accounts.
2. Whether the trial court erred and/or abused its discretion by:
determining that [Father] was entitled to a downward
deviation for support purposes as a result of his voluntary
contributions to a trust for the benefit of the children in the
amount of $2,500,000 in support year 2012; concluding that
such voluntary contribution was a “relevant and appropriate”
factor under Pa.R.C.P. 1910.16-5(b)(9); and, failing to
explain how the deviation amount was determined.
2
Father was instructed to deduct the $7,951 per month that he had already
paid Mother for a net child support amount of $44,438 per month for the
period of 5/1/13 to 8/8/13 and $51,355 per month for the period of 8/9/13
to 4/30/14.
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3. Whether the trial court erred and/or abused its discretion in
denying [Mother] reimbursement of counsel fees pursuant to
paragraph 35.e of the Property Settlement Agreement.
Mother’s Reply and Brief at 2.
FATHER’S ISSUES ON APPEAL
1. Whether the trial court erred as a matter of law in holding
that[:]
(a) the Pennsylvania Supreme Court, through Pa.R.C.P.
1910.16-3.1 and Ball v. Minnick, 648 A.2d 1192 (Pa.
1994), eliminated the statutory requirement of §4322(a)
that high income child support awards be based on the
reasonable needs of the children[;] and
(b) that reasonable needs is no longer the governing standard
for, or even a relevant factor in, determining high income
child support under the three-step process of Pa.R.C.P.
1910.16-3.1(a) and the factors in Rule 1910.16 -5(b)?
2. Did the trial court err as a matter of law in interpreting and
applying Factors 7 and 9 of Pa.R.C.P. 1910.16-5 by:
(a) failing to consider reasonable needs;
(b) failing to consider the mandatory expense statements of
Pa.R.C.P. 1910.27(c)(2)(B) in applying the Rule 1910.16-
5(b) factors, as Pa.R.C.P. 1910.16-3.1(a)(3) specifically
requires;
(c) requiring Father to provide [Mother] with a "potentially
comparable level of funds" to support the "potential"
extravagant lifestyle Father could have lived on his 2012
net income, rather than the high but consistent standard
of living the parties and the children have maintained;
(d) awarding as child support for the 2013 Support Year
amounts for maintaining the standard of living for Mother
in subsequent support years and the future standard of
living of the children post-minority, including ordering
Father to pay an additional $360,000 that Mother was
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ordered to place in separate Pennsylvania Uniform Transfer
to Minors Act ("[P]UTMA") accounts for [children]; and
(e) requiring Father to pay child support on funds that went
elsewhere, including Father's payment of $70,000 for the
children's tuition, camps and other activities, Mother's
withdrawal of funds from her 401(K), and Father's
mandatory charitable contributions pursuant to an
agreement with his law firm?
3. Did the trial court err as a matter of law by automatically
raising child support on combined monthly net income (
"CMNI ") above $30,000 from 8% to 11.6% (an increase of
45 %) based on a change in the formula in Rule 1910.16 -
3.1(a)(1) effective August 9, 2013 without placing the burden
on Mother to prove such an adjustment was required by the
relevant factors, without determining whether the adjustment
was consistent with the terms of the parties' Agreement,
without considering the reasonable needs of the children, and
without determining whether the resulting award was just and
appropriate?
4. Was it legal error for the trial court to deny Father the
opportunity to present evidence and argument by:
(a) refusing to permit expert testimony concerning whether
the preliminary analysis under Pa.R.C.P. 1910.16 -
3.1(a)(1) would be inconsistent with the Income Shares
Model and economic data underlying the Pennsylvania
child support guidelines; and
(b) denying Father the joint custody reduction for the period
from May 1 to August 9, 2013?
Father’s Brief at 4-6.
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LEGAL ANALYSIS
Mother’s Issues
PUTMA
Mother first argues that the trial court erred and/or abused its
discretion when it required her to set up a separate PUTMA account for the
benefit of each child and ordered her to deposit $30,000 per month of the
child support monies she received each month for the period of May 1, 2013
to April 30, 2014 into the PUTMA accounts. Mother’s Reply and Brief at 2.
We agree.
The standard of review in child support cases is well settled:
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. We will not interfere with the
broad discretion afforded the trial court absent an abuse of that
discretion or insufficient evidence to sustain the support order.
An abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law,
or the judgment exercised is shown by the record to be either
manifestly unreasonable or the product of partiality, prejudice,
bias or ill will, discretion has been abused. In addition, we note
that the duty to support one's child is absolute, and the purpose
of child support is to promote the child's best interests.
Arbet v. Arbet, 863 A.2d 34, 39 (Pa. Super. 2004) (citation omitted).
“The purpose of PUTMA is to provide an inexpensive, easy way for
giving property to minors.” Sternlicht v. Sternlicht, 822 A.2d 732, 737
(Pa. Super. 2003); aff'd, 583 Pa. 149, 876 A.2d 904 (Pa. 2005). Under
PUTMA, a transfer is made and “custodial property” is created when money
is deposited into a brokerage account in the name of the parent as custodian
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for the minor. Id.; 20 Pa.C.S. § 5309(a)(2). Regardless of the source,
custodial property that is held pursuant to PUTMA is the property of the
minor child. Sternlicht, 822 A.2d at 737. “[A] transfer made into the
PUTMA account of the minor is irrevocable and the vesting of the custodial
property in the minor cannot be undone.” Id., at 737; 20 Pa.C.S. §5311(b).
PUTMA provides: “[a] custodian may deliver or pay to the minor or
expend for the minor's benefit so much of the custodial property as the
custodian considers advisable for the use and benefit of the minor . . .” 20
Pa.C.S. § 5314(a). However, “[a] delivery, payment or expenditure under
this section is in addition to, not in substitution for, and does not affect any
obligation of a person to support the minor.” 20 Pa.C.S. § 5314(c). Child
support, on the other hand, should be “based on the . . . recognition 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.” MacKinley v. Messerschmidt, 814 A.2d 680, 683
(Pa. Super. 2002) (emphasis added). This Court has held that “[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.” Sternlicht, 822 A.2d
at 741. In essence, “PUTMA accounts may not be used for support before
the parents expend their own resources.” Id. This principle applies “not
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just to non-custodial support obligors, but to both parents, without regard to
marital or custodial status.” In re Gumpher, 840 A.2d 318, 324 (Pa.
Super. 2003).
In justifying its ruling in the instant case, the trial court stated that,
“to simply give [Mother] the child support monies for the 2013 Support year
in a lump sum, is contrary to the goal in child support matters, which is to
serve the best interests of the children and would deprive the children of a
fund to guarantee maintenance of their lifestyle in the future when [Father]’s
income may be less or non-existent.” Trial Court Opinion, dated 12/14/15,
at 13. This is a flawed rationale.3
As Mother correctly observes, if the child support monies were placed
in a PUTMA account, “[she] would be forced to spend down her personal
assets before she would be permitted to access the funds,” and the funds,
likewise, would not be available for the children’s immediate needs.
Mother’s Reply and Brief at 34. She also observes that the “trial court’s
3
In the instant case, the trial court erroneously relies on Branch v.
Jackson, 629 A.2d 170 (Pa. Super. 1993), as authority in support of its
order that a portion of child support monies be placed into a PUTMA account.
The trial court incorrectly stated that, in Branch, this Court “required Father
to establish and pay the monthly amount for child support, $3,000.00 per
month, into a trust for the child for future expenses.” Trial Ct. Op. at 26. In
fact, this Court never reached the issue. Rather, we vacated and remanded
for development of the record. Thus, contrary to the trial court’s Opinion,
Branch does not stand for the proposition that a trial court has discretion to
order a parent to place a portion of child support monies into a trust for
future use.
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decision singles Mother out as the only Pennsylvania support recipient who is
not entitled to free and unfettered access to the child support awarded to
her which is contrary to Pennsylvania law and contrary to the Pennsylvania
Legislature’s mandate that child support in this Commonwealth shall be
awarded so that ‘persons similarly situated shall be treated similarly.’”
Mother’s Brief at 39. We agree.
As noted above, any child support monies awarded under the
Guidelines should be immediately available for the children’s needs.
Accordingly, the trial court’s Order that requires Mother to place a portion of
child support payments in a PUTMA is an abuse of discretion and we reverse
this portion of the trial court’s Order. See MacKinley, supra.
DOWNWARD DEVIATION
Mother next avers that the trial court abused its discretion by
determining that Father’s voluntary contributions to a trust entitled him to a
downward deviation for support purposes. Mother’s Reply and Brief at 2.
We agree.
The Guidelines direct that “[w]hen the parties' combined monthly net
income is above $30,000, [a] three-step process shall be applied to calculate
the parties' respective child support obligations.” Pa.R.C.P. 1910.16-3.1.
The three-step process involves: (1) implementation of the child support
formula prescribed in the section; (2) applicable adjustments for shared
custody and allocations of additional expenses; and (3) consideration of
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additional factors to determine whether a downward or upward deviation is
appropriate. Id.
The factors that a trial court should consider when determining
whether a deviation is appropriate include, in relevant part:
(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;
***
(9) other relevant and appropriate factors, including the best
interests of the child or children.
Pa.R.C.P. 1910.16-3.1(a)(3); Pa.R.C.P. 1910.16-5. Further, “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).
In the instant case, the trial court determined that Father “was entitled
to a downward deviation for support purposes as a result of his voluntary
contributions to a trust for the benefit of the children in the amount of
$2,500,000 in support year 2012 and conclude[ed] that such voluntary
contribution was a ‘relevant and appropriate’ factor under Pa.R.C.P.
1910.16-5(b)(9).” Trial Ct. Op. at 35. Thus, we must determine whether a
“voluntary contribution to a trust” is a “relevant and appropriate factor” to
consider when deciding to deviate downward.
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Pa.R.C.P. 1910.16-5 provides a myriad of valid and appropriate
reasons to deviate from the child support formula in high-income cases. As
discussed below, a voluntary contribution to a trust is not one of them.
Our Supreme Court has held that “a parent's obligation to support
minor children is independent of the minor's assets.” Sutliff v. Sutliff, 528
A.2d 1318, 1320 (Pa. 1987). Further, to the extent that a parent can
“reasonably” do so, a parent is obligated to provide support for a child
regardless of the child’s property. Id.
In an analogous case, this Court found that 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. Portugal v. Portugal, 798 A.2d 246, 252 (Pa.
Super. 2002). In MacKinley, supra, this Court explained that Portugal
was decided “based on the dominant interest of the children's immediate
needs, as well as the recognition 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.” MacKinley,
supra at 683.
Here, the trial court should not have considered the children’s assets,
namely the $2,500,000 trust fund that Father set up for them, when
determining Father’s child support obligations and deviations. See Sutliff,
supra. Similarly, it was improper for the trial court to reduce Father’s child
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support obligation because of those voluntary contributions. See Portugal,
supra. Lastly, in determining the appropriate support amount, the trial
court’s primary focus should have been the children’s immediate needs.
Ordering a downward deviation of Father’s present child support obligation
because he put money for future use into a trust for the children is in direct
opposition to this principle. See MacKinley, supra. Accordingly, we
conclude the trial court abused its discretion when it deviated downward
from the child support formula based on Father’s voluntary contributions to a
trust fund for the children.
ATTORNEY’S FEES
In her third issue, Mother avers that the trial court abused its
discretion by denying Mother’s reimbursement of counsel fees. We agree.
The parties entered into an Agreement that required Father to pay
child support to Mother in an amount determined by the Guidelines. See
Property Settlement Agreement at 13. Regarding attorney’s fee, the
Agreement provides, in relevant part, that:
[i]t is the specific agreement and intent of the parties 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.
Property Settlement Agreement at 19.
As Mother states, “[t]he parties do not dispute their contract’s validity
or existence. Nor is it disputed that Mother incurred damages, via attorney’s
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fees and attendant costs, in prosecuting this action. Rather, the issue turns
squarely on whether Father breached the agreement.” Mother’s Reply and
Brief at 55.
In Pennsylvania, post-nuptial agreements are contracts governed by
contract law. Lugg v. Lugg, 64 A.3d 1109, 1112 (Pa. Super. 2013). “In
the absence of a specific provision to the contrary appearing in the
agreement, a provision regarding . . . counsel fees or expenses shall not be
subject to modification by the court.” 23 Pa.C.S. § 3105(c).
In the instant case, the trial court determined that:
neither [Father], nor [Mother] were “successful” in this litigation,
as required for an award of counsel fees as stated in paragraph
36.e. of the [Agreement]. The [trial court] concludes that while
not agreeing to the methodology used to calculate his child
support obligation, Michael Hanrahan continued to pay
substantial monthly child support to Jeanne Bakker for the
support year, May 1, 2013 to April 30, 2014. The [trial court]
concludes that portions of both of the parties’ arguments were
flawed and thus, neither Michael Hanrahan, nor Jeanne Bakker,
is entitled to an award of Counsel Fees in this matter.
Trial Ct. Op. at 38. We disagree.
The Agreement required Father to pay Mother child support according
to the Guidelines. Father complied with the Agreement and paid support
accordingly for three years, and each year the parties recalculated the
amount of support according to the Guidelines. After Father earned
$15,000,000 in 2012, he informed Mother via letter that he no longer agreed
to pay child support according to the Guidelines. Accordingly, Father was
the “breaching or wrongdoing party.” Agreement, supra at 19.
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The Agreement states that the “breaching or wrongdoing party . . .
shall bear the burden of counsel fees . . . to the extent the other party is
successful in enforcing his or her rights.” The trial court denied counsel fees
because both parties had “flawed arguments.” Based on the plain language
of the Agreement, this is an improper reason to deny Mother’s
reimbursement of counsel fees.
Simply put, Mother sought enforcement of the Agreement, which
stated that the Pennsylvania Guidelines should determine support. The trial
court awarded Mother support in accordance with the Pennsylvania
Guidelines. Mother was “successful in enforcing . . . her rights” under the
Agreement and is entitled to an award of counsel fees. Accordingly, the trial
court abused its discretion by denying Mother’s reimbursement of counsel
fees.
Father’s Issues
REASONABLE NEEDS
Father first argues that the trial court erred as a matter of law in
concluding that (a) the Pennsylvania Supreme Court, through Pa.R.C.P.
1910.16-3.1 and Ball v. Minnick, 648 A.2d 1192 (Pa. 1994), eliminated the
statutory requirement of 23 Pa.C.S. § 4322(a) that high income child
support awards be based on the reasonable needs of the children; and (b)
reasonable needs is no longer the governing standard for, or even a relevant
factor in, determining high income child support under the three-step
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process of Pa.R.C.P. 1910.16-3.1(a) and the factors in Rule 1910.16-5(b).
Father’s Brief at 4. We disagree with Father’s contention.
Prior to the adoption of the Guidelines, Melzer v. Witsberger guided
Pennsylvania child support decisions. Melzer v. Witsberger, 480 A.2d 991
(Pa. 1984). Melzer dictated that courts determine child support based on
the parties’ net income available for support, the parties’ reasonable living
expenses, and the reasonable needs of the children. Melzer, supra at 995-
997.
In 1985, the Pennsylvania Legislature mandated the creation of child
support guidelines:
§ 4322. Support guideline
(a) Statewide guideline.--Child and spousal support shall be
awarded pursuant to a Statewide guideline as established by
general rule by the Supreme Court, so that persons similarly
situated shall be treated similarly. The guideline shall be based
upon the reasonable needs of the child or spouse seeking
support and the ability of the obligor to provide support. In
determining the reasonable needs of the child or spouse seeking
support and the ability of the obligor to provide support, the
guideline shall place primary emphasis on the net incomes and
earning capacities of the parties, with allowable deviations for
unusual needs, extraordinary expenses and other factors, such
as the parties' assets, as warrant special attention. The guideline
so developed shall be reviewed at least once every four years.
(b) Rebuttable presumption.--There shall be a rebuttable
presumption, in any judicial or expedited process, that the
amount of the award which would result from the application of
such guideline is the correct amount of support to be awarded. A
written finding or specific finding on the record that the
application of the guideline would be unjust or inappropriate in a
particular case shall be sufficient to rebut the presumption in
that case, provided that the finding is based upon criteria
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established by the Supreme Court by general rule within one
year of the effective date of this act.
23 Pa.C.S. § 4322.
On September 6, 1989, the Supreme Court adopted Pa.R.C.P. 1910.16
et. seq., providing uniform statewide support guidelines based on “The
Income Shares Model.” Pa.R.C.P. 1910.16-1 cmt. The Income Shares
Model “is based upon the concept that the child of separated, divorced or
never-married parents should receive the same proportion of parental
income that she or he would have received if the parents lived together.”
Id. As directed by Section 4322, the Guidelines inherently consider
reasonable needs, but the Guidelines do not require the trial court to do a
separate reasonable needs analysis. See 42 Pa.C.S. § 4322; see also
Pa.R.C.P. 1910.16-3.1.
In 1994, the Pennsylvania Supreme Court held that the “Melzer
formula applies only where the parties' combined income exceeds the
amount of the guideline income figures.” Ball v. Minnick, 648 A.2d 1192,
1195 (Pa. 1994). In all other cases, the amount of child support “shall be
determined in accordance with the support guidelines.” Id. The Court also
held that deviating from the Guidelines because the “basic needs of the
children could be met by a payment of less than the guideline amount . . . is
an impermissible basis for deviating from the guidelines.” Id. at 1196.
In 2010, our Supreme Court adopted substantial amendments to the
Guidelines, including the addition of Pa.R.C.P. 1910.16-3.1, pertaining to
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support guidelines for high-income cases. The Explanatory Comment to the
Rule specifically states: “[n]ew Rule 1910.16-3.1 is intended to bring all
child support cases under the guidelines and treat similarly situated parties
similarly. Thus, high income child support cases no longer will be decided
pursuant to Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).”
Pa.R.C.P. 1910.16-3.1 cmt. Accordingly, contrary to Father’s contention, the
2010 amendments mandated that all child support cases be decided
pursuant to the Guidelines.
As discussed above, the Guidelines direct that “[w]hen the parties'
combined monthly net income is above $30,000, [a] three-step process shall
be applied to calculate the parties' respective child support obligations.”
Pa.R.C.P. 1910.16-3.1. The three-step process involves: (1) implementation
of the child support formula prescribed in the section; (2) applicable
adjustments for shared custody and allocations of additional expenses; and
(3) consideration of additional factors to determine whether a downward or
upward deviation is appropriate. Id.
Father argues, without citation to case law, that “[the] replacement of
the complicated Melzer analysis with the three[-]step process of Rule
1910.16-3.1 did not eliminate the reasonable needs limitation on child
support.” Father’s Brief at 19. He avers that Section 4322 dictates that the
trial court must consider a child’s reasonable needs when determining an
appropriate support award.
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Section 4322 directs that the Guidelines “shall be based upon the
reasonable needs of the child or spouse seeking support and the ability of
the obligor to provide support.” 23 Pa.C.S. § 4322(a). Further, “[i]n
determining the reasonable needs . . . the guideline shall place primary
emphasis on the net incomes and earning capacities of the parties, with
allowable deviations.” Id. Section 4322 expressly states that the
reasonable needs of the child should be based on the net incomes and
earning capacities of the parties and that there is a “rebuttable presumption
. . . that the amount of the award which would result from the application of
such guideline is the correct amount of support to be awarded[.]” 23
Pa.C.S. § 4322(b).
In turn, the Guidelines require the trial court to do a three-step
analysis. See Pa.R.C.P. 1910.16-3.1. In the last step, the trial court is
consider a list of factors to determine whether an upward or downward
deviation in the child support is appropriate. See Pa.R.C.P. 1910.16-5(b).
The factors include, in relevant part:
(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;
***
(9) other relevant and appropriate factors, including the best
interests of the child or children.
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Id. Notably, “reasonable needs” is not one of the specific factors listed.
Pennsylvania Courts have previously rejected Father’s argument. In
Ball, supra, our Supreme Court considered a challenge to a child support
award granted pursuant to the basic income Guidelines. The Court
determined that deviating from the Guidelines because the “basic needs of
the children could be met by a payment of less than the guideline amount . .
. is an impermissible basis for deviating from the guidelines.” Ball, supra at
1196.
In Arbet v. Arbet, supra, the father asserted that the court should
have considered the children’s reasonable needs rather than apply the
Guidelines. After explaining the proper application of the Guidelines, this
Court disagreed, observing:
Father's argument essentially encompasses what has been
termed a Melzer analysis…Although Father argues that the
court should have considered the children's reasonable needs
and the parties' resources and living expenses, he provides no
citations to case law to support this argument. The rules make
clear that the amount of support as determined from the support
guidelines is presumed to be the appropriate amount of
support[.]
Id., 863 A.2d at 42 (internal quotation and citation omitted).
As a result of the 2010 Guideline amendments, both Ball and Arbet
are applicable in the instant high income case.
Accordingly, we find that the trial court did not err or abuse its
discretion in fashioning a child support award based on the Guidelines
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without engaging in a separate and discrete analysis of the children’s
reasonable needs.
MISAPPLICATION OF FACTORS 7 AND 9
Father next avers that the trial court erred as a matter of law in
interpreting and applying Factors 7 and 9 of Pa.R.C.P. 1910.16-5(b). Factor
7 is “standard of living of the parties and their children[.]” Pa.R.C.P.
1910.16-5(b)(7). Factor 9 is “other relevant and appropriate factors,
including the best interests of the child or children.” Pa.R.C.P. 1910.16-
5(b)(9).
Father’s first and second claims of error pertain to the trial court’s
failure to consider the children’s reasonable needs. As discussed above, we
find no error in the trial court’s failure to engage in a separate reasonable
needs analysis in calculating the child support award.
Father next argues that the trial court misapplied the Guidelines’
standard of living factor and erred in justifying its child support directives
based on a future standard of living for Mother and children post-minority.
See Father’s Brief at 5. We agree.
Here, the trial court concluded:
[I]n order to insure that the consistency in standard of living is
maintained, a fund needs to be established so that [Mother] has
the ability that [Father] has to keep up with the life style for the
children that they enjoy when in [Father]’s household. To simply
give [Mother] the child support monies for the 2013 Support
year in a lump sum, is contrary to the goal in child support
matters, which is to serve the best interests of the children and
would deprive the children of a fund to guarantee maintenance
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of their lifestyle in the future when [Father]’s income may be
less or non-existent.
The [c]ourt further concludes that deviation upward or
downward based on this factor would be inappropriate. The
reason this [c]ourt does not further deviate the support Order
downward is the fact that perhaps not having access to the
money in 2013 prevented [Mother] from applying this amount to
the children in a way that would insure her ability (and their
ability post minority) to maintain a consistent standard of
living. It is for that reason that these funds in an amount that
the [c]ourt could have deviated downward will be preserved for
the benefit of the children and accessible by [Mother] as their
custodian and natural guardian.
Amended Order, dated 6/1/15, at 23-24 (emphasis added).
Contrary to the trial court’s Opinion, Rule 1910.16-5(b)(7) requires the
trial court to consider the “standard of living of the parties and their
children,” not the potential standard of living “post minority.” See
Pa.R.C.P. 1019.16-5(b)(7).
Moreover, as discussed above, child support monies awarded under
the Pennsylvania guidelines should be immediately available for the
children’s needs. See MacKinley, supra at 683. Accordingly, it was an
abuse of discretion for the trial court to evaluate this factor based on the
potential standard of living and we remand to the trial court to re-evaluate
Pa.R.C.P. 1910.16-5(b)(7) without regard to the children’s potential
standard of living post-minority.
Father next avers that the trial court erred by requiring him “to pay
child support on funds that went elsewhere, including Father’s payment of
$70,000 for the children’s tuition, camps, and other activities, Mother’s
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withdrawal of funds from her 401(k), and Father’s mandatory charitable
contributions pursuant to an agreement with his law firm[.]” Father’s Brief
at 5.
Father fails to develop an argument in support of this claim, fails to
cite to the record, and fails to provide citation to any authority and therefore
we find this issue to be waived. See Pa.R.A.P. 2119; see also
Commonwealth v. Kearney, 92 A.3d 51, 66–67 (Pa. Super. 2014) (finding
that claim is waived where Appellant fails to develop an argument in support
of this claim, or to provide pertinent citation to authority.); see also
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (“We
shall not develop an argument for [an appellant], nor shall we scour the
record to find evidence to support an argument; consequently, we deem this
issue waived.”).
AUGUST 9, 2013 REVISION TO Pa.R.C.P. 1910.16-3.1(a)(1)
Father next avers that the “trial court erred as a matter of law by
automatically redetermining child support based on the August 9, 2013
revision to Rule 1910.16-3.1(a)(1)[.]”4 Appellant’s Brief at 51. Without
citation to authority, Father argues that Mother had the burden to prove that
“the ‘relevant factors’ justified a deviation from the child support amount
determined by the version of the Rule that was effective on May 1 [when the
4
The August 2013 amendment changed the percentage used in the child
support calculation from 8% to 11.6%.
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parties’ Agreement provided for a redetermination of child support].” Id. at
55. This claim is meritless.
The trial court opined:
[B]ased on the language in Paragraph 22 of the Property
Settlement Agreement that “either party may apply to the
[c]ourt to adjust child support and/or their share of Child
expenses for the year based on relevant factors,” the
amendment to Rule 1910.16-3.1 shall be considered and applied
for the period after its effective date, August 9, 2013. The
[c]ourt further conclude[s] that the Support Guidelines that are
applicable herein are the amounts and percentages that were in
effect on May 1, 2013 for the period May 1, 2013 to August 8,
2013: Two children: $3,777 + 8% of the combined net income
above $30,000 per month; and for the period August 9, 2013 to
April 30, 2014, the effective date of the amendment to Rule
1910.16-3.1, the amounts and percentages as follows: Two
children: $3,836 + 11.6% of the combined net income above
$30,000 per month.
Trial Ct. Op. at 19. We note that Rule 1910.19 provides that “[a] new
guideline amount resulting from a new or revised support guidelines may
constitute a material and substantial change in circumstances.” Pa.R.C.P.
1910.19(a). Clearly, the trial court considered the differing guideline
percentages between May of 2013 and August of 2013, in fashioning its
award. Father’s argument, thus, has no merit.
EXPERT TESTIMONY
Father next avers that the trial court erred when it refused “to permit
expert testimony concerning whether the preliminary analysis under
Pa.R.C.P. 1910.16-3.1(a)(1) would be inconsistent with the Income Shares
Model and economic data underlying the Pennsylvania child support
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guidelines.” Father’s Brief at 6. We find this claim to be waived as it was
not adequately preserved in Father’s Pa.R.A.P. 1925(b) Statement.
Pa.R.A.P. 1925(b) provides that an appellant must submit a statement
that “concisely identif[ies] each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the Statement and/or not
raised in accordance with the provisions of this [Rule] are waived.”
1925(b)(4)(vii); see also In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013)
(stating this Court may find waiver where a concise statement is too vague).
In his 1925(b) Statement, Father presented, inter alia, the following
issue:
The trial court committed an error of law and abused its
discretion by failing to properly consider and apply the
requirements of 23 Pa.C.S. § 4322 and the Guidelines in holding
that under Paragraph 22 of the parties’ Property Settlement
Agreement, the formula under Rule 1910.16-3.1(a)(1) of the
Guidelines, effective on August 9, 2013 that changed from 8% to
11.6%, should automatically raise the Monthly Support Order
from $60,539 to $86,158 (an increase of 42.3%), without
consideration of . . .whether the increased rate was economically
justifiable and appropriate under the circumstances of this case
(including through consideration of expert testimony).
Father’s Pa.R.A.P. 1925(b) Statement at 2.
Although Father’s Rule 1925(b) Statement raises a challenge to the
trial court’s application of Rule 1910.16-3.1’s increased percentage
computation from 8% to 11.6%, it is only in his Brief that he asserts that
the trial court erred by refusing to permit expert testimony regarding
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whether preliminary analysis under Pa.R.C.P. 1910.16-3.1(a)(1) would be
inconsistent with the Income Shares Model. Because Father failed to
preserve this issue in his Rule 1925(b) Statement, his claim regarding
exclusion of expert testimony is waived. See 1925(b)(4)(vii).
JOINT CUSTODY REDUCTION
Father’s final argument is that the trial court erred by disallowing the
joint custody reduction sua sponte. Father’s Brief at 57. Specifically, Father
argues that he “never had an opportunity to present evidence or argue that
this now discarded rule (that the joint custody reduction did not apply when
the obligee’s income is 10% or less of combined income) should not be
applied in this case.” Id. at 58.
The trial court opined:
In arriving at its calculation of [Father]’s child support obligation
for the Support Year May 1, 2013 through April 30, 2014 and
based on the language in Paragraph 22 of the Property
Settlement Agreement, see infra, the Court properly applied the
applicable guidelines in effect for that support year.
Pa.R.C.P. Rule 1910.16-4(c)(3) in effect on May 1, 2013[,]
through August 8th 2013[,] stated, in relevant part:
(c) Substantial or Shared Physical Custody
...
Reductions for substantial or shared custody
shall not apply when the obligor’s income falls
within the shaded area of the schedule in Rule
1910.16-3 or when the obligee’s income is 10%
or less of the parties’ combined income.
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[B]y its terms, 1910.16-4(c)(3), referred to by [Father] as “joint
custody reduction” was not applicable for the period May 1, 2013
through August 8, 2013 since [Mother]’s (obligee’s) income was
10% or less of the parties’ combined income.
By order dated April 9, 2013, Rule 1910.16-4(c)(3) was deleted,
effective August 9, 2013.
The [c]ourt properly applied a reduction for joint custody that is
reflected in the child support calculation after August 9, 2013[.]
Trial Ct. Op. at 23 (footnote omitted). We agree and find no error.
For the foregoing reasons, we affirm in part, reverse in part, and
remand for the Court to (i) reverse all parts of the order which require a
portion of the child support obligation to be placed in a PUTMA account; (ii)
evaluate Pa.R.C.P 1910.16-5(b)(7) without consideration of the children’s
potential standard of living post-minority; (iii) evaluate Pa.R.C.P. 1910.16-
5(b)(9) without determining a $2,500,000 downward deviation in Support
Year 2013 because of Father’s voluntary contribution to a trust for his
children; and (iv) grant Mother’s request for attorney’s fees.
Order affirmed in part; reversed in part. Case remanded with
instructions. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott joins the opinion.
Judge Jenkins files a Dissenting Opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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Hanrahan, M. v. Bakker, J.
Combined Opinion