J-A25033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

LESLIE M. CERF,                           : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
HENRY S. McNEIL, JR.,                     :
                                          :
                  Appellee                : No. 348 EDA 2015

            Appeal from the Order entered December 30, 2014,
               Court of Common Pleas, Philadelphia County,
          Family Court at No. 00-01231 – PACSES No. 765104114

BEFORE: PANELLA, DONOHUE and MUNDY, JJ.

DISSENTING MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 21, 2015

      I agree with the learned Majority that this appeal is properly before us

for decision. I respectfully disagree, however, with the result it reaches. In

my view, the trial court erred by denying, in part, Mother’s exceptions to the

support master’s child support order.

      I begin by setting forth the facts of this extremely complicated case,

the greater part of which the Majority appears to overlook in its adoption of

the trial court’s recitation of the facts. Mother and Father are the parents of

two minor children of whom they enjoy equally shared physical custody. On

March 26, 2013, Mother filed a petition to modify the 2009 child support

order, which the trial court had entered using the Melzer1 analysis



1
  Melzer v. Witsberger, 480 A.2d 991 (Pa. 1984). In 2010, our Supreme
Court adopted Rule of Civil Procedure 1910.16-3.1, which created a support
guideline for high-income cases (when the parties’ combined net monthly
J-A25033-15


previously used in high income cases. In Mother’s request for modification,

she averred that Father’s income increased beginning in 2011 “by millions of

dollars” and that she only learned about this increase in income in March of

2013. Petition for Modification, 3/26/13, ¶¶ 6-7.

      A hearing was held before a support master on May 12, 2014, at which

Mother and Father testified.   Evidence was presented that in 2011, Father

sold artwork for which he received approximately $7,500,000 in capital

gains. Evidence was also presented that Father was the beneficiary of trusts

from which he received distributions to fund his lifestyle. The trusts can be

traced back to 1959, at which time Father’s father, Henry Slack McNeil, Sr.

(“Grandfather”), established five inter vivos trusts to benefit his family

members. Of relevance to the case at bar,2 one such trust was established

to benefit Father, his future spouse and his lineal descendants (“the Henry

Trust”), and another trust to benefit Grandfather’s wife, Lois McNeil, as well

as Grandfather’s lineal descendants (“the Lois Trust”).      The original trust

documents indicated that the trusts were “Delaware trust[s] … to be



income is more than $30,000), ending the utilization of the Melzer analysis
for determining high income support cases.          Pa.R.C.P. 1910.16-3.1,
Explanatory Comment – 2010.
2
   A full recitation of the facts surrounding the creation of the trusts and the
disputes that arose can be found in the decisions of the Delaware Chancery
Court of New Castle County, Bishop v. McNeil, 1999 WL 743489 (Del. Ch.
Sept. 14, 1999) (unpublished memorandum), and McNeil v. Bennett, 792
A.2d 190 (Del. Ch. 2001), aff’d in part, rev’d in part sub nom. McNeil v.
McNeil, 798 A.2d 503 (Del. 2002). See Mother’s Exhibit P-18.


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J-A25033-15


governed, administered and construed according to the laws of Delaware.”

Father’s Exhibits D-3 (Deed of Trust for the Lois Trust, Article Seven), D-4

(Deed of Trust for the Henry Trust, Article Seven).

      Disputes concerning the administration and distribution of the Henry

Trust and the Lois Trust arose in or around 1995. Litigation in the Delaware

chancery court ensued, ultimately resulting in the parties agreeing to the

division of the trusts into multiple, separate trusts. While awaiting favorable

tax rulings by the Internal Revenue Service, the Delaware chancery court

entered an order by stipulation of the parties on February 6, 2003.         Of

relevance to the appeal before us, the order called for distributions to Father

to be made according to the unitrust method, specifically providing for the

percentage for the 2002 distribution (3½ percent) and calling for a “payout

percentage” in 2003 that would provide Father with $7,500,000. Mother’s

Exhibit P-18 (Stipulated Order and Judgment, 2/6/03, ¶¶ 6-7). The order

further permitted Father to “request special distributions or loans” from the

trusts for home improvements or to facilitate the purchase of art. Id., ¶ 8.

      In 2004, upon the receipt of the anticipated tax rulings from the IRS,

the chancery court formally created trusts solely for the benefit of Father,

his wife, and his lineal descendants and their spouses, excluding Father’s

two adult children from his first marriage, from the now-subdivided Henry

Trust and Lois Trust (hereinafter referred to as “Father’s Resulting Trusts”).

See Mother’s Exhibit P-18 (Chancery Court Order, 3/3/04). Father receives



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J-A25033-15


disbursements from Father’s Resulting Trusts, which are his primary source

of income. N.T., 5/12/14, at 163; Mother’s Exhibit P-17.

      In 2011, 2012 and 2013, Father received $2,000,000 each year in

distributions from Father’s Resulting Trusts.     At the hearing before the

support master on Mother’s request for modification of her child support

award, Mother argued that the entirety of the trust distributions was

“income” available for child support.3 Father claimed that only the portion of

the distributions that constituted interest earned on the corpus of the trust,

which, according to his tax return, was approximately $500,000 per year,


3
    The Domestic Relations Code defines “income” available for support 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.A. § 4302 (emphasis added).


                                     -4-
J-A25033-15


was income for child support purposes.         Prior to the hearing, Mother had

attempted, without success, to obtain information from both Father and the

one of trustees of Father’s Resulting Trusts, Brett W. Senior, Esquire, 4

regarding   the    breakdown   of   interest    and   principal   for   the   trust

disbursements Father received.      Counsel for Father attempted to assist

Mother in her efforts, but was likewise unable to obtain the requested

information.   Based upon the documents that Father’s Resulting Trust did

provide, Mother argued before the support master that the distributions from

the trust were made pursuant to the unitrust method. She further argued

that because the trust increased in value in 2011, 2012 and 2013, despite

substantial disbursements made to Father, the disbursements made could

not be of the principal of the trust. Father countered that the value of the

trust decreased from its creation in 2004 (at which time it was worth

$54,531,042) until 2013 (at which time it was worth $45,727,207), which

proved that the distributions he received from 2011 through 2013 were from

the principal of the trust.5




4
    Attorney Senior also served as Father’s financial advisor.       Mother
subpoenaed Attorney Senior, who obtained separate counsel and sought a
protective order. Thereafter, Mother did not pursue the matter further.
5
   The record reflects that large withdrawals were made from Father’s
Resulting Trusts from 2005 through 2008 (totaling $27,984,350), and that
the trusts depreciated significantly in 2008 (down $6,945,599). Mother’s
Exhibit P-17.


                                     -5-
J-A25033-15


      On August 26, 2014, the master filed a recommendation and proposed

support order, finding that pursuant to Pa.R.C.P. 1910.16-3.1, Mother was

entitled to an increase in child support from $9229.58 monthly to

$10,014.06 monthly, retroactive to January 1, 2011.        The master further

recommended that Father pay $1000 per month in arrears, making his new

total monthly child support obligation $11,014.06.           In reaching this

conclusion, the support master included $7,545,178 in capital gains Father

received from the sale of artwork as income for Father, prorating it over the

minority of the children. Further, relying on Humphreys v. DeRoss, 790

A.2d 281 (Pa. 2002),6 the support master included only $500,000 of the

trust disbursements as Father’s income in calculating his support obligation.



6
   In Humphreys, our Supreme Court held that a lump sum received by a
father constituting the proceeds of the sale of his deceased mother’s house
sold by the decedent’s estate did not qualify as income available for child
support, more specifically, that it did not meet the definition of “income from
an interest in an estate or trust.” Humphreys, 790 A.2d at 284-85.

                Considering that inheritance is one of the most
            common means by which wealth is transferred, it
            defies logic that the legislature would not have
            clearly provided for inheritance within the statutory
            definition of income if that were its intent. … In light
            of the fact that we can find no principled way of
            fitting the corpus of an inheritance into the statutory
            definition of “income”, we hold that it may not be so
            included.

Id. at 285, 287. Our Supreme Court therefore found that only the income
generated from a parent’s interest in a trust or inheritance may be
considered income, and not the principal or the corpus of the trust or
inheritance.


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J-A25033-15


     On September 15, 2014, Mother filed exceptions to the master’s

recommendation and proposed support order, alleging:

        1. The [m]aster erred by failing to include in Father’s
           income the full amounts of his distributions from two
           trusts, which amounts were at least $2,500,000 in
           2011, $2,000,000 in 2012, and $2,000,000 in 2013
           ….

                                *    *    *

        2. The [m]aster erred in finding that Father’s only
           income from the trusts for child support purposes
           was $500,000 in “interest income” when Father’s
           2011 tax return showed that Father had $710,046 in
           interest income (most of which was tax exempt),
           dividend income and trustee fees and Father’s 2012
           tax return showed that Father had $657,889 in
           interest income (most of which was tax exempt),
           dividend income and trustee fees.

        3. The [m]aster erred by including a reduction for
           equally shared custody for a period before Father
           was given equally shared physical custody by
           agreement in March 2013.

        4. The [m]aster erred by omitting [e]xhibit P-18 from
           the list of Mother’s exhibits.

        5. The [m]aster erred by directing that arrears should
           be paid at a rate of $1,000 per month when the
           arrears should be paid in a lump sum or at least be
           paid at a much faster rate.

        6. The Master erred by not directing that Father pay
           toward Mother’s legal fees.

Exceptions to Proposed Order of Support, 9/15/14 (factual averments

omitted).




                                    -7-
J-A25033-15


        The trial court held argument on Mother’s exceptions on November 24,

2014.    At that time, Mother and Father indicated that they could resolve

exceptions two through five by stipulation.7 The majority of the argument



7
  The agreed upon order authored by the trial court on December 4, 2014,
and filed on January 5, 2015, states:

          1. This [o]rder shall be without prejudice to the issue of
             whether [Father’s] income for child support purposes
             should include the full amounts of his distributions
             from two trusts, which issue will be decided by this
             [c]ourt after reviewing the briefs submitted by each
             party.

          2. Father’s 2011 income shall include the $710,046 in
             interest income, dividend income and trustee fees
             reported on Father’s 2011 federal tax return, and
             Father’s 2012 income shall include Father’s $657,889
             in interest income, dividend income and trustee fees.

          3. The support calculation for the period from January
             1, 2011 through March 31, 2013 shall be made using
             a shared custody adjustment based on Father having
             43% physical custody during that period.           The
             support calculations for the period from April 1, 2013
             forward shall be made using a shared custody
             adjustment based on Father having 50% physical
             custody during that period.

          4. Exhibit P-18 shall be considered as having been
             admitted as one of Mother’s Exhibits.

          5. The arrears shall be paid at a rate of $2,000 per
             month,    without   prejudice  to    this   [c]ourt’s
             determination on the payment of any additional
             arrears that may result from this [c]ourt’s decision
             referenced in paragraph one above.

          6. This [o]rder shall be without prejudice to the issue of
             Mother’s exception to the [m]aster’s decision not to


                                      -8-
J-A25033-15


presented addressed the first exception raised by Mother. On December 30,

2014, the trial court entered an order granting exceptions two through five,

as agreed by the parties, and ordered “an administrative remand” for the

master “to determine, for the record, that the final figures are consistent

with the current support guidelines.”      Trial Court Order, 12/30/14, at 1.

Regarding exception six, related to the payment of Mother’s counsel fees,

the trial court stated that it would reopen the record and hear evidence on

this issue, if requested.   Id.   Finally, regarding Mother’s first exception

pertaining to the master’s exclusion of the bulk of Father’s trust distributions

as income available for child support purposes, the trial court found that

Mother failed to satisfy her burden of proving that the entirety of the trust

distributions should have been treated as income.         Id. at 1-2.     Citing

Humphreys, the trial court found that the master “correctly and proper[]ly

based the recommended order solely on the law and the evidence before

him[.]”   Id. at 2.     The trial court went on to say that “[t]he certain

‘discovery’ issues raised[] could very well have resulted in a different

recommendation by the master.        The obtaining of the evidence and the

proper person to testify is clearly not the province of this court nor the


            award Mother counsel fees.        That issue shall be
            decided by this [c]ourt.

          7. The lien that has been placed on Father’s bank
             account shall be lifted.

Agreed Order, 1/5/15.


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J-A25033-15


[m]aster.     Ample time was afforded counsel, but evidence was not

produced.” Id.

      I now turn to address the issues Mother raises on appeal.      She

presents three questions for review:

         1. Did the trial court err as a matter of law and abuse
            its discretion by excluding form the calculation of
            income available for child support the majority of
            [Father]’s net income from a [t]otal [r]eturn
            [u]nitrust?

         2. Did the trial court err as a matter of law and abuse
            its discretion by placing a burden of proof on
            [Mother] to rebut [Father]’s bald assertion that some
            of his unitrust income constituted principal of the
            trust rather than income of the trust?

         3. Did the trial court err as a matter of law and abuse
            its discretion by not finding that Father failed to
            meet his burden of proving that some portion of the
            unitrust distributions to him should not be
            considered income for child support purposes?

Mother’s Brief at 6.

      This Court reviews a child support order according to the following

standard:

                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,



                                    - 10 -
J-A25033-15


            prejudice, bias or ill will, discretion has been abused.
            In addition, we note that the duty to support one’s
            child is absolute, and the purpose of child support is
            to promote the child’s best interests.

Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super. 2012) (citation

omitted).

      Mother asserts that the trial court erred by finding only that a small

percentage of the trust distributions Father received from 2011 through

2013 constituted “income” for child support purposes. Mother’s Brief at 14,

24-30. She contends that the trial court failed to consider that the trusts in

question are unitrusts, not traditional income trusts, and that under the

Delaware Uniform Principal and Income Act,8 all of the distributions received

by Father during the pertinent timeframe should have been considered

income. Id. at 26-30. Mother further states that because the trust gained

value from 2011 through 2013, the disbursements made to Father in those

years could not have been from the corpus of the trust, rendering

Humphreys and its progeny inapposite.9 Id. at 30-33.




8
  12 Del. C. §§ 61-101–61-107. I note that Pennsylvania also has adopted
the Uniform Principal and Income Act. See 20 Pa.C.S.A. §§ 8101-8107.
9
  The Superior Court in Jacobs v. Jacobs, 884 A.2d 301 (Pa. Super. 2005),
subsequently applied the holding of Humphreys to monetary gifts received
by a parent. The Jacobs Court held that like an inheritance, “[a] gift is not
given in exchange for services, so it does not fit into the statutory definition
of income. Accordingly, the corpus of a gift cannot be considered in the
calculation of income for support purposes.” Id. at 307; see also Suzanne
D. v. Stephen W., 65 A.3d 965, 972 (Pa. Super. 2013).


                                     - 11 -
J-A25033-15


      In the trial court’s 1925(a) opinion, adopted by the Majority to resolve

this appeal, the trial court states that based upon the evidence presented,

the support master did not err in failing to include the entirety of the trust

disbursements as Father’s income.        Trial Court Opinion, 3/24/15, at 7-8.

The trial court noted that the trust overall decreased in value from 2004

until 2013, and concluded that the fact that the trust increased in value

between 2011 and 2013, despite large disbursements made to Father, did

not alone establish that the disbursements made to Father between 2011

and 2013 were not principal. Id. at 7.

      In his responsive brief, Father assails Mother’s citation on appeal to

Delaware trust law as controlling authority in this case and asserts that she

waived any reliance upon the Delaware Uniform Principal and Income Act by

failing to raise this argument below. Father’s Brief at 28. I disagree that

Mother waived her claim that Father’s Resulting Trusts are unitrusts

governed by Delaware law. The record reflects that Mother consistently and

repeatedly argued before both the support master and the trial court that

Father’s Resulting Trusts are unitrusts and that the entirety of the

distributions received by him from 2011 through 2013 should therefore be

treated as income available for child support. See, e.g., N.T., 5/12/14, at

196; N.T., 11/24/14, at 10-12, 14, 27; Mother’s Post-Trial Brief, 12/30/14,

at 15-16.     Furthermore, the exhibits entered into evidence before the

support master lead to the unquestionable conclusion that Delaware law



                                    - 12 -
J-A25033-15


applies for the construction, governance and administration of Father’s

Resulting Trusts.10    See Mother’s Exhibit P-18 (Stipulated Order and

Judgment, 2/6/03, ¶ 3); Father’s Exhibits D-3 (Supplemental Deed of Trust

for the Lois Trust, ¶ C), D-4 (Supplemental Deed of Trust for the Henry

Trust, ¶ C).

      Father further denies that Father’s Resulting Trusts are unitrusts.

Father’s Brief at 25 n.9, 26-29.   In raising this claim for the first time on

appeal, Father ignores the statements made by his counsel before the trial

court at the hearing on Mother’s exceptions. At that time, Father’s counsel

conceded that Father’s Resulting Trusts are unitrusts.      See, e.g., N.T.,

11/24/14, at 33 (Father’s counsel stating, “[T]he [c]hancery [c]ourt … ruled

on the investment vehicle for the trust, and approved it as a unitrust”), 36-

37 (“when they went to the unitrust, and the market became much more

volatile, they decided to give him a fixed amount”).        Indeed, Father’s

counsel informed the trial court that it was “bound by the fact that the trust

converted to a unitrust by judicial authorization.”   Id. at 69.   Statements

made by counsel during legal proceedings are binding upon his or her client.

See Commonwealth v. Johnson, 961 A.2d 877, 882 (Pa. Super. 2008);



10
   Although not included in the certified record on appeal, I observe that the
reproduced record contains Father’s answer to Mother’s motion to compel
answers to her request for the production of documents. See Reproduced
Record at 49a-58a.      Therein, Father acknowledged that the trusts in
question “are Delaware [t]rusts subject to the jurisdiction of the Delaware
[c]hancery [c]ourt[.]” Id. at 53a (¶ 9).


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J-A25033-15


Sule v. W.C.A.B. (Kraft, Inc.), 550 A.2d 847, 849 (Pa. Super. 1988).

Father therefore cannot be heard on appeal contending to the contrary. See

id.

      In the prior litigation concerning the Lois Trust, the Delaware Supreme

Court explained the unitrust method for making trust distributions as

follows:

                  The unitrust approach is designed to preserve
              principal by establishing a fixed and ascertainable
              pay out while at the same time broadening the
              source of distribution in periods, as at present, when
              income, particularly dividends, are of minor
              significance in measuring the growth of an equities-
              based trust … . [T]he unitrust approach is merely a
              policy for distribution. The trustees continue to have
              the authority to invade principal to accommodate
              any unusual needs. … [T]he unitrust policy may also
              serve to redress the uncertainty and potential for
              friction between beneficiaries which engenders
              litigation.

McNeil, 798 A.2d at 512. Delaware law refers to trusts distributed pursuant

to the unitrust method as “total return unitrusts.”     See 12 Del. C. §§ 61-

106, 61-107. It defines a total return unitrust as an income trust that was

converted such that the “unitrust amount is treated as the net income of the

trust.”    12 Del. C. § 61-106(a)(5).   The “unitrust amount” is “an amount

computed as a percentage of the fair market value of the trust.” 12 Del. C.

§ 61-106(a)(8).

              The percentage to be used in determining the
              unitrust amount shall be a reasonable current return
              from the trust, in any event not less than 3 percent
              nor more than 5 percent, taking into account the


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J-A25033-15


             intentions of the trustor of the trust as expressed in
             the governing instrument, the needs of the
             beneficiaries, general economic conditions, projected
             current earnings and appreciation for the trust, and
             projected inflation and its impact on the trust.

12 Del. C. § 61-106(f).

      A trust may be designated a “total return unitrust” expressly in its

governing document, see 12 Del. C. § 61-107, or by the approval of a

majority of the trustees or the chancery court.         See 12 Del. C. § 61-106.

Unless prohibited by the trust instrument, a majority of the trustees or the

chancery court may also approve the conversion of a total return unitrust

back into a traditional income trust. 12 Del. C. §§ 61-106(b)(2), (c)(2), (d),

61-107(e).

      Unless   the   terms    of   the     trust   instrument   dictate   otherwise,

distributions made from a total return unitrust are deemed to have come

from the following sources, in order of priority:

             (1) From net accounting income determined as if the
             trust were not a unitrust;

             (2) From ordinary income not allocable to net
             accounting income;

             (3) After calculating the trust’s capital gain net
             income as described in Internal Revenue Code
             (“I.R.C.”) § 1222(9) [26 U.S.C. § 1222(9)], from net
             realized short-term capital gain as described in I.R.C.
             § 1222(5) [26 U.S.C. § 1222(5)] and then from net
             realized long-term capital gain described in I.R.C. §
             1222(7) [26 U.S.C. § 1222(7)]; and

             (4) From the principal of the trust.



                                         - 15 -
J-A25033-15



12 Del. C. § 61-107(h); see also 12 Del. C. § 61-106(h). The “net income”

of the trust is “the total receipts allocated to income during an accounting

period minus the disbursements made from income during the period, plus

or minus transfers under this chapter to or from income during the period.”

12 Del. C. § 61-102(8).    “Income” is “money or property that a fiduciary

receives as current return from a principal asset.” 12 Del. C. § 61-102(4).

“Principal” is “property held in trust for distribution to a remainder

beneficiary when the trust terminates.” 12 Del. C. § 61-102(10).

     In the case at bar, Mother presented evidence that prior to their

subdivision, both the Henry Trust and the Lois Trust were converted from

traditional income trusts to total return unitrusts. See Mother’s Exhibit P-18

(Bishop v. McNeil, 1999 WL 743489, * 17 (Del. Ch. Sept. 14, 1999)

(unpublished memorandum)); McNeil v. McNeil, 798 A.2d 503, 512 (Del.

2002).   Upon subdividing the two trusts (for the creation of Father’s

Resulting Trusts) the Delaware chancery court continued to call for

distributions to be made to Father using the unitrust method. See Mother’s

Exhibit P-18 (Stipulated Order and Judgment, 2/6/03, ¶¶ 6-7). As admitted

by Father, he continues to receive distributions pursuant to the unitrust

method. N.T., 11/24/14, at 36-37.

     “[I]t is well established that both parents are equally responsible for

the support of their children.”   Samii v. Samii, 847 A.2d 691, 696 (Pa.




                                    - 16 -
J-A25033-15


Super. 2004) (citation omitted). Thus, “[t]he starting point for calculation of

a parent’s child support obligation is a determination of each party’s income

available for support.” Mencer v. Ruch, 928 A.2d 294, 297-98 (Pa. Super.

2007).   In a support modification case, the petitioner bears the burden of

proving that a “material and substantial change in circumstances” occurred

warranting modification of the support obligation. Kimock, 47 A.3d at 855;

Pa.R.C.P. 1910.19.

      Mother, as petitioner in the case at bar, met her burden of proof that

Father experienced a substantial change in circumstances based upon the

approximately $7,500,000 capital gains he received in 2011. Because this

was the first post-Melzer modification of the parties’ support order, the

support master also had to, for the first time, determine the parties’ income

under the guidelines, which differs from the definition of income available for

support under Melzer.     Compare Melzer, 480 A.2d at 996 (stating that

income available for support is “the amount of each parent’s income which

remains after the deduction of the parent’s reasonable living expenses”)

with Pa.R.C.P. 1910.16-2 (stating “the amount of support to be awarded is

based upon the parties’ monthly net income,” as defined in that section,

which does not deduct the parents’ living expenses).

      Case law is silent regarding who bears the burden of proving the

amount of income available for child support under the guidelines in a post-

Melzer support modification case. Based upon the unique facts of this case,



                                    - 17 -
J-A25033-15


however, I need not answer this question. Father’s sole source of income

(outside of the capital gains income he received in 2011 and trustee fees11)

is from Father’s Resulting Trusts.   As the trusts in question are Delaware

unitrusts, section 61-106(h) presumes that distributions from total return

unitrusts are made from the trusts’ net income.     12 Del. C. § 61-106(h).

Thus, the burden in the case at bar was on Father to rebut that presumption

with proof that the trust distributions came from the principal of the trusts,

as he alleged.

         The record reflects that in 2011, 2012 and 2013, Father received

$2,000,000 in unitrust distributions from Father’s Resulting Trusts.     N.T.,

5/12/14, at 83, 94.12 As stated above, Pennsylvania law only excludes from

the definition income available for child support the corpus or principal of a

trust.    See Humphreys, 790 A.2d at 284-85, 287; Jacobs, 884 A.2d at

307; 23 Pa.C.S.A. § 4302.     The only evidence Father presented regarding

the source of the trust disbursements was his 2011 and 2012 tax returns,

which indicated that $660,046 of the disbursements he received in 2011 and

$607,871 in 2012 constituted interest and dividend income.      See Father’s


11
   The record reflects that Father served as a trustee of Father’s Resulting
Trusts until 2013, for which he received $50,000 per year in compensation.
See N.T., 5/12/14, at 82-83, 106-07; see also Father’s Exhibits D-1, D-2..
12
    Although Mother contends that Father received $2,500,000 from Father’s
Resulting Trusts in 2011, she did not present any evidence in support of this
claim.   The support master found credible Father’s testimony that he
received $2,000,000 each year in trust distributions. See Master’s Report,
8/26/14, at 9.


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J-A25033-15


Exhibits D-1, D-2. Father presented no evidence to support a finding that

any part of the distributions he received from Father’s Resulting Trusts from

2011 through 2013 were of principal of the trusts.        In the absence of

evidence supporting a finding that the distributions Father received from

Father’s Resulting Trusts from 2011 through 2013 were of trust principal,

Humphreys and its progeny do           not operate to exclude the trust

distributions received by Father from “income” available for child support.

      Based upon the record before this Court, I would conclude that the

trial court erred as a matter of law in finding that the entirety of the trust

distributions received by Father from 2011 through 2013 was not includable

as income available for child support. I therefore respectfully dissent from

the Majority’s decision.




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