J-S28033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANE E. HOOVER                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                   v.


WILLIAM J. KEMP

                        Appellant                   No. 1758 MDA 2014


            Appeal from the Order Entered September 23, 2014
              In the Court of Common Pleas of Clinton County
                  Domestic Relations at No(s): 22-2011 DR


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 21, 2015

     William J. Kemp (“Father”) appeals from the September 23, 2014

order wherein the trial court reinstated child support arrears in the amount

of $3,804.93, restored his monthly child support obligation of $399, and

precluded the disbursement of his anticipated inheritance. We affirm.

     Father has three minor children who have been in the care and

custody of their paternal grandmother, Diane E. Hoover (“Grandmother”), at

all relevant times. On February 4, 2011, Grandmother filed a complaint for

child support.   As Father was unemployed at that time, the trial court

calculated Father’s child support obligation using an assessed earning

capacity of $9.00 per hour.   On March 15, 2011, the trial court entered a

child support order totaling $399 per month. The calculation accounted for

the fact that Father fell within the self-support reserve (“SSR”) range of the
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support guidelines, which required that Father “retain income of at least

$867 per month, an amount equal to the 2008 federal poverty level for one

person.” Pa.R.C.P. 1910.16-2 explanatory Cmt.—2010.1

       When the order was entered, Father had already amassed $726.96 in

arrearages. By February 2, 2012, following two petitions for contempt based

upon Father’s noncompliant failure to pay, the support arrearages totaled

$3804.93. After Father’s arrest and incarceration for homicide, on March 5,

2012, the trial court temporarily suspended the support order pursuant to

Pa.R.C.P. 1910.19(f)(2), effective February 16, 2012.

       Two years later, Grandmother filed a petition for modification seeking

to lift the suspension in light of an anticipated inheritance that Father was

expected to receive from his maternal grandmother. During the hearing on

Grandmother’s petition, the trial court identified James Malee, Esquire as the

attorney who       was administering the         maternal grandmother’s estate,

reviewed the will, and determined that Father’s estimated share of the

estate was $9,833.



____________________________________________


1
 The 2010 comment explains, “The SSR is intended to assure that obligors
with low incomes retain sufficient income to meet their basic needs and to
maintain the incentive to continue employment.”       Pa.R.C.P. 1910.16-2
explanatory Cmt.—2010.




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        Father countered Grandmother’s petition by invoking our Supreme

Court’s holding in Humphreys v. DeRoss, 790 A.2d 281 (Pa. 2002), for the

principle that since the corpus of an inheritance is not income for the

purpose of calculating a child support obligation, his anticipated inheritance

could not be secured in order to satisfy his arrearage or the existing child

support obligation. The trial court rejected Father’s contention and entered

the instant order which, inter alia, authorized the domestic relations section2

to secure the prospective inheritance prior to distribution pursuant to §

4305(b)(10)(v), which we reproduce infra, in order to satisfy the existing

support obligation and arrearage.3 This appeal followed.




____________________________________________


2
  The domestic relations section is a quasi-judicial department within each of
the respective common pleas courts that is delegated statutory authority to
administer and enforce court-ordered child support, spousal support,
alimony pendente lite, and alimony. See 23 Pa.C.S. §§ 3704 (“Payment of
support, alimony and alimony pendente lite”) and 4305 (“General
administration of support matters”).
3
    In pertinent part, the September 23, 2014 order provided as follows:

        1.    The arrears of Three Thousand Eight Hundred Four and
        93/100—($3,804.93)—Dollars are reinstated and the office of
        Clinton County Domestic relations is directed to take all
        appropriate measures to collect said arrearages, including but
        not limited to exercising powers set forth in 23 Pa.C.S.A. §
        4305(b)(10)(v).

(Footnote Continued Next Page)


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      Father presents one issue for our review,

      Whether the [trial] court committed an abuse of discretion by
      reinstating Appellant’s child support obligation and by finding
      that Appellant’s prospective inheritance was an asset, and
      therefore subject to the authority of 23 Pa.C.S.A. §
      4305(b)(10)(v) to enforce and collect support.

Father’s brief at 11.

      “The principal goal in child support matters is to serve the best

interests of the children through the provision of reasonable expenses.”

R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa.Super. 2013).           We review a child

support order for an abuse of discretion. J.P.D. v. W.E.D., 114 A.3d 887,

889 (Pa.Super. 2015).           “[T]his Court may only reverse the trial court's

determination where the order cannot be sustained on any valid ground.”

R.K.J., supra. As this Court previously articulated, “An abuse of discretion

is [n]ot merely an error of judgment, but if in reaching a conclusion the law

is overridden or misapplied, or the judgment exercised is manifestly


                       _______________________
(Footnote Continued)

      2.    The Malee Law Firm is precluded from disbursing any
      inheritance payment to Defendant/Father, William J. Kemp, until
      further Order of Court.

      3.     Defendant/Father’s support obligation in the amount of
      Three Hundred Ninety-nine—($399.00)—Dollars per month is
      reinstated effective May 22, 2014, the date Plaintiff filed the
      petition for modification of the existing support order.

Trial Court Order, 9/23/14.



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unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown

by the evidence of record.” Id.

      Father argues that the trial court erred in reinstating his child support

obligation and in making his anticipated inheritance subject to enforcement

and collection by the domestic relation section pursuant to 23 Pa.C.S. §

4305(b)(10)(v). He asserts that the trial court’s order contravened our High

Court’s pronouncement in Humphreys that the corpus of an inheritance is

not income for the purpose of calculating a child support obligation.

Essentially, Father equates the term “asset” with the statutory definition of

“income” and rationalizes that, “By classifying [his] prospective inheritance

as an ‘asset’ and . . . making it subject to domestic relations’ authority to

‘impose liens on property[,]’ the [trial] court has re-defined the statutory

language.” Father’s brief at 15. He continues, “If the legislature intended

for [an] inheritance to be subject to the enforcement and collection authority

of domestic relations, . . . it would have provided for inheritance, specifically,

to be subject to that authority.” Id. For the following reasons, we disagree.

      As noted, the trial court directed the Clinton County domestic relation

section to take all appropriate measures to collect the arrearage and enforce

Father’s support obligation.    Section 4305 of the the Domestic Relations

Code outlines the powers and duties of the domestic relations section in




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administrating support matters.     As it relates to the case at bar, §

4305(b)(10)(v) states:


     (b) Additional powers.--Subject to the supervision and
     direction of the court but without the need for prior judicial
     order, the domestic relations section shall have the power to
     expedite the establishment and enforcement of support to:

        ....

        (10) Issue orders in cases where there is a support
        arrearage to secure assets to satisfy current support
        obligation and the arrearage by:

           ....

           (v) Imposing liens on property.

23 Pa.C.S. § 4305(b)(10)(v).

     In rejecting Father’s argument that Humphreys precluded it from

seeking to secure the prospective inheritance, the trial court noted that

Humphreys addressed the definition of “income” for the purposes of

calculating a monthly child support payment rather than determining what

assets could be depleted to satisfy an existing support obligation. The court

reasoned that it would be senseless to ignore a substantial asset when an




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existing child support obligation remained unsatisfied.    Trial Court Opinion

and Order, 9/23/14/, at 4.4 The court stated,

       The actions of [Grandmother] and Domestic Relations in this
       matter is nothing more than an exercise of authority set forth in
       23 Pa.C.S.A § 4305(b)(10)(v). It makes absolutely no sense to
       this Court that Father could come into possession of a
       substantial amount of assets through an inheritance and be able
       to claim that it is unavailable to satisfy his support obligation
       simply because the asset was the result of an inheritance. While
       the inheritance may not be considered income, it still remains an
       asset which is subject to seizure for the purpose of satisfying
       Father’s arrearages.

Id. We find no abuse of discretion.

       In Humphreys, our Supreme Court confronted whether an inheritance

could be considered income for the purpose of calculating a child support

obligation.     After engaging in statutory construction of the Domestic

Relations Code, 23 Pa.C.S. §§ 101-8215, and reviewing the practices of

some of our sister jurisdictions, the High Court held that the legislature did

not intend to have such a bequest treated as income for the purpose of

calculating a child support obligation under the support guidelines because

the term “inheritance” was not included in the statutory definition of

“income” under § 4302.           Humphreys, supra at 287.     The High Court

pronounced, “In light of the fact that we can find no principled way of fitting
____________________________________________


4
  The trial court opinion that is included in the certified record is not
paginated. We assigned the appropriate page number for ease of reference.



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the corpus of an inheritance into the statutory definition of ‘income,’ we hold

that it may not be so included.” Id.

       Notwithstanding its holding, however, the Humphreys Court also

recognized that a support obligor’s inheritance is a relevant and appropriate

consideration in fashioning a child support order.            It specifically noted its

relevance in deciding whether to deviate from the child support guidelines

under Pa.R.C.P. 1910.16-5(a).            Id. at 287-288.       The Court explained,

“where the fact finder determines that an inheritance affects a payor’s

financial obligations by making more income available for support, an

upward deviation is appropriate.”              Id. at 288.   The Court concluded its

reasoning by reiterating, “although the corpus of an inheritance is not

included in a payor’s income available for support, it may be considered

when adjusting a support obligation pursuant to Pa.R.C.P. 1910.16-5.” Id.

288.

       Despite Father’s assertions to the contrary, the trial court did not

treat the corpus of Father’s anticipated inheritance as income available for

the calculation of his support obligation. Actually, the trial court declined to

calculate a new child support obligation.5           Instead, the court identified the


____________________________________________


5
  Father does not argue that the trial court was required to calculate a new
child support order.



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corpus of the inheritance as a potential asset that could be used to satisfy

Father’s existing child support obligation and arrearage. As the placement

of a lien on an asset in this situation is specifically authorized by §

4305(b)(10)(v) and consistent with this Court’s holding in Drevernik v.

Nardone, 862 A.2d 635 (Pa.Super. 2004), that Humphreys does not shield

the principal of an testamentary trust from an order to satisfy support

arrearages, no relief is due.

      Moreover, to the extent that Father contends that the Humphreys

court’s decision is analogous to the case at bar, we rebuff that argument

unreservedly.    Plainly, there is no innate quality in a support obligor’s

inheritance that impedes its availability to satisfy a child support order. This

truth is evident from the Humphreys Court’s recognition that an inheritance

is relevant in determining whether to apply the Rule 1910.16-5 deviation in

calculating a new obligation under the support guidelines. The High Court’s

rationale in Humphreys was predicated entirely upon the fact that

“inheritance” was not listed among the litany of winnings, payments, and

compensation that were identified in the statutory definition of income under

§ 4302.   As that statute does not define the term “asset,” a comparable

inference cannot be drawn to avoid the trial court’s common-sense

interpretation of the word as including a monetary inheritance. Thus, we are




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not persuaded by Father’s assertion that the Humphreys Court’s rationale

extends to the facts of this case.

      Having found that the trial court did not err in identifying the

inheritance as an asset that could be secured to satisfy Father’s arrears and

monthly child support obligation, we conclude that the trial court did not

abuse its discretion by lifting the temporary suspension that it imposed

pursuant to Pa.R.C.P. 1910.19(f)(2) and restoring the existing child support

order that was calculated using Father’s pre-incarceration earning capacity

of $9.00 per hour.

      Hence, we affirm the September 23, 2014 order that authorized the

domestic relations section to secure the anticipated inheritance to satisfy the

arrearage totaling $3804.93 and Father’s reinstated monthly support

obligation of $399 for his three children. If the inheritance is depleted prior

to Father’s release or if something interferes with Father’s ability to pay the

current child support obligation, he may file another request to suspend his

support obligation under Rule 1910.19(f).

      Order affirmed.

Judge Allen joins the Memorandum.

Judge Lazarus files a Concurring and Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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