B.J.S. v. D.F.K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B.J.S., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
D.F.K. : No. 1106 MDA 2018
Appeal from the Order Entered June 8, 2018
In the Court of Common Pleas of Columbia County Domestic Relations at
No(s): 00306-DR-2009,
PACSES NO. 421111164
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 28, 2019
Appellant B.J.S. (“Mother”) seeks review of the child support Order
dated June 8, 2018, which the Columbia County Court of Common Pleas
entered after remand by this Court. After careful review, we affirm.
A panel of this Court previously summarized the facts and procedural
history of this case as follows:
Mother and Father married in 1999 and separated in 2009. Two
children were born during the marriage in 2002 and 2006.
In September 2009, Mother filed a complaint for child support and
spousal support. On November 4, 2009, Mother obtained a child
support award in the amount of $1,005.12 per month. The court
did not award Mother spousal support.
In early 2015, Mother filed a petition for modification. On
December 17, 2015, a master held a hearing during which Mother
presented testimony regarding unreimbursed medical and
tutoring expenses. Father testified about his income from
wrestling camps that he operated and defended discrepancies
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between his total bank deposits and the income he claimed in his
federal taxes. Father attributed the discrepancies to money he
earned from investments and contributions by his paramour, L.C.,
to a shared credit account. On March 24, 2016, the master held
a second hearing in which Mother and Father provided further
detail regarding their income and child-related expenses.
On March 31, 2016, the master authored a recommendation and
report awarding Mother child support of $764.68 per month. The
master calculated this award using an agreed-upon monthly
earning capacity for Mother of $2,164.70. The master determined
that Father’s monthly earning capacity was $5,096.92 by
averaging his Schedule C net income for 2013, 2014 and 2015.
Utilizing the support guidelines, the master arrived at a child
support award of $955.98 per month, which it deviated downward
pursuant to Pa.R.C.P. 1910.16–5 due to substantial other income
in Mother’s household provided by her current husband, G.S. The
master made an additional twenty percent reduction pursuant to
Pa.R.C.P. 1910.16–4(c) due to Father’s significant period of partial
custody.
Mother filed exceptions to the master’s recommendation and
report, and by order dated July 25, 2016, the trial court denied
and dismissed her exceptions. The court adopted the master’s
report and confirmed the previously calculated child support
award. Mother appealed to this Court at 1293 MDA 2016. Mother
filed a brief in this Court; Father did not.
By Memorandum dated May 4, 2017, this Court vacated the CCP’s July
25, 2016 Order and remanded for the trial court to recalculate Appellee’s net
income and support obligation. B.J.S. v. D.F.K., 1005 MDA 2017, at 2-3 (Pa.
Super. filed Apr. 20, 2018); B.J.S. v. D.F.K., No. 1293 MDA 2016 (Pa. Super.
filed May 4, 2017).
On May 19, 2017, in response to our remand, the trial court entered an
Opinion and Order, summarized as follows:
The trial court stated that our decision required it to determine
the amount of Father’s investment income and wrestling camp
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earnings. The court confined its analysis of these issues to the
transcripts from the December 17, 2015 and March 24, 2016
hearings and documents admitted into evidence during these
hearings. It declined to admit other documentary evidence, such
as bank statements that Mother’s attorney used to cross-examine
Father.
With regard to Father’s investment income, the court placed
heavy weight on (1) Father’s 2014 tax return, which reported
$750.00 as dividend income and $14.00 as capital gain income,
totaling $764.00 and (2) Father’s 2015 tax return, which reported
no dividend or capital gain income. The court also summarized
Father’s testimony concerning his investment income as follows:
Father testified that he had “other investments” and stated
that he transfers these investments through his checking
accounts. When referring to these “other investments,”
Father was not asked, nor did he state, the income level or
principal value of those particular investments. Father
explained that he handles his mother’s investments, and
that these investments were “underperforming” and he
and his mother “decided to do something about it. We
closed it and she sent the money down to me and I’m going
to invest it down here in this area.” This asset was in
Father’s name since about 1993 or 1994, during which
time he was married to Mother. Father testified that he
intended to keep this asset for [his] mother and not
liquidate it. This amount was reflected in a deposit of
$26,661.13 on Father’s September 30, 2015 bank
statement of which half was Father’s. In attempting in
good faith to explain deposits into his account two (2)
years after the fact with no preparation, Father testified:
“I may have liquidated some investments—moved them
into my account and reinvested them. Stuff like that . . .
I don’t know. I am thinking liquidating other investments.”
That is the extent of the record expressly dealing with
“investment income.”
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Trial Ct. Op. 5/19/17, at 7-8.1
The trial court “accept[ed] as credible and of greatest weight the
information on Father’s tax returns.” Id. at 8; see also id. at 6
(Father’s tax returns were credible “given the reliable regularity
of reporting interest, dividends and investment sales via Form
1099’s and the penalties for not reporting same”). The court thus
found Father’s investment income to be $764.00, or $63.67 per
month.
With regard to wrestling camp income, the trial court determined
that Father made net income before taxes of $1,143.00 in 2014
and $696.00 in 2015. The court found that the drop in net income
was the result of market conditions, not Father’s voluntary choice,
so it set Father’s earning capacity for wrestling camp income at
the 2015 level of $696.00 per year, or $58.00 per month.
Adding Father’s monthly investment income and monthly
wrestling income together, the court raised Father’s monthly
earning capacity by $112.67, from $5,096.92 to $5,218.59. The
court stated:
No matter how one computes it, the record does not
support a conclusion by this fact finder (given
consideration of the totality of the record, consideration of
only that evidence which we find to be credible and
according evidence deemed to be credibie the weight we
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1 In another passage, the court described Father’s testimony as
credible and attributed his inability to remember bank deposits to
the passage of time:
Father ran all gross receipts from his business, all business
expenses and all personal disbursements in and out of his
checking account. It is beyond fairness to show someone
in business their checking account statement for a given
month two years prior and to expect them to recollect with
complete certainty the nature of a particular deposit at that
time.
Id. at 2 n.1.
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deem it to deserve[]) that Father made $141,617.00 in
deposits in 2014 . . . These deposits are not accepted as
credible proof, nor proof of any significant weight, of
Father’s “investment income.”
Id. at 5.
***
Utilizing the support guidelines, the trial court calculated Father’s
child support obligation as $1,033.01 per month, which it reduced
by ten percent to $929.71 per month. Id. at 11.
B.J.S., 1005 MDA 2017, at 6-9.
Mother again appealed. On August 1, 2017, the trial court filed both a
Rule 1925(a) Opinion and a Supplemental Rule 1925 Opinion.
On April 20, 2018, this Court quashed the appeal, concluding that the
trial court did not have jurisdiction to enter its May 19, 2017 Order because
the record had not yet been returned from our Court.2
On June 8, 2018, the trial court issued an Opinion and Order
incorporating its May 19, 2017 and August 1, 2017 Opinions, and the analysis
in its Order filed September 18, 2017.3 The trial court then modified its March
31, 2016 Order, setting child support at $929.71 per month, plus $30 per
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2 Notwithstanding the quashal, the panel nonetheless “offered several points
that the trial court might consider during further proceedings,” after correctly
recognizing that this Court “cannot direct the trial court on what support
decision to reach, for that would usurp the trial court’s role as factfinder.”
B.J.S., 1005 MDA 2017, at 16-18 (emphasis added).
3In its September 18, 2017 Order, the trial court incorporated its Custody
Order dated June 30, 2014 into the record and explained its August 10, 2017
Supplement Rule 1925(a) Opinion.
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month on the arrears, if any, and apportioning tutoring expenses and
unreimbursed medical expenses. The court otherwise affirmed its March 31,
2016 Order, and made this new order effective as of March 13, 2015, the date
Appellant filed the Petition for Modification at issue.
Mother appealed and filed a Pa.R.A.P. 1925(b) Statement. She raises
the following issues in this appeal:
I. Whether the trial court abused its discretion by failing to strictly
follow the Superior Court’s order to vacate the court of common
pleas’ order dated July 25, 2016 and to include all [of Father]’s
income including investment income and wrestling camp income
which has been calculated to be $141,617.83, as directed, when
calculating [Father]’s child support allegation.
II. Whether the trial court erred in awarding a substantial custody
deviation in this case in light of the lower court’s order granting
the inclusion in the record of the July 1, 2014 and June 1, 2015
custody orders which clearly demonstrates that [Father] does not
exercise 40% or more of the custody of the minor children.
III. Whether the trial court erred in awarding a child care deviation
in this case as it is not supported by any evidence presented and
it is unreasonable to award a deviation for child care for children
of this age.
IV. Whether the trial court erred when it failed to award
unreimbursed medical expenses for the children, which were
preserved by [Mother] by presenting the unreimbursed medical
expense evidence to the Columbia County Domestic Relations
Office.
Mother’s Brief at 5.
Appellate review of a child support order is very narrow. We may
reverse a support order only if we find that the Order cannot be sustained on
any valid ground. Krebs v. Krebs, 944 A.2d 768, 772 (Pa. Super. 2008).
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This Court “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.” Id. (citation and quotation omitted). “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.” Arbet v. Arbet, 863
A.2d 34, 39 (Pa. Super. 2004) (citation and quotation omitted). Importantly,
we acknowledge, “the duty to support one's child is absolute, and the purpose
of child support is to promote the child's best interests.” Id. (citation and
quotation omitted).
In her first issue, Mother avers that, on remand from this Court’s May
4, 2017 decision, the trial court refused to follow this Court’s directives and
improperly calculated Father’s interest income and income from the wrestling
camp. Mother’s Brief at 14. Appellant’s sole specific claim of error in the
appeal before us is that the trial court “went so far as to include numbers for
investment income that were not testified to but were merely plucked from a
portion of a tax return submitted by [Father.]” Id. at 14.
After providing a detailed chart citing to the Notes of Testimony
summarizing the evidence pertaining to Father’s deposits that was actually
admitted, the court noted that Father’s 2014 Form 1040, admitted as Ex. D-
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5, showed investment income of $750.00 in dividend income and $14.00 in
capital gains income. In crediting this evidence, the trial court stated:
Given the reliable regularity of reporting interest, dividends and
investment sales via Form 1099’s and the penalties for not
reporting the same, this “investment income” is accepted as
credible. Banks and brokers are extremely regular and accurate
in their reporting of investment income via 1099’s, and 1099’s are
transmitted to the taxpayer and the IRS. In today’s business
world, production of 1099’s is computerized, at least by banks and
brokerage houses. A taxpayer would be extremely foolish to think
he or she could omit reporting investment income which was
reported by a bank or a broker to the IRS via a 1099. The IRS
computers know before a taxpayer files his or her return what
level of 1099 gross revenue the taxpayer earned, because banks,
brokers and contractors paying more than $600.00 compensation
per year must send a Form 1099 to the taxpayer and the IRS on
or before January 31st of each year. Father testified that his 2014
Form 1040 (Ex. D-5) was accurate [ ] and that testimony is also
accepted as credible. All of this combined renders Father’s
reporting of his investment income on his tax returns highly
credible. If Father’s mother gifted Father income from
investments which were in her name, and which were taxed to
her, that would not be income to Father, because “gifts are not
income for support purposes.” Suzanne D. v. Stephen W., 65
A.3d 965, 972 (Pa. Super. 2013).
***
. . . As to “investment income,” this court accepts as credible and
of greatest weight the information on Father’s tax returns. Taking
the full $750.00 of dividend income and $14.00 of capital gain
income on the 2014 return, there was a total of $764.00 of
investment income in 2014. This will be attributed to Father as
his gross annual “investment income.”
Trial Ct. Op., 5/19/17, at 7-8.
In its June 8, 2018 Opinion, the trial court further emphasized its prior
review of the “credible amounts of Father’s various forms of net income,
business as well as investment income,” and noted that it was Mother’s burden
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of proof to show that Father had high levels of investment income. Trial Ct.
Op., 6/8/18, at 3-4. The court found that Mother did not subpoena or enter
into the record “Father’s bank statements, deposit slips or cancelled checks,
all of which could establish the sources of the funds deposited, the destination
of funds disbursed, the amount of principal invested and the amount of income
derived, if any. She did not sustain her burden of proof in this factfinder’s
view.” Id. at 4 n.3.4
We discern no abuse of discretion in the trial court’s reliance on Father’s
tax returns to determine investment income. The court found the tax returns
credible, found Father’s testimony credible, and weighed the properly
admitted evidence to reach its conclusion that Father’s net income calculation
should be increased by $764.00 to account for investment income. We cannot
and will not reweigh the evidence. Moreover, Mother has provided no
argument to support a conclusion that the trial court overrode or misapplied
the law, and the record does not show that the trial court’s judgment was
“either manifestly unreasonable or the product of partiality, prejudice, bias or
ill will.” Arbet, supra. Accordingly, Mother’s first issue warrants no relief.
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4 In addressing the “suggestion” provided in this Court’s April 20, 2017
Quashal Order that the trial court consider opening the record, the trial court
observed that, as a proper exercise of its discretion, it had denied a request
for a supplemental hearing by Order dated June 21, 2017, because “[t]o open
the record would have opened the case to re-litigation,” and “unfairly allow
[Mother] a second bite at the apple.” Trial Ct. Op., 6/8/18, at 5. “This is …
one of the significant reasons why a supplemental hearing is not deemed to
be just in this court’s discretion.” Id. at 4 n.4. We see no abuse of discretion
in the trial court’s decision.
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In her second issue, Mother contends that the trial court erred in
concluding that Father had physical custody of the children for over 40% of
the time, when the 2014 custody order allows Father to exercise only 29%
physical custody.
The support guidelines provide that an obligor may be entitled to a
reduction in his child support payments “[w]hen the children spend 40% or
more of their time during the year” with that parent. Pa.R.C.P. 1910.16-4(c).
Where a parent presents evidence that he enjoys substantial physical custody,
“a rebuttable presumption arises that the obligor is entitled to a reduction in
the basic support obligation to reflect this time.” Id.
This Court addressed this issue in the May 4, 2017 Memorandum, after
noting that the custody order upon which Mother relied for her calculation had
not been entered into evidence or otherwise appended to the record.5 We
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5 Because this Court previously addressed this issue in our May 4, 2017
Memorandum, the law of the case doctrine arguably applies to preclude our
review of this issue before us. See Windows v. Erie Ins. Exch., 161 A.3d
953, 959 (Pa. Super. 2017) (“The law of the case doctrine refers to a family
of rules which embody the concept that a court involved in the later phases of
a litigated matter should not reopen questions decided by another judge of
that same court or by a higher court in the earlier phases of the matter.”)
(citations omitted)). However, we are mindful that “[i]n determining whether
the law of the case doctrine applies, the appellate court ‘looks to where the
rulings occurred in the context of the procedural posture of the case.’” Id.,quoting Mohney v. Am. Gen. Life Ins. Co., 116 A.3d 1123, 1132 (Pa. Super.
2015) (citation omitted). In light of the trial court’s grant of Mother’s
Application to Correct the Record to allow for the inclusion of the June 30,
2014 Custody Order subsequent to our May 4, 2017 Memorandum, we decline
to apply the law of the case doctrine to preclude our review in the instant
appeal.
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noted that “since the trial court’s determination was supported by Father’s
credited testimony, Mother is not entitled to relief.” B.J.S., 1293 MDA 2016,
at 7-8.
On September 18, 2017, the trial court granted Mother’s Application for
Correction or Modification of Record to the extent of incorporating the Custody
Order dated June 30, 2014, into the record, the order in effect when the
Master and trial court considered the instant Modification Petition. In its
September 18, 2017 Order, the trial court noted that “paragraph 3.h of the
[Custody] Order of June 30, 2014, accorded [Father] additional time as ‘may
be mutually agreeable by the parties,’ and that the undersigned found as a
fact that the parties did mutually agree to more time to the extent that
[Father] received the children 43.5% of the time.” Order, 9/18/17. The court
concluded that “[i]n view of this finding of fact, and the text of paragraph 3.h,
[Mother’s] argument that the custody order mandated an allocation of 40%
of time to the Defendant is inaccurate.” Id.Mother’s sole contention in this appeal is that there was “absolutely no
testimony that the parties exercised custody outside the custody order,” and
the “testimony from the hearing demonstrates that the parties and the special
Master were all in agreement that the custody percentage should be
determined by use of the July 1, 2014 custody order.”6 Mother’s Brief at 18.
In support, Mother provides a short excerpt from the testimony at the
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6The date of the custody order is actually June 30, 2014. See Custody Order,
R.R. at 310a.
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modification hearing where Mother’s attorney objected to Father’s agreement
that “[u]nder the current [custody] order and going through the school
calendar, [he has] the children 43 and a half percent of the time.” Id. at 19
(citing N.T.).7 Mother then quotes paragraph 3(a) and (b) of the June 30,
2014 Custody Order regarding Father’s weekend and summer custody
allocation, and concludes Father has 29% physical custody.8 Id. at 20.
Mother’s sparse arguments garners no relief.
Following our remand, which the trial court correctly observed did not
include a direction that the court reconsider the custody allocation, the trial
court opined as follows:
This court’s finding of fact was that the child does, in fact, spend
43.5% of his time with Father, regardless of the custody order,
however, [Mother] ignores paragraph 3.h of the custody order of
June 30, 2014[,] which accorded Father additional time as “may
be mutually agreeable by the parties.” . . . The time actually
spent with Father, even if in excess of the time allocated to him
under paragraphs 3.a through 3.g of the Order, is permitted under
paragraph 3.h of the Order.
Trial Ct. Supplemental Opinion, dated Aug. 1, 2017, at 1.
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7 Mother’s objection was that Father was drawing a “legal conclusion” and
providing “incorrect math,” and asked the hearing officer to look at the June
30, 2014 custody order that apparently was not included in the documents
presented at the support hearing, to “rerun [the calculation] to see percentage
of time.” N.T., 12/17/15, R.R. at 25a.
8 The Custody Order granting physical custody to Father is provided in
paragraph 3, subsections (a)-(h), not just (a)-(b). See Custody Order, dated
June 30, 2014, at R.R. 310a-311a.
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Mother’s argument does not acknowledge paragraph 3.h of the Custody
Order, and does not provide this panel with any reason to change our prior
conclusion that because “the trial court’s determination was supported by
Father’s credited testimony, Mother is not entitled to relief.” B.J.S., 1293
MDA 2016, at 7-8. Accordingly, no relief is due.
In her third issue, Mother challenges the allocation of childcare costs to
Father. This Court previously addressed this issue and concluded that because
Mother did not file exceptions challenging the Master’s calculation of childcare
expenses, she waived this issue. See B.J.S., supra at 5, citing Lawson v.
Lawson, 940 A.2d 444, 450 (Pa. Super. 2009) and Pa.R.C.P. 1910.12(f)
(“Matters not covered by exceptions are deemed waived[.]”).
Mother’s reassertion of this issue in the instant appeal does not change
the fact that she did not file exceptions as required in order to preserve it. It
is, thus, still waived. Moreover, the law of the case precludes our review of
this issue. Windows v. Erie Ins. Exch., supra at 959.
In her fourth issue, Mother contends the trial court “erred when it failed
to award unreimbursed medical expenses for the children.” Mother’s Brief at
22. She contends, in one conclusory sentence without development or citation
to any evidentiary support or legal authority, that “Father is responsible for
81.27% of the unreimbursed medical expenses after Mother pays the first
$250.00 per child.” Id.
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This Court has repeatedly held that failure to develop an argument with
citation to, and analysis of, relevant authority waives that issue on review.
Harris v. Toys “R” Us–Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005);
Pa.R.A.P. 2119. Mother’s failure to develop this issue renders it waived.
Moreover, Mother fails to acknowledge this Court’s previous conclusion
that she waived this issue for failing to raise an exception before the Master.
See B.J.S., 1093 MDA 2016, at 5. In addition, Mother fails to address the
fact that, notwithstanding this Court’s finding of waiver, the trial court on
remand did allocate medical expenses. See Trial Ct. Opinion and Order, dated
6/8/18, at 7.9 Mother’s failure to acknowledge the subsequent Order,
combined with her failure to provide any argument whatsoever, renders her
challenge to the court’s allocation of unreimbursed medical expenses waived.
In sum, having found Mother’s issues to be without merit or waived, we
affirm the Order.
Order affirmed.
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9 That Order provided that unreimbursed medical expenses for the children
that are in excess of $250.00 per year per child “shall be allocated 64.13%
to Father and 35.87% to Mother.” Trial Ct. Opinion and Order, dated June
8, 2018, at 6.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2019
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