J. S57003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DEBORAH A. KUTSCH,                      :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :          No. 252 WDA 2016
                                        :
RAYMOND D. ANTHONY                      :


             Appeal from the Order Entered January 19, 2016,
            in the Court of Common Pleas of Armstrong County
               Civil Division at Nos. Docket Number 990342,
                      PACSES Case Number 571101351


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 15, 2016

     Deborah A. Kutsch (“Mother”) appeals from the order entered in the

Court of Common Pleas of Armstrong County on January 19, 2016

sustaining, in part, and overruling, in part, her exceptions to the findings

and recommendations of the hearing officer and increasing the child support

obligation of Raymond D. Anthony (“Father”) to $572 per month, retroactive

to June 8, 2015, and deferring collection of Father’s arrearages until his

support obligation ends. We affirm.

     The trial court set forth the following factual and procedural history:

                 [Mother] initiated this case by filing a
           complaint for child and spousal support on August 9,
           1999. The complaint regarded, in part, the parties’
           minor child, [] [born] December [], 1997 (the
           “Child”). On September 15, 1999, the Court entered
           an interim support order with a monthly support


* Retired Senior Judge assigned to the Superior Court.
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          obligation of $838.00, which included a basic
          obligation of $788.00 together with $50.00 per
          month in arrearages. [Mother’s] net monthly income
          at that time was calculated to be $1,731.01 per
          month, which included a substantial amount from
          “USWA LOCAL 196.”        [Father] was at that time
          working full time for Allegheny Ludlum Corporation,
          now Allegheny Technologies, Inc. (“ATI”).         His
          support payments were made via wage attachment.
          On December 7, 1999, the Court further ordered
          [Father] to pay $200.00 per month toward childcare
          expenses based on the parties’ agreement to that
          effect. Other than several routine orders for the
          attachment of [Father’s] unemployment benefits, no
          substantive activity occurred in the case for several
          years. A divorce decree from Allegheny County was
          cross-filed with this Court on December 27, 2004,
          along with an accompanying agreement that, among
          other things, terminated [Father’s] spousal support
          obligation.

                 On January 25, 2005, [Father] filed a petition
          to modify his support obligation. In his petition,
          [Father] stated that [Mother] was terminated from
          her employment on January 10, 2005, and therefore
          his payment of childcare expenses was no longer
          necessary.     He also sought reimbursement for
          certain overpayments of spousal support. An initial
          conference was scheduled, but [Mother] failed to
          appear.     The Court accordingly terminated the
          existing support order on February 17, 2005.
          [Mother] requested a hearing de novo, at which the
          parties appeared and “offered various stipulations of
          fact and an agreed upon Order of Support.”

                In the stipulations, the parties agreed, in part,
          that 1) there had been no need for childcare
          expenses since January 3, 2005; 2) [Father’s]
          monthly net income was $3,100.00; 3) [Mother’s]
          imputed monthly net income was $2,400.00; and
          4) [Father’s] monthly child support obligation would
          be $572.00, with no arrearages due.                The
          accompanying      interim    support    order,   dated
          March 21, 2005 and entered March 23, 2005,


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          includes these stipulations and also provides for the
          allocation of unreimbursed medical expenses (57%
          to [Father] and 43% to [Mother]) after the annual
          payment of the first $250.00 of such expenses by
          [Mother]. The agreed-upon support arrangement
          remained in effect for the next several years, during
          which [Father’s] payment obligation remained at
          either $572.00 or $622.00 monthly.[Footnote 1]

               [Footnote 1]      The record does not
               indicate why, at times, $50.00 in
               arrearages were added onto [Father’s]
               basic monthly support obligation of
               $572.00.    In the agreed-upon interim
               order    [dated]    March    21,    2005,
               arrearages were set at $0.00. In any
               event, [Father’s] basic support obligation
               remained at $572.00.

                [Father] retired from ATI in 2008, after which
          the necessary Qualified Domestic Relations Orders
          (“QDROs”) were entered by the Court to ensure that
          [Father’s] monthly support obligation would be paid
          from his ATI pension. The QDROs were entered on
          December 4, 2008 and February 2, 2009. [Father’s]
          basic monthly support obligation did not change.
          [Mother] filed a petition to modify the support
          obligation on February 4, 2010. In her petition,
          [Mother] states that the case had not been reviewed
          in more than three years and that she was then
          homeschooling the Child, who had been diagnosed
          with Tourette Syndrome. After an initial conference
          was held, the Court dismissed [Mother’s] petition,
          finding that “there were no substantial changes in
          circumstances to warrant a modification of current
          support.”    Neither party requested a hearing
          de novo, and the case again [lay] dormant for
          approximately the next five years.

               [Father] filed the instant petition to modify on
          June 9, 2015, in which he alleges that [Mother] did
          not comply with the terms of the March 21, 2005
          support order in that she 1) did not pay the first
          $250.00 of annual unreimbursed medical expenses,


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          and 2) did not pay 43 percent of the actual expenses
          incurred for the Child’s orthodontic care. [Father]
          paid 100 percent of these expenses and sought
          reimbursement. After an initial support conference,
          the Court determined that [Mother’s] imputed net
          monthly income remained $2,400.00, and calculated
          [Mother’s] actual net monthly income to be
          $2,526.04. The monthly support obligation thus was
          reduced to $495.00, which included $45.00 per
          month in arrearages. The interim order is effective
          as of the date the domestic relations section received
          [Mother’s] petition, or June 8, 2015.        [Mother]
          requested a hearing de novo, which was conducted
          by the Hearing Officer on August 31, 2015. Both
          parties appeared at the hearing pro se.

                In his findings, the Hearing Officer imputed to
          [Mother] a net monthly income of $2,484.42 based
          on her prior employment with the local union. The
          Hearing Officer declined to reduce [Mother’s]
          imputed income because he concluded that her
          embezzlement activity, which resulted in criminal
          charges and her employment termination, was
          voluntary. The Hearing Officer calculated [Father’s]
          net monthly income based on his monthly pension
          benefit from ATI. The Hearing Officer declined to
          consider certain household expenses submitted by
          [Mother], concluding that the monthly obligation
          generated by the support guidelines automatically
          would include ordinary daily living expenses and that
          none of the expenses submitted by [Mother] were
          extraordinary. Finally, although the parties appeared
          to agree that [Father] had not seen the Child in a
          period of several years, the Hearing Officer did not
          recommend a deviation from the guideline support
          amount because he concluded that none of the
          deviation factors set forth at Pa.R.Civ.P. 1910.16-5
          were applicable.     The Hearing Officer ultimately
          recommended a monthly support obligation of
          $495.00, including $45.00 toward arrearages. An
          interim order of court reflecting this amount was
          entered on September 21, 2015.[Footnote 2]




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                [Footnote 2] At the de novo hearing,
                [Father] stated that the issue giving rise
                to his modification petition, namely, the
                reimbursement      of   certain   medical
                expenses,    had    been    resolved    by
                agreement of the parties prior to the
                hearing.

                 [Mother] filed timely exceptions on October 7,
          2015, wherein she raised 31 issues regarding the
          Hearing Officer’s alleged bias against her, the
          calculation of her earning capacity, the calculation of
          [Father’s] net monthly income, the Hearing Officer’s
          credibility determinations, the Hearing Officer’s
          failure to deviate from the guideline support amount,
          and certain of the Hearing Officer’s evidentiary
          rulings.    At argument, [Mother], who was then
          represented by counsel, agreed that her exceptions
          reduced essentially to the following:          1) the
          imputation to her of a $35,000.00 annual salary,
          2) the failure of the Hearing Officer to make an
          upward deviation in the support obligation based on
          the lack of time [Father] has spent with the Child,
          and 3) the Hearing Officer’s refusal to attribute
          additional income to [Father].

                The Court overruled in part, and sustained in
          part, [Mother’s] exceptions. The Court found no
          error or abuse of discretion by the Hearing Officer in
          his calculations of the parties’ imputed and actual net
          monthly incomes. The Court did, however, conclude
          that an upward deviation in the support obligation
          was warranted due to [Father’s] having spent no
          time with the Child for several years. The Court
          therefore ordered that the support obligation be
          increased back to its former amount of $572.00 per
          month, retroactive to June 8, 2015. The Court also
          made any arrearages payable after the basic support
          obligation ends.[Footnote 3] This appeal followed.

                [Footnote 3] The Child reached 18 years
                of age on December 1, 2015. He will
                graduate from high school in or about



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                    June 2016.      The support obligation
                    presumably will terminate at that time.

Trial court opinion, 3/17/16 at 1-7 (citations to record omitted; emphasis in

original).

      Mother raises the following issues for our review:

             I.     Whether the Court committed an error of law
                    and/or abused its discretion in failing to use its
                    authority to remand this case for a full
                    evidentiary hearing into [Father’s] finances for
                    the past fifteen years and to order support be
                    recalculated retroactively based on those
                    findings?

             II.    Whether the Court committed an error of law
                    and/or abused its discretion in basing
                    [Father’s] support obligation on his post
                    retirement income rather than on the income
                    he was earning prior to his early, voluntary
                    retirement?

             III.   Whether the Court committed an error of law
                    and/or abused its discretion in assigning
                    [Mother] a $35,000.00 earning capacity
                    without taking all factors into consideration?

             IV.    Whether the Court committed an error of law
                    and/or abused its discretion by failing to
                    consider Rule 1910.16-6 in regard to the
                    child’s extracurricular expenses and in failing
                    to order [Father] to reimburse [Mother] for his
                    proportionate share of those expenses?

             V.     Whether the Court committed an error of law
                    and/or abused its discretion by failing to
                    consider and give proper weight to all things
                    that affect the best interest of the child in this
                    case?

Mother’s brief at 4.



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       When reviewing a child support order, we employ the following

standard of review:

            [T]his Court may only reverse the trial court’s
            determination where the 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.

W.A.M. v. S.P.C., 95 A.3d 349, 352 (Pa.Super. 2014) (citations omitted). A

finding of an abuse of discretion must rest upon a showing by clear and

convincing evidence, and the trial court will be upheld on any valid ground.

Baehr v. Baehr, 889 A.2d 1240, 1243 (Pa.Super. 2005). Additionally, the

fact-finder, having heard the witnesses, is entitled to weigh the evidence and

assess its credibility. Id. at 1245.

       Mother first complains that the trial court abused its discretion in

failing to remand the case back to the hearing officer for “a full evidentiary

hearing into [Father’s] finances for the past [15] years and to order support

be recalculated retroactively based on those findings.”     (Mother’s brief at

18.)   Mother’s argument on this issue sets forth nothing more than her

displeasure with the January 19, 2016 support order that is the subject of

this appeal and her desire for a “do-over.” She complains that “[t]hroughout

the de novo hearing, [Father’s] testimony continued to be inconsistent[,


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but] [e]ven so, the lower court has continued to give him credibility.”

(Mother’s brief at 25.) She then rehashes Father’s testimony and claims an

abuse of discretion because the fact-finder did not weigh the evidence as she

wished and made credibility determinations that she disliked. Our role as an

appellate court is not to reweigh the evidence and/or reassess credibility

determinations. See id. We, therefore, decline Mother’s invitation to do so.

     Mother next complains that the trial court abused its discretion when it

based Father’s support obligation on his post-retirement income rather than

on the income that he earned prior to his retirement, which, Mother

contends, was voluntary. To support her contention, Mother cites Smedley

v. Lowman, 2 A.3d 1226 (Pa.Super. 2010), for the blanket proposition that

when a parent has a support obligation and takes an early retirement, that

parent voluntarily reduces his or her income, and therefore, the support

obligation cannot be decreased. (See Mother’s brief at 27-28.)

     The facts of Smedley, however, differ from the facts of this case. In

Smedley, the father voluntarily retired at age 52, despite being in good

health and being capable of continued employment.      Smedley, 2 A.3d at

1227-1229. Here, the record reflects that Father was employed as a truck

driver and retired when he was approximately 55 years old.1        (Notes of

testimony, 8/31/15 at 6.) Father testified that he retired because he needed



1
  The record reflects that Father was born on December 26, 1953, and
retired in 2008.


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hip replacements and could no longer perform his job duties.            (Id.)

Therefore, unlike Smedley, Father’s testimony, found credible by the

fact-finder, established that Father was not in good health and not capable

of continued employment when he retired. Consequently, Mother’s reliance

on Smedley for the blanket proposition that an early retirement equates to

a voluntary retirement is misguided.

      We also note that Father’s current support obligation of $572 per

month was set in 2005 and was based on Father’s pre-retirement income.

(Interim order of court, filed 3/23/05.) Therefore, Mother has no grounds to

complain about the basis for the support obligation.      Consequently, this

claim lacks merit.

      Mother next complains that the trial court abused its discretion when it

assigned her an earning capacity of $35,000 “without taking all factors into

consideration.” (Mother’s brief at 30.) The record reflects that Mother was

terminated from her job as a secretary at a local union in January 2005

because she was charged with and convicted of embezzlement.         Following

her termination from employment, Father filed a modification petition.

Thereafter, the parties stipulated to an imputed income for Mother of $2,400

per month. (Hearing officer’s findings and recommendations, filed 3/23/05;

see also interim order of court, filed 3/23/05.) The record further reflects

that although Mother filed a petition for modification on February 1, 2010,

the trial court found no substantial changes to warrant a modification, and



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Mother did not seek a de novo hearing. (Order denying petition to modify,

2/26/10; notice of right to request a hearing, 2/26/10.)

      Mother now complains that she should not be assigned an annual

earning capacity of $35,000. In support, she cites Novinger v. Smith, 880

A.2d 1255 (Pa.Super. 2005), for the proposition that when a parent loses

employment due to an “infraction,” that parent should not have to pay

forever for losing that employment. (Mother’s brief at 31.) Although Mother

correctly sets forth that part of the Novinger opinion, Mother ignores the

part that distinguishes losing a job due to an “infraction” such as tardiness

from losing a job due to criminal behavior such as her own felonious

embezzlement activities.

      Our courts have held that those seeking reductions in support

obligations due to criminal behavior that results in incarceration will not be

rewarded for that behavior, and upon release, must start paying their

arrears.   See Novinger, 880 A.2d at 1257; see also Yerkes v. Yerkes,

824 A.2d 1169 (Pa. 2003) (finding that incarceration is not a change in

circumstances that can be used to modify a support order).                The policy

behind this rule is that imprisonment and its resulting reduction in income

are   foreseeable   consequences   of   criminal   activity   akin   to    voluntary

unemployment. Yerkes, 824 at 306. Taking this to its logical extension as

it applies here, it was foreseeable to Mother that her embezzlement could

lead to job loss and a criminal conviction that could severely impede her



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ability to secure future employment. As such, Mother’s reduction in income

was in her control and she cannot now be rewarded for her criminal activity

by using it as a change in circumstances to reduce her imputed earning

capacity. Therefore, this claim lacks merit.

      Mother next complains that the trial court abused its discretion when it

failed to consider Pa.R.Civ.P. 1910.16-6 in denying her request for an

upward deviation in Father’s support obligation because of the Child’s

extracurricular expenses.    Pennsylvania Rules of Civil Procedure 1910.1

through 1910.50 govern support actions.        In deciding whether to deviate

from the amount of support determined by the guidelines, the trier-of-fact

must consider, among other things, the Child’s unusual needs and unusual

fixed obligations.   Pa.R.Civ.P. 1910.16-5.      Here, Mother concedes that

Rule 1910.16-5 “may not apply.”      (Mother’s brief at 34.)   Consequently,

Mother concedes that the expenses that she set forth are not “unusual

needs” and/or “unusual fixed obligations.”

      Instead, Mother argues that Rule 1910.16-6 applies. Under that rule,

childcare expenses, health insurance premiums, unreimbursed medical

expenses, private school tuition, and mortgage payments may warrant an

adjustment to the basic support obligation. The expenses that Mother sets




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forth,2 however, bear no relationship to the enumerated expenses set forth

in Rule 1910.16-6. Therefore, Mother’s claim that the trial court abused its

discretion for failing to consider an inapplicable rule to determine that an

upward adjustment was not warranted cannot, and does not, constitute an

abuse of discretion. Consequently, this claim lacks merit.

      Mother finally complains that the trial court abused its discretion by

failing to consider the best interests of the Child.    Mother argues:     “By

reviewing the case history and questioning [Father] during the de novo

hearing and argument, [Mother] has clearly and convincingly shown the

inconsistencies in [Father’s] testimony, yet the lower court has chosen to

ignore them.    [Mother] beseeches that this Honorable Court not do the

same.” (Mother’s brief at 36.) Once again, Mother invites us to reweigh the

evidence and reassess the fact-finder’s credibility determinations.      Once

again, we decline her invitation to do so because that is not our role as an

appellate court. See Baehr, 889 A.2d at 1243.

      Order affirmed.




2
  In addition to household expenses, Mother sets forth certain of the Child’s
expenses for the “previous 12 months,” including test fees, purchase of a
vehicle, traveling expenses related to the Child’s participation in Boy Scouts,
lacrosse expenses, cell phone, car insurance, vet bills for the Child’s dog,
and school lunches. (Notes of testimony, 8/31/15 at Exhibits 2 and 3.)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2016




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