J-A23033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANA LEE CARMEN,                         :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
           v.                            :
                                         :
GARY JOHN CARMEN,                        :
                                         :
                  Appellant              :           No. 779 WDA 2013

                Appeal from the Order entered on April 9, 2013
              in the Court of Common Pleas of Allegheny County,
                   Family Court Division, No. FD-08-7066-004

DANA LEE CARMEN,                         :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellant              :
                                         :
           v.                            :
                                         :
GARY JOHN CARMEN,                        :
                                         :
                  Appellee               :           No. 886 WDA 2013

             Appeal from the Orders entered on April 9, 2013
        and May 8, 2013 in the Court of Common Pleas of Allegheny
            County, Family Court Division, No. FD-08-7066-004

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                  FILED SEPTEMBER 30, 2014



                                                           1
                                                                  We affirm in

part and reverse and remand in part.




1
 We note that trial court subsequently entered an Amended Order on May 8,
2013, which corrected a clerical error in the April 9, 2013 Order.
J-A23033-14

      The trial court set forth the relevant factual and procedural history in

its Opinion, which we incorporate herein by reference.        See Trial Court

Opinion, 8/9/13, at 1-3.

      Husband and Wife each filed a timely Notice of Appeal and a court-

ordered Concise Statement of Matters Complained of on Appeal.2

      On appeal, Husband raises the following issues for our review:

      1. [Whether t]he [trial c]ourt erred in deciding the need for
         [W]ife and children was $400.00 [per] month for food and
         $300.00 [per] month for clothing[?]

      2. [Whether t]he [trial c]ourt erred in its determination of net
         income for [Husband], pursuant to Pa.R.C.P. 1910.16, 1-5[?]


2
  Husband filed his Notice of Appeal on May 7, 2013. The trial court entered
its Amended Order the following day, on May 8, 2013. Ordinarily, after an
appeal is taken, the trial court may no longer proceed further in the matter.
See Pa.R.A.P. 1701(a). However, Rule 1701(b) provides certain exceptions
to the general prohibition, and permits the trial court to, among other

appeal of the matter is pending. Pa.R.A.P. 1701(b)(1). Here, the trial court
entered the May 8, 2013 Amended Order in an effort to formally correct its
April 9, 2013 Order, which inadvertently omitted the $48.00 health
insurance contribution for D., as previously determined by the hearing
officer. Because the trial court did not make a substantive modification of

Order was a permissible correction under Rule 1701(b)(1). See Pa.R.A.P
1701(b)(1); see also Sell v. Sell, 714 A.2d 1057, 1063 (Pa. Super. 1998)

counsel fees to mother, after an appeal of the prior support order had been
filed, was permitted by Rule 1701(b)(1) because the award of counsel fees
was already of record, but had been inadvertently omitted from the prior
order); Hoag v. Hoag, 646 A.2d 578, 580 n.2 (Pa. Super. 1994) (holding

been filed, to clarify and correct its prior support order, conformed with Rule
1701(b)(1) because it was not a substantive modification of the prior
support order).



                                  -2-
J-A23033-14

      3.
           borrowing money from a friend ($9,000.00) was income and

           mother was income[?]

      4. [Whether t]he [trial c]ourt erred in not allowing [a] credit to
         Husband of the expenses [Husband] spent in accord with the
                                  y share the reasonable and ordinary


      5. [Whether t]he [trial c]ourt erred in apportionment of the
         $64,000 left in the marital accounts[?]

      6. [Whether t]he [trial c]ourt erred in awarding attorney fees
         without specific findings of fact listed that are capable of
         being addressed[?]

      7. [Whether t]he [trial c]ourt erred in requiring Husband to pay
         $25,000.00 from the value of his life insurance policy which
         does not exist[?]

      8. [Whether t]he [trial c]ourt erred and miscalculated the cost

           Wife[?]

      9. [Whether t]he [trial c]ourt erred by not permitting [Husband]

           Friedlander),] who would speak




original).

      The trial court reviewed

relevant law, and concluded that most of his issues had been waived. See

Trial Court Opinion, 8/9/13, at 3-6. The trial court determined that Husband

had only preserved claims relating to (1) calculation of child support arrears;

and (2) calculation of the child support obligation. See id. at 6. We adopt


                                  -3-
J-A23033-14

the sound reasoning of the trial court, and will review only those claims

properly preserved by Husband. See id.

      With regard to the calculation of child support arrears, the trial court

addressed this issue and determined that an error was made in calculating



issue. See id. at 6-7. The trial court determined that the correct amount of

child support arrears should have been $16,360.28. See id. We agree with

the reasoning of the trial court, and reverse and remand as to this issue for

recalculation of the child support arrears.

      With regard to the calculation of the child support obligation, Husband

argues that the trial court erred by determining that his monthly income is

                                      -12.    Husband claims that his income



calculation in 2008. Id. at 12. Husband asserts that the trial court failed to



his income. Id. Husband asserts that the lower court erred by determining

that loans made to him were for attorney fees, despite his claim that they

                                    Id. at 13. Husband argues that the trial



supplement products, including rebates and commissions, in its calculations.

Id. at 13-15. Husband contends that the trial court erred by not permitting

the rebuttal deposition of Dr. Friedlander on the issue of whether T. is



                                  -4-
J-A23033-14

disabled. Id. at 29-30. According to Husband, Dr. Friedlander would have

testified that T. can see out of both eyes and, with special glasses, can see

to the left.   Id



to take the rebuttal deposition of Dr. Friedlander. Id. at 30-31.

      The trial court set forth the relevant law and addressed this issue,

determining that it lacks merit.   See Trial Court Opinion, 8/9/13, at 7-11.

We agree with the reasoning of the trial court and affirm on this basis as to

this issue. See id.

      In her cross appeal, Wife raises the following issues for our review:

      1. [Whether t]he [trial c]ourt erred and/or abused its discretion
         in finding that Husband had a net income of only $2,244.00
         [per month,] and failing to find that Husband had a[n]
         earning capacity of $8,169.32 per month, which is consistent
         with his actual monies received per month through his bank
         account, his perquisites from employment[,] and previously
         being paid in cash[?]

      2. [Whether t]he [trial c]ourt erred and/or abused its discretion
         in awarding only $5,000.00 in counsel fees [to Wife,] despite


         his failure to complete discovery, and his attempts to amend
         his pre-trial statement and present additional witnesses
         during trial, all of which are conduct permitting the award of
         attorney fees pursuant to 42 Pa.C.S.A. § 2503(7) and 23
         Pa.C.S.A. § 4351[,] and for also failing to find that [Husband]
         owned additional and sufficient assets which could be used to




                                   -5-
J-A23033-14

                                             3




erred by finding that Husband had a monthly income of only $2,244.00. Id.

7. Wife claims that she established, without contradiction, that $8,169.32

                                                              Id. at 7.   Wife

claims that Husband, a self-employed general contractor,4 had the ability to

manipulate his income.    Id

regarding his income was incredible, as he was unable to provide any details

regarding any of his contracting jobs or the number of hours he worked per

day or per week. Id. Wife contends that, although Husband claimed that

he is unable to work as much as he previously worked due to health

concerns, he presented little or no evidence regarding his health concerns or

their impact on his ability to work. Id. at 8-9. Wife asserts that Husband

has willfully failed to obtain or maintain appropriate employment. Id. at 9.

Wife argues that the trial court erred by not attributing to Husband all of the

advantages he enjoyed by running his own business, including the payment

                                                                    i.e., truck

payment, car payment, automobile insurance, health insurance, gasoline,

etc.) totaling $4,877.52 per month. Id. According to Wife, these payments

3
 We note that Wife failed to include a statement of questions raised on
appeal in her brief. See Pa.R.A.P. 2111(a)(4), and 2116(a). However, we
will not dismiss her cross appeal on this basis.
4
 Husband is the president and sole employee of his company, Fred Carmen
& Son.


                                  -6-
J-A23033-14

are income to Husband in the form of either compensation or bonuses. Id.



2009 and 2011, the company was profitable, netting an income to Husband

of $5,400.00 to $7,000.00 per month. Id. at 10. Wife also contends that

the trial court failed to attribute, as income to Husband, various deposits

made into his personal checking account. Id. at 10-11. Wife claims that the



made    to   Husband   as   income,   noting   that   Husband   produced   no

documentation regarding the loans, and merely claimed that the money was

given to him by a friend.   Id

clearly cash payments for work performed by Husband, and that they should

have been attributed as income to Husband. Id. at 11-12.

       The trial court set forth the relevant law and addressed this issue

before determining that it lacks merit. See Trial Court Opinion, 8/9/13, at

7-9. We agree with the reasoning of the trial court and affirm on this basis

as to this issue. See id.



erred by awarding her only $5,000.00 in attorney fees, despite finding that
                                                            5



12. Wife asserts that the trial court erred by failing to award her attorney


5
  Although Husband challenged the award of attorney fees, the trial court
found that he had waived this issue. See Trial Court Opinion, 8/9/13, at 6
n.7.


                                 -7-
J-A23033-14

fees pursuant to 23 Pa.C.S.A. § 4351. Id. Wife claims that the trial court

improperly ruled that there was no fund available to Husband for the

payment of her attorney fees.     Id. at 12-13.   Wife asserts that the trial




obdurate or vexatious                                              Id. at 13.



various discovery, evidentiary and procedural violations, and asserts that

she incurred additional attorney fees by having to contest his violations. Id.

at 14-15. Wife claims that, based on the additional attorney fees that she



court erred by awarding her only $5,000.00 in attorney fees. Id.

      The trial court set forth the relevant law and addressed this issue,

determining that it lacks merit. See Trial Court Opinion, 8/9/13, at 11-14.

We agree with the reasoning of the trial court and affirm on this basis as to

this issue. See id.

      Affirmed in part, and reversed and remanded in part in accordance

with this Memorandum; Superior Court jurisdiction relinquished.




                                 -8-
J-A23033-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014




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