J-A10039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    B.A.O.                                          :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                       Appellant                    :
                                                    :
                                                    :
                v.                                  :
                                                    :
                                                    :
    M.A.O.                                          :   No. 1065 EDA 2019

                  Appeal from the Order Dated March 11, 2019
    In the Court of Common Pleas of Philadelphia County Domestic Relations
                    at No(s): April Term, 2014, No. 008441,
                            PACSES No. 016109756

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                  Filed: July 23, 2020

        B.A.O. (Wife) appeals from the order entered in the Court of Common

Pleas of Philadelphia County (trial court) denying her exceptions to the

master’s proposed order decreasing the support obligation of M.A.O.

(Husband) and adopting it as a final order. We affirm in part and quash in

part.

                                               I.

        The parties were married in August 1994 and had three children

together. Husband has a Ph.D. in English and worked as a teacher for the

School District of Philadelphia for seventeen years. Wife was a homemaker

from 1998 until 2015 but has since graduated from law school and is an


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*   Retired Senior Judge assigned to the Superior Court.
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attorney. Husband and Wife separated in April 2014 when their children were

ten, twelve and fifteen years old.

      Wife filed a complaint in divorce on April 15, 2014, seeking equitable

distribution of the parties’ marital property and requesting alimony pendete

lite, alimony, spousal support and child support. In November 2014, the trial

court entered an order awarding Wife child and spousal support in the

amounts of $1,806.00 and $1,400.00 per month, respectively.

      On December 12, 2014, Husband filed a petition seeking a reduction in

his support obligation based on changing circumstances in his employment.

Between 2014 and 2017, the parties filed several pleadings disputing

Husband’s support obligation. Husband retired from the school district in May

2015 when he was sixty-four years old and eligible for social security benefits

and his public-school pension. He had filed a workers’ compensation claim

against the school district and received a lump sum payment in the amount

of $28,259.94 in August 2015.         His retirement was precipitated by his

development of medical issues with his knees that affected his ability to walk

up and down stairs, combined with his transfer to an elementary school that

did not have an elevator and necessitated walking thirty-four flights of stairs

daily. After Husband retired, he continued to work for multiple employers,

including   Archbishop   Carroll   High   School   and   Temple   University,   to

supplement his retirement income.




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      On August 29, 2017, the trial court remanded the matter for a full

hearing before a new support master to consider the parties’ earning capacity

and Husband’s lump sum workers’ compensation payment. The master held

hearings in October 2017 and March 2018 and assessed Wife an earning

capacity of $30,000.00 per year based on her experience, education and skill.

The master did not assess Husband an earning capacity in excess of his actual

earnings.     Husband’s social security payments, pension payments and

supplemental income were included as income for calculation of his support

obligation.   The master entered a proposed order on October 29, 2018,

providing for a gradual reduction in Husband’s total child and spousal support

obligation from January 2015 through January 2018, with monthly support

decreasing from $3,504.00 to $1,163.00. Regarding child support, the order

set forth Husband’s monthly obligation as follows: $1,783.00, effective

January 1, 2015; $621.00, effective January 1, 2016; $1,194.00, effective

September 1, 2016; $338.00, effective January 1, 2017, with all payments

terminating on June 22, 2017.

      The trial court held a hearing on Wife’s exceptions to the proposed order

on March 11, 2019, and denied her exceptions and made the master’s order

a final order of court.   Wife timely appealed, and she and the trial court

complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).




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                                               II.

       At the outset, we recognize that at the time of the hearing, the parties

were still married and a divorce decree had not been entered. Generally, only

final orders are appealable. See Pa.R.A.P. 341(b)(1). Even though they were

considered together below and the trial court issued one order resolving the

matter, only the child support portion of that order is before us because, until

the divorce is granted and all economic issues are resolved, the spousal

support portion is not final. See Capuano v. Capuano, 823 A.2d 995, 998

(Pa. Super. 2003). Though the resolution of the issues in this appeal may

have an impact on the issues in the spousal support order, the parties may

appeal the spousal support portion of the order once a final divorce decree is

entered and all of the parties’ economic matters are resolved.                See

Hrinkevich v. Hrinkevich, 676 A.2d 237, 239 (Pa. Super. 1996) (stating

portion of trial court order attributable to child support is final and immediately

appealable, while portion of order addressing spousal support is interlocutory

and subject to quashal).1

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1 Appellate review of child support matters is governed by an abuse of
discretion standard. See J.P.D. v. W.E.D., 114 A.3d 887, 889 (Pa. Super.
2015), appeal denied, 130 A.3d 1290 (Pa. 2015). “When evaluating a support
order, this Court may only reverse the trial court’s determination where the
order cannot be sustained on any valid ground.” Id. (citation omitted).
“Moreover, it is within the province of the trial court to weigh the evidence
and decide credibility and this Court will not reverse those determinations so
long as they are supported by the evidence.” Brubaker v. Brubaker, 201
A.3d 180, 184–85 (Pa. Super. 2018). Although a master’s report and



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                                           III.

       In a multi-layered argument, Wife challenges the trial court’s reduction

of Husband’s support obligation by including Husband’s pension income in

determining his support obligation. Citing to Rohrer v. Rohrer, 715 A.2d

463 (Pa. Super. 1998), she contends that the trial court had initially excluded

the pension from support calculations because it was to be subject to equitable

distribution, and that in now allowing it to be used in calculation of his support

was an abuse of discretion. Wife also maintains that the trial court’s treatment

of the pension essentially allows Husband to use a marital asset to pay his

individual support obligation.

                                               A.

       We begin with Wife’s claim that the trial court’s treatment of Husband’s

pension as income constituted an abuse of discretion under our decision in

Rohrer. “When determining income available for child support, the trial court

must consider all forms of income.” Berry v. Berry, 898 A.2d 1100, 1104

(Pa. Super. 2006) (citation omitted); see also Pa.R.C.P. 1910.16-2(a). 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
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recommendation is only advisory, it must be given the fullest consideration,
especially on the issue of the parties’ credibility. See id.

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      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. Income from pensions then is required to be included in

calculating a spouse’s support obligations.

      Rohrer did not address pensions but what was income derived from a

business under 23 Pa.C.S. § 4302, specifically, whether retained earnings

should be considered as income for support or as an asset in equitable

distribution.   There, the trial court had ordered that the retained income

should be used as income for the purpose of child support.         The master

included the retained earnings from the years prior to the support

determination as an asset. This Court affirmed the arrangement, holding that

it was not an impermissible “double-dip” or counting the same asset as both

property for distribution and income for support. In this case, however, the

principles discussed in Rohrer do not apply, as there is no allegation that the

trial court permitted Husband to “double dip” using his pension.

      With regard to Wife’s contention that the trial court’s treatment of

Husband’s pension essentially allows him to use a marital asset to pay his

individual support obligation, the trial court explained:




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              The amount of support awarded is generally based on the
       parties’ monthly net income.      Pa.R.C.P. 1910-16-2.[2]     The
       definition of income includes compensation from pensions and all
       forms of retirement. 23 Pa.C.S. 4302. The Master’s inclusion of
       Husband’s pension as income for support calculations is correct
       under the applicable law. . . . The support Master’s calculations
       include all forms of income at the times that they were received,
       including Husband’s pension when Husband retired in July of
       2015. Husband’s pension was correctly counted as income for
       support purposes as defined by statute.

(Trial Ct. Op., at 7-8).

       We agree with the trial court’s analysis and discern no abuse of

discretion in its treatment of Husband’s pension.

                                               B.

       Wife also claims that the trial court erred in reducing Husband’s support

obligation where he voluntarily retired from his position as a public school

teacher despite having three minor children. She also argues that the trial

court should have assigned Husband an earning capacity because he


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2 Generally, the support amount awarded is based on the parties’ monthly net
income.

       (a) Monthly Gross Income. Monthly gross income is ordinarily
       based on at least a six-month average of a party’s income. The
       support law, 23 Pa.C.S. § 4302, defines the term “income” and
       includes income from any source. The statute lists many types of
       income including, but not limited to:

                                       *       *    *

              (4) pensions and all forms of retirement;

Pa.R.C.P. 1910.16-2.


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deliberately remained underemployed in order to decrease his support

obligation. Wife maintains that Husband should be attributed an income equal

to his prior full-time teaching position. (See Wife’s Brief, at 4, 18-24).

      Our Rules of Civil Procedure provide the following guidelines concerning

support:

      (d) Reduced or Fluctuating 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.

            (2) Involuntary Reduction of, and Fluctuations in, Income.
      No adjustments in support payments will be made for normal
      fluctuations in earnings. However, appropriate adjustments will
      be made for substantial continuing involuntary decreases in
      income, including but not limited to the result of illness, lay-off,
      termination, job elimination or some other employment situation
      over which the party has no control unless the trier of fact finds
      that such a reduction in income was willfully undertaken in an
      attempt to avoid or reduce the support obligation.

                                  *    *    *

             (4) Earning Capacity. 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 a particular occupation, working

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

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

      The trial court explained its rationale in declining to impute Husband an

income capacity as follows:

            The Master heard testimony, received evidence, and
      outlined her findings of Husband’s income, earning capacity,
      property owned, debt, and expenses in the Master’s Report.
      Husband’s gross income is $1,385.00 [] bi-weekly from his
      teaching position at Archbishop Carroll High School. Husband also
      receives $2,016.89 [] from Social Security benefits, and
      $2,230.46 [] from his pension.         Husband also teaches at
      Community College of Philadelphia and Temple University as an
      adjunct professor. Based on the allowable evidence at the
      Master’s hearing, the Master found that Husband has continued to
      work for multiple employers in his field to support his retirement
      income. The Master found that Husband did not retire to avoid
      his support obligation, and declined to assess an additional
      earning capacity over Husband’s reported income.

             The trial court found no error of fact or law with the Master’s
      findings. Husband was sixty-four [] years of age when he retired.
      Husband was eligible for Social Security benefits and his public
      school pension. Additionally, Husband worked multiple jobs within
      his field to supplement his retirement income. Wife received
      Social Security Derivative benefits for the children, and Husband’s
      Social Security and pension payments along with supplemental
      income from additional employment were included as income for
      calculation of spousal support. Husband has continuously worked
      multiple jobs to supplement his retirement income. Husband has
      not willfully failed to obtain or maintain employment and therefore
      cannot have an income imputed against him in excess of his
      reported income.

(Trial Ct. Op. at 9-10).

      Again, we agree with the trial court.        As previously mentioned, a

master’s findings are to be given great deference, especially regarding


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credibility determinations. This is “because the master had the opportunity to

observe and assess the behavior and demeanor of the parties.” Brubaker,

supra at 184–85 (citation omitted). In this case, the master and the trial

court, after weighing the parties’ testimony and observing their demeanor,

made a specific finding that Husband did not deliberately retire in order to

evade his support obligations. Instead, he retired at a typical retirement age

and his retirement was precipitated by a medical issue that was not

accommodated by the school district.                Even after retirement, Husband

continued to supplement his retirement income with outside employment. We

discern no abuse of discretion in the trial court’s declining to impute Husband

an earning capacity.3

                                               C.

       In her final issue, Wife argues that the trial court erred in failing to

enforce prior orders entered in this matter compelling Husband to produce

documentation of his income and earning capacity. (See Wife’s Brief, at 4,

26). She maintains that because the trial court did not compel production of



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3 We note that Wife’s claim that the trial court’s support order violates the
coordinate jurisdiction rule because it does not impute an earning capacity to
Husband as prior orders had directed is belied by the record. (See Wife’s
Brief, at 25) (stating that the orders of July 8, 2015, August 4, 2016, and
August 29, 2017, required Husband be assigned an earning capacity). Our
review confirms the trial court’s assessment that the previous orders did not
require the master to attribute an earning capacity to Husband and instead
provided for further hearings to determine if his support obligation was
appropriate. (See Trial Ct. Op. at 8).

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these documents, Husband failed to meet his burden of proof to establish he

is entitled to a reduction in his support obligation. (See id. at 28).

      Our review of the three orders Wife references, entered on July 8, 2015,

August 4, 2016, and August 29, 2017, reflect that they generically directed

Husband to produce documentation concerning his income and the lump sum

workers’ compensation payment to determine his support obligation. (See

Orders 7/08/15, 8/04/17, 8/29/17). The record shows that he complied with

this directive by submitting documentation relating to his economic

circumstances, including his pension statement, paystubs from various

employers, his tax return, social security benefit letter, and a distribution

letter showing that he received a net lump sum payment of $28,259.94 on

the workers’ compensation claim. Wife’s assertion that there was a dearth of

evidence concerning Husband’s income and ability to pay support are without

merit.

      Order affirmed in part as it pertains to child support only.       Appeal

quashed in part as it relates to spousal support. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/20



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