B.J.S. v. D.F.K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1293 MDA 2016
Appeal from the Order Entered July 25, 2016
In the Court of Common Pleas of Columbia County
Domestic Relations at No(s): 00306-DR-2009
PACSES No. 421111164
BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 04, 2017
B.J.S. (“Mother”) appeals from the July 25, 2016 child support order,
which established a monthly obligation of $764.78 on D.F.K. (“Father”) for
two children. We vacate the order and remand for further proceedings.
Mother and Father married on January 4, 1999, and separated on
September 12, 2009. Two children were born of the marriage, D.J.K. and
D.M.K., in 2002 and 2006, respectively. On September 17, 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. Due to the parties’ respective incomes, Mother was not awarded
spousal support.
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This appeal arose from proceedings relating to a petition for
modification filed by Mother on March 13, 2015. A master was appointed by
the Columbia County Domestic Relations Office, and a hearing was held on
December 17, 2015. At that hearing, Mother presented testimony regarding
unreimbursed medical and tutoring expenses. Father clarified his income
from wrestling camps that he operated and defended discrepancies between
his total bank deposits and the income he claimed in his federal taxes.
Father attributed the difference to money he earned from investments and
his paramour’s contribution to a shared credit account. The hearing was
continued for additional testimony. A second hearing was held on March 24,
2016, and 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 award was
calculated using an agreed upon a monthly earning capacity for Mother of
$2,164.70, and $5,096.92 for Father based on the average of 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 then
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 court 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.
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Mother filed exceptions to the master’s recommendation and report,
and by order dated July 25, 2016, the trial court denied and dismissed those
exceptions. The court adopted the master’s report and confirmed the
previously calculated child support award. Mother filed a timely appeal and
a Rule 1925(b) concise statement of errors complained of on appeal. The
trial court authored its Rule 1925(a) opinion adopting its analysis from the
July 25, 2016 order, and finding the issues raised in Mother’s Rule 1925(b)
statement that were not included in her exceptions to be waived. This
matter is now ready for our review.
Mother raises eleven issues for our consideration:
I. Whether the trial court erred by improperly adjusting
[Father’s] support obligation to account for [his] “substantial
physical custody” when the record is clear that [Father] does
not enjoy 40% or more custody of the children which was
evidenced by the custody order entered into evidence.
II. Whether the trial court erred by failing to properly calculate
[Father’s] income when the trial court made a finding that
[Father] had underreported his income, but then failed to
include this underreported income when determining
[Father’s] proper net income for calculation of his child support
obligations.
III. Whether the trial court erred in failing to order [Father] to
contribute to the children’s unreimbursed medical expenses
which were properly preserved and presented to the court for
reimbursement pursuant to the statute.
IV. Whether the trial court erred in sua sponte including the
income of [Mother’s] spouse as [Mother’s] household income
when calculating [Father’s] child support obligation given
[Father] never raised the issue at the hearing in this matter.
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V. Whether the trial court erred in including the income of
[Mother’s] spouse when no testimony or documentary
evidence related to the spouse’s income was presented at the
hearing in this matter.
VI. Whether the trial court erred in utilizing a 2013 W-2 found in
the Columbia County Domestic Relations Office file for an
unknown reason to support its finding as to [Mother’s]
household income when the form was not presented as
evidence in the hearing and no testimony related to the form
was presented.
VII. Whether the trial court erred in not including [Father’s] live in
paramour’s current payment to [Father] as part of [Father’s]
household income, when the trial court sua sponte included
[Mother’s] spouse’s income from a period in which [Mother]
was not married to or residing with [G.S.], her spouse.
VIII. Whether the trial court erred in failing to award to [Mother]
the cost of tutoring for the minor children to be as a
reasonable expense, given that both [Mother] and [Father]
consented to the tutoring and [Mother] properly preserved and
presented the cost as evidence in the hearing on this matter.
IX. Whether the trial court erred in failing to order [Father] to
contribute to the cost of tutoring for children when [Father]
consented to the tutoring and [Mother] properly preserved and
presented the cost as evidence in the hearing on this matter.
X. Whether the trial court erred in finding [Father’s] childcare
costs to be reasonable given the age and needs of the children
during the summer months.
XI. Whether the trial court erred in adjusting the child support
calculation to include the childcare expenses [Father] claimed
but provided no evidence to support the childcare expense.
Mother’s brief at 5-7.
As a preliminary matter, we must determine whether Mother has
preserved her claims for appellate review. It is well-settled that “a party
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who is dissatisfied with a master’s report [must] file exceptions to the
report, or waive any such objections.” Lawson v. Lawson, 940 A.2d 444,
450 (Pa.Super. 2007) (quoting Benson v. Benson, 515 A.2d 917, 919
(Pa.Super. 1986)); Pa.R.C.P. 1910.12(f) (“Matters not covered by
exceptions are deemed waived[.]”). Instantly, Mother filed exceptions
challenging the calculation of Father’s income, the amount of Father’s
proportionate share of custody, the master’s failure to require Father to
contribute to the cost of tutoring, the deviation based on additional income
in Mother’s household, the inclusion of an earning capacity for Mother, and
the master’s failure to include the contribution of Father’s paramour
contribution to his income. Exceptions, 4/15/16, at unnumbered 1-2.
Mother did not contest the master’s conclusions with regard to the children’s
medical expenses or Father’s childcare expenses. Accordingly, Mother’s
third, tenth, and eleventh issues are waived.
Turning now to the merits of Mother’s appeal, we invoke the following
standard of review:
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.
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W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (citation omitted).
Mother first argues that the trial court erred in reducing Father’s child
support obligation by twenty percent for “substantial or shared physical
custody.”1 Mother’s brief at 18. She maintains that a previous custody
order accurately reflects the parties’ custody arrangement. That order,
according to Mother, indicates Father exercised overnight custody of the
children only thirty-two percent of the time, as opposed to the forty-percent
necessary to justify a deviation under the support guidelines.
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
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1
We observe with reproach that Father has not filed a appellee’s brief in
response to Mother’s appeal or to otherwise inform the court that he did not
intend to do so. Rather, Father, acting pro se, has filed financial documents
with the apparent intention of providing the Court with updated financial
records which has been docketed as his “appellee’s brief.” We are obliged to
inform Father that an appellee is required to file a brief that, at a minimum,
contains “a summary of the argument and the complete argument of the
appellee.” Commonwealth v. Pappas, 845 A.2d 829, 835 (Pa.Super.
2004) (citing Pa.R.A.P. 2112). As the financial documents are not part of
the certified record, we have not considered them in the resolution of this
matter. Further, in light of the extremely sensitive nature of the confidential
financial information contained within the “brief,” we direct the Superior
Court Prothonotary to strike Father’s brief from our record to ensure that the
information contained therein is not disseminated further.
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custody, “a rebuttable presumption arises that the obligor is entitled to a
reduction in the basic support obligation to reflect this time.” Id.Here, Father testified that he exercised custody over the children
forty-three-and-one-half percent of the year. N.T. Modification Hearing,
12/17/15, at 25. Mother objected to this testimony contending that Father
offered a legal conclusion based on an incorrect calculation. The master
overruled that objection, but agreed to recalculate the percentage based on
a pending custody order. Id. at 25-26.
In its March 31, 2016 report and recommendation, the master
implicitly credited Father’s testimony when it determined that Father
retained custody of the children forty-three percent of the year. Hence, the
master found, and the trial court confirmed, that Father’s testimony raised
the presumption accorded by Rule 1910.16-4, and that Mother’s purported
evidence failed to rebut that presumption. Thus, it reduced Father’s support
obligation accordingly.
As noted, Mother’s argument is based on the existence of a child
custody order that reveals Father has physical custody only thirty-two
percent of the year. Upon review of the certified record, we find that no
such custody order was entered into evidence or otherwise appended to the
record. As such, we have no basis to conclude that the custody order was
proffered to the master or that it evidenced that Father maintained custody
of the children for less than forty-percent of the year. Since the trial court’s
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determination was supported by Father’s credited testimony, Mother is not
entitled to relief.
Next, Mother asserts that the trial court miscalculated Father’s income
when it failed to include his earnings from his wrestling camps, private
wrestling clinics, and contributions to his household expense by his
paramour, L.C.2 As this issue subsumes Mother’s seventh issue, we will
consider them together. Mother alleges that Father’s bank records showed
deposits of approximately $141,000 for 2014. However, Mother continues,
Father only reported a net income of $68,000, after deducting his business
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2
The term “income,” for the purposes of the support guidelines, is defined
as follows:
“Income.” Includes compensation for services, including, but
not limited to, wages, salaries, bonuses, fees, compensation in
kind, commissions and similar items; income derived from
business; gains derived from dealings in property; interest;
rents; royalties; dividends; annuities; income from life insurance
and endowment contracts; all forms of retirement; pensions;
income from discharge of indebtedness; distributive share of
partnership gross income; income in respect of a decedent;
income from an interest in an estate or trust; military retirement
benefits; railroad employment retirement benefits; social
security benefits; temporary and permanent disability benefits;
workers’ compensation; unemployment compensation; other
entitlements to money or lump sum awards, without regard to
source, including lottery winnings; income tax refunds;
insurance compensation or settlements; awards or verdicts; and
any form of payment due to and collectible by an individual
regardless of source.
23 Pa.C.S. § 4302; Pa.R.C.P. 1910.2(a).
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expenses of approximately $30,000. Mother further contends that Father
conceded that he receives monthly payments from L.C. for their shared
living expenses. Hence, she concludes that the trial court miscalculated
Father’s income, and that he should be assessed a higher monthly income
than what was utilized in arriving at his support obligation.
The master’s report and recommendation included the following
findings of fact with regard to Father’s income:
1. Father’s [wrestling] camp income was only [$]696 in 2015, and
no camps planned [sic] for 2016. Not assigning income from
this in making this recommendation.
2. [Father’s] business fluctuates. Gross income varies, but
expenses are similar year-to-year. Using average of past 3
years income in this recommendation.
3. [Mother] presented evidence of $141,000 in cash flowing
through [Father’s] bank [account]. [Master was] not persuaded
that this was all from his business. However, for sake of
argument, even if there was some [additional] business income,
you need to subtract business expenses to get net. That net
would be subject to self-employment taxes in addition to income
taxes, resulting in much lower amount than the $8,948
net/month proposed by [Mother].
Master’s Report, 3/31/16, at unnumbered 3. The trial court adopted this
position, observing, “[Father’s] income was properly calculated . . . [t]he
cash flow through [Father’s] bank accounts does not alter this figure, as
[Father] had adequate credible explanations (e.g., holding his [m]other’s
investments for placements[.])” Final Order, 7/25/16, at unnumbered 1 n.1.
As it stands, the master attributed Father’s additional income to his
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business, and the trial court attributed the difference to cash he received on
behalf of his mother. We find that the record does not support either of
these findings.
Instantly, Mother presented evidence of a discrepancy between
Father’s reported 2014 income and the deposits in his sole bank account.
N.T. Modification Hearing, 12/17/15, at 35-36; 70. Mother noted that Father
had deposits totaling $141,617.83 in 2014, but he had reported income from
his business tallying only $96,908. Id. at 70. When asked to explain the
difference, Father averred, “I may have liquidated some investments –
moved them into my account and reinvested them. Stuff like that.” Id. at
71. Father conceded that some of the difference was due to his income from
wrestling camps, but when he was pressed to explain the remainder, he
stated, “I am thinking [I liquidated] other investments.” Id. at 72. In
addition, Father acknowledged that half of a $26,661.13 deposit in 2015 was
his portion of a shared investment with his mother. Id.
We find the trial court erred in failing to include Father’s deposits from
his investments as income. Father’s testimony indicated that he obtained
large cash payments from his investments in 2014 and 2015. Although he
did not explain the nature of his investments, in light of the expansive
definition of “income” provided under the guidelines, we find Father’s
proceeds from his investments should have been included in the child
support calculation. See 23 Pa.C.S. § 4302 (income includes, inter alia,
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“income derived from business; gains derived from dealings in property . . .
[and] dividends”); Spahr v. Spahr, 869 A.2d 548, 552 (Pa.Super. 2005)
(observing, “When a payor spouse owns his own business, the calculation of
income for child support purposes must reflect the actual available financial
resources of the payor spouse.”). Since Father testified that the discrepancy
in his cash flow and reported income was due to his investments, the master
erred in determining the discrepancy could be explained as additional, yet
unaccounted for, business income. Moreover, the trial court erred in finding
the money merely represented his mother’s investments. Simply, the record
does not substantiate these conclusions.
For the same reason, the court erred in failing to consider Father’s
wrestling camp earnings, as minimal as they may be. Father retained
earnings from his work operating a wrestling camp. Father, himself,
proffered evidence indicating that he earned $1,143 in 2014, and $696 in
2015 as a result of those efforts. Those earnings should be included in
Father’s income calculation.
Father also explained that he shared some expenses with L.C., noting,
“Again every month. [L.C.] writes me a check. We split a credit card. I am
guessing maybe one [deposit] is for a credit card. We also split property
now. We split insurances for three vehicles.” N.T. Modification Hearing,
12/17/15, at 76-77. For example, when questioned about a particular
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$1,573.21 deposit, Father remarked, “That would probably be splitting a
credit card expense[.]” Id. at 77.
We find that the court did not abuse its discretion in declining to
include contributions L.C. made to Father’s household expenses in adjusting
Mother’s support award pursuant to Rule 1910.16-5. We have long held
that, once a court has consulted the guidelines, it “generally has reasonable
discretion to deviate from the guidelines if the record supports the
deviation.” Hanrahan v. Bakker, 151 A.3d 195, 203-204 (Pa.Super. 2016)
(citation omitted). The support guidelines permit a deviation when the court
determines that there is “other income in the household.” Pa.R.C.P.
1910.16-5(b)(3). Essentially, Mother argues that it would be unfair to
include her current husband’s income, as discussed further infra, in
determining the support award without also including L.C.’s income.
Here, the court noted there was no evidence regarding L.C.’s income.
Further, it determined, based on Father’s testimony, that L.C. “was bearing
her share of household expenses.” Final Order, 7/25/16, at unnumbered 1
n.1. The court presumed that L.C. “contributes what she consumes or
expends.” Id. Thus, it concluded that she did not have a net effect on
Father’s household income. Based upon Father’s credible testimony and the
lack of any evidence to the contrary, we discern no abuse of discretion in the
court’s refusal to include L.C.’s income in calculating the child support
award.
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Mother’s fourth, fifth, and sixth issues all present a challenge to the
court’s reliance on G.S.’s income in deviating from the support guidelines.
As noted above, the court has discretion to deviate from the guidelines for
other household income where the deviation is supported by the record, and
thus, we review these claims for an abuse of that discretion. Hanrahan,
supra; Pa.R.C.P. 1910.16-5(b)(3).
Mother’s argument in this regard is straight-forward. She insists that
the trial court erred in deviating from the guidelines by considering G.S.’s
income. Mother asserts that the record contains no evidence of G.S’s
income, and that the trial court’s reliance on G.S.’s 2013 W-2, found in a
domestic relations office file, was therefore in error. We agree.
Upon review of the certified record, there was no evidence offered
during either the December 17, 2015 or March 24, 2016 hearing regarding
G.S.’s income. Furthermore, although the trial court ruled that the 2013 W-
2 form was evidence of record, see Final Order, 7/25/16, at unnumbered 1
n.1, that document was not included in the certified record. Hence, the trial
court abused its discretion in deviating from the guidelines based on G.S.’s
purported, but unsubstantiated, 2013 income.
Mother’s final two claimed errors assail the trial court’s failure to direct
Father to contribute to the cost of tutoring for the children. Under the
support guidelines, the court may direct an obligor to fund the “private
school tuition or other needs of a child which are not specifically addressed
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by the guidelines.” Pa.R.C.P. 1910.16-6(d). If the court determines that
“one or more such needs are reasonable, the expense thereof shall be
allocated between the parties in proportion to their net incomes.” Id.
Mother contends that Father assented to the reasonableness of their
children’s tutor by consenting to the children’s participation in the tutoring
program. Further, she asserts that the trial court erred in finding that
“tutoring is not considered a necessary medical expense” since the payments
relate to the children’s educational, rather than medical, needs. Mother’s
brief at 34.
The trial court reasoned that “[t]utor expenses are not usual or
necessary and, as such, should not be used to increase [Father’s] support
obligation.” Final Order, 7/25/16, at unnumbered 1 n.1. It emphasized the
master’s finding that “neither child has an [individualized education program
(“IEP”)] or a Gifted IEP[.]” Id. The court supported its decisions by
determining that “the record was devoid of evidence that a tutor is
necessary.” Id.
Mother testified to the necessity of the children’s tutoring as follows:
“They started in November. . . And I decided to continue that until the end
of the school year in January. We renewed the tutoring sessions to complete
the whole year because it was helping them through school. I felt they
needed the service.” N.T. Modification Hearing, 12/17/15, at 8. At the
March 24, 2016 hearing, Mother declared that “They don’t have IEP.
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[D.M.K.] has Title 1, reading. And [D.J.K.] does speech.” N.T. Modification
Hearing, 3/24/16, at 11. When questioned as to whether the tutoring was
related to these issues, Mother replied, “Yes. Language arts and reading
issues, yes.” Id.
Contrary to the court’s findings, the record does support the finding
that a tutor is a reasonable educational expense. Mother testified that the
children’s tutoring was related to D.M.K.’s difficulty with reading and D.J.K’s
struggle with speech. Such struggles clearly implicate educational needs
rather than medical needs. Furthermore, Father did not contest the
allegation that he consented to the children’s tutoring, or that he found the
additional expense to be unreasonable. See Silver v. Pinksey, 981 A.d
284 (Pa.Super. 2009) (holding expenses related to children’s extra-curricular
activities were reasonable since, in part, father did not argue expenses were
unreasonable). Hence, we find that the trial court abused its discretion in
failing to assign to Father his proportionate share of the children’s tutoring
costs.
In summary, we find the court did not abuse its discretion in deviating
from the support guidelines in regards to Father’s substantial partial custody
or L.C.’s contributions to Father’s household expenses. The court did err in
calculating Father’s income, applying a deviation from the guidelines based
on G.S.’s 2013 income, and failing to attribute to Father his proportionate
share of the children’s tutoring expenses. Accordingly, we vacate the
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support order and remand for recalculation of Father’s net income and
support obligation in accordance with this memorandum.
The Prothonotary of the Superior Court is directed to strike the
document docketed as Appellee’s brief, which shall not be disseminated.
Order vacated. Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2017
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