Montgomery, J. v. Montgomery, M. ( 2017 )

J-A05003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JILLIAN M. MONTGOMERY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MICHAEL R. MONTGOMERY :
:
Appellee : No. 880 WDA 2016
Appeal from the Order May 23, 2016
In the Court of Common Pleas of Mercer County
Domestic Relations at No(s): 00181 DR 2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 15, 2017
Appellant, Jillian M. Montgomery (“Mother”), appeals from the order
entered in the Mercer County Court of Common Pleas, which modified the
child support obligations of Appellee, Michael R. Montgomery (“Father”). We
vacate and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
The parties married in October 2005, and separated in April 2015. They
have two minor daughters together, born in July 2006 and June 2008,
respectively. Relevant to this appeal, Mother is the contingent beneficiary of
a spendthrift trust. Mother filed a complaint for spousal and child support on
April 21, 2015. On May 18, 2015, Father filed a complaint for divorce and
equitable distribution. A Domestic Relations officer held an initial support
conference on May 26, 2015. Following the conference, the Domestic
Relations officer issued a report and recommendation, which the court
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adopted and entered as an interim support order on June 3, 2015,1 requiring
Father to pay spousal and child support in the combined amount of
$3,095.79/month ($1,675.81 spousal; $709.99 per child), plus arrears.2
The order contained a “NOTICE OF RIGHT TO REQUEST A HEARING,”
advising the parties they had until June 23, 2015 to request a de novo
hearing before the trial court. Father timely requested a de novo hearing.
On June 30, 2015, the court scheduled the de novo hearing for August
5, 2015. Father filed a motion on July 21, 2015, for separate listing of the
de novo hearing, alleging, inter alia, that Mother is the beneficiary of a
sizeable trust, so there are complex issues with respect to Mother’s income.
Father requested the matter to be listed separately for a two-hour hearing.
The court granted Father’s request and rescheduled the de novo hearing for
September 8, 2015.
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1
The June 3, 2015 support order is marked a “final” order. Nevertheless,
under Pa.R.C.P. 1910.11(f), the order is considered an interim order. See
Pa.R.C.P. 1910.11(f) (stating if agreement for support is not reached at
conference, court shall enter interim order calculated in accordance with
guidelines and substantially in form set forth in Rule 1910.27(e); each party
shall be provided, either in person at time of conference or by mail, with
copy of interim order and written notice that any party may, within twenty
days after date of receipt or date of mailing of interim order, whichever
occurs first, file written demand with domestic relations section for hearing
before court).
2
The court modified its support order on June 5, 2015, to remove a credit
that had incorrectly been issued to Father. The modification order altered
the amount of arrears Father owed but did not alter his monthly support
obligations.
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The parties subsequently engaged in discovery and the de novo
hearing was continued due to disputes which arose during that process,
particularly pertaining to matters concerning the trust. The court held the
de novo hearings on December 15-16, 2015. Father testified at the
hearings, inter alia, that he works for a mechanical contracting company
called Power Piping, which installs piping and equipment for power plants,
steel plants, and gas plants. The company hired Father at an annual salary
of $150,000.00. On February 2, 2015, Father claimed his employer asked
Father to take a pay reduction of approximately nine percent due to the
company’s financial difficulties. Father accepted the pay reduction between
February and August 2015, after which Father’s salary was reinstated to
$150,000.00 annually. Father also enjoys certain employee perquisites such
as a monthly car allowance, gas card, and cell phone bill payment. Father
said his car allowance was terminated during the period of the pay
reduction.
Mother testified, inter alia, that she is primarily a homemaker. She
works part-time at Justice clothing store. Mother is also on the “call” list to
be a substitute teacher’s aide; at the time of the December 2015 hearings,
she had not been called to work. Additionally, Mother operates a spray
tanning business out of her home called “Color Me Caramel.” The business
is seasonal and not profitable. Mother explained she is one of several
contingent beneficiaries of a spendthrift trust. Mother said she has no right
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to distributions from the trust and any distributions from the trust are
subject to the trustee’s sole discretion. Mother admitted she has requested
distributions from the trust on several occasions, and the trustee granted
each request. Mother claimed she has received no distributions from the
trust since January 2015. Mother insisted she signed a promissory note on
January 15, 2015, obligating her to repay the trust $8,000.00. At the time
of the December 2015 hearings, Mother had not made payment on the note.
Mother conceded she did not execute promissory notes in the past to repay
the trust prior to execution of the January 2015 note. Mother also stated
her parents provide financial assistance when she needs extra money for the
children.
At the conclusion of the hearings, Mother’s counsel argued the court
should calculate Father’s income at $150,000.00/year and take into account
Father’s monthly car allowance, gas card, and cell phone payment in
determining Father’s support obligation. Mother said Father should claim
one of the parties’ children as a dependent and file his taxes as “head of
household.” Mother insisted any trust distributions she received do not
constitute “income” for purposes of support.
Father said he would not dispute using $150,000.00/year as his
income for purposes of calculating support. Father suggested the court
should not consider his vehicle and cell phone perquisites because his car
requires a lot of maintenance as a result of his travel for work, so the car
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allowance and gas card offset that burden. Father also said he uses his cell
phone predominately for work so he should not be penalized for enjoying
that perquisite. Father contested Mother’s position regarding the trust
distributions. Following argument from the parties, the court stated it would
take the matter under advisement. Mother submitted a supporting brief in
favor of excluding the trust distributions from the calculation of her income
for purposes of support.
The court issued a decision on December 21, 2015, concluding: (1)
Father’s perquisites should be added to his income for purposes of
calculating support; and (2) any distributions Mother received from the trust
should not be included in Mother’s monthly income. The court remanded the
matter to the Domestic Relations office for recalculation of Father’s support
obligation consistent with the court’s decision. On December 24, 2015, the
Domestic Relations office issued a report and recommendation, which the
court adopted as a final court order that day, calculating Father’s combined
spousal and child support obligation at $4,530.67/month ($2,694.35
spousal; $918.16 per child), plus arrears. The Domestic Relations officer’s
report and recommendation included Father’s car allowance in its calculation
but inadvertently omitted Father’s other perquisites, such as his gas card
and cell phone payment. The support order attached a “NOTICE OF RIGHT
TO REQUEST A HEARING,” advising the parties they had until January 18,
2016 to request a de novo hearing. Father timely requested a de novo
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hearing on January 15, 2016.
On April 4, 2016, Mother filed a motion to strike or to limit issues for
the de novo hearing and to request written positions. Mother argued the
parties already had one de novo hearing and were not entitled to a second
one. Mother suggested the court could entertain written positions regarding
any of Father’s alleged errors in the support calculation to the extent they
were inconsistent with the court’s December 21, 2015 decision.
Alternatively, Mother claimed the court should limit the issues at the second
de novo hearing to Father’s alleged errors in the support calculation but
should preclude testimony on matters fully litigated at the December 2015
de novo hearings, including Mother’s trust distributions and whether those
distributions constituted income for purposes of support. The court held
argument on Mother’s motion to strike and denied the motion on April 4,
2016. The court, however, stated from the bench that it would not hear any
testimony/evidence concerning the trust distributions as income at the
second de novo hearing.3
The parties appeared for the second de novo hearing on April 26,
2016. At the beginning of the hearing, the court reiterated that it would not
hear any testimony/evidence concerning the trust distributions as income for
____________________________________________
3
No transcript from the argument on Mother’s motion to strike appears in
the certified record. According to Father, the court denied Mother’s motion
to strike based on Mercer County’s usual practice in holding subsequent de
novo hearings in similar circumstances.
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support purposes. Mother and Father each testified at the hearing. Anytime
Father’s counsel sought to question Mother concerning the trust
distributions, the court sustained an objection by Mother’s counsel. Mother
testified, inter alia, she still works at Justice clothing store and had not yet
worked as a substitute teacher’s aide. Mother explained the children’s
extracurricular activities had increased since the December 2015 hearings.
Mother also said her parents still help her out with expenses for the children.
Mother testified that her parents are paying her legal fees; and she signed a
promissory note, obligating her to repay those expenses.
Father testified, inter alia, he received a bonus in late December 2015
in the amount of $2,900.00. Father also said he received a raise on January
1, 2016. Father admitted he still enjoys the same perquisites discussed at
the December 2015 hearings. Following the hearing, the court asked the
parties to submit written positions.
In his written position statement, Father claimed, inter alia, the court
should include Mother’s trust distributions when calculating her income for
support purposes. Father suggested that the court apply an upward
deviation from the support guidelines when calculating Mother’s entitlement
to support, based on her receipt of trust distributions and substantial “help”
from her parents. Father also contended the court misunderstood his
statement at the initial de novo hearing that he did not dispute calculating
his annual income at $150,000.00. Father insisted he meant that he did not
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dispute using that figure going forward; Father did not want the court to use
that figure to calculate his income during the periods in which he received a
pay reduction.
Mother claimed in her written position statement, inter alia, the court
should uphold its December 2015 decision that Mother’s trust distributions
do not constitute income for purposes of support. Mother also claimed the
court should recalculate Father’s income, accounting for the bonus he
received in December 2015 and the raise he received in January 2016.
Mother further claimed the Domestic Relations officer inadvertently omitted
Father’s gas card and cell phone perquisites in the December 24, 2015
report and recommendation.
On May 17, 2016, the court issued a decision reversing its earlier
position regarding Mother’s trust distributions. Specifically, the court ruled
that any distributions Mother received from the trust should be included as
income for purposes of support calculations. The court indicated its decision
applied only to the distributions made to Mother but not to the principal of
the trust itself or any undistributed income. Nevertheless, the court rejected
Father’s argument to apply an upward deviation for Mother based on the
trust distributions. The court incorporated by reference and reaffirmed all
other aspects of its December 21, 2015 decision, and remanded the matter
to the Domestic Relations office for recalculation of Father’s support
obligation consistent with its decision.
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Following recalculation, by order dated May 20, 2016 and entered May
23, 2016, the court issued a new support order, computing Father’s
combined support obligation at $4,148.74/month ($2,396.55 spousal;
$876.10 for one child and $876.09 for the other child), plus arrears. The
support order imputed to Mother’s income $9,000.00 in trust distributions
for 2015, but it failed to consider Father’s gas card or cell phone perquisites
in its calculation. Mother filed a notice of appeal on June 17, 2016. On June
27, 2016, the court ordered Mother to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mother timely
complied on July 8, 2016.
On October 30, 2016, Father filed an application to quash the appeal,
contending Mother’s appeal from the portion of the order pertaining to
spousal support was interlocutory where the underlying divorce action was
still pending. Mother filed an answer on November 2, 2016, alleging the
order was immediately appealable because it was a combined spousal/child
support order. Even if the order pertaining to spousal support was
interlocutory, Mother maintained the portion of the order pertaining to child
support was immediately appealable. On December 15, 2016, this Court
issued a per curiam order that granted Father’s motion to quash the appeal
as to those issues dealing with spousal support but denied the motion to
quash with regard to child support issues. See Capuano v. Capuano, 823
A.2d 995 (Pa.Super. 2003) (explaining that portion of trial court order
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attributable to child support is immediately appealable; however, portion of
order allocated to spousal support is interlocutory during pendency of
divorce).
Mother raises seven issues for our review:
(1) WHETHER THE TRIAL COURT ERRED IN DETERMINING
THAT ANY DISTRIBUTIONS OF INCOME OR PRINCIPAL
FROM A TRUST TO MOTHER ARE TO BE INCLUDED IN
MOTHER’S MONTHLY INCOME FOR SUPPORT PURPOSES,
IN LIGHT OF THE FACT THAT MOTHER DOES NOT HAVE
ANY ABSOLUTE RIGHT TO DISTRIBUTIONS NOR DOES SHE
ACTUALLY RECEIVE REGULAR DISTRIBUTIONS.
(2) WHETHER THE TRIAL COURT ERRED IN ADDING
$9,000 OF DISTRIBUTIONS FROM A TRUST TO MOTHER’S
INCOME FOR 2015 AS NO EVIDENCE WAS ENTERED IN
EITHER THE DECEMBER 15 OR 16, 2015 DE NOVO
HEARING NOR THE APRIL 26, 2016 (SECOND) DE NOVO
HEARING REGARDING SAID DISTRIBUTIONS.
(3) WHETHER THE TRIAL COURT ERRED IN FAILING TO
ADD THE VALUE OF AT LEAST $1,525 IN UNDISPUTED
PERQUISITES TO FATHER’S NET INCOME FOR SUPPORT
PURPOSES?
(4) WHETHER THE TRIAL COURT PROCEDURALLY ERRED
IN PERMITTING A SECOND DE NOVO HEARING ON APRIL
26, 2016 ON [MOTHER’S] ORIGINAL SUPPORT COMPLAINT
FILED ON APRIL 2[1], 2015 WHEN THE DE NOVO HEARING
ON THE SAME COMPLAINT HAD ALREADY BEEN HELD ON
DECEMBER 15 AND 16, 2015.
(5) WHETHER THE TRIAL COURT ERRED IN FAILING TO
INCREASE FATHER’S INCOME AND, THEREFORE THE
MONTHLY SUPPORT, WHERE MOTHER WAS ABLE TO
PROVE FATHER RECEIVED A RAISE BETWEEN THE FIRST
AND SECOND DE NOVO HEARINGS.
(6) WHETHER THE TRIAL COURT ERRED IN CALCULATING
FATHER’S INCOME USING A “SINGLE” TAX STATUS,
WHERE MOTHER TESTIFIED THAT SHE TOOK ONLY ONE
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CHILD DEPENDENCY EXEMPTION ON HER RETURN SO
THAT FATHER COULD FILE AS “HEAD OF HOUSEHOLD”
STATUS, AND WHERE MOTHER SUBMITTED HER TAX
RETURN TO PROVE THIS FACT.
(7) WHETHER THE TRIAL COURT ERRED IN FAILING TO
ADD TO THE MONTHLY SUPPORT THE AMOUNT OF
UNDISPUTED EXTRACURRICULAR ACTIVITIES FOR THE
TWO CHILDREN PROVEN AT THE HEARING TO BE $84.69
PER MONTH.
(Mother’s Brief at 2-3).4
Our standard of review over child support orders is as follows:
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 the 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
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4
Regarding her fourth issue on appeal, Mother provides no authority that
precludes a court from holding a second de novo hearing consistent with
customary county practice. Likewise, Mother fails to cite any authority to
support her claim that the court’s decision on the trust distributions in
December 2015 constituted res judicata, which the court was prohibited
from revisiting during the course of an ongoing support case. Mother’s
failure to develop adequately her fourth issue on appeal with citation to
relevant authorities constitutes waiver of this issue on appeal. See Irwin
Union National Bank and Trust Company, 4 A.3d 1099 (Pa.Super.
2010), appeal denied, 610 Pa. 610, 20 A.3d 1212 (2011) (explaining
Superior Court will not act as counsel and will not develop arguments on
behalf of appellant; when deficiencies in brief hinder our ability to conduct
meaningful appellate review, we may deem certain issues waived); Lackner
v. Glosser, 892 A.2d 21 (Pa.Super 2006) (explaining arguments which are
not appropriately developed with citation to relevant authority are waived on
appeal).
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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.
Kimock v. Jones, 47 A.3d 850, 854 (Pa.Super. 2012) (quoting Brickus v.
Dent, 5 A.3d 1281, 1284 (Pa.Super. 2010)).
For purposes of disposition, we initially consider Mother’s third, sixth
and seventh issues together. Mother argues she filed for “head of
household” tax status, claiming one of the parties’ children and her child
from a previous marriage as dependents. Mother claims she left the
dependency exemption for the parties’ other child for Father to use. Mother
insists the court considered Father’s tax filing status as “single,” which
overstated Father’s federal tax burden, where it should have considered
Father as “head of household” due to the additional dependency exemption.
Mother also complains the court failed to consider Father’s gas card and cell
phone perquisites when calculating Father’s support obligation. Mother
highlights the court’s December 2015 decision, which stated all perquisites
described in Mother’s trial aide No. 1 should be included in Father’s income;
and her trial aide included the gas card and cell phone perquisites. Mother
further contends she produced testimony/evidence at the April 2016 de novo
hearing that the children’s extracurricular activities had increased since the
December 2015 de novo hearings. Based on this increase, Mother submits
the extracurricular activities total $84.69/month, to be allocated between
the parties. Mother concludes this Court should remand for a recalculation
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of support due to these errors. We agree that remand is necessary.
Instantly, Father stipulates on appeal to a recalculation of support (a)
for consideration of all of his employee perquisites (car allowance, gas card,
and cell phone), (b) for consideration of his tax filing status as “head of
household,” and (c) for allocation between the parties of the children’s
extracurricular activities. (See Father’s Brief at 2-3, 17). Thus, we decline
to analyze Mother’s third, sixth and seventh issues further and remand for
recalculation of Father’s support obligation in light of Father’s stipulations.
Turning to Mother’s remaining first, second, and fifth issues, Mother
argues the court decided in December 2015 that Mother’s trust distributions
should not be considered income for purposes of calculating support. Mother
asserts the court inexplicitly reversed its position on the trust distributions
following the second de novo hearing in April 2016, even though the court
had ruled it would not re-litigate the trust issue at that hearing. Mother
complains the court’s May 2016 support order considered $9,000.00 in trust
distributions as income for Mother in 2015, based on information submitted
at the initial Domestic Relations conference on May 26, 2015; the documents
itemizing trust distributions were not submitted as evidence at either of the
de novo hearings. Mother highlights both parties receive financial assistance
from family to meet expenses, so this factor should not weigh in favor of
either party. Mother also complains the court failed to consider, following
the second de novo hearing, the testimony/evidence of Father’s bonus and
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raise since the initial de novo hearing. Mother concludes the court lacked
authority to reverse its position on the trust issue and failed to consider
Father’s raise and bonus when determining support following the second de
novo hearing, and this Court must reverse and remand for a new support
calculation. We agree that relief is due.
Pennsylvania Rule of Civil Procedure 1910.11 governs the relevant
support proceedings in this case:
Rule 1910.11 Office Conference. Subsequent
Proceedings. Order
(a)(1) The office conference shall be conducted by a
conference officer.
* * *
(c) At the conference, the parties shall furnish to the
officer true copies of their most recent federal income tax
returns, their pay stubs for the preceding six months,
verification of child care expenses and proof of medical
coverage which they may have or have available to them.
In addition, they shall provide copies of their income and
Expense Statements in the forms required by Rule
1910.27(c), completed as set forth below.
* * *
(d)(1) The conference officer shall make a
recommendation to the parties of an amount of support
calculated in accordance with the guidelines.
* * *
(f) If an agreement for support is not reached at the
conference, the court, without hearing the parties, shall
enter an interim order calculated in accordance with the
guidelines and substantially in the form set forth in Rule
1910.27(e). Each party shall be provided, either in person
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at the time of the conference or by mail, with a copy of the
interim order and written notice that any party may, within
twenty days after the date of receipt or the date of the
mailing of the interim order, whichever occurs first, file a
written demand with the domestic relations section for a
hearing before the court.
* * *
(i) If a demand is filed, there shall be a hearing de
novo before the court. The domestic relations section shall
schedule the hearing and give notice to the parties. The
court shall hear the case and enter a final order
substantially in the form set forth in Rule 1910.27(e)
within sixty days from the date of the written demand for
hearing.
(j)(1) Promptly after receipt of the notice of the scheduled
hearing, a party may move the court for a separate listing
where:
(i) there are complex questions of law, fact or both;
or
(ii) the hearing will be protracted; or
(iii) the orderly administration of justice requires that
the hearing be listed separately.
(2) If the motion for separate listing is granted,
discovery shall be available in accordance with Rule 4001
et seq.
Note: The rule relating to discovery in domestic
relations matters generally is Rule 1930.5.
(k) No motion for post-trial relief may be filed to the
final order of support.
Pa.R.C.P. 1910.11(a)(1), (c), (d)(1), (f), (i), (j), (k).
“[U]nder [Rule] 1910.11[,] a litigant has an absolute right to his/her
day in court should it be desired.” Warner v. Pollock, 644 A.2d 747, 751
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(Pa.Super. 1994). “A de novo hearing is full consideration of the case anew.
The reviewing body is in effect substituted for the prior decision maker and
redecides the case.” Id. at 750 (internal citations and quotation marks
omitted). “Once one of the parties demand[s] a [de novo] hearing each
would be entitled to litigate as if it were the first proceeding.” Id. Unlike an
appeal, which asserts specific error(s) for the higher court to correct, the de
novo hearing is not limited in scope to the reasons (if any) proffered for
demanding the de novo hearing. Id. See also Capuano, supra
(explaining under Rule 1910.11, any party to support action may file written
demand for hearing de novo before trial court after court has entered
support order based upon domestic relation officer’s recommendation; Rule
1910.11 grants parties absolute right to de novo hearing on issues
surrounding support order; at hearing de novo, parties must be permitted to
present evidence in support of their respective positions).
Instantly, following Father’s request for a second de novo hearing,
Mother filed, on April 4, 2016, a motion to strike or to limit issues for the de
novo hearing and to request written positions. Mother argued the parties
already had one de novo hearing and were not entitled to a second one.
Mother suggested the court could entertain written positions regarding any
of Father’s alleged errors in the support calculation to the extent they were
inconsistent with the court’s December 21, 2015 decision. Alternatively,
Mother claimed the court should limit the issues at the de novo hearing to
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Father’s alleged errors in the support calculation but should preclude
testimony on matters fully litigated at the December 2015 de novo hearings,
including Mother’s distributions from the trust and whether those
distributions constituted income for purposes of support. The court
subsequently held argument on Mother’s motion, and denied the motion on
April 4, 2016. Nevertheless, the court stated from the bench it would not
hear any testimony/evidence concerning the trust at the second de novo
hearing.
The parties appeared for the second de novo hearing on April 26,
2016. At the beginning of the hearing, the court reiterated that it would not
hear any testimony/evidence concerning the trust. Mother and Father each
testified at the hearing. Anytime Father’s counsel sought to question Mother
concerning the trust, the court sustained an objection by Mother’s counsel.
During the course of the hearing, Father admitted he received a bonus in
late December 2015 in the amount of $2,900.00. Father also said he
received a raise on January 1, 2016. Following the hearing, the court took
the matter under advisement and directed the parties to submit written
position statements.
In his written position statement, Father claimed, inter alia, the court
should include Mother’s trust distributions when calculating her income for
support purposes. Father suggested the court apply an upward deviation
from the support guidelines when calculating Mother’s entitlement to support
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based on her receipt of trust distributions and substantial “help” from her
parents. Mother claimed in her written position statement, inter alia, the
court should uphold its December 2015 decision that Mother’s trust
distributions do not constitute income for purposes of support. Mother also
claimed the court should recalculate Father’s income, accounting for the
bonus he received in December 2015 and raise he received in January 2016.
On May 17, 2016, the court issued a decision reversing its earlier
position regarding Mother’s trust distributions. Specifically, the court ruled
that any distributions Mother received from the trust should be included as
income for purposes of support calculations. The court indicated its decision
applied only to the distributions made to Mother but not to the principal of
the trust itself or any undistributed income. Nevertheless, the court rejected
Father’s argument to apply an upward deviation for Mother based on the
trust distributions. The court incorporated by reference and reaffirmed all
other aspects of its December 21, 2015 decision, and remanded the matter
to the Domestic Relations office for recalculation of Father’s support
obligation consistent with its decision.
We cannot agree with the court’s decision under the unique facts of
this case. Initially, once the court granted Father’s request for a second de
novo hearing, it was obligated to hear the support matter “anew” and not
limit the scope of the hearing. See Capuano, supra; Warner, supra.
Thus, the court should have admitted testimony/evidence concerning
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Mother’s trust distributions along with any other relevant evidence for
purposes of calculating support. After the court decided not to allow re-
litigation of the trust issue at the second de novo hearing, the court reversed
its decision on the trust distributions. Further, the court’s May 20, 2016
support order calculated Mother’s trust distributions using documents
submitted before the Domestic Relations officer at the initial May 26, 2015
support conference, which were not admitted at any of the de novo hearings
in this case. Under these circumstances, the court’s ruling that it would not
re-litigate the trust issue deprived Mother of a full and fair opportunity to
present testimony/evidence about the trust distributions at the April 26,
2016 de novo hearing. See Capuano, supra. See also Warner, supra
(explaining when one party demands de novo hearing, each party is entitled
to litigate as if it were first proceeding). Additionally, despite Father’s
admission at the second de novo hearing that he received a bonus and raise
since the initial de novo hearings, the court’s May 17, 2016 decision
discussed only the trust issue and did not provide for a recalculation of
Father’s support obligation based on his increase in income or give any
reason to exclude Father’s bonus and raise in his income upon recalculation.
Therefore, the best resolution of this case is to remand for further
proceedings. Upon remand, the court shall: (1) direct the Domestic
Relations office to recalculate Father’s child support obligation consistent
with Father’s stipulations regarding his employee perquisites, tax filing
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status, and the children’s extra-curricular activities; (2) instruct the
Domestic Relations office to include Father’s raise and bonus as income
based on the testimony/evidence presented at the second de novo hearing;
and (3) hold another hearing concerning whether Mother’s trust distributions
should be included as income for purposes of support, during which both
parties will have an opportunity to present legal argument as well as
testimony/evidence regarding the amount of distributions Mother has
received from the trust. For the sake of judicial economy, the parties should
also present any changed circumstances at this remand hearing. The
remand hearing shall be limited to these matters and not constitute a “de
novo” hearing under Rule 1910.11. Accordingly, we vacate the May 20,
2016 support order and remand for further proceedings consistent with this
decision.
Order vacated; case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
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