Bono, M. v. Bono, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARIA J. BONO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY B. BONO :
:
Appellant : No. 250 EDA 2020
Appeal from the Order Entered December 23, 2019
In the Court of Common Pleas of Northampton County Domestic
Relations at No(s): DR-0109117
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: Filed: November 25, 2020
Terry B. Bono (“Father”) appeals from the child support order entered
on December 23, 2019. He argues the trial court erred in ordering the parties
to take depositions prior to the de novo hearing, in assessing his income and
the income of his ex-wife, Maria J. Bono (“Mother”), and in allocating child
care expenses between the parties. We affirm.
Mother and Father have two minor children. Mother filed a complaint for
child support in September 2017, and the parties first appeared for a hearing
before a domestic relations conference officer in October 2017. The conference
officer issued a recommended order that the trial court adopted as an interim
order on October 26, 2017.1 The court ordered Father to pay Mother $1,234
monthly, plus arrears.
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1 The order was filed on the docket on October 27, 2017.
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Father filed a written demand for a de novo hearing before the trial
court. The parties appeared before the court on December 18, 2017, and the
court ordered the parties to complete depositions and submit the transcripts
of the depositions and briefs to the court prior to the de novo hearing. See
Order, 12/18/17, at 1. After several continuances, the parties submitted the
transcripts and briefs at a de novo hearing in October 2018. Following the
hearing, the court entered an order finalizing the October 26, 2017 support
order for the period of September 11, 2017, through December 31, 2017. See
Order, 11/14/18, at 1.2 The court then remanded the case for a change of
circumstances hearing and a new support recommendation for the period
starting January 1, 2018. See id.
Father filed a petition for modification. The parties appeared for an office
conference in early January 2019, and the attorneys for both parties advised
the conference officer to refer to the previous depositions for the parties’
respective positions. See Trial Court Opinion, filed 3/12/20, at 6. The court
entered an order continuing the proceedings until receipt of the parties’ 2018
tax documents. Order, 1/23/19, at 1. The court entered an interim support
order on April 5, 2019,3 and a modified order of support on May 31, 2019,
both of which ordered Father to pay child support starting on January 1, 2018.
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2 The order was dated November 14, 2018, but filed on the docket on
November 16, 2018.
3 The order was filed on the docket on April 8, 2019.
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Both Father and Mother demanded a de novo hearing. Father’s counsel
withdrew prior to the September 18, 2019 hearing, and Father was
unrepresented. At the hearing, Father complained that the court had assessed
his earning capacity as a “painter, construction, maintenance worker,” based
on the upper end of the values in the PA State Wage Occupational Survey,
rather than the midrange. N.T., 9/18/19, at 5-6. He further argued that his
earning capacity should be lower, to reflect the economic circumstances of
Carbon County, rather than the entire state. Id.; see also Tr. Ct. Op. at 11.
In addition, Father argued the court erred when calculating his rental income
based on his 2018 tax return. He specified the return displayed an annual
rental income of $20,331, or $1,694 per month, which was lower than the
amount on the modified order. N.T. at 9. He also argued the court did not
include Mother‘s income from paragliding activities in the calculation of her
net income. Id. at 10-11.4
On December 23, 2019, the court entered a final order of support for
three periods: January 1, 2018, through April 17, 2018;5 April 18, 2018,
through June 23, 2019; and June 24, 2019, forward. For the first period, the
court assessed Mother’s annual earning capacity as an office clerk to be
$22,730; for the second and third periods, the court used Mother’s actual
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4 Father also argued the court miscalculated his rental income for 2017 based
on his 2016 tax return. As discussed below, we need not reach this issue, as
this period is not addressed by the order under appeal.
5The court erroneously labeled this period as commencing on “January 18,
2019,” rather than “January 1, 2018.” See Order, 12/23/19, at 1.
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income from full-time employment. For all three periods, the court added
Mother’s rental income of $718.67 per month to her assessed/employment
income. The court found Mother’s monthly net income to be $2,349.48 for the
first period, and $3,398.76, for the second and third periods.
For all three periods, the court assessed Father’s annual earning
capacity at $42,540.00, using the salary of “an experienced painter,
construction, [and] maintenance worker” from Carbon County Labor Market
of PA Occupational Wage Survey.” Order, 12/23/19, at 1. The court found
Father’s rental income to be $2,937.25 per month, and calculated his monthly
net income to be $5,773.79. The court ordered Father to pay support for each
period in the amount of $1,529, $1,461, and $1,549 per month, respectively,
plus arrears.6
The court noted that it calculated both parties’ rental incomes using their
2018 Federal Income Tax returns. It also stated it entered the order “without
prejudice to either party filing a Petition for Modification upon finalization of
the 2019 Federal Income Tax Returns.” Id. at 2.
Father appealed, and raises the following issues:
A. Did the trial court err and abuse its discretion by directing that
the evidentiary record in this matter be developed by way of
deposition testimony instead of a hearing before a judge of the
court as provided by Pennsylvania Rule of Civil Procedure
1910.11(i)?
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6 Although the parties’ assessed incomes remained constant between the
second and third periods, the amount of support differed based on changes in
childcare expenses.
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B. Did the trial court err and abuse its discretion by assessing
[Father] with hypothetical income as the assessment was not
warranted, the assessment resulted in a greater income than
would ordinarily be earned from one full time position and the
court failed to correctly apply Pa.R.C.P. 1910.16-2(C)(4)?
C. Did the trial court err and abuse its discretion in assessing
[Father’s] rental income for all time periods under consideration
as the amount of rental income assessed to [Father] was not
representative of [Father’s] cash flow from rental operations?
D. Did the trial court err and abuse its discretion in the assessment
of income to [Mother] in failing to consider any income from
[Mother’s] business activities including paragliding equipment
sales, other independent sales and [Airbnb] rentals?
E. Did the trial court err and abuse its discretion in allocating child
care expenses to [Father] as the amount of child care expenses
allocated are greater than what should be justified by the
circumstances of the parties[?]
Father’s Br. at 10-11 (unnecessary capitalization and suggested answers
omitted).
“Appellate review of support matters is governed by an abuse of
discretion standard.” J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa.Super. 2015)
(quoting R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013)). “[A]n abuse of
discretion requires proof of more than a mere error of judgment, but rather
evidence that the law was misapplied or overridden, or that the judgment was
manifestly unreasonable or based on bias, ill will, prejudice or partiality.”
Portugal v. Portugal, 798 A.2d 246, 249 (Pa.Super. 2002) (quoting Kersey
v. Jefferson, 791 A.2d 419, 423 (Pa.Super. 2002)). We will therefore only
reverse an order of support “where the order cannot be sustained on any valid
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ground.” Krebs v. Krebs, 944 A.2d 768, 772 (Pa.Super. 2008) (quoting
Mencer v. Ruch, 928 A.2d 294, 297 (Pa.Super. 2007)).
I. Use of Deposition Testimony
Father first argues the court erred in ordering the parties to take
depositions prior to the de novo hearing. Father asserts that Northampton
County has adopted Rule of Civil Procedure 1910.11, which provides that if
the court enters an order based on a conference officer’s recommendations,
and either party demands a hearing, the matter “shall” proceed to a hearing
before the court. See Pa.R.C.P. 1910.11(f), (i). According to Father, this
restricts development of the record to the de novo hearing.7 Father argues the
court’s practice of ordering depositions prior to the de novo hearing also
violates Rule 1910.1(b), which states that domestic relations matters shall
proceed in accordance with the Rules of Civil Procedure, as the Rules limit
situations in which deposition testimony may be admitted at trial. See Father’s
Br. at 23-24 (citing Pa.R.C.P. 4020).
Father further argues this practice prevented the court from assessing
Mother’s credibility, and placed a financial burden on the parties. Father claims
that although the court permitted the parties to testify and present evidence
at the September 2019 de novo hearing, the hearing was more akin to
argument, as the court told Father he could only speak “briefly,” due to the
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7 In contrast, Father argues, Rule 1910.12 provides that a party unsatisfied
with the support recommendation of the conference officer can elevate the
case for development of the record before a hearing officer, prior to
consideration by the court. See Pa.R.C.P. 1910.12(b)-(d).
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existence of the depositions, and did not allow Father to introduce a document
he had created with his accountant. Id. at 26 (citing N.T., 9/18/19, at 12),
28. Father contends that he raised this issue by demanding a de novo hearing,
as provided by the Rules.
As the trial court explains in its Rule 1925(a) opinion, Father did not
object to the order for depositions, but fully complied with the order. Tr. Ct.
Op. at 33. In addition, Father and Mother “were permitted to supplement the
record during multiple conferences and hearings and were permitted to submit
additional documents including the submission of Federal Tax Returns for
subsequent years,” and Father was “permitted to testify and submit
documentation at the September 18, 2019 hearing.” Id.We agree. Father did not object to the use of depositions when the court
ordered them, or when he submitted them at the de novo hearing in October
2018, or when the court stated that it would use the same depositions at the
de novo hearing in September 2019. Father’s failure to timely raise objection
to the procedure adopted by the trial court prevented the court from timely
addressing Father’s concerns, rectifying any defects, or alleviating any
perceived prejudice. We therefore find the issue to be waived. 8
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8 We are unpersuaded by Father’s attempts to avoid waiver. Christian v.
Allstate Ins. Co., 502 A.2d 192 (Pa.Super. 1985), which Father cites for
support, is distinguishable from the instant case. There, we declined to find
waiver, even though the appellant did not object to the court’s failure to hold
an evidentiary hearing, because the court could not have proceeded in that
case without a hearing to determine whether there had been a settlement
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II. Father’s Earning Capacity
Father next argues the court erred in assessing him with earning
capacity as “an experienced painter, construction, maintenance worker.”
Father’s Br. at 30 (quoting Order, 12/23/19). Father claims the court erred in
making this assessment without considering his earning history or other
statutory factors, and without finding that he willfully failed to obtain or
maintain appropriate employment. Father’s Br. at 33-34 (citing Pa.R.C.P.
1910.16-2(c)(4)). He points out that the court did not use an assessed income
for the period of September 11, 2017, through December 31, 2017, and there
was no discernable change in Father’s employment following that period.
He further contends the court erred in including both his rental income
and his assessed income in his net income, without first finding that Father
does not spend any time maintaining his rental properties. According to
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agreement. Id. at 194. Here, however, there was nothing to prevent the court
from proceeding to decide the issues in the support case based on the
evidence already presented by the parties. Father’s reliance on Bell Fuel
Corp. v. Cattolico, 544 A.2d 450 (Pa.Super. 1988), is likewise misplaced. In
Bell Fuel, we declined to find waiver where the appellant did not object when
the trial court abruptly terminated an evidentiary hearing on a preliminary
injunction matter and proceeded to argument on a motion for summary
judgment. Id. at 454 n.3. No such unanticipated, unorthodox procedure was
adopted here. Rather, the court announced in advance that it would decide
the support case using depositions, the parties acquiesced to this procedure,
and the court proceeded accordingly. Nor do we find this case akin to DiMonte
v. Neumann Medical Center, 751 A.2d 205 (Pa.Super. 2000), in which we
declined to fault the appellant for failing to object when the trial judge took
personal phone calls and engaged in other inappropriate behavior during a
jury trial. Id. at 210. Here, the court simply conformed to the procedure that
it had laid out months before, to which Father had ample opportunity to object.
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Father, the court thereby attributed more income to Father than one single,
full-time job. Father claims he maintains the properties himself, and does not
use a third-party manager.
Although the trial court was not bound by its previous orders, Father
was aware that the court had utilized an assessed earning capacity for Father
in generating both the April 5, 2019 interim order and May 31, 2019 modified
order, as recommended by the conference officer. See Tr. Ct. Op. at 19-20.
Nevertheless, at the de novo hearing, Father only raised a challenge to the
amount of his assessed earning capacity, on the basis that the court utilized
a high-end value from a statewide survey.9 Id. at 19. He did not argue that
the court should not have assessed him with any earning capacity, or should
not have classified him as a painter/construction/maintenance worker, or
should not have added his rental income to his earning capacity. Father waived
these issues by failing to raise them before the trial court. See Pa.R.A.P.
302(a).
Even if Father had not waived these issues, we would not find any abuse
of discretion. The court found Father “could realistically earn additional income
under the circumstances, considering his age, health, mental and physical
condition and training.” Tr. Ct. Op. at 25-26. The court noted that Father
testified he had been maintaining rental properties for 20 years or more, and
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9 In response, the court utilized the Carbon County Labor Market of PA
Occupational Wage Survey to glean Father’s assessed income for the final
order following the de novo hearing.
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determined that under the circumstances he could reasonably earn the
assessed income of $42,540 per year. Id. at 26.
III. Father’s Rental Income
Father complains the court erred in calculating his rental income by
using the rental income listed on his 2018 tax return and adding on the
amounts listed for depreciation and attorneys’ fees. He claims that although
he had asked the court to calculate his rental income in this manner in 2017,
it was error for the court to utilize the same method to calculate his 2018
rental income, as “[t]here had been no [e]videntiary [r]ecord made regarding
Father’s 2018 Tax Return.” Father’s Br. at 37. Father claims he lost several
rental properties in 2018 in the divorce settlement, and he made payments
on debts he incurred to maintain the properties that were not reflected on the
tax return. He also claims the court erred in its calculation because even
considering only the values on the 2018 return, Schedule E of the return
showed $7,130 income from rental operations, and $13,201 in claimed
expenses, which would have totaled an annual rental income of $20,331,
which does not support a monthly rental income of $2,937.25.
The parties’ 2018 tax returns, from which the court derived the parties’
rental incomes, are not included in the certified record. We therefore find the
issue of how the court calculated Father’s rental income waived. See Kessler
v. Broder, 851 A.2d 944, 950 (Pa.Super. 2004). Moreover, as the trial court
points out, it used the 2018 tax return in the way Father had requested the
court use his 2017 tax return earlier in the proceedings. See Tr. Ct. Op. at
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23-24 (citing Father’s Brief Upon De Novo Review, 10/15/18, at 12).
Regardless, we find no abuse of discretion in the court’s having gleaned the
rental income from the values Father declared when filing his federal income
taxes.
Father also challenges the court’s assessment of $5,409 per month in
rental income for the period from September 11, 2017, through December 31,
2017. Father claims it does not relate to the parties’ reported net rental
income of $19,863. However, this period was not addressed at the September
18, 2019 de novo hearing, or by the final order under appeal. Rather, this
period was covered by the order of November 14, 2018, which finalized the
October 26, 2017 order for the period September 11, 2017, through December
31, 2017. Father did not appeal that order. We are therefore unable to disturb
the findings of the court on this point.
IV. Mother’s Income
Father argues the court abused its discretion when determining Mother’s
income, because it did not consider her additional earnings from various
income sources.10 Father also claims the court did not consider statutory
factors in assessing Mother’s earning capacity, and that Mother failed to
comply with a Notice to Attend and produce all relevant information.
The court found Mother had minimal income from these sources during
the first period of support, and so it instead determined her income by using
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10These include renting out her home on Airbnb, selling wine for a direct sales
business, selling coffee online, and selling paragliding equipment.
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an assessed earning capacity and rental income. Tr. Ct. Op. at 27-28. The
court found there was no evidence that Mother had additional income sources
in the second or third periods, and therefore used only her rental income and
her actual income from full-time employment. Id. at 28. The court points out
that the order under appeal specifies that either party may file for modification
based on the 2019 tax returns. We find no abuse of discretion.
V. Childcare Expenses
Father’s final argument is that because the court miscalculated Father’s
and Mother’s incomes, it miscalculated their respective relative proportional
childcare responsibilities. As we find no abuse of discretion in the court’s
determination of the parties’ incomes, there is no basis for revising the
proportional childcare allocation.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
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