J-S81025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                             Appellee                   No. 1005 MDA 2017


                  Appeal from the Order Entered May 19, 2017
               In the Court of Common Pleas of Columbia County
       Domestic Relations at No: 00306-DR-2009, PACSES NO. 421111164

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED APRIL 20, 2018

         Appellant, B.J.S. (“Mother”), appeals from an order dated May 19, 2017

that recalculated the child support obligation of D.F.K. (“Father”). The trial

court lacked jurisdiction to enter this order, because the record in this case

had not yet been remanded to the trial court from Mother’s prior appeal to

this Court at 1293 MDA 2016.            Thus, we quash Mother’s appeal from this

order. We also take the opportunity to make several observations that might

assist the trial court during further proceedings in this case.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S81025-17



                         PROCEDURAL HISTORY

     I. Background. Mother and Father married in 1999 and separated in

2009. Two children were born during the marriage in 2002 and 2006.

     In September 2009, Mother filed a complaint for child support and

spousal support.    On November 4, 2009, Mother obtained a child support

award in the amount of $1,005.12 per month. The court did not award Mother

spousal support.

     In early 2015, Mother filed a petition for modification. On December

17, 2015, a master held a hearing during which Mother presented testimony

regarding unreimbursed medical and tutoring expenses.        Father testified

about his income from wrestling camps that he operated and defended

discrepancies between his total bank deposits and the income he claimed in

his federal taxes. Father attributed the discrepancies to money he earned

from investments and contributions by his paramour, L.C., to a shared credit

account.   On March 24, 2016, the master held a second hearing in which

Mother and Father provided further detail regarding their income and child-

related expenses.

     On March 31, 2016, the master authored a recommendation and report

awarding Mother child support of $764.68 per month. The master calculated

this award using an agreed-upon monthly earning capacity for Mother of

$2,164.70. The master determined that Father’s monthly earning capacity

was $5,096.92 by averaging his Schedule C net income for 2013, 2014 and

2015. Utilizing the support guidelines, the master arrived at a child support

                                    -2-
J-S81025-17



award of $955.98 per month, which it deviated downward pursuant to

Pa.R.C.P. 1910.16–5 due to substantial other income in Mother’s household

provided by her current husband, G.S. The master made an additional twenty

percent reduction pursuant to Pa.R.C.P. 1910.16–4(c) due to Father’s

significant period of partial custody.

      Mother filed exceptions to the master’s recommendation and report, and

by order dated July 25, 2016, the trial court denied and dismissed her

exceptions.    The court adopted the master’s report and confirmed the

previously calculated child support award. Mother appealed to this Court at

1293 MDA 2016. Mother filed a brief in this Court; Father did not.

      II. This Court’s May 4, 2017 memorandum.            In a memorandum

dated May 4, 2017, this Court vacated the trial court’s order and remanded

for further proceedings. We held:

      [W]e 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
      childrens’ tutoring expenses. Accordingly, we vacate the support
      order and remand for recalculation of Father’s net income and
      support obligation in accordance with this memorandum.

B.J.S. v. D.F.K., 1293 MDA 2016, at 15-16 (Pa. Super., May 4, 2017).

      We rejected Mother’s argument that the trial court erred in reducing

Father’s child support obligation by twenty percent due to “substantial or

shared physical custody.” Id. at 6-8. We held that the trial court’s ruling on


                                         -3-
J-S81025-17


this subject was supported by Father’s credited testimony that he exercised

custody over the children 43½ percent of the year. Id. at 7-8.

     On the other hand, we held that the trial court erred in calculating

Father’s income. We reasoned:

     Mother alleges that Father’s bank records showed deposits of
     approximately $141,000[.00] for 2014.         However, Mother
     continues, Father only reported a net income of $68,000[.00],
     after deducting his business expenses of approximately
     $30,000[.00] . . . 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[.00] 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[.00] 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

                                   -4-
J-S81025-17


     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[.00]. 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,
     “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

                                     -5-
J-S81025-17


      $1,143[.00] in 2014, and $696[.00] in 2015 as a result of those
      efforts. Those earnings should be included in Father’s income
      calculation.

Id. at 8-12.

      We further held that the trial court abused its discretion in deviating

from the support guidelines by considering the income of Mother’s current

husband, G.S., because there was no evidence submitted into the record on

this subject. Id. at 13.

      On June 13, 2017, this Court remanded the record at 1293 MDA 2016

to the trial court.

      III. Trial Court’s May 19, 2017 opinion and order. On May 19,

2017, several weeks before this Court remanded the record to the trial court,

the trial court issued an opinion and order in response to our May 4, 2017

decision. The trial court stated that our decision required it to determine the

amount of Father’s investment income and wrestling camp earnings.           The

court confined its analysis of these issues to the transcripts from the December

17, 2015 and March 24, 2016 hearings and documents admitted into evidence

during these hearings. It declined to admit other documentary evidence, such

as bank statements that Mother’s attorney used to cross-examine Father.

      With regard to Father’s investment income, the court placed heavy

weight on (1) Father’s 2014 tax return, which reported $750.00 as dividend

income and $14.00 as capital gain income, totaling $764.00 and (2) Father’s

2015 tax return, which reported no dividend or capital gain income. The court


                                     -6-
J-S81025-17


also summarized Father’s testimony concerning his investment income as

follows:

       Father testified that he had “other investments” and stated that
       he transfers these investments through his checking accounts.
       When referring to these “other investments,” Father was not
       asked, nor did he state, the income level or principal value of those
       particular investments. Father explained that he handles his
       mother’s investments, and that these investments were
       “underperforming” and he and his mother “decided to do
       something about it. We closed it and she sent the money down
       to me and I’m going to invest it down here in this area.” This
       asset was in Father’s name since about 1993 or 1994, during
       which time he was married to Mother. Father testified that he
       intended to keep this asset for [his] mother and not liquidate it.
       This amount was reflected in a deposit of $26,661.13 on Father’s
       September 30, 2015 bank statement of which half was Father’s.
       in attempting in good faith to explain deposits into his account two
       (2) years after the fact with no preparation, Father testified: “I
       may have liquidated some investments—moved them into my
       account and reinvested them. Stuff like that . . . I don’t know. I
       am thinking liquidating other investments.”

       That is the extent of the record expressly dealing with “investment
       income.”

Trial Ct. Op. 5/19/17, at 7-8.1


____________________________________________


1 In another passage, the court described Father’s testimony as credible and
attributed his inability to remember bank deposits to the passage of time:

       Father ran all gross receipts from his business, all business
       expenses and all personal disbursements in and out of his
       checking account. It is beyond fairness to show someone in
       business their checking account statement for a given month two
       years prior and to expect them to recollect with complete certainty
       the nature of a particular deposit at that time.

Id. at 2 n.1.



                                           -7-
J-S81025-17


      The trial court “accept[ed] as credible and of greatest weight the

information on Father’s tax returns.” Id. at 8; see also id. at 6 (Father’s tax

returns were credible “given the reliable regularity of reporting interest,

dividends and investment sales via Form 1099’s and the penalties for not

reporting same”).   The court thus found Father’s investment income to be

$764.00, or $63.67 per month.

      With regard to wrestling camp income, the trial court determined that

Father made net income before taxes of $1,143.00 in 2014 and $696.00 in

2015. The court found that the drop in net income was the result of market

conditions, not Father’s voluntary choice, so it set Father’s earning capacity

for wrestling camp income at the 2015 level of $696.00 per year, or $58.00

per month.

      Adding Father’s monthly investment income and monthly wrestling

income together, the court raised Father’s monthly earning capacity by

$112.67, from $5,096.92 to $5,218.59. The court stated:

      No matter how one computes it, the record does not support a
      conclusion by this fact finder (given consideration of the totality
      of the record, consideration of only that evidence which we find to
      be credible and according evidence deemed to be credibie the
      weight we deem it to deserve[]) that Father made $141,617.00 in
      deposits in 2014 . . . These deposits are not accepted as credible
      proof, nor proof of any significant weight, of Father’s “investment
      income.”

Id. at 5.

      Next, the trial court determined:




                                     -8-
J-S81025-17


      The Superior Court held that, despite evidence that Mother’s
      husband is an attorney who is gainfully employed, we are not to
      accord a deviation from the guidelines on account of Mother’s
      husband’s income. We granted a 20% deviation in favor of Father
      on two (2) bases: (1) [e]rroneously considering Mother’s
      husband’s income; and (2) on the basis of Father’s summer child
      care expenses. The latter basis was not disturbed on appeal in
      that Mother did not preserve it as a ground for appeal in her
      [e]xceptions. On the basis of Father’s child care expenses, it is
      hereby determined that a 10% deviation is appropriate.

Id. at 9-10.

      Utilizing the support guidelines, the trial court calculated Father’s child

support obligation as $1,033.01 per month, which it reduced by ten percent

to $929.71 per month. Id. at 11.

      On June 15, 2017, Mother filed a notice of appeal. Mother raises the

following issues in her appellate brief:

      I. Whether the trial court abused its discretion by failing to strictly
      follow the Superior Court’s order to vacate the court of common
      pleas’ order dated July 25, 2016 and to include all [of Father]’s
      income including investment income and wrestling camp income
      which has been calculated to be $141,617.83, as directed, when
      calculating [Father]’s child support allegation.

      II. Whether the trial court erred in awarding a substantial custody
      deviation in this case in light of the lower court’s order granting
      the inclusion in the record of the July 1, 2014 and June 1, 2015
      custody orders which clearly demonstrates that [Father] does not
      exercise 40% or more of the custody of the minor children.

      III. Whether the trial court erred in awarding a child care
      deviation in this case as it is not supported by any evidence
      presented and it is unreasonable to award a deviation for child
      care for children of this age.

      IV. Whether the trial court erred when it failed to award
      unreimbursed medical expenses for the children, which were
      preserved by [Mother] by presenting the unreimbursed medical

                                       -9-
J-S81025-17


      expense evidence to the Columbia County Domestic Relations
      Office.

Mother’s Brief at 5.

                                 DISCUSSION

      The trial court lacked jurisdiction to enter the May 19, 2017 order,

because as of that date, the Superior Court had yet not remanded the record

back to the trial court. See Stanton v. Lackawanna Energy, Ltd., 915 A.2d

668 (Pa. Super. 2007); Bell v. Kater, 839 A.2d 356 (Pa. Super. 2003).

      To place Bell and Stanton in context, we summarize relevant rules of

appellate procedure. Pa.R.A.P. 1701 states that “after an appeal is taken or

review of a quasijudicial order is sought, the trial court or other government

unit may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). “The

effect of [Rule 1701(a)] is that once a party has properly appealed a decision

of the trial court, the trial court lacks jurisdiction to act further on the case.”

Commonwealth v. Moore, 715 A.2d 448, 452 (Pa. Super. 1998).                   Rule

1701(a) ceases to apply once the appellate court remands the record to the

lower court. Pa.R.A.P. 2591(a). Once the record is remanded, “the court or

other government unit below shall proceed in accordance with the judgment

or other order of the appellate court.” Id.

      Pa.R.A.P. 1701(b) provides a limited number of exceptions to Rule

1701(a)’s general rule divesting the trial court of jurisdiction during the

pendency of an appeal. Specifically, the trial court may (1) “[t]ake such action

as may be necessary to preserve the status quo, correct formal errors in

                                      - 10 -
J-S81025-17


papers relating to the matter, cause the record to be transcribed, approved,

filed and transmitted, grant leave to appeal in forma pauperis, grant

supersedeas, and take other action permitted or required by these rules or

otherwise ancillary to the appeal or petition for review proceeding”; (2)

“enforce any order entered in the matter, unless the effect of the order has

been superseded . . .”; (3) grant reconsideration of the order which is the

subject of the petition if a timely motion for reconsideration is filed and the

trial court enters a timely order expressly granting reconsideration; (4)

“[a]uthorize the taking of depositions or the preservation of testimony where

required in the interest of justice”; (5) “[t]ake any action directed or

authorized on application by the appellate court”; and (6) “[p]roceed further

in any matter in which a non-appealable interlocutory order has been entered

. . . .” Pa.R.A.P. 1701(b).

      Bell and Stanton provide illuminating illustrations of these principles.

In Bell, the defendant filed an untimely notice of appeal following entry of

judgment in favor of the plaintiffs. Subsequently, realizing that her appeal

was untimely, the defendant filed a petition in the trial court for leave to appeal

nunc pro tunc. The trial court granted the defendant’s petition; coincidentally,

on the same date, this Court quashed the defendant’s first appeal.             The

defendant filed a second appeal in reliance upon the trial court’s order granting

her leave to appeal nunc pro tunc.




                                      - 11 -
J-S81025-17


     This Court quashed the second appeal, reasoning that under Rule

1701(a),

     [t]he trial court’s order . . . which granted [the defendant] leave
     to appeal nunc pro tunc[] is a nullity because it was entered at a
     time when the trial court did not have jurisdiction—i.e., the order
     was entered after [the defendant] filed her first notice of appeal
     with this Court and before the record was remanded to the trial
     court pursuant to Pa.R.A.P. 2591(a). Rule 2591(a) indicates that
     Rule 1701(a) “shall no longer be applicable to the matter” once
     the record is remanded. Since the record had not yet been
     remanded at the time the trial court entered its order granting
     [the defendant]’s appeal nunc pro tunc, the trial court did not have
     jurisdiction to enter such order and, therefore, such order is void.
     See Commonwealth v. Bishop, 829 A.2d 1170, 1172 (Pa.
     Super. 2003) (concluding that trial court lacked jurisdiction to
     convene a bail hearing and consider the merits of petition seeking
     bail where record had not yet been remanded from appellate
     court).

     Moreover . . . we conclude that Rule 1701[(b)] provides no
     exceptions that would have permitted the trial court to enter a
     valid order granting leave to appeal nunc pro tunc following [the
     defendant]’s filing of her first notice of appeal. In other words,
     we have no basis upon which to conclude that the trial court’s
     order granting leave to appeal nunc pro tunc is anything other
     than a nullity.

Bell, 839 A.2d at 358.

     In Stanton, a power company purchased an easement on an energy

company’s land and constructed a swing-arm gate on the easement. A ten-

year-old boy collided with the swing-arm gate while riding a motorbike. The

boy’s parents filed a personal injury action against, inter alia, the power

company. The power company moved for summary judgment on the ground

that it was immune under the Recreational Use of Land and Water Act

(“RULWA”), 68 P.S. §§ 477–1—477–8, which bars liability against owners of

                                    - 12 -
J-S81025-17


unimproved land who open that land without charge for recreational use by

members of the public. The trial court denied the power company’s motion

for summary judgment, but the power company obtained leave from this

Court to take an interlocutory appeal from the trial court’s order. This Court

reversed and remanded for entry of summary judgment, ruling that the power

company was an owner and that it did not act willfully or maliciously. On

March 3, 2003, the trial court entered an order granting summary judgment

to the company.

     On March 13, 2003, the plaintiffs filed a timely petition for allowance of

appeal to the Supreme Court from this Court’s order of reversal. The Supreme

Court granted allocatur solely on the question of whether the energy company

was an owner under the RULWA. On November 23, 2005, the Supreme Court

upheld this Court’s decision that the company was an owner. In a footnote,

the Supreme Court observed that there was another issue that had not yet

undergone appellate review: whether the swing-arm gate constituted “land”

under the RULWA. The Court continued:

     The Superior Court’s mandate in this case, which this Court
     affirms, directs the trial court to enter judgment in favor of [the
     power company]. Upon entry of that order, the [plaintiffs] will be
     out of court, and will be free, if they so desire, to seek to appeal
     that final order to secure appellate review of the question
     concerning the swing-arm gate.

Stanton, 915 A.2d at 671 (citing Stanton v. Lackawanna Energy, Ltd.,

886 A.2d 667, 678 n.10 (Pa. 2005)).




                                    - 13 -
J-S81025-17


      On December 3, 2005, the trial court entered a second order that

granted summary judgment in favor of the power company. On December 8,

2005, the plaintiffs appealed to this Court with regard to whether the swing-

arm gate constituted land under the RULWA. The power company argued that

the plaintiffs “waived” this issue by failing to take a timely appeal from the

trial court’s March 3, 2003 order.        We rejected the power company’s

argument, because

      [w]hen the trial court entered this order, the Superior Court had
      not remanded the record to the trial court, nor could it have. Rule
      2572(a) instructs that “[t]he record shall be remanded to the
      court or other tribunal from which it was certified at the expiration
      of 30 days after the entry of the judgment or other final order of
      the appellate court possessed of the record.” Pa.R.A.P. 2572(a).
      Additionally, the Rules prescribe that the pendency of, inter alia,
      a petition for allowance of appeal shall stay the remand until the
      petition’s disposition. Pa.R.A.P. 2572(b). If the Supreme Court
      grants the petition for allowance of appeal, the Superior Court
      Prothonotary must transmit the record to the Supreme Court.
      Pa.R.A.P. 1122. Herein, [the plaintiffs]’ decision to file a petition
      for allowance of appeal stayed the remand of the record to the
      trial court and, once the Supreme Court granted the petition, the
      Superior Court transmitted the record to the Supreme Court. The
      Supreme Court did not return the record to the trial court until it
      resolved [the plaintiffs]’ appeal. Thus, it would appear that the
      trial court lacked jurisdiction to enter the March 3, 2003 order.

Stanton, 915 A.2d at 672.

      We further held that none of the exceptions within Rule 1701(b) applied:

      The trial court’s March 3, 2003 order did not preserve the status
      quo or correct a formal error; the order declared that [the
      plaintiffs] could not recover as a matter of law on claims that the
      trial court had previously deemed worthy of trial. See Pa.R.A.P.
      1701(b)(1), Note (stating that “[s]ubdivision (b)(1) ... is not
      intended to permit fundamental corrections in the record”).
      Further, the March 3, 2003 order did not enforce a prior order of

                                     - 14 -
J-S81025-17


     the trial court, did not timely grant reconsideration, and did not
     authorize depositions. Likewise, our Court did not direct or
     authorize the trial court to enter the order while our Court retained
     the record and awaited the filing of a petition for
     reconsideration/reargument or for allowance of appeal. Finally,
     as our Court had granted [the power company] permission to
     appeal, the trial court did not have the authority to proceed under
     the sixth exception.

Id. at 673. Thus, the trial court’s March 3, 2003 order was void. Id.

     We further held that the trial court’s December 3, 2005 order was void:

     the Supreme Court filed an opinion on November 23, 2005 that
     affirmed the Superior Court’s February 26, 2003 order. The
     Supreme Court remanded the record to the trial court on
     December 19, 2005. See Pa.R.A.P. 2572(b); 2573. Nevertheless,
     the certified record reveals that the trial court entered an order
     granting [the power company’s] motion for summary judgment
     on December 3, 2005, sixteen days before the trial court received
     the record. As the remand of the record obviates the jurisdictional
     impediments imposed by Rule 1701(a), see Pa.R.A.P. 2591(a),
     and as no exceptions to Rule 1701(a) apply, we may only conclude
     that the trial court lacked the authority to enter the order . . . The
     December 3, 2005 order is a legal nullity . . . and cannot constitute
     a final order for appeal.

Id. Because the December 3, 2005 order was void, “[the plaintiffs’] notice of

appeal, filed December 8, 2005, is premature. Although the trial court has an

obligation to enter the order granting the motion for summary judgment, it

must await the restoration of its jurisdiction before doing so.”              Id.

Accordingly, we quashed the plaintiffs’ appeal as “prematurely filed.” Id.

     In the present case, this Court remanded for further proceedings in its

memorandum filed on May 4, 2017.         On May 19, 2017, before this Court

remanded the record, the trial court entered an opinion and order revising

Father’s support obligation.    Under Rule 1701(a), and under Bell and

                                    - 15 -
J-S81025-17


Stanton, the trial court lacked jurisdiction to enter its opinion and order

because this Court had not yet remanded the record to the trial court. Indeed,

this Court could not have remanded the record on or before May 19, 2017,

because Pa.R.A.P. 2572(a) required us to retain the record until thirty days

after entry of our judgment.       Further, none of Rule 1701(b)’s exceptions

applied. The May 19, 2017 opinion and order did not preserve the status quo

or correct a formal error, enforce a prior order of the trial court, timely grant

reconsideration, authorize depositions, or take any action that this Court

directed or authorized on application.     Neither did the trial court enter its

opinion and order following an appeal from a non-appealable interlocutory

order. For these reasons, the May 19, 2017 opinion and order is a nullity,

Bell, 839 A.2d at 358; Stanton, 915 A.2d at 673, and we must quash

Mother’s appeal from this order.

      Because the May 19, 2017 order is void, the trial court must again

decide Father’s support obligation after remand of the record, the event that

will restore jurisdiction in the trial court. Pa.R.A.P. 2591(a). We cannot direct

the trial court on what support decision to reach, for that would usurp the trial

court’s role as factfinder. We will, however, offer several points that the trial

court might consider during further proceedings.

      First, the trial court stated in its May 19, 2017 opinion that (1) it found

Father’s testimony “credible” and placed heavy weight on his tax returns; (2)

this evidence showed that Father earned $764.00 in investment income in


                                      - 16 -
J-S81025-17


2014 and no investment income in 2015; and (3) therefore, Father’s annual

investment income was $764.00, or $63.67 per month for support purposes.

We note that our May 4, 2017 memorandum states: “Father’s testimony

indicated that he obtained large cash payments from his investments in

2014 and 2015.” B.J.S. v. D.F.K., 1293 MDA 2016, at 10 (emphasis added).

Because our memorandum is the law of this case, see Commonwealth v.

Starr, 664 A.2d 1326, 1331 (Pa. 1995), the trial court’s findings should be

consistent with this determination in our memorandum.

     Second, in its May 19, 2017 opinion, the trial court confined its review

to the existing evidence and declined to admit further evidence or testimony

into the record. We note that our May 4, 2017 memorandum did not prohibit

the trial court from admitting additional testimony or documentary evidence,

e.g., the bank statements that Mother’s attorney used to cross-examine

Father or checks (if any) that Father deposited into his account. Thus, the

trial court might consider admitting additional evidence during further

proceedings. In Re Petition To Contest The General Election For District

Justice In Judicial District 36–3–03 Nunc Pro Tunc, 695 A.2d 476, 480

(Pa. Cmwlth. 1997) (absent express direction of appellate court to admit




                                   - 17 -
J-S81025-17


additional evidence on remand, admission of such evidence lies within trial

court’s discretion).2

       Appeal quashed. Jurisdiction relinquished.

       Judge Panella joins the memorandum.

       Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/18




____________________________________________


2“This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Maryland Cas. Co. v. Odyssey, 894 A.2d 750, 756 n. 2 (Pa. Super. 2006).

                                          - 18 -
