J-S25028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JENNIFER ALLEN                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COREY M. KALISZEWSKI                       :
                                               :
                       Appellant               :   No. 1702 WDA 2017

                Appeal from the Order Entered October 24, 2017
                  In the Court of Common Pleas of Erie County
             Domestic Relations at No(s): Docket No. NS201400549,
                                          PACSES Case No. 715114581


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                            FILED SEPTEMBER 7, 2018

        Corey Kaliszewski appeals from the order decreasing his monthly child

support payment to Jennifer Allen.1 Kaliszewski claims the court erred in

concluding that he did not have primary custody of the parties’ child and that

the record supports an end to his liability for child support payments to Allen.

He also contends the court erred in failing to set forth adequately the support

guidelines and its reasons for deviating from them. We affirm.

        We begin with the bedrock principle that a parent has an absolute duty

to support his child. See Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super.

2012). The guiding policy in child support determinations is the best interest

of the child. See id.

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1   Allen has not filed an Appellee’s brief.
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       We may reverse the court only where there is no valid ground supporting

it. See id. The court has broad discretion in determining the facts and equities

based upon the evidence before it. See id. The court does not abuse its

discretion merely by committing an error of judgment. See id. An abuse of

the court’s discretion only occurs if “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[.]” Id.

(citations omitted).

       The parties are parents of one child, currently five years old. The custody

order provides for a 50/50 split of physical custody. The conference officer

recommended that Kaliszewski pay Allen $475.182 per month in support of

the child. Kaliszewski requested a de novo hearing before the Court of

Common Pleas.

       At the de novo hearing, the primary factual issue was the de facto

physical custody history. Kaliszewski asserted that he had physical custody of

the child 54% of the time in 2017.3 In support, he provided exhibits

demonstrating the number of nights during the year each party had physical

custody. He also presented an exhibit containing text messages from Allen


____________________________________________


2 Neither party has ever challenged this number. As noted, Kaliszewski
challenges only the finding that he has any liability to Allen.

3  The court disagreed with Kaliszewski’s math: by its calculations,
Kaliszewski’s numbers equated to 53% of the time in 2017. This discrepancy
is ultimately irrelevant to our analysis.

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requesting him to take, or retain, physical custody of the child for times when

Allen was entitled to custody under the custody order.

        In contrast, Allen testified that the parties generally followed the 50/50

physical custody split. Any deviation from the scheme provided by the custody

order was the result of Allen honoring the order’s directive that if a party

needed a babysitter, the other parent was to be given first priority to fill the

role.

        The court found Allen’s testimony credible. It concluded the de facto

physical custody history was not materially different from the 50/50 scheme

set forth in the custody order. However, it found that Kaliszewski provided

Allen with additional indirect economic aid such as significant periods of free

baby-sitting. The court thus concluded that Kaliszewski’s support payments

should be reduced.

        Kaliszewski’s first two issues on appeal both turn on the same issue. 4

He contends he should have no liability to Allen, since he believes he has de

facto primary physical custody. However, the court found the parties still

generally followed the 50/50 split of physical custody set forth by the custody

order. While Kaliszewski presented a strong case for a modification, we can

glean no reason from the record for disturbing the court’s credibility

determinations. Nor can we conclude the court’s determination that


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4 Indeed, Kaliszewski’s brief combines the arguments on the first two issues
into a single section.

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Kaliszewski pay Allen child support constitutes an abuse of the court’s broad

discretion.

      Kaliszewski focuses on the court’s reliance on an alleged discovery

violation in finding his evidence not credible. Specifically, the court notes that

it discredited Kaliszewski’s exhibit documenting the physical custody split in

2017 due to “his failure to provide [Allen] with a copy of the document in

advance of the de novo hearing, despite her having asked for it two months

earlier.” Trial Court Opinion, 12/15/17, at 4.

      We acknowledge the court’s reasoning is troublesome in light of

Pa.R.C.P. 1930.5(a) (mandating no discovery practice in simple support

procedures). However, our review of the record indicates that even if we were

to conclude this constituted a misapplication of the law, we do not believe it

was an error that controlled the outcome. The court did not only find

Kaliszewski’s exhibit non-credible. It also found Allen’s testimony credible.

This is an independent credibility determination that supports the court’s

decision.

      Furthermore, the court credited Kaliszewski’s assertions that he

provided a significant amount of baby-sitting for Allen’s benefit. Thus, the

primary point of dispute is not the court’s explicit credibility determinations,

but rather, its determination that any deviation from the 50/50 split in physical

custody was de minimus, and amounted to no more than normal flux in

scheduling. After reviewing the record and Kaliszewski’s arguments, we


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cannot conclude the court abused its broad discretion in reaching this

conclusion. Kaliszewsi’s first two issues on appeal merit no relief.

      In his third and final issue, Kaliszewski argues the court erred by not

providing an explicit calculation supporting its award of $200 per month in

child support in favor of Allen. The court notes that the parties’ incomes and

earning capacities were not in dispute at the de novo hearing. Nor did either

party challenge the conference officer’s calculation of the guideline amount.

The only dispute centered on whether the de facto physical custody history

established that Kaliszewski exercised primary physical custody.

      We agree with the court that, under these circumstances, it was not an

egregious oversight to fail to set forth the guideline support calculation and

result. The parties were fully aware of these numbers, and neither had seen

fit to challenge their accuracy.

      Furthermore, the court was not required to provide a detailed, point by

point recitation of the factors it used and weighed in arriving at the downward

deviation awarded to Kaliszewski. See E.R.L. v. C.K.L., 126 A.3d 1004, 1008

(Pa. Super. 2015). “[O]nce the court has properly consulted the guidelines, it

has the discretion to deviate from the guidelines figure, as long as the court

provides adequate reasons for the deviation.” Silver v. Pinskey, 981 A.2d

284, 296 (Pa. Super. 2009) (en banc) (citation omitted). Moreover, despite

Kaliszewski’s passing argument to the contrary, it is clear the award takes into




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account the 50/50 split of custody.5 Based upon these circumstances, we

cannot conclude the court’s resolution of child support constitutes an abuse of

its broad discretion. We therefore affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2018




____________________________________________


5 While we cannot recreate the court’s calculations precisely, we note the
parties combined net monthly income is $4,272.47, which yields a support
obligation of $911 per month. Kaliszewski’s share of the obligation, in the
absence of a modification for shared custody, is $3,076.85/$4,272.47 or 72%.
72% of $911 is $655.92. Pursuant to Pa.R.C.P. 1910.16-4(c)(1), a 50/50 split
of custody would reduce his share of the obligation to 52%, or $473.72. Thus,
the guideline calculation by the court, providing an obligation of $475.18, took
the 50/50 custody split into account.

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