J-A15020-16


                              2016 PA Super 255

MICHAEL HANRAHAN                              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

JEANNE BAKKER

                         Appellee                  No. 1638 EDA 2015


               Appeal from the Order Entered June 4, 2015
            In the Court of Common Pleas of Delaware County
                    Civil Division at No(s): 2008-16689
MICHAEL J. HANRAHAN                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                       Appellant

                    v.

JEANNE L. BAKKER

                         Appellee                  No. 1702 EDA 2015


                 Appeal from the Order Entered June 4, 2015
              In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2008-16689


BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

DISSENTING OPINION BY JENKINS, J.:            FILED NOVEMBER 18, 2016

     Respectfully, I disagree with the majority’s decision to reverse and

remand this case. I do not believe the trial court abused its discretion by

considering as a relevant factor that Michael Hanrahan (“Father”) set up a

$2,500,000.00 trust for his children or by requiring Jeanne Baker (“Mother”)

to put $30,000.00 of the $52,000.00 to $60,000.00 per month that Father
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was required to pay in child support into a PUTMA account.          Further, I

disagree that the trial court erred by failing to award attorney fees to

Mother. Therefore, I respectfully dissent.

      This Court may only reverse a trial court’s determination of child

support where the support order cannot be sustained on any valid ground.

Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa.Super.2007). “We will not

interfere with the broad discretion afforded the trial court absent an abuse of

discretion or insufficient evidence to sustain the support order.”         Id.

Further, the duty to support one’s child is “absolute, and the purpose of child

support is to promote the child’s best interests.” Ricco v. Novitski, 874

A.2d 75, 80 (Pa.Super.2005) (citations omitted).

      The procedure for determining child support in high-income cases is

governed by the following rules:

         Rule 1910.16-3.1. Support Guidelines. High Income
         Cases

         (a) Child Support Formula. When the parties’ combined
         monthly net income is above $30,000, the following three-
         step process shall be applied to calculate the parties’
         respective child support obligations. The amount of
         support calculated pursuant to this three-step process shall
         in no event be less than the amount of support that would
         have been awarded if the parties’ combined net monthly
         income were $30,000. That amount shall be a presumptive
         minimum.

         (1) First, the following formula shall be applied as a
         preliminary analysis in calculating the amount of basic
         child support to be apportioned between the parties
         according to their respective incomes:


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                            *    *    *

        Two children:

        $3,836 +11.6% of combined net income above $30,000
        per month.

                                 *    *    *

        (2) And second, the trier of fact shall apply Part II and
        Part III of the formula at Rule 1910.16-4(a), making
        any applicable adjustments for substantial or shared
        custody pursuant to Rule 1910.16-4(c) and allocations
        of additional expenses pursuant to Rule 1910.16-6;



        (3) Then, third, the trier of fact shall consider the factors
        in Rule 1910.16-5 in making a final child support award
        and shall make findings of fact on the record or in
        writing. After considering all of the factors in Rule
        1910.16-5, the trier of fact may adjust the amount
        calculated pursuant to subdivisions (1) and (2) above
        upward or downward, subject to the presumptive
        minimum.

Pa.R.C.P. No. 1910.16-3.1 (emphasis added)

        Rule 1910.16-5. Support Guidelines. Deviation

        (a) Deviation. If the amount of support deviates from the
        amount of support determined by the guidelines, the trier
        of fact shall specify, in writing or on the record, the
        guideline amount of support, and the reasons for, and
        findings of fact justifying, the amount of the deviation.

        Note: The deviation applies to the amount of the support
        obligation and not to the amount of income.

        (b) Factors. In deciding whether to deviate from the
        amount of support determined by the guidelines, the trier
        of fact shall consider:

        (1) unusual needs and unusual fixed obligations;

        (2) other support obligations of the parties;

        (3) other income in the household;


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        (4) ages of the children;

        (5) the relative assets and liabilities of the parties;

        (6) medical expenses not covered by insurance;

        (7) standard of living of the parties and their children;

        (8) in a spousal support or alimony pendente lite case, the
        duration of the marriage from the date of marriage to the
        date of final separation; and

        (9) other relevant and appropriate factors, including the
        best interests of the child or children.

Pa.R.C.P. No. 1910.16-5. The court must consider the enumerated deviation

factors, and it must base any deviation on those factors. E.R.L. v. C.K.L.,

126 A.3d 1004, 1009 (Pa.Super.2015).

     I agree with the majority’s analysis of Pa.R.C.P. 1910.16-3.1, its

determination that reasonable needs are factored into the guideline amount

for high-income cases, and its conclusion that the trial court did not err by

failing to engage in a separate reasonable needs analysis in calculating the

child support award. I further agree with the learned majority that the trial

court properly conducted the first two steps of the preliminary analysis of

Pa.R.C.P. No. 1910.16-3.1.     However, I disagree with the conclusion of

Mother and the learned majority that the trial court erred by considering

Father’s contribution of $2,500,000.00 into an irrevocable trust for his

children as a relevant factor supporting a downward deviation for support

purposes.

     Pursuant to Pa.R.C.P. No. 1910.16-3.1, after conducting the first two

steps of the preliminary analysis, a trial court is required to consider the

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relevant factors announced in Rule 1910.16-5.       “[T]he trier of fact must

carefully consider all the relevant factors and make a reasoned decision as to

whether the consideration thereof suggests that there are special needs

and/or circumstances which render deviation necessary.” Elias v. Spencer,

673 A.2d 982, 985 (Pa.Super.1996). “As these rules and the prevailing case

law make clear, a court generally has reasonable discretion to deviate from

the guidelines if the record supports the deviation.” Silver v. Pinskey, 981

A.2d 284, 296 (Pa.Super.2009) (citing Ricco v. Novitski, 874 A.2d 75, 82

(Pa.Super.2005), appeal denied, 889 A.2d 1217 (Pa.2005)). “In a support

guidelines case, once 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.” Id.

      Here, the trial court considered as a relevant factor that Father

voluntarily contributed $2.5 million into a trust fund for his children and

accordingly made a downward deviation.       The majority cites Portugal v.

Portugal, 798 A.2d 246, 252 (Pa.Super.2002) for the proposition that a

father’s “voluntary contributions to his 401(k) still constituted income for

support purposes, and the trial court could not reduce his child support

obligation because of those voluntary contributions.” Majority Opinion at 14.

Although the majority finds this case analogous to the present case, the

specific facts of the two cases vastly differ. Although both the contribution

in Portugal and the contribution in the present case were voluntary, the


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similarity of the contributions ends there.    Here, Father did not place the

$2.5 million into his 401(k) in an attempt to exclude it from his income; he

included the $2.5 million in his income and then created an irrevocable trust

for the benefit of his children. He is neither a trustee nor a beneficiary of

the trust.

      Additionally, to support its view that the trial court erred by

considering the $2.5 million contribution, the majority cites Sutliff v. Sutliff

for the proposition that “a parent’s obligation to support minor children is

independent of the minor’s assets.” 528 A.2d 1318, 1320 (Pa.1987). In this

case, the court did not elect to make a downward deviation because the

children had great assets; it made the deviation because Father chose to

give his children a significant amount of his income to secure their futures, a

gift clearly in their best interest. Thus, I do not find the trial court abused

its discretion in considering this a relevant factor to warrant a downward

deviation.

      Next, I disagree with the majority’s contention that the trial court

erred by requiring Mother to place $30,000.00 of the $52,000.00 to

$60,000.00 Father paid per month in child support.

      “The duty to support one’s minor child is absolute, and the purpose of

child support is to promote the child’s best interests.” Ricco, 874 A.2d at

80. “The duty of child support, as every other duty encompassed in the role

of parenthood, is the equal responsibility of both mother and father and


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must be discharged by the parents even if it causes them some hardship.”

D.H. v. R.H., 900 A.2d 922, 931 (Pa.Super.2006), as amended (July 3,

2007) (quoting Yerkes v. Yerkes, 824 A.2d 1169, 1171 (Pa.2003)).

     The majority opines that the trial court erroneously relied on Branch

v. Jackson, 629 A.2d 170 (Pa.Super.1993) for the authority to support its

order that a portion of child support monies could be placed into a PUTMA

account.   See Majority Opinion, footnote 3.    The majority correctly notes

that the trial court inaccurately stated that in Branch, this Court required a

father to place a certain amount into a trust for future expenses.         In

actuality, this Court vacated and remanded Branch for development of the

record. I find it interesting to note, however, that upon remanding the case

in which the trial court had required the father to place a certain amount of

money into a PUTMA account, this Court stated: “Because the record does

not reveal a calculation of child’s reasonable needs, we are unable to

determine whether the order is excessive, adequate, or just right.” Branch,

629 A.2d at 171. Thus, while it is not determinative, Branch suggests that

the trial court’s mandate that the father place a certain amount of child

support into a PUTMA account could have been “just right.”

     The majority then correctly notes that if a portion of the child support

were placed into a PUTMA account, Mother would have to spend down her

own personal assets on her own children before taking money from the

PUTMA account. Indeed:


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            A custodian abuses his discretion and acts improperly if he
            expends funds from a PUTMA account for the purpose of
            fulfilling his support obligation in lieu of making the
            payments out of his own income and assets, where the
            parent has sufficient financial means to discharge it
            himself. PUTMA accounts may not be used for support
            before the parents expend their own resources.

Sternlicht v. Sternlicht, 822 A.2d 732, 741 (Pa.Super.2003), aff'd, 876

A.2d 904 (Pa.2005) (internal citations omitted).

      The majority correctly cites Mackinley v. Messerschmidt for the

proposition that “children should not be made to wait for support and

parents should not be permitted to defer income to which they are entitled

until they choose to avail themselves of it.”            814 A.2d 680, 683

(Pa.Super.2002). The trial court, however, did not offend any of these legal

principals by fashioning its award of child support in the best interest of the

children.

      Since the parties divorced, Father paid between $3,702.00 and

$15,878.00 per month in child support before the present child support

determination. This does not include the $70,000.00 per year Father pays

towards the children’s school tuition, camps, and activities.      The parents

share physical custody of the children equally, and Father testified that he

spends about $2,000.00 per month on the children when they are in his

custody. The instant support determination requires Father to pay between

$52,000.00 and $60,000.00 per month, and it requires Mother to place

$30,000.00 of that money into a PUTMA account for the children.           Thus,



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Mother may spend between $22,000.00 and $30,000.00 of Father’s support

payments per month before she must “expend her own resources.”           Again,

supporting one’s children is the equal responsibility of both parents “even if

it causes them some hardship.”        D.H., supra.     Although Mother may

experience some hardship expending her resources after she has spent the

$22,000.00 to $30,000.00 per month she receives from Father in child

support, if she still requires money to support her children’s immediate

needs, she can access their PUTMA accounts.

      By requiring Mother to place the money into the PUTMA accounts, the

trial court has considered the best interests of the children and avoided

offending legal principals. Father is not deferring income until he chooses to

avail himself of it; he is paying the children immediately.        Mother can

spend significantly more than she ever has on the children per month, the

children will have money for the future to promote their best interests, and if

the children require money from the PUTMA accounts for their immediate

needs because the support they have received is not enough, they can

access the money in those accounts. Further, both parents are obligated to

support their children and the purpose of child support is to promote the

best interests of the children.    Thus, I do not think the trial court erred

when it reasoned:

         to simply give [Mother] the child support monies for the
         2013 [s]upport year in a lump sum, is contrary to the goal
         in child support matters, which is to serve the best interest
         of the children and would deprive the children of a fund to

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         guarantee maintenance of their lifestyle in the future when
         [Father’s] income may be less or non-existent.

Trial Court Opinion, filed December 14, 2015. Unlike the majority, I see no

abuse of discretion.

      Finally, I disagree with the majority’s determination that the trial court

erred by failing to award Mother attorney’s fees. I agree that the Property

Settlement Agreement is a contract governed by contract law and that it

provided, in relevant part, that “a breaching or wrongdoing party shall bear

the burden and obligation of any and all costs and expenses and counsel

fees incurred by himself or herself as well as the other party to the extent

the other party is successful in enforcing his or her rights under this

agreement.” Agreement at 19. Unlike the majority, I agree with the trial

court that neither party was successful in this litigation, and I do not believe

Father breached the contract.

      Father contested the statutory amount of the child support based on

the significant increase in his income in 2012. The Agreement provided:

         Child support and the proportion of Child Expenses shall be
         recalculated each year… based on the parties’ respective
         net incomes and Pennsylvania guidelines, provided,
         however, either party may apply to the Court to
         adjust child support and/or their share of Child Expenses
         for the year based on relevant factors.

Agreement at 13 (emphasis added).       Father challenged the amount of the

award by stating in a letter to Mother: “I simply cannot agree that the

reasonable needs of two children could be anywhere close to the preliminary


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calculation.” Father continued to pay the $7,851.00 per month that he had

been required to pay the previous year, he spent $70,000.00 on the children

in tuition, camps and activities, and he put $2,500,000.00 into an

irrevocable trust for the children.     Even if he was not entitled to the

downward deviation he desired, Father did not breach the contract by

contesting the extreme increase in his child support calculation.        He

continued to pay the amount of child support he had paid the previous year,

and he contributed into a trust for the children an amount that far exceeded

what the statute required him to pay.

     Thus, I respectfully dissent.




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