J-S28033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANE E. HOOVER                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

WILLIAM J. KEMP

                         Appellant                   No. 1758 MDA 2014


            Appeal from the Order Entered September 23, 2014
              In the Court of Common Pleas of Clinton County
                  Domestic Relations at No(s): 22-2011 DR


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:

FILED AUGUST 21, 2015

      I concur in the result insofar as the majority holds that Father’s

inheritance is an asset subject to the imposition of a lien to satisfy support

arrearages existing at the time his support obligation was suspended.

However, I respectfully dissent with respect to the majority’s affirmance of

the trial court’s reimposition of a current support obligation based upon his

receipt of the inheritance.

      Under the terms of section 4305(b)(10)(v) of the Domestic Relations

Code, the domestic relations section may impose a lien on an asset of an

obligor “to satisfy [a] current support obligation and the arrearage.”     23

Pa.C.S.A. § 4305(b)(10)(v).          The trial court, and the majority here,
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characterize Father’s suspended obligation as a current one, making his

“asset,” the inheritance, subject to a lien under section 4305(b)(10)(v).

      Pennsylvania Rule    of Civil Procedure 1910.1 defines the word

“suspend” for purposes of support actions as to “eliminate the effect of a

support order for a period of time.”    Pa.R.C.P. 1910.1(c).   Here, the trial

court suspended Father’s support obligation as of February 16, 2012, to be

“reinstated upon [Father’s] release” from prison. Trial Court Order, 3/5/12.

Thus, Father was relieved of his obligation to make support payments for the

duration of his term of incarceration. Nevertheless, the majority concludes

that Father is subject to a “current” obligation of purposes of section

4305(b)(10)(v). The majority cites no authority for this conclusion, and my

research has uncovered no support for the proposition that a suspended

support order imposes a “current” support obligation. Accordingly, I do not

believe that section 4305(b)(10)(v) allows for a lien to be placed on Father’s

inheritance to satisfy anything other than the arrearages existing as of the

date his support obligation was suspended.

      Moreover, I believe the majority’s decision runs afoul of our Supreme

Court’s decision in Humphreys v. DeRoss, 567 A.2d 614 (Pa. 2002).

There, the Court held that the corpus of an inheritance is not to be

considered income for the purpose of calculating a child support obligation.

However, where the trial court “determines that an inheritance affects a

payor’s financial obligations by making more income available for support,

an upward deviation is appropriate.” Id. at 288.

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        Here, despite the fact that Father continues to be incarcerated and has

no current income or earning potential, the trial court reinstated Father’s

pre-incarceration support obligation, in full, based solely on the fact that

Father recently became entitled to an inheritance. The inheritance was the

only change in financial circumstances prior to the reinstatement of Father’s

monthly support obligation.       As support obligations are to be based on

income and earning capacity, the inescapable conclusion here is that the trial

court    treated   the   inheritance   as   income   in   direct   contravention   of

Humphreys.         The reinstatement of Father’s entire pre-incarceration

obligation can in no way be considered a mere upward deviation as

countenanced under Humphreys.

        In light of the foregoing, I would reverse that portion of the trial

court’s order that reimposes Father’s pre-incarceration support obligation

under section 4305(b)(10)(v). I would remand for the imposition of a new

support order, calculated based upon Father’s current income and earning

potential, as prescribed by statute, with a deviation from the guidelines as

appropriate under Humphreys.




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