J. A03033/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


K.L.                                        :     IN THE SUPERIOR COURT OF
                            Appellee        :          PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
G.L., III                                   :
                            Appellant       :     No. 1264 MDA 2014


                     Appeal from the Order Entered June 24, 2014
                   In the Court of Common Pleas of Dauphin County
                           Civil Division No(s).: 64 DR 2013

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 21, 2015

        Appellant, G.L., III (“Father”), appeals from the order entered in the

Dauphin County Court of Common Pleas determining the amount of child

and spousal support he is to pay Appellee, K.L. (“Mother”), for her and the

parties’ three children (“Children”).     Father contends the court erred by

assigning an earning capacity to him, while also using educational grants

and his Veterans Administration (“VA”) disability income. He also claims the

court violated his constitutional right to equal protection under the law by

treating him differently than other obligors similarly situated. We affirm.




*
    Former Justice specially assigned to the Superior Court.
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      The trial court summarized the facts and procedural posture of this

case as follows:

             [Father and Mother] were married June 20, 2005 and
         divorced November 13, 2013. They have three [Children],
         currently ages seven, six and two, who primarily reside
         with [Mother]. [She] filed a complaint seeking support
         [on] January 7, 2013. Following an office conference, [the
         trial court] issued orders as recommended by the
         conference officer, directing [Father to] pay child and
         spousal support. After [Father] sought de novo review,
         and following a hearing, I issued an order [on] July 18,
         2013, directing that, effective January 7, 2013, [Father]
         pay [Mother] $2,607 per month, allocated $2,225 for child
         support and $382 for spousal support. In determining the
         amount of support due, I assigned [Father] a monthly net
         income of $4,486. At the time the order was entered,
         [Father] was a full-time undergraduate student at Penn
         State University [and] was not employed.         [Father’s]
         assigned income included federal and state educational
         grants, a government housing allowance and VA disability
         benefits. I also assigned him full-time wages based upon
         an earning capacity of $10 per hour over a forty-hour work
         week.

            [Father] did not appeal from the July 18, 2013 order;
         however, . . . on August 1, 2013, he filed a petition to
         suspend his support obligation based upon increased
         custodial time. Following an office conference, I entered
         two orders on December 26, 2013, as recommended by
         the conference officer. The first, effective, August 1, 2013
         through November 12, 2013, required [Father] to pay
         $2,352 per month allocated $1,992 for child support
         ($1,304 basic child support, $665 child care, $22 dance)
         and $360 for spousal support. Effective November 13,
         2013, the date of the parties’ divorce, the order was
         reduced to child support only of $1,992 per month.

            In determining the support due, the conference officer
         assigned [Father] and [Mother] net incomes of $4,343 and
         $1,150, respectively. [Father’s] income again included
         federal Pell grant money, the housing allowance, VA
         disability benefits and the same earning capacity assigned


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       to him in the prior proceeding. The conference officer also
       included as income to [Father] state educational grant
       money he was not receiving in 2014 because, according to
       the conference officer, [Father] told her at the conference
       that he did not apply for the state grant solely because he
       did not want that money included in calculating his support
       obligation.1 [Mother] who had been primarily a stay-at-
       home parent during the parties’ marriage, was assigned an
       earning capacity of $7.50 per week working full-time (forty
       hours per week).
       1
         [Father’s] income included $5,645 per year federal Pell
       grant (net), $3,700 per year state grant (net), $10,179
       per year housing allowance (net) based upon a stipend of
       $1,131 per month for nine months, $15,372 per year VA
       benefits (net) and an earning capacity of $400 per week
       (gross).

          [Father] filed a timely request for a de novo hearing,
       held February 26, 2014. The relevant evidence offered
       concerning [Father’s] income and earning capacity was
       a[s] follows: [Father] is a U.S. Army veteran who served
       eight years as a military police officer. He was honorably
       discharged in 2012. The VA provides him with a monthly
       disability payment of $1,281 per month. [He] claims he
       was discharged from the military with a 60% service
       disability (PTSD) he suffered during his foreign
       deployments and that as a result, he is not capable of
       employment. He enrolled at Penn State in the fall of 2012
       . . . . While at Penn State, his tuition has been paid
       through the GI Bill. In addition, he has received a federal
       Pell grant as well as a state educational grant which
       cover[s] non-tuition expenses including living expenses.
       He also receives a housing allowance through the GI Bill
       which is conditioned upon his attendance at school. As of
       the de novo hearing, [Father] was residing with his mother
       and had minimal living expenses including no car payment.

          Despite his disability and his claim at the de novo
       hearing he is unable to work, [Father] was previously
       employed for a few months in 2012 as a security guard
       earning $12 per hour. That employment ended when he
       was laid off following which he received unemployment
       compensation between April 2012 through April 2013.


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         [Father] has also worked in construction since his military
         discharge.     Nevertheless, [Father] claimed he cannot
         attend school full-time and also work, and that his doctors
         would confirm this, though he offered no medical or expert
         evidence of his lack of employability. At the de novo
         hearing, [Mother] asserted that at the most recent
         Domestic Relations Section office conference, [Father] told
         the conference officer that he chooses not to work since
         any income he makes will be attributed to him (and
         increase his support obligation). The domestic relations
         Section Director confirmed that [Father] indeed told the
         conference officer that if he is held to an earning capacity,
         he will get a doctor’s letter stating he is disabled. [Father]
         did not refute that he made such a statement.

Trial Ct. Op., 6/24/14, at 1-3 (references to record and footnote omitted).

      On June 24, 2014 the court entered an order which provided, inter

alia, as follows:

         (1) Effective, August 1, 2013 through November 12, 2013,
         [Father] owes $2,346.59 per month allocated $1,989.51
         for child support ($1304.49 basic child support, $665.21
         child care, $19.81 extracurricular expenses) and $357.08
         for spousal support.

         (2) Effective November 13, 2013, the date of the parties’
         divorce through January 13, 2014, the order is reduced to
         child support only, of $1989.51 for child support.

         (3) Effective January 14, 2014 to date, the order for child
         support is $1,882.34 per month ($1,266.39 basic child
         support, $597.87 child care, $18.08 extracurricular
         expenses).

Order, 6/24/14.

      This timely appeal followed.     Father filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The trial court filed a

responsive opinion.



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      Father raises the following issues for our review:

         A. Did the lower court abuse its discretion or commit an
         error of law by assigning an earning capacity to [Father]
         while also using educational grants as included income, in
         addition to his V.A. disability income[?]

         B. Did the lower court violate [Father’s] constitutional right
         to equal protection under the law by treating him different
         than other obligors similarly situated[?]

Father’s Brief at 7.

      First, Father argues that the court erred in assigning an earning

capacity to him while also using educational grants and his disability income

to calculate his support obligation.    Father asserts he cannot work full or

part-time because he is in college full-time and his disability prevents him

from working and attending college.1 Father’s Brief at 15. He avers: “It is


1
  In support of his disability claim, Father refers to the reproduced record at
pages 52 to 57. Father’s Brief at 15 n.1. At the hearing, Appellee objected
to the introduction of Appellant’s medical record. N.T., 2/26/14, at 8.
Appellant does not indicate in the argument “a reference to the place in the
record where the matter referred to appears[.]” See Pa.R.A.P. 2119(c).
Our review of the record does not reveal the medical report in the certified
record.

      This Court has stated:

            Pa.R.A.P. 1931(a)(1) provides that “the record on
         appeal, including the transcript and exhibits necessary for
         the determination of the appeal, shall be transmitted to
         the appellate court within 60 days after the filing of the
         notice of appeal.” Pa.R.A.P. 1931(a)(1).

            “It is black letter law in this jurisdiction that an
            appellate court cannot consider anything which is not
            part of the record in this case.” Any document which



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inconsistent, both conceptually and intellectually, to hold him to a full-time

earning capacity, and to use benefits he receives from the government that

allows him to attend college, when those benefits are conditioned upon him

attending school full time.” Id. at 15-16. Father claims the court erred in

including educational benefits and housing benefits under the GI Bill as

income. Id. at 19.     He argues that educational grants should be considered

“public assistance” and excluded from income for purposes of support. Id.

at 22, 24.

      Our review is governed by the following principles:

            Our scope of review when considering an appeal from a
         child support order is as follows:

             When evaluating a support order, this Court may
             only reverse the trial court’s determination where the

             is not part of the official certified record is considered
             to be nonexistent, which deficiency may not be
             remedied by inclusion in the reproduced record. It is
             the responsibility of the appellant to provide a
             complete record to the appellate court on appeal,
             including transcription of deposition testimony.

Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 106 n.1 (Pa. Super.
2011) (citations omitted).

      We note our Supreme Court holds “that where the accuracy of a
pertinent document is undisputed, the Court could consider that document if
it was in the Reproduced Record, even though it was not in the record that
had been transmitted to the Court.”           Pa.R.A.P. 1921 note (citing
Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). In the
instant case, Appellee disputes the inclusion of these documents in the
reproduced record, therefore we will not consider them. See id.; Brandon,
34 A.3d at 106 n.1.




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            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,
            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.

Morgan v. Morgan, 99 A.3d 554, 556-57 (Pa. Super. 2014) (citation

omitted).

      “In Pennsylvania, child support awards are made in domestic relations

matters in accordance with specific statutory guidelines. . . . The guidelines

provide extremely detailed instructions for calculating spousal and child

support awards based on the obligor’s net income from all sources . . .

.” Commonwealth v. Hall, 80 A.3d 1204, 1216-17 (Pa. 2013) (emphasis

added).

      Rule 1910.16-2(a) provides:

          Generally, the amount of support to be awarded is
          based upon the parties’ monthly net income.

                  (a) Monthly Gross Income. Monthly gross
            income is ordinarily based upon at least a six-month
            average of all of a party’s income.         The term
            “income” is defined by the support law, 23 Pa.C.S.A. §
            4302, and includes income from any source.

Pa.R.C.P. 1910.16-2(a) (emphasis added).




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      Section 4302 of the Domestic Relations Code defines income 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. § 4302 (emphases added).
      In Parker v. Parker, 484 A.2d 168 (Pa. Super. 1984), this Court held

service-connected disability VA benefits were a source of income for alimony

pendente lite purposes.    Id. at 169, (cited with approval in Uveges v.

Uveges, 103 A.3d 825 (Pa. Super. 2014)).        This Court has rejected the

argument that housing allowances from the military were not income

available for support:

         Instantly, we find this Court’s decision in Alexander v.
         Armstrong, [ ] 609 A.2d 183 ([Pa. Super.] 1992),
         persuasive, despite [the f]ather’s attempts to distinguish
         those facts from his situation. In Alexander, this Court
         addressed a claim by the father, who was stationed in
         Okinawa, Japan, that his housing and quarters allowances
         did not constitute income for support calculation purposes:




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            [R]elevant to our analysis is the fact that the
            Pennsylvania       Child    Support     Guidelines,
            Pa.R.Civ.P.1910.16–1 et seq., are based on the
            concept that the child should receive the same
            proportion of parental income that he or she would
            have received if the parents lived together. If
            [the child] was living with [his father] or [his
            father’s] new family, he would share in the benefit
            from the allowances [his father] receives from the
            Navy for housing and utilities. However, because
            [the child] does not live with [his father] or [his
            father’s family], he does not receive any benefits
            from them. Accordingly, in keeping with the
            guidelines, we must include in [the father’s]
            income his [housing and quarters allowances].

          Id. at 187.
Krankowski v. O'Neil, 928 A.2d 284, 286 (Pa. Super. 2007) (emphases

added).

     In Spicer v. Com., Dept. of Public Welfare, 428 A.2d 1008 (Pa.

Cmwlth. 1981),2 the petitioner appealed from an order of the Department of

Public Welfare (DPW) which affirmed the decision of the Bucks County Board

of Assistance (CBA) to discontinue her food stamps due to excess income.

Id. at 1008.    The petitioner received the following: “a Basic Educational

Opportunity Grant (BEOG) for $544.00, . . ., and a grant from the

Pennsylvania Higher Education Assistance Agency (PHEAA) for $250.00.”

Id. at 1009. The Commonwealth Court found: “Since the Petitioner’s BEOG

and PHEAA grant were not specifically earmarked by the granting agencies


2
  “Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
NASDAQ OMX PHLX, Inc. v. PennMont Sec., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012) (citation omitted). Instantly, Father contends his educational
grants are akin to public assistance.         Therefore, we look to the
Commonwealth Court for guidance. See id.



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and the grants were of a general nature, covering general living expenses as

well as tuition and fees, the entire grant excluding the tuition was

properly included as income for food stamp purposes.”              Id. at 1011

(emphasis added).

           As is provided in Pa.R.C.P. 1910.16–2(d)(1), generally
           there is no change to the support obligation following a
           voluntary reduction of income:

             (1) Voluntary Reduction of Income. When either
             party voluntarily assumes a lower paying job, quits a
             job, leaves employment, changes occupations or
             changes employment status to pursue an
             education, or is fired for cause, there generally will be
             no effect on the support obligation.

           Pa.R.C.P. 1910.16–2(d)(1).

Smedley v. Lowman, 2 A.3d 1226, 1228 (Pa. Super. 2010) (emphasis

added).

      Rule 1910.16–2(d)(4), addressing earning capacities, provides as

follows:

           If the trier of fact determines that a party to a support
           action has willfully failed to obtain or maintain
           appropriate employment, the trier of fact may
           impute to that party an income equal to the party’s
           earning capacity. Age, education, training, health, work
           experience, earnings history and child care responsibilities
           are factors which shall be considered in determining
           earning capacity. In order for an earning capacity to be
           assessed, the trier of fact must state the reasons for the
           assessment in writing or on the record. Generally, the
           trier of fact should not impute an earning capacity that is
           greater than the amount the party would earn from one
           full-time position. Determination of what constitutes a
           reasonable work regimen depends upon all relevant
           circumstances including the choice of jobs available within


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          a particular occupation, working hours, working conditions
          and whether a party has exerted substantial good faith
          efforts to find employment.

Pa.R.C.P. 1910.16–2(d)(4) (emphasis added).

      This Court has stated: “[T]he voluntary choice to forego current

employment in order to further one’s education is an employment

decision that should be treated no differently than a decision to change jobs

and salary.”   Kersey v. Jefferson, 791 A.2d 419, 423 (Pa. Super. 2002)

(emphasis added).     “In determining a parent’s ability to provide support,

the focus is on earning capacity rather than on the parent’s actual earnings.”

Reinert v. Reinert, 926 A.2d 539, 542 (Pa. Super. 2007) (citation

omitted).

      Father claims the court erred in assigning an earning capacity to him

and including his educational and housing benefits under the GI Bill as

income.     He avers he is unable to work because of his disability.       He

contends his benefits under the GI Bill should be considered “public

assistance” and excluded from income for purposes of support.

      In the case sub judice, the trial court opined:

          [Father’s] decision here to forego full time earnings in
          order to attend college was clearly voluntary and
          subordinated the immediate financial needs of his children
          to his career aspirations.   Inasmuch as [Father] has
          willfully failed to obtain or maintain appropriate
          employment, this court may attribute to him an income
          equal to his earning capacity to help support his three
          children.




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           In deciding upon his earning capacity, this court takes
        into consideration the totality of [Father’s] circumstances,
        including his age (28), health, work experience, earnings
        history and child care responsibilities. Pa.R.C.P. 1910.16-
        2(d)(4). With regard to [Father’s] health, he failed to
        provide any medical or expert evidence that he is unable
        to obtain and maintain employment. While he cited the
        VA’s finding of a 60% disability, he failed to provide any
        evidence connecting that finding to his employability. The
        record otherwise revealed he has maintained employment
        since the VA’s finding: following his discharge from the
        military he has been employed full-time as a security
        guard until he was laid off and has also worked in
        construction, the latter occurring while he was enrolled in
        college.    The record additionally supports [Mother’s]
        argument      that   [Father]   refrains    from    obtaining
        employment because any income he earnings will be
        attributed to him for support.

                                 *     *      *

        Furthermore, the record presented before this court
        revealed that the grant monies [Father] receives are
        available to cover his personal living expenses and thus
        reflect the true nature and extent of his financial
        resources. As noted, his tuition is completely covered by
        the GI Bill.[3] In addition, he receives a housing allowance
        for the months he is considered in school, an allowance
        which appears to be a windfall to [Father] inasmuch as he
        lives with his mother.[4]

3
  We note the trial court did not include the tuition as part of Father’s net
available income for child support.
4
  The trial court noted that although Father’s lack of living expenses could
warrant an upward deviation for his support obligation, the record was
insufficient on the issue. Trial Ct. Op. at 13 n.10. At the hearing, the
following exchange took place regarding Father’s living expenses:

        [Counsel for Mother]: I will just say in closing [Father]
        lives with his mother and doesn’t have a car payment. He
        has no expenses. . . .




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                                  *     *      *

         [Father], while not working and having minimal living
         expenses, receives a yearly $5,645 federal Pell grant,
         $3,700 state educational grant, $10,179 housing allowance
         and $15,372 VA benefits, a total net of $34,896, or $2,908
         per month. From this he is ordered to pay $1,304.49 basic
         child support for his three children [of] $1,266.39 under
         the current order.

Trial Ct. Op. at 7-8, 11, 13 (citation to the record omitted).

      We discern no abuse of discretion. See Morgan, 99 A.3d at 556-57.

The court calculated Father’s support obligation based upon his monthly net

income pursuant to Pa.R.C.P. 1910.16-2(a)(2).       Father’s disability benefits

are income for child support.     See Parker, 484 A.2d at 169.       The court

properly considered Father’s housing allowance.        See Krankowski, 928

A.2d at 286. The court did not abuse its discretion in considering Father’s

Pell grant. See Spicer, 428 A.2d at 1011. Father voluntarily reduced his

income by changing his employment status and choosing to pursue his

education. See Smedley, 2 A.3d at 1228. The trial court did not abuse its

discretion in imputing an earning capacity to Father.            See Pa.R.C.P.

1910.16-2(d)(4); Kersey, 791 A.2d at 423.

         [Counsel for Father]: Do you know why he lives with his
         mother?

         The Court: Would that be your testimony?

         [Father]: Yes, Your Honor.

N.T., 2/26/14, at 29.



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      Given our resolution of Appellant’s first issue, we find the trial court

did not treat him differently than other obligors similarly situated in violation

of his constitutional right to equal protection under the law. “[A] parent’s

duty to support his minor children is absolute, and the purpose of child

support is to promote the children’s best interests. The court has no legal

authority to eliminate an obligor's support obligation, where the

obligor can reasonably provide for some of the children's needs.” Silver v.

Pinskey, 981 A.2d 284, 296 (Pa. Super. 2009) (emphases added). The trial

court found Appellant was obligated to support his three minor children.

See id.

      For all of the foregoing reasons, the order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2015




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