D.W. v. B.K v. Jr. ( 2016 )


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  • J-A25022-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    D.W.,                                            IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    B.K.V., JR.,
    Appellee                  No. 620 MDA 2016
    Appeal from the Order Entered March 29, 2016
    In the Court of Common Pleas of Lebanon County
    Domestic Relations at No(s): 2008-5-0774
    BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*
    MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 06, 2016
    This is an appeal by D.W. (“Mother”) from a support order relating to
    B.V. (“Child”), her seventeen-year-old son with B.K.V., Jr. (“Father”).1 We
    are compelled to reverse and remand.
    The trial court described the parties as “frequent flyers in Lebanon
    County Support Court.” Trial Court Opinion, 3/29/16, at 1. The trial court
    summarized the facts and procedural history as follows:
    MOTHER and FATHER are the parents of [B.V.], who was
    born [i]n March [of] 1999. The parties were married on May 1,
    1998 and separated on September 12, 2008. The parties had
    originally reached a private agreement on the amount of child
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    1
    The parties “also have an emancipated [son] who is not subject to” the
    order appealed. Trial Court Opinion, 3/29/16, at 2 n.1.
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    support, but MOTHER requested modification on August 5,
    2014.[2] After a hearing on December 11, 2014, the Domestic
    Relations Master (DRM) recommended that FATHER pay
    $1,624.65 per month from the date of filing through the end of
    2014 and $1,458.49 per month for 2015.           MOTHER filed
    exceptions and, after hearing oral arguments, we remanded the
    case to the DRM via an Opinion dated March 30, 2015. Among
    other things, we directed the DRM to clarify how she evaluated
    FATHER’s income from 933 Restricted Stock Units (RSUs) that
    were awarded to him in 2010 and vested in 2014.
    Subsequent to a remand hearing conducted on April 23,
    2015, the DRM explained that she evaluated the stocks based on
    the difference between their value on the date of the property
    settlement, $35.63, and the exercise price, $61.48. She then
    multiplied this difference by 933 to arrive at $24,118.05, which
    figure she added to FATHER’s 2014 income.            In the end,
    FATHER’s obligation, effective August 5, 2014 through the end of
    the year, was $1,639.65 per month, about $15 per month more
    than the previously-calculated figure.        For 2015, FATHER’s
    obligation was $1,505.92 per month, less than a $50 per month
    increase from the previously calculated figure. MOTHER again
    filed exceptions, arguing, inter alia, that the DRM valued 836 of
    FATHER’s stock options (award no. 19655) incorrectly, and that
    she failed to include the income from 359 RSUs (award no.
    41075) that vested on August 1, 2015.
    While we denied most of MOTHER’s Exceptions via an
    Opinion issued on August 6, [2015,] we agreed that the DRM’s
    methodology for valuing the 836 stock options was incorrect.
    Instead, to account for the quid pro quo value of the stock
    options at equitable distribution, we measured the difference in
    the present value, $78.10 (as of the date of the remand hearing,
    April 23, 2015), and the value on the date of the property
    settlement, $35.63. Multiplying this figure times the number of
    shares yielded $29,786.68.         Subtracting this figure from
    ____________________________________________
    2
    Mother “works for the Pennsylvania House of Representatives in Caucus
    Operations,” and Father “sells medical devices, which require[s] him to
    travel extensively. In addition to his salary and commissions, he receives
    stock options and corporate perquisites as part of his compensation
    package.” Trial Court Remand Opinion, 3/30/15, at 2.
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    $65,291.60 ($78.10 x 836 shares) yielded $35,504.92, which
    number we added to FATHER’s 2015 gross income. This resulted
    in a monthly obligation for 2015 of $1,639.92.
    We specifically declined to address the RSUs that vested
    on August 1, 2015, noting that they were not yet vested at the
    time of the hearing, but that we would not prevent MOTHER
    from addressing them once they did vest.        Predictably, on
    September 1st, MOTHER filed [a] Petition for Modification. A
    hearing was conducted on October 29, 2015 and the DRM issued
    her Recommendations on November 20th[, 2015].            Again,
    MOTHER timely filed exceptions, disputing the DRM’s
    methodology in evaluating the RSUs.
    We heard oral arguments on February 23, 2016. At oral
    argument, both counsel agreed that it made little sense to
    continue fighting over relatively small amounts of money.
    Counsel therefore asked if we would agree to receive and base a
    prospective decision upon a stipulation of facts. We afforded the
    parties 10 days to submit a stipulation regarding their income.
    We also agreed that if the parties could reach a consensus on
    the facts, we would fashion a Court Order dictating FATHER’s
    prospective obligation based on this stipulation rather than
    remanding the case to the DRM yet again. On March 7, we
    received a Stipulation of Facts showing that:
    (1) FATHER’s wages, tips and compensation, as
    reflected by his W-2, were $248,754.40, his
    Medicare wages and tips were $266,754.40 and his
    gross pay was $271,131.37.
    (2) MOTHER’s wages, tips and compensation for
    2015, as reflected by her W-2, were $55,980.63,
    and her Medicare wages and tips were $59,732.84.
    Although the stipulation itself did not list MOTHER’s
    gross pay, her unofficial W-2, which was attached,
    lists her gross pay at $60,036.13.
    (3) FATHER had $30,728.88 in gross income from
    stock options in 2015. The net, post-tax value of the
    RSUs FATHER exercised on August 1, 2015 was
    $19,519.11. His net receipts from RSUs in 2015
    [were] $21,243.69.
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    (4) He has 194 RSUs that were granted after the
    divorce that will mature on July 30, 2016.3
    3
    He also has stock options that will
    mature in 2017, but this will be after the
    parties’ son has become emancipated.
    (5) FATHER contributed $18,000 to his 401(k) in
    2015.
    (6) FATHER paid $4,981.41 in 2015 for medical,
    dental, vision and life insurance benefits for himself
    and his family.
    (7) MOTHER paid $600.29 in 2015 for medical,
    dental and vision benefits that will benefit herself
    and her children.
    (8) MOTHER made $3,752.21 in mandatory
    contributions to the State Employees Retirement
    System.
    (9) FATHER pays $1,700 per month in alimony to
    MOTHER. This payment will terminate on March 31,
    2016.
    (10) FATHER’s fixed vehicle allowance of $398.44 is
    part of his income.
    (11) Neither party has experienced an increase in
    income to date in 2016.
    Trial Court Opinion, 3/29/16, at 2–6 (some footnotes omitted).
    The trial court entered an order on March 29, 2016, directing Father to
    pay $1,571.96 per month in child support plus $157.20 per month in
    arrears, effective August 1, 2015.   Effective April 1, 2016, the amount of
    child support increased to $1,710.45 per month, and the amount in arrears
    increased to $171.04 per month.       The court directed Father to provide
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    medical coverage through his employment. Mother filed a timely appeal on
    April 19, 2016.      Both Mother and the trial court complied with Pa.R.A.P.
    1925.3
    Mother raises the following issues in her appellate brief:
    A. Did the Trial Court err as a matter of law and/or abuse its
    discretion in its March 29, 2016 Order when it failed to calculate
    as part of [Father’s] income Vested Stock Options from 2014
    that it previously included as income in its August 4, 2015 Order
    for calendar year 2015?
    B. Did the Trial Court err as a matter of law and/or abuse its
    discretion in its March 29, 2016 Order when it failed to provide
    an adjustment for the health insurance premium [Mother]
    contributes to cover the parties’ minor child?
    C. Did the Trial Court err[] as a matter of law and/or abuse[] its
    discretion in its March 29, 2016 Order when it deducted
    [Father’s] voluntary retirement contributions of $18,000.00
    annually from his gross income in determining his support
    obligation?
    Mother’s Brief at 10.4
    ____________________________________________
    3
    We note the deplorable state of the record certified to us on appeal. While
    a list of ninety-four docket entries was provided, none of the items in the
    record bear corresponding numbers, rendering the numbered list useless as
    an aid to locating documents. There are eight subparts to the record, two of
    which are single pages, with no explanation or organization to the subparts.
    While we could have remanded for the provision of organization to the
    record, with considerable waste of time and talent we have been able to
    locate the items crucial to our disposition of this case. Such dereliction will
    not be tolerated in the future.
    4
    For the sake of clarity and ease of disposition, we have re-ordered issues
    B and C.
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    Our standard of review of a trial court’s decision in a support case 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 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 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
    , 853–854 (Pa. Super. 2012) (citations
    omitted).
    The trial court explained the atypical process in this case due to the
    parties’ agreement to a stipulation of facts, as follows:
    The situation we face in the case at bar is different from
    the norm. Here, the parties have agreed to a stipulation of
    facts, and they have asked us to determine support based upon
    that stipulation and our contextual knowledge about the parties
    gleaned via the extensive support litigation we handled in 2015.
    Our Superior Court has long recognized that courts have wide
    discretion when handling support matters. See Kotzbauer v.
    Kotzbauer, 
    937 A.2d 487
    , 489 (Pa. Super. 2007). Given the
    tortured history of this case, and given the fact that both counsel
    have asked us to eschew the so-called “normal” support process
    in Lebanon County, we will undertake the unusual step of
    eschewing a remand to the DRM in favor of simply rendering our
    own de novo decision based upon the stipulation of the parties.
    Trial Court Opinion, 3/29/16, at 6–7.
    In a three-paragraph argument, and citing testimony from a Master’s
    hearing on October 29, 2015, Mother first asserts that Father has recurring
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    stock options in 2014, 2015, 2016, and 2017. Mother’s Brief at 19 (citing
    N.T., 10/29/15, at 15).      She contends that the trial court concluded in an
    August 4, 2015 order that the 2014 stock options shall be included as
    income for the calendar year 2015. 
    Id.
     She maintains that this conclusion
    provided additional monthly income attributable to Father of $2,958.74. 
    Id.
    (citing Trial Court Opinion (Exceptions), 8/4/15, at 14–15.) Mother suggests
    the trial court relied on MacKinley v. Messerschmidt, 
    814 A.2d 680
     (Pa.
    Super. 2002), for the proposition that stock options must be considered as
    income for purposes of support. She further avers that while the trial court
    indicated it would consider the vested stock options as part of Father’s 2015
    income, Trial Court Opinion (Exceptions), 8/4/15, at 14 n.12, the trial court,
    in its March 29, 2016 order, modified the child support payments “effective
    August 1, 2015.”    Mother’s Brief at 20.    The effect of this action, Mother
    suggests, is that the trial court never included in its calculations the 2014
    stock options for the period from August of 2015 through December of 2015.
    Mother posits that this failure by the trial court granted to Father a five-
    month “increase in income for which he was not paying support” to Child.
    
    Id.
     Therefore, Mother claims the amount of Father’s income for the months
    August 2015 through December 2015 should be increased by $2,958.74 per
    month. 
    Id.
    Based upon the following explanation by the trial court, we conclude
    that this issue is waived:
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    As outlined in our March 29, 2016 Opinion, the parties
    requested us to render a decision based upon a Stipulation of
    Fact. We acceded to the parties’ request. When the parties
    forwarded the Stipulation, we had a question about what we
    perceived to be an ambiguity regarding FATHER’s RSU. As a
    result, we authored a letter to the parties.     That letter is
    attached to this Opinion as Exhibit A. Following our letter, we
    received a response from FATHER’s counsel. That response is
    attached as Exhibit B.1 MOTHER’s counsel did not respond
    at all.
    1
    We believe that at least one date is incorrect. We
    recall receiving the letter before we issued our March
    2016 Opinion.
    Fairly read, the communication outlined above between
    counsel and [this c]ourt confirmed our belief that FATHER’s total
    RSU for 2015 was $30,728.88. To the extent that MOTHER now
    claims that we erred in determining the amount of the RSU as
    set forth on the Stipulation, MOTHER has no one to blame but
    herself.   We afforded her with the opportunity to present
    information via the stipulation regarding the RSU’s and the
    opportunity to supplement the record and /or object to FATHER’S
    claim that he received “only” $30,728.88 in RSU payments
    during 2015. She did neither. Based upon the communication
    between counsel and [this c]ourt outlined above, it would be
    disingenuous to argue that this [c]ourt erred by valuing
    FATHER’s RSU receipts at anything other than $30,728.88.
    Pa.R.A.P. 1925(a) Opinion, 4/28/16, at 2–3 (emphases added).
    The parties specifically stipulated that Father’s income in 2015
    included the amounts listed on his W-2 and included only the total stock
    options exercised of $30,728.88 before taxes.      When the trial court later
    requested clarification, Mother did not respond; therefore, the trial court had
    no further information from Mother and no way to ascertain Mother’s
    disagreement with the trial court’s determination of Father’s income.      “On
    appeal, we will not consider assignments of error that were not brought to
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    the tribunal’s attention at a time at which the error could have been
    corrected or the alleged prejudice could have been mitigated.”    State Farm
    Mutual v. Dill, 
    108 A.3d 882
    , 885 (Pa. Super. 2015) (en banc), appeal
    denied, 
    116 A.3d 605
     (Pa. 2015) (citing Tindall v. Friedman, 
    970 A.2d 1159
    , 1174 (Pa. Super. 2009)). This issue is waived.
    We next address whether the trial court failed to provide an
    adjustment for the health insurance premium [Mother] contributes to cover
    the parties’ minor child.   Mother references Pa.R.C.P. 1910.16-6(b), which
    provides that health insurance premiums that provide coverage on behalf of
    the parties’ children “shall be allocated between the parties in proportion to
    their net incomes....” Mother’s Brief at 22. Mother refers to a methodology
    for calculating the allocable premium amount where specific evidence is not
    proffered by the moving party:
    In the event that evidence . . . is not submitted by either party,
    it shall be calculated as follows. First, determine the cost per
    person by dividing the total cost of the premium by the number
    of persons covered under the policy. Second, multiply the cost
    per person by the number of persons who are not owed a
    statutory duty of support, or are not parties to, or the subject of
    the support action. The resulting amount is excluded from
    allocation.
    Pa.R.C.P. 1910.16-6(b)(2).
    In accordance with Pa.R.C.P. 1910.16, Mother maintains that the trial
    court should have utilized the same methodology it used to calculate the
    portion of Father’s premium to be allocated between the parties to calculate
    the portion of Mother’s premium to be allocated between the parties.
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    Instead, according to Mother, it granted Husband an adjustment for the
    portion of his insurance premium covering Child but did not do the same for
    Mother, where her insurance policy grants Child health benefits beyond that
    of Father’s insurance. Mother’s Brief at 23.
    Father responds that in determining the total adjustment to be made
    for payment of the insurance premium, the trial court excluded three-fourths
    “of the amount which Father pays for health insurance, and allowed only
    one-quarter (1/4) of the payments which Father actually makes, indicating
    that since four individuals were covered, and only one” is the minor child,
    “only one-quarter (1/4) of the premium should be allocated” for Child.
    Father’s Brief at 13–14. Mother’s annual cost for her premium apparently is
    $600.29, which covers three individuals on her plan.    Trial Court Opinion,
    3/29/16, at 5. Thus, she is contending that one-third of these premiums, or
    $200.00 annually, is the amount the court should have allocated toward
    insurance. Father also notes that Father, not Mother, has been ordered to
    provide health insurance. Father’s Brief at 14.
    The trial court addressed the issue as follows:
    According to the parties’ stipulation, both MOTHER and
    FATHER pay money for medical, dental and vision insurance. The
    stipulation indicates that FATHER contributes $4,981.41 “for the
    benefit of himself and his family.”      The stipulation further
    stipulates that MOTHER contributes $600.29 “for the benefit of
    herself and her children.” Nothing was specifically presented to
    indicate which children were or were not covered by the amounts
    contributed by each parent.
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    Health    insurance   premiums    are     addressed    in
    Pennsylvania’s Support Guidelines. Generally, health insurance
    premiums are to be
    allocated between the parties in proportion to their
    net . . . incomes, including the portion of the
    premium attributable to the party who is paying it,
    as long as a statutory duty of support is owed to the
    party who is paying the premium. If there is no
    statutory duty of support owed to the party who is
    paying the premium, the portion attributable to that
    person must be deducted from the premium as set
    forth in subdivision (2) below.
    Pa.R.C.P. 1910.16 -6(b)[(1)]. Subdivision (2) states:
    When the health insurance covers a party to whom
    no statutory duty of support is [owed . . . ] the
    portion of the premium attributable to them must be
    excluded from allocation.
    Pa.R.C.P. 1910.16-6(b)(2). Moreover, the Support Guidelines
    also create a methodology that can be applied when a parent
    pays for health insurance that covers more than simply the
    children who are the subject of the Support Order. The rules
    state:
    In the event that evidence as to this portion is not
    submitted by either party, it shall be calculated as
    follows. First; determine the cost per person by
    dividing the total cost of the premium by the number
    of persons covered under the policy.          Second,
    multiply the cost per person by the number of
    persons who are not owed a statutory duty of
    support, or are not parties to, or the subject of the
    support action. The resulting amount is excluded
    from allocation.
    Pa.R.C.P. 1910.16-6(b)(2). Furthermore, the rules provide an
    example that is almost exactly on point:
    Example 3. The parties are divorced and Mother is the obligee of
    a child support order. Father, the obligor, pays $200 per month
    toward the cost of a health insurance policy provided by his
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    J-A25022-16
    employer that covers himself and the parties’ child. Mother pays
    $400 per month for her employer-sponsored health insurance
    that covers only herself. The amount of the premium Father
    pays to cover the parties’ child, $100 ($200 premium divided
    between two covered persons, Father and the child), will be
    allocated between the parties in proportion to their respective
    incomes. The portion of the premium that covers Father will not
    be allocated because the parties are no longer married and he is
    not owed a duty of support by Mother. The premium Mother
    pays to provide her own coverage will not be allocated because
    the parties are no longer married and she is not owed a duty of
    support by Father.
    Pa.R.C.P. 1910.16-6(b)[Example 3].
    In this case, there is no need for both MOTHER and
    FATHER to provide insurance coverage for the children. In our
    Court Orders entered in 2015, we ordered that FATHER provide
    health insurance for the children.       In her most recent
    Recommendation, the DRM similarly imposed a responsibility
    upon FATHER to provide health insurance for the children.
    Without proof that MOTHER’s payment of $600.29 per year
    was needed to purchase insurance that was not available
    through FATHER’s plan, we are not inclined to apply the Support
    Guidelines to MOTHER’s payment of $600.29. With respect to
    FATHER’s payment of health insurance benefits, we note that
    FATHER’s payment of $4,981.41 covers four individuals, only
    one of whom is the child in question. Therefore, the calculation
    that applies in this case will be as follows:
    (1) $4,981.41 ÷ 4 individuals covered = $1,245.35
    per person.
    (2) $1,245.35 per person x 3 individuals not owed a
    duty of support = $3,736.06 that must be excluded
    from consideration.
    (3) $1,245.35 = the amount of FATHER’s insurance
    contribution that can be allocated solely for the child
    at issue.
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    Based upon the above, we will allocate the sum of $1,245.35 to
    the parties in accordance with their percentage of net income as
    outlined in the preceding sections of the Support Guidelines.
    Trial Court Opinion, 3/29/16, at 11–14.
    We have considered the arguments of the parties and the explanation
    of the trial court and considered the record as a whole.    Based upon the
    record, we conclude that this issue is meritless.
    Finally, Mother asserts, relying on Portugal v. Portugal, 
    798 A.2d 246
    , 253 (Pa. Super. 2002), that in its August 4, 2015, and March 29, 2016
    orders, the trial court declined to include Father’s voluntary retirement
    contributions as income for purposes of child support.     Mother’s Brief at
    20. Mother maintains that she sought Father’s voluntary contributions, not
    Father’s employer’s contributions. She avers that the parties’ Stipulation of
    Facts provided that Father voluntarily contributed $18,000 to his 401(k) in
    2015. Mother identified the issue in her Pa.R.A.P. 1925(b) statement.
    In Portugal, the wife argued that the trial court erred in failing to
    include the husband’s contribution to his 401(k) plan and his employer’s
    matching contribution to the plan, in the court’s determination of the
    husband’s income. The Portugal Court examined Pa.R.C.P. 1920.16-5 and
    concluded, “Upon our consideration of this provision, we find that only non-
    voluntary retirement payments are properly excludable from a parent’s net
    monthly income.     Conversely stated, the trial court must include any
    voluntary contributions that a parent makes to his/her retirement
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    plan as income for support purposes.”              Portugal, 
    798 A.2d at 252
    (emphasis added). An employer’s contributions to a pension plan were held
    to constitute income for purposes of support “if the employee could access
    his employer’s contributions (regardless of penalties) at the time of the
    support calculation.”   
    Id. at 253
    .   In MacKinley v. Messerschmidt, 
    814 A.2d 680
     (Pa. Super. 2002), we articulated that our holding in Portugal was
    “based on the dominant interest of the children’s immediate need, 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, 
    814 A.2d at 683
    .
    The trial court provided, based upon the DRM’s disposition, a detailed
    and   convincing   explanation   addressing    why    Husband’s    employer’s
    contributions properly were not included in the calculation of Husband’s
    income. However, that is not the issue identified and presented by Wife.
    In its explanation regarding Husband’s employer’s contribution, and
    relying upon the description of the DRM, the trial court identified the types of
    retirement plans both parties enjoy, as follows:
    The court directed both [Mother] and [Father] to produce
    records regarding the present ability or inability to access funds
    in their respective employer retirement accounts.
    Mother provided a letter from her employer indicating that
    she is enrolled in a defined benefit plan. Mother is not allowed
    to access the employer contributions to the plan other than as a
    monthly annuity at the time of retirement.
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    Father provided the Vanguard statements for his 401(k)
    retirement plan, Exh. 4. Father did not provide a plan summary
    for the 401(k) plan. Based on the information provided by Exh.
    4, the plan is a qualified plan.
    Trial Court Opinion, 3/29/16, at 8–9 (quoting Supplemental Findings and
    Recommendations of Domestic Relations Master, 5/15/15, at 2).            The
    specific focus of both the DRM and the trial court was analysis of whether
    Husband’s employer contributions were accessible to Husband.
    Our review of the record reveals that Mother’s exceptions to the DRM’s
    recommendations identified, inter alia, the Master’s failure to include
    Husband’s voluntary contributions to his 401(k) plan as income available for
    support.   Upon remand by the trial court, the DRM addressed only the
    employers’ contributions.   Mother raised the issue again in her Pa.R.A.P.
    1925 (b) statement, and once more, the trial court focused exclusively on
    Husband’s employer’s contributions.
    The trial court stated the following in addressing the issue:
    As we see it, both MOTHER and FATHER have contributed
    monies from present income to create resources for future
    retirement. According to the parties’ stipulation, FATHER has
    contributed $18,000.00 to his 401(k) account, which translates
    to approximately 7% of his pre-tax income.           MOTHER has
    contributed $3,752.00 to her retirement account, which
    translates to approximately 6.7% of her pre-tax income. There
    is simply no evidence that either MOTHER or FATHER is “hiding”
    current income by placing it into a retirement account, and there
    is no evidence that either MOTHER or FATHER is attempting to
    circumvent the child support process by manipulating retirement
    contributions to artificially deflate current income. Given their
    respective earnings, we do not find either MOTHER’s retirement
    contribution or FATHER’s retirement contribution to be
    inappropriate or manipulative.
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    Given that we have concluded that both MOTHER and
    FATHER have set aside an appropriate amount for their own
    future retirement, we will not treat their respective retirement
    contributions differently. As we stated in August of 2015: “What
    is good for the goose is good for the gander.” If we will not be
    considering MOTHER’s decision to set aside 6.7% of her income
    for retirement, then neither will we consider FATHER’s decision
    to set aside 7% of his income for future retirement. In our view,
    this approach effectuates justice for all concerned.
    Trial Court Opinion, 3/29/16, at 10–11.
    Our review of the record compels our agreement with Wife that the
    trial court erred.    Mother had no discretion but to contribute a designated
    percentage of her earnings into the state retirement system, and the trial
    court was compelled to deduct those amounts from Mother’s monthly gross
    income in calculating her net income.         See Pa.R.C.P. 1910.16-2(c)(1)(C)
    (“Unless otherwise provided in these rules, the court shall deduct only the
    following items from monthly gross income to arrive at net income: . . . non-
    voluntary retirement payments.”) Conversely, Portugal requires that “the
    trial court must include any voluntary contributions that a parent makes to
    his/her retirement plan as income for support purposes.”        Portugal, 
    798 A.2d at 252
    . Thus, we are compelled to remand this matter to the common
    pleas court.
    Case remanded for a determination of whether Father’s contributions
    to his 401(k) plan are voluntary, and if so, they shall be included as income
    to Father pursuant to Portugal and its progeny. In all other respects, the
    appeal is affirmed.
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    J-A25022-16
    Order reversed and case remanded for proceedings consistent with
    this Memorandum. Jurisdiction is relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/6/2016
    - 17 -