Tecce, L. v. Tecce, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
LINDA W. TECCE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ANTHONY S. TECCE, JR. : No. 1705 EDA 2022
Appeal from the Order Entered June 1, 2022
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-0091,
PACSES: 147115443
BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 29, 2023
Linda W. Tecce (“Wife”) appeals from the order denying her exceptions
to the amended support recommendation order, which the trial court deemed
as final, insofar as it established the amount of Anthony S. Tecce, Jr.’s
(“Husband”) income available for support payments. We affirm.
The relevant factual and procedural history underlying this appeal can
be summarized as follows. Husband and Wife were married in 1998 and have
three children: Gianna (born in 2000); Jaclyn (born in 2002); and A.T. (born
in 2013). In 2015, the parties filed for divorce; however, no divorce decree
has been entered in the matter, nor have all economic claims been resolved.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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In 2018, Wife, who is disabled with multiple sclerosis, sought spousal
and child support. At that time, Gianna was emancipated and attending
college. The trial court judge, Honorable Emmanuel Bertin, determined that
Husband, a general contractor, had an annual income of approximately
$63,000. Since then, Husband, has been paying spousal support and child
support to Wife. Because A.T. has resided with Wife, Husband pays Wife
$877/month in child support for A.T. However, because Jaclyn has resided
with Husband, he paid Wife only $302/month in child support for Jaclyn. In
2019, Wife filed a petition to modify the support order, claiming that
Husband’s income had increased beyond $63,000. Mindy Harris, Esquire, a
hearing officer, conducted evidentiary hearings on Wife’s petition in 2020 and
2021. In May 2021, Officer Harris prepared an order denying Wife’s petition
for modification. Wife filed exceptions to the May 2021 order challenging the
amount of Husband’s income.
The matter was transferred to Honorable Daniel Clifford, who remanded
the matter back to Officer Harris after it was discovered that Husband’s
testimony was missing from the hearing transcript. In June 2021, Jaclyn
became emancipated, and Wife filed an additional petition to modify the
support order on this basis. The petitions were consolidated, and Officer
Harris conducted an additional evidentiary hearing in August 2021. The
matter was then transferred to Honorable Patricia Coonahan, who conducted
a hearing on Wife’s exceptions and thereafter determined that no ruling could
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be made due to the lack of calculations and rationale by Officer Harris.
Specifically, Judge Coonahan determined that Officer Harris made no factual
findings as to the parties’ respective incomes in her May 2021 order and
provided no explanation as to how Wife failed to prove that Husband’s income
was greater than the amount set by the 2018 support order. Judge Coonahan
remanded for the issuance of an amended support recommendation order.
However, Officer Harris was no longer employed by the court. Accordingly,
the matter was assigned to another hearing officer, Jennifer Hekking, Esquire.
Officer Hekking reviewed the court record and considered the evidence
and testimony provided at the evidentiary hearings conducted by Officer
Harris. On January 25, 2022, Officer Hekking issued an amended support
recommendation order in which she credited the testimony provided by
Husband and his accountant and determined that Wife failed to meet her
burden of proving that there was a substantial and material change in
circumstances pertaining to Husband’s income. Wife filed exceptions
pertaining to the amount of Husband’s income, and Husband filed cross-
exceptions. The trial court conducted a hearing in May 2022, to permit oral
argument by the parties and thereafter entered an order on June 1, 2022,
denying the exceptions and cross-exceptions, and deeming as final the
amended support recommendation order of January 25, 2022. Wife timely
appealed the order. Husband did not cross-appeal the denial of his
exceptions. Both Wife and the trial court complied with Pa.R.A.P. 1925.
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Wife raises the following issues for our review:
1. Did the honorable trial court abuse its discretion and commit an
error of law in denying [Wife’s] exceptions to the findings of the
hearing officer who filed the amended support order that there
was no substantial change in [Husband’s] income available for
support to warrant modification of support for [Wife] and Child,
which findings are contrary to the evidence and capriciously
disregard competent evidence admitted into evidence by [Wife]
without objection from [Husband].
2. Did the honorable [trial] court commit an error of law and abuse
its discretion by disregarding or in failing to explain why
documentary evidence, in the form of bank statements and
checks, which was admitted into evidence without objection from
[Husband], proves that [Husband] failed to reveal income of
$92,065 is not a substantial change in income available for
support.
3. Did the honorable trial court abuse its discretion and commit an
error of law in adopting the following recommendations of the
hearing officer which are erroneous, not supported by the record,
contradicted by competent evidence, including documentary
evidence and contrary to law.
4. Did the honorable trial court abuse its discretion and commit an
error of law by determining that [Husband’s] income available for
support is $63,140. A review of the documentary evidence,
including bank statements, quick book reports, expenses, and
checks proves that [Husband’s] 2019 income available for
support is $185,205.
5. Did the honorable trial court abuse its discretion and commit an
error of law in failing to grant [Wife’s] request for retroactivity of
the support order and for attorney’s fees[.]
6. Did the honorable trial court abuse its discretion and commit an
error of law in failing to grant [Wife’s] request for temporary relief
in that on June 9, 2021, Jaclyn who resided with [Husband]
became emancipated. [Jaclyn] was not removed from the order
and [Husband] continues to get a reduction in his support
obligation, because [Husband] claimed to be unemployed.
[Husband] later abandoned that claim and asserted that his
income had not changed. The court will not remove Jaclyn from
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the order using the current income while the exceptions are
pending, and [Wife] continues to pay support for an emancipated
child. Neither the exceptions nor this appeal involves the
emancipated child.
Wife’s Brief at 2-4 (unnecessary capitalization omitted).1
As Wife’s first four issues are interrelated, we will address them
together. In each of these issues, Wife challenges the amended support
recommendation order. Our standard of review of an order awarding child
support is very narrow. See Gephart v. Gephart, 764 A.2d 613, 614-15 (Pa.
Super. 2000). We can reverse a support order only if we find that the order
cannot be sustained on any valid ground. Id. The decision of the trial court
will not be reversed absent an abuse of discretion or an error of law. Id. A
finding that there has been an abuse of discretion requires proof of more than
a mere error in 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. Id.____________________________________________
1 As indicated above, no divorce decree has been entered in the matter, nor
have all economic claims been resolved. Accordingly, this Court entered a
rule to show cause as to whether the June 1, 2022 order is final and appealable
with respect to spousal support. See Leister v. Leister, 684 A.2d 192 (Pa.
Super. 1996) (holding that spousal support claims are not appealable until all
economic issues have been resolved and a final divorce decree has been
entered). Wife filed a response acknowledging that the spousal support
portion of the order is not final, and, hence, not appealable. Thus, although
Wife purported to appeal the order as to both spousal and child support, we
may only consider her issues to the extent that they implicate child support.
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It is within the province of the trial court to weigh the evidence and
decide credibility, and this Court will not reverse those determinations so long
as they are supported by the evidence. See Brubaker v. Brubaker, 201
A.3d 180, 184-85 (Pa. Super. 2018); see also Mackay v. Mackay, 984 A.2d
529, 533 (Pa. Super. 2009) (holding that this Court is not free to usurp the
trial court’s duty as the finder of fact). Further, although a hearing officer’s
report and recommendation is only advisory, it must be given the fullest
consideration, especially on the issue of the parties’ credibility. See id.Child support is awarded pursuant to a statewide guideline established
by general rule by the Pennsylvania Supreme Court and is based upon the
needs of the child and the ability of the obligor to provide support. See 23
Pa.C.S.A. § 4322(a). In calculating a support award, the guidelines consider
several factors including a party’s earnings and earning capacity. See
Pa.R.Civ.P. 1910.16-2. 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. See Fitzgerald v. Kempf,
805 A.2d 529, 532 (Pa. Super. 2002). However, a court cannot attribute as
income funds not actually available to, or received by, the party. Id.When modification of a child support order is sought, the moving party
has the burden of proving by competent evidence that a material and
substantial change of circumstances has occurred since the entry of the
original or modified order. See McClain v. McClain, 872 A.2d 856, 863 (Pa.
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Super. 2005). The lower court must consider all pertinent circumstances and
base its decision upon facts appearing in the record which indicate that the
moving party did or did not meet the burden of proof as to changed conditions.
Id.In Wife’s first four issues,2 she argues the trial court erred and abused
its discretion in determining that there was no material or substantial change
in Husband’s income for support purposes. Wife claims that Husband has at
least $92,000 in unreported income, and that his true annual income exceeds
$150,000. Wife asserts that Husband opened joint bank accounts for Gianna
and Jaclyn and used those accounts to deposit large amounts of money
($175,000) purportedly earned from his business. Wife claims that Husband
then transferred only portions of those deposits to his business bank account,
resulting in $87,000 in business revenue that was never transferred to his
business account or recorded as income. Wife also claims that Husband takes
personal checks from clients and deposits a portion of the check in his business
account, deposits another portion in his personal account, and takes the
remainder of the check amount in cash. According to Wife, Husband is unable
____________________________________________
2 We observe that Wife’s discussion of her second issue relates a waiver
analysis and does not address the merits of the second issue, as set forth in
the statement of questions presented. See Pa.R.A.P. 2119(a) (providing that
each issue raised in the statement of questions presented shall be separately
set forth in the brief and shall be followed by a discussion and citation of
pertinent authorities). Although we could find that Wife waived her second
issue on this basis, we decline to do so.
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to account for where the cash went, as it is not reflected on any ledger. Wife
points out that Husband showed his accountant only the bank statements for
his business account, which Wife claims show just a portion of his true
earnings. Wife points out that the accountant acknowledged that he was
unaware of the amounts Husband was depositing in his joint accounts with his
daughters. Wife claims that Husband’s increased income is supported by the
fact that he increased the amount of his business insurance in 2019. Wife
points out that Husband applied for an auto loan in 2019 in which he listed his
income as $150,000. Wife also claims that Husband’s basic expenditures
(mortgage, utilities, food, gas, spousal and child support, etc.) far exceed
$63,000. Wife points out that: Husband purchased an Audi worth $66,000; a
Harley motorcycle; went on a vacation to Mexico with his girlfriend, her
children, and Jaclyn and Gianna; bought an expensive coffee maker; hosts
lavish parties; makes expensive personal purchases; and spends abundantly
on himself. Wife also claims that Husband falsely indicated that he purchased
appliances for his business, but Wife then saw the appliances in the marital
home where Husband resides, as well as new kitchen cabinetry.3
____________________________________________
3 The trial court determined that Wife’s first four issues were waived. The
court reasoned that all of Wife’s issues pertaining to Husband’s income are
non-reviewable because they challenged the calculation of Husband’s income
for purposes of “support” and did not specify “child support.” See Trial Court
Opinion, 8/23/2022, at 7-8. Our review of the record discloses that Wife filed
exceptions pertaining to the amount of Husband’s income for purposes of
“support,” which could reasonably include both spousal and child support.
(Footnote Continued Next Page)
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Here, the amended support recommendation order prepared by Officer
Hekking set forth her findings of fact based on the evidence and testimony
provided by the parties. Specifically, Officer Hekking determined that Wife
did not establish a material and substantial change in circumstances relating
to Husband’s income. See Amended Support Recommendation Order,
1/25/22, at 2. In arriving at her determination, Officer Hekking credited the
testimony provided by Husband’s accountant that Husband is “very
unorganized in his business/record keeping,” and that Husband’s “gross 2019
income was $60,000 allowing for add-backs that, although deductions for IRS
purposes, are not for child support purposes.” Id. at 1. Officer Hekking also
credited Husband’s testimony that he made improvements to the marital
home, in which he resides, by using cabinetry from another job that could not
be returned by installing the cabinets himself to save on labor costs. See id.
Officer Hekking also credited Husband’s testimony that the large deposits and
withdrawals that were made into and out of his joint account with Jaclyn were
made “at a time when his personal bank account was frozen[,] and he was in
the middle of an active job [and h]e did not want to risk a customer
payment/deposit for materials etc. be frozen when he needed to start the job.”
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See Wife’s Support Exceptions, 2/10/22, at 1-6; see also Wife’s Support
Exceptions, 6/4/21, at 1-7. Accordingly, we conclude that, to the extent that
Wife’s first four issues present a challenge to the calculation of Husband’s
income for purposes of child support, they are not waived, and we will review
the merits of those issues.
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Id. at 2. Finally, Officer Hekking credited Husband’s testimony that he
receives financial assistance from his girlfriend and family members who help
him with his mortgage payments, motorcycle loan, and vacations, and that he
received an expensive coffee machine from a client who no longer had use for
it. See id. at 1-2.
The trial court considered the parties’ cross-exceptions to Officer
Hekking’s amended support recommendation order, along with their briefs,
before it conducted a hearing on the cross-exceptions. At the hearing, counsel
for each party presented oral arguments consistent with their respective
positions. See N.T., 5/12/22, at 1-29. On June 1, 2022, the trial court
entered an order denying both Wife’s and Husband’s exceptions. See Order,
6/1/22, at 1. The trial court also deemed as final the January 25, 2022
amended support recommendation order. See Docket, 6/1/22.
As explained above, this Court may only reverse a support order if the
order cannot be sustained on any valid ground, and the trial court has
committed an abuse of discretion or error of law. Based on our review, we
discern no abuse of discretion or error of law by the trial court in denying
Wife’s exceptions and adopting as final the amended support recommendation
order prepared by Officer Hekking. Wife essentially asks this Court to reweigh
the evidence and reassess the credibility of Husband and his accountant. This
we cannot do. It is not the role of this Court to reweigh the evidence or make
credibility determinations. See Brubaker, 201 A.3d 184-85. As the trial
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court, Officer Harris, and Officer Hekking credited the evidence and testimony
presented by Husband and his accountant regarding Husband’s income, we
must accept those credibility determinations. See id.; see also Mackay, 984
A.2d at 533 (holding that this Court is not free to usurp the trial court’s duty
as the finder of fact, and that a hearing officer’s report and recommendation
must be given the fullest consideration, especially on the issue of the parties’
credibility).
Moreover, Husband’s accountant testified that Husband is a general
contractor who does small construction projects and renovations. See N.T.,
12/4/20, at 5. The accountant explained that Husband has no administrative
staff and runs his business by himself, including making deposits, preparing
invoices, and making payments. See id. The accountant testified that
Husband is disorganized, and the accountant has to go through bank and
credit card statements to determine costs of materials, goods, and other
expenses. Id. at 6. The accountant explained that Husband had a much
larger project than usual in 2019, which made his taxes more complex due to
the need to use subcontractors and obtain their tax identification numbers and
issue form 1099 payments to them. Id. at 7. The accountant testified that,
because Husband did not obtain proper forms with tax identification
information from some of the subcontractors, the accountant was unable to
prepare 1099 forms for some of them. Id. at 7, 23-24. The accountant
explained that Wife’s calculations improperly counted as income certain
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withdrawals that Husband made from his business account without
recognizing that Husband put portions of those withdrawals back into his
business account. See id. at 16-17. The accountant testified that Husband
sometimes purchased construction materials with his personal funds, which
constituted monies that Husband put into his business. Id. at 20-21. The
accountant explained that 2020 was a very bad year for Husband, and that in
addition to Husband having to file for unemployment benefits, he was getting
a knee replacement and would not be working much. Id. at 65. Ultimately,
the accountant testified that Husband’s 2019 income for support purposes was
between $55,000 and $60,000. Id. at 38.
Husband explained that friends, family, and his girlfriend helped him
with his expenses in 2019 and especially in 2020. See N.T., 4/16/21, at 50,
54. Husband explained that, when the pandemic hit, he began receiving
unemployment income, and used his unemployment income and stimulus
check to pay expenses in 2020. See id. at 54. Husband explained that his
trip to Mexico was a birthday gift for which he did not pay. See id. at 10, 11.
Husband explained that he lied to the bank concerning his income when
applying for an auto loan. See id. at 22. Husband explained that he uses
unemployment income to pay his auto loan, and his girlfriend pays for his
motorcycle loan. See id. at 14, 26, 58-59.
In sum, Husband and his accountant provided testimony and evidence
indicating that his 2019 income was between $55,000 and $60,000. Thus, as
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the record supports the trial court’s determination that there has been no
material and substantial change in Husband’s income, Wife’s first four issues
merit no relief.
Wife’s fifth issue, as set forth in her statement of questions presented,
concerns the trial court’s failure to grant her request for retroactivity of the
support order and for attorney’s fees. With respect to Wife’s request for
retroactivity, she does not explain when or how she requested retroactivity of
any support order, or where such request may be found in the record. See
Pa.R.A.P. 2119(c) (providing that “[i]f reference is made to . . . any matter
appearing of record, the argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place in the record where
the matter referred to appears”). Moreover, as no modification has been
made concerning the amount of child support Husband must pay to Wife, it is
unclear as to what support order the trial court purportedly failed to apply
retroactively.
With respect to attorneys’ fees, Wife vaguely explains that, “at the April
16, 2021 re-open hearing[, she] submitted an attorney’s affidavit and
itemized bill for events that related to the petition to re[-]open and [her]
subpoena to PNC. [Wife] requested $5,055.63.” Wife’s Brief at 47. However,
Wife does not direct this Court to the place in the record where the subject
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request for attorneys’ fees may be found. See Pa.R.A.P. 2119(c).4 Nor does
Wife explain how that request is in any way related to the January 25, 2022
amended support recommendation order at issue in this litigation, which made
no mention of, or finding related to, any request for attorneys’ fees.5
Finally, Wife does not explain what relief she requests from this Court
regarding attorneys’ fees or retroactivity. Mere issue spotting without analysis
or discussion of pertinent legal citation to support an assertion precludes our
appellate review of a matter. See Coulter v. Ramsden, 94 A.3d 1080, 1088-
89 (Pa. Super. 2014); see also Irwin Union Nat’l Bank and Trust Co. v.
Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa. Super.
2010) (holding that this Court will not act as counsel and will not develop
arguments on behalf of an appellant). In short, Wife’s fifth issue is woefully
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4 Our review of the April 16, 2021 hearing transcript does not reveal any oral
request for attorneys’ fees; however, appended to the transcript is an exhibit
with an invoice for attorney’s fees incurred in relation to the preparation of a
petition to re-open support proceedings and a subpoena to PNC. See N.T.,
4/16/21, at 5 and Exhibit P-16.
5 Moreover, following the April 16, 2021 hearing, Officer Harris entered an
order on May 20, 2021 denying Wife’s petition to modify. Although Wife filed
exceptions to that order, Wife did not file any exception pertaining to the
denial of, or failure to rule upon, a request for attorneys’ fees. See Wife’s
Support Exceptions, 6/4/21, at 1-7. Thus, if, in fact, Wife requested an award
of attorneys’ fees prior to or at the April 16, 2021 hearing, she waived any
challenge to the denial of, or failure to rule upon, that request by failing to
raise the issue in her exceptions to the May 20, 2021 order. See Pa.R.Civ.P.
1910.12(f) (providing that “[m]atters not covered by exceptions are deemed
waived unless, prior to entry of the final order, leave is granted to file
exceptions raising those matters”).
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undeveloped, and such lack of development impedes meaningful appellate
review. See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (holding that,
where defects in a brief impede our ability to conduct meaningful appellate
review, we may find the certain issue to be waived). Accordingly, we deem
Wife’s fifth issue waived.
In her sixth issue, Wife asserts that the trial court abused its discretion
by failing to grant her temporary relief in the amount of child support she
receives due to Jaclyn becoming emancipated. Initially, we must determine
whether wife preserved the issue for our review. Generally, matters not raised
in exceptions are waived unless, prior to entry of the final support order, leave
is granted to file exceptions raising those matters. See Pa.R.Civ.P.
1910.12(f); see also Pa.R.A.P. 302(a) (providing that issues not raised in the
trial court are waived and cannot be raised for the first time on appeal).
The trial court determined that the issue was waived because Wife did
not raise any exception regarding Jaclyn’s emancipation or the impact it had
on Husband’s child support obligation. See Trial Court Opinion, 8/23/22, at
7-8. Our review of the record discloses that Wife did not raise any exception
regarding Jaclyn’s emancipation or its impact on the amount of Husband’s
child support obligations. Accordingly, Wife failed to preserve her final issue
for our review. See Pa.R.A.P. 302; Pa.R.Civ.P. 1910.12(f).
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As none of Wife’s issues merit relief, we affirm the trial court’s order
denying Wife’s exceptions and deeming as final the amended support
recommendation order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2023
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