J-S71036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.M.W.                                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

M.J.S.

                         Appellee                   No. 861 WDA 2015


                Appeal from the Order Entered May 1, 2015
              In the Court of Common Pleas of Forest County
                 Domestic Relations at No(s): 00001-2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 16, 2015

      C.M.W. (“Mother”) appeals the order entered May 1, 2015, in the

Forest County Court of Common Pleas, dismissing her exceptions to the

March 4, 2015, recommendation of the Domestic Relations Hearing Officer

(“DRHO”), and affirming the DRHO’s recommendation.          Relevant to this

appeal, the DRHO found a material and substantial change in circumstances

warranting an upward modification of the child support payments of M.J.S.

(“Father”), but declined to disturb the parties’ prior agreement that awarded

Father the right to claim the federal tax child dependency exemption for the

year 2014 and forward. On appeal, Mother argues the trial court’s award of

the dependency exemption to Father was an abuse of discretion.       For the

reasons that follow, we affirm.
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        Mother and Father, who were never married, had a daughter (“Child”)

born in February of 2005.          Mother filed a complaint for child support in

January of 2008.1           After conducting a hearing, the DRHO filed a

recommendation that Father pay Mother $271.00 per month in child

support, retroactive to Child’s birth. On April 1, 2008, the trial court entered

the recommendation as a final order of court.

        On August 1, 2014, Mother filed a petition for modification of support,

contending there had been no review of the parties’ financial circumstances

since the entry of the original order in April 2008, and the income of the

parties had changed. Although a hearing before the DRHO was scheduled

for October 2, 2014, on that date, the parties engaged in “informal

settlement     negotiations”     which     ultimately   led   to   a    “comprehensive

agreement.”        Recommendation, 10/2/2014, at 1.                    Pursuant to the

agreement, the parties stipulated, inter alia: (1) Father’s support obligation

would be $394.14 per month from August 1, 2014, through December 31,

2014, and beginning January 1, 2015, increase to $453.68 per month; and

(2) Father would be awarded the federal tax child dependency exemption for

the year 2014 and “future tax years pending further order of court.” Id. at

1-2. The agreement was entered as a final order of court on November 12,

2014.

____________________________________________


1
  From our review of the record, it appears that Mother has always had
primary physical custody of Child.



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      One month later, on December 15, 2014, Mother filed a petition for

modification, asserting a material and substantial change in circumstances.

See Pa.R.C.P. 1910.19(a).     Specifically, Mother claimed the award of the

dependency exemption to Father did not “maximize the total income

available to the parties[,]” and, in fact, “substantially reduce[d] income

available” to Mother. Petition for Modification of an Existing Support Order,

12/15/2014. She also averred Father was receiving overtime compensation.

The parties appeared for an evidentiary hearing before the DRHO on

February 5, 2015.    The trial court summarized the evidence presented at

that hearing as follows:

            [Mother] and [Father] entered into an agreement
      regarding child support on October 2, 2014. Both parties had
      the benefit of counsel when they negotiated that agreement.
      The DRHO did not guide the negotiations.         The agreement
      increased child support payments to [Mother] and allowed
      [Father] to claim the Dependency Tax Exemption. Days after
      the agreement, [Mother’s] husband telephoned his accountant,
      Greg Rhodes, with misgivings regarding the tax implications of
      the agreement. On October 6, 2014, Mr. Rhodes sent [Mother’s]
      husband a letter regarding his inquiry into the Dependency Tax
      Exemption. In early December, 2014, [Father] received a pay
      raise. [Mother’s] income also increased around the same time
      for her position as Cheerleading Coach. On December 15, 2014,
      [Mother] filed a Petition to Modify.

              [Mother] files her [tax returns] jointly with her husband.
      [Mother] earned a total of $699.77 in 2014 because she feels
      she does not need to work. Her husband earned $47,212.23.
      [Mother’s] husband also holds the sole ownership interest in four
      limited liability companies; however, only two appear on the
      draft tax returns. [Mother] is fully aware of the four limited
      liability companies and their inner workings. Mr. Rhodes, an
      accountant, prepared the taxes for [Mother] and her husband for
      the past decade. Mr. Rhodes prepared two versions for the 2014


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       year to illustrate the effect of claiming the Dependency Tax
       Exemption. Mr. Rhodes stated that he was only aware of two
       out of the four limited liability companies.     Mr. Rhodes’
       calculations suggest that the Dependency Tax Exemption had a
       $1,740 impact on [Mother] and her husband’s taxes.

            [Father] also provided draft tax returns. [Father] did not
       employ an accountant to prepare them. [Father’s] calculations
       suggest that the Dependency Tax Exemption has a $1,290
       impact on [Father’s] taxes.

Trial Court Opinion, 7/16/2015, at 1-2.                 Father also testified that, in

exchange for the right to claim the tax exemption, he agreed to pay more in

child support beginning in 2015. N.T., 2/5/2015, at 82.

       Following the hearing, the DRHO filed a recommendation proposing an

increase in Father’s child support payments beginning January 1, 2015, from

$453.68 per month to $516.30 per month.                      DRHO Recommendation,

2/5/2015, at 1.       The DRHO also recommended Father retain the right to

claim the dependency exemption in 2014 and in future years pending further

order of the court.        Id.    Mother filed timely exceptions to the DRHO’s

recommendation, and the trial court held argument on May 1, 2015. That

same day, the court dismissed Mother’s exceptions and affirmed the

recommendation        of   the   DRHO.         Mother    filed   a   timely   motion   for

reconsideration on May 11, 2015, which the trial court promptly denied.

This timely appeal followed.2
____________________________________________


2
  On June 2, 2015, the trial court ordered Mother to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mother
complied with the court’s directive and filed a concise statement on June 19,
2015.



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      Mother’s arguments on appeal challenge the trial court’s award of the

federal tax child dependency exemption to Father, the non-custodial parent.

We review a trial court’s award of child support for an abuse of discretion.

May v. May, 837 A.2d 566, 568 (Pa. Super. 2003).

      As a general rule, under the Federal Tax Code, “the custodial parent is

entitled to the [child] dependency exemptions.” Id. at 568, citing 26 U.S.C.

§ 152(e)(1).   However, the Code was amended in 1984 to provide three

exceptions to the general rule, one of which is when the custodial parent

“signs a written declaration that she will not take the exemption[.]”      Id.

(citations omitted).   As this Court explained in Miller v. Miller, 744 A.2d

778 (Pa. Super. 1999), the changes to the Tax Code that allowed for this

exception demonstrated “Congress’ surpassing indifference to how the

exemption is allocated so long as the [Internal Revenue Service] doesn’t

have to do the allocating.” Id. at 784 (citation omitted).

      Accordingly, Pennsylvania’s support guidelines permit the trial court to

award the child dependency exemption to the non-custodial parent under

certain circumstances.    Pertinent to this case, Pennsylvania Rule of Civil

Procedure 1910.16-2(f) provides:

      (f) Dependency Tax Exemption. In order to maximize the
      total income available to the parties and children, the court may,
      as justice and fairness require, award the federal child
      dependency tax exemption to the non-custodial parent, or to
      either parent in cases of equally shared custody, and order the
      other party to execute the waiver required by the Internal
      Revenue Code, 26 U.S.C.A. § 152(e). The tax consequences
      resulting from an award of the child dependency exemption must


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       be considered in calculating each party's income available for
       support.

Pa.R.C.P. 1910.16-2(f).

       Mother first contends the trial court abused its discretion in awarding

the dependency exemption to Father because it relied solely on the parties’

prior agreement, and disregarded the fact she demonstrated a material and

substantial change in the parties’ financial circumstances. Mother points to

the evidence she presented that Father received a pay increase in December

2014, two quarterly bonuses in 2014, and six hours of overtime in January

2015, all of which he failed to report to her.3        See Mother’s Brief at 15.

Further, she emphasizes the DRHO agreed there was a “material and

substance change in circumstances which took place after the existing

support obligation was entered,” as is evident from its recommendation of

an increase in Father’s support obligation.         See DRHO Recommendation,

2/5/2015, at 7-8.       However, Mother claims the DRHO, as well as the trial

court, abused its discretion when it determined “it would be inequitable to

award the 2014 tax exemption to [Mother] simply because she decided after

the fact that she had made an undesirable bargain[.]” Id. at 9. See also

Trial Court Opinion, 7/16/2015, at 4.          She argues that once she met “the

threshold burden of proving [] a material and substantial change in


____________________________________________


3
  We note Father testified he reported his pay increase to Domestic
Relations. N.T., 2/5/2015, at 79.




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circumstances[,]” the fact that “the parties entered into an agreement is of

no consequence.” Mother’s Brief at 18.

      We find Mother has misinterpreted both the recommendation of the

DRHO and the ruling of the trial court.      The DRHO determined Mother

presented evidence of a “material and substantial change in circumstances,”

based on Father’s pay raise in early December 2014, which necessitated an

increase in his monthly support payments.     See DRHO Recommendation,

2/5/2015, at 7-8.   However, the DRHO further found the “year-end raise”

did not “materially change[] the facts as they were known to the parties on

10/02/14 with respect to the 2014 tax exemption.” Id. at 9 (emphasis

supplied). Indeed, Father received a $1.00 per hour raise in early December

of that year.

      Moreover, with regard to the tax exemption in future years, the DRHO

found “the total income available to the parties and the child will be

maximized if [Father] is permitted to claim [Child] as a tax exemption.” Id.

at 10.   In arriving at that conclusion, the DRHO recalculated the potential

tax savings of the parties using Mother’s earning capacity, as opposed to her

actual earnings, which was what her accountant utilized when drafting the

tax forms presented at the hearing. See id. at 9-10. The trial court agreed

with the DRHO’s recommendation, further noting that Mother’s counsel

agreed during argument that there was no change in the parties’

circumstances concerning the tax deduction. See N.T., 5/1/2015, at 5.

The court also emphasized Mother’s testimony that she “works very few

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hours because she does not need the income,” and expressed its concern

that Mother and her husband were “not forthcoming” with their accountant

regarding two of the LLC companies in her husband’s name.              Trial Court

Opinion, 7/9/2015, at 4.

      Based on our review of the testimony from the February 5, 2015,

hearing, the May 1, 2015, arguments, the DRHO’s recommendation, and

trial court’s opinion, we find no abuse of discretion.     On October 2, 2014,

Mother and Father decided to forego a support hearing, and enter stipulated

facts on the record.      Father testified that, as part of their agreement, he

agreed to pay an increased monthly support amount, in exchange for the

ability to claim Child as a federal tax exemption.        N.T., 2/5/2015, at 82.

Both the DRHO and the trial court determined there was no change in the

parties’ circumstances with regard to the tax exemption between the entry

of the agreement, on October 4, 2014, and the DRHO hearing on February

5, 2015. We agree.

      Next, Mother argues the trial court abused its discretion when it

considered her “earning capacity, as opposed to actual earnings,” in

calculating   her   tax   consequences   if   Father   claimed   the   dependency

exemption.    Mother’s Brief at 18. While acknowledging “an earning capacity

can be assigned for support calculations,” Mother contends “earning

capacities are not used in preparing and filing personal income tax returns

and therefore a consideration of tax consequences must be based on …

actual wages, not draft tax returns using earning capacities.”          Id. at 19.

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She also argues the court erred in affirming the DRHO’s recommendation

when it “estimated [Father’s earned income tax credit] where [Father’s]

draft returns do not reflect the same information.” Id.

       The DRHO determined that “for support purposes[,] [Mother] should

be assigned a full-time earning capacity[.]”4         DRHO Recommendation,

2/5/2015, at 7. Therefore, in determining the tax consequences of awarding

the dependency exemption to Father, the DRHO calculated the potential

savings using Mother’s earning capacity.          Rule 1910.16-2(f) does not

prohibit the calculation of tax consequences based on earning potential, and

Mother has cited no case law to the contrary. Accordingly, we find no abuse

of discretion on the part of the DRHO in doing so.

       With regard to the DRHO’s estimation of Father’s tax savings including

the earned income tax credit,5 Mother cites no authority prohibiting such a

consideration.     Indeed, Father testified he did not include the credit in his

draft tax returns because he “wasn’t sure” he would qualify for the credit
____________________________________________


4
   In affirming the recommendation, the trial court emphasized Mother’s
testimony that she “works very few hours because she does not need the
income.” Trial Court Opinion, 7/9/2015, at 4, citing N.T., 2/5/2015, at 62
(“I got this job out of leisure. … I don’t really have to work. I prefer to be
home for my children, to care for them.”). Mother also acknowledged that
all of her children are now in school. N.T., 2/5/2015, at 62.
5
  The earned income tax credit “is a benefit for working people who have low
to moderate income … [which] reduces the amount of tax you owe and may
also   give    you    a   refund.”        https://www.irs.gov/Credits-&    -
Deductions/Individuals/Earned-Income-Tax-Credit.




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and “wanted to speak with somebody before” he included it.                     N.T.,

2/5/2015, at 81.     Moreover, while it appears the DRHO considered the

additional tax savings Father would receive should he qualify for the earned

income tax credit, it did not base its final recommendation solely on this

potential credit. Accordingly, we will not disturb the trial court’s ruling.

      In her final issue, Mother contends the trial court abused its discretion

when it determined that it would be inequitable to award her the tax

exemption, and would “diminish [Father’s] incentive to continue child

support payments[.]” Mother’s Brief at 20. Specifically, Mother asserts the

trial court misconstrued testimony during the modification hearing, and

failed to consider the primary purpose of the tax credit is to “maximize

income available for child support.”     Id. at 21, citing May, supra.         While

Mother recognizes an allocation may be conditioned upon another purpose,

such as timely child support payments, she asserts that no such incentive

was placed on Father in the present case. See id. at 21-22.

      First, Mother asserts the trial court misconstrued testimony when it

made the following findings in its opinion: (1) Father relied on the parties’

October 2015 agreement “to spend more for the benefit of the child, such as

clothing[;]” (2) Mother “[w]hen questioned regarding whether circumstances

changed regarding the Dependency Tax Exemption, … conceded that no

change occurred[;]” and (3) Mother and her husband “were not forthcoming

with their own accountant … because they did not disclose information

regarding two LLC’s.”    Mother’s Brief at 22-23, citing Trial Court Opinion,

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7/9/2015, at 4. Our review of the record reveals no error on the part of the

trial court.

      During the modification hearing, Father testified he agreed to pay

more in child support in exchange for claiming Child as a dependent on his

federal taxes. N.T., 2/5/2015, at 82. He stated:

      And I continue to get other things, you know, for my daughter
      anyway besides the child support. So I figured if I could get it
      [the exemption] back and, you know, get her some things with
      it, then why not. And we had agreed to that anyway.

Id.   He further explained that, in addition to providing child support to

Mother, he buys Child clothes that he sends home with her, and has added

money to her lunch account at school. Id. at 83-84. Therefore, we agree

with the trial court’s finding that Father relied on the parties’ agreement “to

spend more for the benefit of the child, such as clothing.”        Trial Court

Opinion, 7/9/2015, at 4.

      Next, with regard to Mother’s purported concession that no change in

circumstances had occurred with respect to the tax exemption, the trial

court was referring to a statement made by Mother’s attorney at the May 1,

2015, argument on her exceptions.       After the court questioned whether

circumstances surrounding the dependency exemption had changed since

the parties’ agreement a few months earlier, Mother’s attorney made the

following comments:

      Okay. So, that, [the parties’ tax status,] your Honor, did not
      change. What our argument is, is that a child support order may
      be modified if there is a substantial change in circumstances.


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              And, this case, there was a substantial change in
        circumstances. Both parties had changes in wages, in earnings.
        And so, therefore, because there was a material and substantial
        change, our argument would be or I guess the defense argument
        is that you should just look at the fact there was no change with
        regard to the tax exemption.

              But, what I would submit is that we should, that the Court
        shouldn’t piecemeal each of the issues ….

              Once you hit that threshold of substantial change in
        circumstances, one of the tools or one of the factors that the
        Court can use is the dependency exemption.

N.T., 5/1/2015, at 5-6. A fair reading of counsel’s comments supports the

trial   court’s   finding.     While    Mother     argued   the   court   should   have

reconsidered the tax exemption issue in light of the change in the parties’

respective incomes, her counsel conceded there had been no change to the

parties’ tax status since the agreement.

        Lastly, concerning the trial court’s statement that Mother and her

husband were not “forthcoming” with their own accountant,6 we again find

the court’s comment was supported by the evidence. Rhodes testified that

he was not aware of two LLC companies, registered to Mother’s husband,

that were formed in February of 2014. N.T., 2/5/2015, at 24-25. He also

acknowledged, however, that the companies would not have to be included

on the tax return if there were no “transactions that would affect the

numbers on the tax returns.” Id. at 33-34. To that end, Mother testified

that neither of the two LLC’s “performs any business[,]” but rather, they

____________________________________________


6
    Trial Court Opinion, 7/9/2015, at 4.



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were both “shell” corporations, created by her husband “to purchase the

next business.” Id. at 45-47. Based on this testimony, we cannot conclude

the court misinterpreted the testimony when it found Mother and her

husband were not “forthcoming” with their accountant.

      Mother also asserts, in her final issue, the trial court abused its

discretion when it found the tax exemption provided an incentive to Father

to make timely support payments.      She argues no such specific incentive

was included in the parties’ agreement.

     However, as this Court recognized in May, supra:

     Though we said that the “primary purpose” of allocating the
     dependency tax exemption was to maximize income available for
     child support, our choice of language indicates that there were
     other purposes. Another purpose, as identified by the trial court,
     on the facts of this case, is to provide an incentive for timely
     payment of child support which, quite obviously, promotes the
     best interests of the children who are the subjects of the support
     order. Moreover, providing this exemption to Father, while
     giving the incentive identified by the trial court, also tends to
     increase or “maximize” the income he has to satisfy his support
     obligation.

           Mindful of our standard of review we find no abuse of
     discretion in the trial court's determination that the incentive
     value outweighed the monetary savings in allocating the child
     dependency tax exemption to father.

May, supra, 837 A.2d at 570. The same is true here. There is no indication

in the May decision that the parties explicitly agreed that the father’s award

of the tax exemption was dependent upon his timely payment of child

support.   Nevertheless, the trial court in May, as here, recognized the

inherent value of the exemption to the party who received it.      Moreover,


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contrary to Mother’s protestations, the DRHO did consider the tax

consequences of the decision. See DRHO Recommendation, 2/5/2015, at 9-

10.   See also Trial Court Opinion, 7/9/2015, at 4 (stating “[t]he DRHO

based his calculations on earning capacity rather than actual earnings.”).

The fact that the DRHO’s calculations were dissimilar to Mother’s is not

grounds for relief.

      Therefore, because we conclude the trial court did not abuse its

discretion in denying Mother’s exceptions, and affirming the DRHO’s

recommendation, we affirm the order on appeal.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2015




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