J-A31014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.B.                                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

B.B.

                            Appellant                 No. 477 MDA 2015


                    Appeal from the Order February 12, 2015
                In the Court of Common Pleas of Dauphin County
                  Domestic Relations at No(s): 00952 DR 2014


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED JANUARY 29, 2016

        Appellant, B.B. (“Husband”), seeks review of the trial court’s child

support order and challenges the court’s determination that he should not be

granted a downward deviation to account for his monthly student loan

payments. We affirm.

        Husband and Appellee, J.B. (“Wife”), married in December 2001 and

separated in June 2014. They have one child, M.B., who was born in 2002.

Wife and Husband share equal custody of the child. Wife is unemployed, but

she previously worked as a part-time teacher’s aide. Husband is a physician

with Pinnacle Health Emergency. During their marriage, Husband incurred



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A31014-15



student loan debt to attend college and medical school.            Husband’s

remaining balance on his loans is approximately $327,000.

       On June 5, 2014, Wife filed a complaint seeking child and spousal

support.     Following a support conference, the court entered an order

directing Husband to pay $2,035 per month in child support.1 See Support

Order, 9/5/14.

       Thereafter, Husband filed a timely request seeking de novo review. At

the de novo hearing, Husband argued that the $18,893.78 monthly net

income assigned to him was too high because it was based upon a six-month

period of income, rather than the entire year, which more accurately

reflected his true income.         See N.T., Support Hearing, 12/15/14, at 8.

Husband also argued that he was entitled to a downward deviation for any

support awarded due to the large student loan payments he was making

each month. See id., at 12-13. Following the hearing, the court issued an

order that held the record open to allow Husband to provide a copy of his

final 2014 paystub. See Order, 12/16/14.

       After receiving Husband’s paystub information, the court entered a

support order. The court concluded that Husband has an earning capacity of

$16,161.25 per month. See Support Order, 2/12/15. The court concluded


____________________________________________


1
 The support award was based on the court’s determination that Mother’s
monthly net income was $652.86 and Father’s monthly net income was
$18,893.78. See Support Order, 9/5/14.



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that Wife has an earning capacity of $642.82 per month. See id. The court

also concluded that Husband was not entitled to a downward deviation due

to his monthly student loan payments. See Trial Court Opinion, 5/13/15, at

3. Thus, applying the child support guidelines, the court ordered Husband to

pay $1,463.63 per month, effective January 5, 2015.       See Support Order,

2/12/15.     Husband filed a motion for reconsideration, which the court

denied. Thereafter, Husband appealed to this Court.2

       On appeal, Husband raises a single issue for our review.       Husband

contends that the trial court erred in not reducing his net monthly income by

the amount of his monthly student loan payments. See Appellant’s Brief, at

8.   Husband argues that the court should have deviated from the support

guidelines to account for the $3,374 in student loan payments he makes

each month. See id., at 13.

       Our standard of review of support orders is well-settled.    A support

order will not be disturbed on appeal unless the trial court failed to consider

properly the requirements of the Rules of Civil Procedure governing actions
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2
  Husband’s appeal concerns both his spousal and child support obligations
under the order. However, because a divorce decree has not yet been
entered, the spousal support portion of the order is not appealable. See
Leister v. Leister, 684 A.2d 192, 193 (Pa. Super. 1996) (holding that
spousal support orders are interlocutory and not appealable when entered
during the pendency of divorce claims). Thus, we need only consider issues
regarding the child support portion of the order.       See Capuano v.
Capuano, 823 A.2d 995, 998 (Pa. Super. 2003) (noting that child support
orders are final and immediately appealable).




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for support or abused its discretion in applying those rules. See Morgan v.

Morgan, 99 A.3d 554, 559 (Pa. Super. 2014), appeal denied, 113 A.3d 280

(Pa. 2015). “We will not interfere with the broad discretion afforded the trial

court absent an abuse of discretion or insufficient evidence to sustain the

support order.”   Id. (citation omitted).   “[A]n abuse of discretion requires

proof of more than a mere error of judgment, but rather evidence that the

law was misapplied or overridden, or that the judgment was manifestly

unreasonable or based on bias, ill will, prejudice or partiality.” Portugal v.

Portugal, 798 A.2d 246, 249 (Pa. Super. 2002) (citations omitted).

      The trial court made the following observations with respect to

Husband’s argument that he was entitled to a downward deviation due to his

monthly student loan payments.

      Under the Support Guidelines, in determining a party’s net
      income, only the items enumerated thereunder may be deducted
      from gross income to arrive at the net income figure. Pa.R.C.P.
      1910.16-2(c) (only taxes, FICA payments, non-voluntary
      retirement payments, mandatory union dues and alimony may
      be deducted from gross income). Student loans are not included
      as an item that may be deducted from gross income. As such,
      father was clearly unentitled to a reduction in his income for
      student loan payments.

      Father was also not entitled to a deviation. Under the Support
      Guidelines, the amounts calculated thereunder are presumed to
      be the correct amounts of support. Pa.R.C.P. 1910.16-1(d).
      This presumption can be rebutted where the fact finder
      determines that the award “would be unjust or inappropriate.”
      Id. The presumption that the Guideline support amount is
      correct is a strong one. Ball v. Minnick 648 A.2d 1192, 1196
      (Pa. 1994). Father seeks a deviation from the presumptive
      amount. The relevant Rule provides as follows:


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     Rule 1910.16-5. Support Guidelines. Deviation

     (a)   Deviation. If the amount of support deviates from the
           amount of support determined by the guidelines, the trier
           of fact shall specify, in writing or on the record, the
           guideline amount of support, and the reasons for, and
           findings of fact justifying, the amount of the deviation.

              Note: The deviation applies to the amount of the
              support obligation and not to the amount of income.

     (b)   Factors. In deciding whether to deviate from the amount
           of support determined by the guidelines, the trier of fact
           shall consider:

              (1)   unusual needs and unusual fixed obligations;
              (2)   other support obligations of the parties;
              (3)   other income in the household;
              (4)   ages of the children;
              (5)   the relative assets and liabilities of the parties;
              (6)   medical expenses not covered by insurance;
              (7)   standard of living of the parties and their children;
              (8)   in a spousal support or alimony pendent lite case,
                    the duration of the marriage from the date of
                    marriage to the date of final separation; and
              (9)   other relevant and appropriate factors, including
                    the best interests of the child or children

     Pa.R.C.P. 1910.16-5.

     Father seeks a deviation ostensibly on the basis that his student
     loans constitute “unusual fixed obligations.”      This type of
     obligation is not an unusual one but is instead one quite
     common. In addition, the amount he pays per month is not
     unusually high given that it represents a manageable portion of
     his monthly net income, $3,374 out of a $16,161 monthly net
     income, or 21% thereof. Furthermore, father presented no
     evidence whatsoever that he has other expenses exceeding his
     income such that he is unable to meet those monthly student
     loan payments. Finally, the record before the court revealed
     that father has chosen to pay a higher monthly amount than he
     is required under the terms of his various student loans and
     thus, to the extent he has any difficulty meeting his payments,
     he has the option to extend and reduce his loan payments.

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      (N.T. 12, 14) A deviation in support was clearly inappropriate
      under these circumstances.

Trial Court Opinion, 5/13/15, at 4-5.

      We agree with the trial court’s reasoning and conclude that Husband

was not entitled to a downward deviation due to his monthly student loan

payments. Thus, the court did not abuse its discretion in setting Husband’s

child support obligations at $1,463.63 per month.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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