J-S61014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHALA DOPICO                                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

REMO LEONE

                        Appellant                   No. 42 WDA 2016


             Appeal from the Order Entered December 12, 2015
             In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): FD-06-3722-004


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                   FILED SEPTEMBER 28, 2016

      Appellant, Remo Leone (“Father”), appeals from the order directing

him to pay Shala Dopico (“Mother”) $825.78 in child support per month.

Father argues that the trial court erred in considering evidence that it had

previously barred Mother from presenting due to Mother’s non-compliance

with a discovery order. After careful review, we affirm based upon the trial

court’s Rule 1925(a) opinion.

      We take the facts and procedural history of this case from the trial

court’s opinion.

      The parties are parents to a nine-year-old son, whose child
      support entitlement has been the subject of some litigation.
      Recent history begins in February 2015, where, upon a
      modification and compliance review, the hearing officer
      established an interim child support obligation of $441.24 to be
      paid by Father, pending the resolution of a complex master
      hearing. Notably, Mother’s monthly net income was determined
J-S61014-16


      to be $2,006.33. The ultimate case, now designated complex,
      was listed for a September 2, 2015 hearing date. In weeks prior
      to the trial, Father brought an “Emergency Motion to Preclude,”
      wherein he alleged Mother had not complied with his discovery
      requests. Mother “has failed to respond in any way to [Father’s]
      Request for Production of Documents … The purpose of [Father’s
      request] was to ascertain whether [Mother] had new or
      additional expenses since the support conference that she would
      be introducing at the hearing and to assess whether there has
      been a change in her income since the support conference.” This
      [c]ourt ordered Mother to comply within three days or she “shall
      be precluded from entering any documents into evidence or any
      evidence or testimony regarding additional expenses at the
      [complex support hearing.]” Mother did not so comply. The
      [c]ourt preserved the issue of sanctions, allowing the Master to
      make the appropriate determination.

      At the hearing, the Master first calculated Mother’s income by
      relying on a figure established by the interim order seven
      months prior. That figure, utilized in the February 2015
      temporary order, was based on Mother’s W-2 wages she earned
      as a hair dresser, a position she had since left. Pursuant to this
      [c]ourt’s August 28 order to preclude, Mother’s counsel was
      prevented from submitting any evidence or testimony which
      might demonstrate a decrease in her income. And while Father’s
      counsel refused to stipulate to Mother’s income, his attorney,
      remarkably, chose not to pursue cross-examination.

      Consequently, the entirety of the hearing concerned Father’s
      income. Father is a self-employed mason who comingled his
      personal and business monies. The transcript is replete with
      personal purchases paid out of Father’s business account. …
      After factoring in the appropriate reductions, the Master
      determined Father’s net income to be $4,826 per month. …
      Father filed timely exceptions, which this [c]ourt dismissed.

Trial Court Opinion, 3/7/16, at 1-4 (citations omitted) (brackets in original).

      In this timely appeal, Father argues that the trial court erred in

allowing Mother to present documents in contravention of its earlier




                                     -2-
J-S61014-16


discovery sanction and in including a wedding gift in his 2014 income. Our

standard of review for a child support order is well-settled.

      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. 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. In addition, we note
      that the duty to support one’s child is absolute, and the purpose
      of child support is to promote the child’s best interests.

Kimock v. Jones, 47 A.3d 850, 854 (Pa. Super. 2012) (citations omitted).

      After careful review of the parties’ briefs, the record on appeal, and

the relevant case law, we conclude that the trial court’s opinion, authored by

the Honorable Kathryn Hens-Greco, thoroughly and properly disposes of

Appellant's issues on appeal. See Trial Court Opinion, 3/7/16, at 4-7

(concluding that Mother’s documentary evidence concerned only Husband’s

income and did thus did not violate the sanction order, and that there was

no reason to disturb the Master’s credibility determination regarding the

alleged wedding gift). We, therefore, affirm the order based on the trial

court’s opinion.

      Order affirmed.




                                     -3-
J-S61014-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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         lN THE COURT OF cJMMON PLEAS OF ALLE~HENY                                                   COUNTY. PENNSYLVANIA
                           j     FAMILY DIVIS:1fON
                                                               I
 Shala Dopico,                                                               OPfNION

                                                         Plai: tiff,          No.: .         FD· 06-03722-004
                                                                                        'I




            v.                                                               42   'vY.DA      20[6
                                                               I
 Remo Leone,
                                                               I
                                                         Defdnclant.          BY:

                                                               I              Honorable Kathryn Hens-Greco
                                                                              440 Rbss Street
                                                                              Suite.5077
                                                                              Pittsburgh, PA J 5219


                                                                              COPIES TO:

                                                                              Counsel for        Plaintiff:

                                                                              Timothy G. Uhrich, Esq.
            ('   .                                                            429 Forbes Ave, Suite 909
                                                                              Pittsburgh,       PA 15219
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                                           :~:'·. ;·;.
                                                                              Counsel for Defendant:

                                                                              Jennifer Lynch Jackson, Esq.
                                  .\
                              .       •,
                                                               :              1809 ~Nest Street
                                                                              Munhall, PA 15120
                                                               I
                                                               I
                                                               I
                                                               I
                                                               I




                                                                           EXHIBIT

                                                                       I    c
     IN THE COURT               OF               C~MMON                       PLEAS OF ALLEGHENY                                 COUNTY. PENNSYLVANIA
                                                                  I             FAMILY DfVISlON

  Shala Dopico,

                                     Plaintiff,                                                                1 .No.:        FD- 06-03722-004

            v.                                                I                                                        '42 WDA 2016

  Remo Leone,
                                                              I
                                                              I
                                   Def°ndant

                                                                                      OPlNlON
                                                          I
                                                          I
                                                                                                               I
                                                                                                                   ,

             In this matter, Defendant Remo Leone ("Father")                                                           appeals from this Court's      Order of
                                                         'I
                                                         I                                                              '
 December           I 5, 20 I 5, which/ dismissed                             his Exceptions        to the Special Master's                   child support

 recommendation, making f]irrnl the temporary                                          order of September                       16, 2015. Plaintiff        Simla Dopico
                                                     I
 ("iVlother")        and Father appeared before the Master on September                                                        2, 20 l 5. The Master calculated                ::i
                                                     I                                                         :
 child support         award for thd parties'                              minor son. obligntiniFnther                         to pay $825.78 per month in

 su pport and another $83            r{                           men th in arrears, which was .set at $4,090. 3 7. Fat her took Es cept ions.

 arguing,        inter alia, that thiJ Court had previously                                   barred Mother from entering                      any evidence            on

account of her noncompl +ce during discovery. Th is cdurt dismissed those Except ions. F athei

appeals.                                         I
                                                 I




                            A. RETJEVANT PROCEDURAL AND FACTUAL HISTORY

            The parties      are parents                              to a nine-year-old      son. whose child support                       entitlement            has been
                                             i                                                             .
.he subject        of some litigal1ion. Recent history                                     begins   in February 2015, whereupon                            a

modification and complia                         ice review, the hearing office!· established an interim child support
                                                                                                          1resol
ob I igation of $44 J • 24 to ~e paid by Father, pending the                                                                urion of a com plex master hearing.
                                         I                                                            .

Notably,         Mother's   monthly                           net income        was deterrninecl               to be $2,006.33. See Order of Court,

dated February          27, 2015.1 The ultimate                                 case, now clesig\\atecl complex,                      W8.s    listed for       :1
                                     i                                                                I,
                                     I
                                     I
                                                                                                          I
                                     I
                                        I

                                        I
  September       2, 201 S henrin~ date. In weeks prior to the· trial, Father brought en "Emergency

  Motion to Precl ude," whejei n he alleged Mor her had not comp I ied with his cl iscovery requests.

  Mother "has foiled to respbnd in any way to [Father's I Request for Production                       of

  Documents .... The purposj of [Father's request] was to ascertain whether [Mother] had new or

  additional     expenses since               support conference   that s;he would be introducing       at the hearing
                                        1he
 and to assess whether therb has been a change in her in'Jorne since the support conference."                              See

  Father's Emergenc y M otit', to Preclude, elated Augus(2 8, 20 I 5, at Para gm phs 4- 5. Th is C curt

 ordered Mother to comply! within three clays or she "shall be precluded from entering any

 documents        into evidence ~r any evidence or testimony regarding additional expenses                      at the
                                    i
                                    '
 I complex support hearing}!" See Order of Court, dated August 28, 2015. Mother clicl nor so
                                    I
 comply.       The Court prese1f1ecl the issue of sanctions, allowing              the Master to make the appropriate

 cleterm i nation.

           At the hearing, the Master first calculated             Morhers income by relying on a figure

 established      by   the interim order seven months prior. Thzit figure, utilized in the February 2015

temporary order, was basr on Mother's W-2 wages she' earned as a hair dresser, a post ti on she

had since left. Pursuant          to this Court's August 28 order        ,10   preclude, Mother's    counsel     W[IS


prevented       from submitting         any evidence or testimony which might demonstrate              a decrease in her

.ncorne.       And while F athej, s counsel re Fused Jo sti pu I ate to Mot her' s income, his a uorne y,

remarkably,       chose not to dursue cross-examination.

           C onsequen I I y. the rntirety of the hearing concerned Father's income.                 Fat 11 er is a se If

employed       mason who corriingled his personal and business monies. The transcript                       is replete

with   personal purchases       ptcl out of Father's        business account.      Ready examples      include: $175

worth of perfume and jewllry (see T.T., a1 54); beer and movie rentals (!cl .• a: L 18-J 19); a tuxedo



                                                               2
     and wedding          expenses     (Id,              at 65-66, 116); and nearly $'500 worth of fireworks         (lei., at 68).

     There were sri JI other quejtionable expenses: Father initial I y argued that his $2 2 2 Co111c ost cab le

     bill was a business expensb in that he uses the internet to conduct his online banking.                                 Id, ,11 56-

     57. Hundreds

     C] ienrs ..

     advertise.
                   except that it    +
                           of dollars o 1 expensive                 men ls (fd., at 76;:6 J-62) would suggest entertaining

                                                          not very cost ·C ffect i ve: Husband argued th a f he cannot afford to

                      Then there are expenses which Father cannot explain tId., m 68-69, relating ro

     expenses incurred at a cos/ no). Even orher ex pens es. such as "work cloth es," a re not necexs                                     at   iIy

     bonafide business          expenses.                 Id., at 101-102.     Finally, there was activity that appeared       downright

     fraudulent.        Groceries     bough: on Christmas                    Eve were almost certainly for a personal       gathering

 and not for a supposed               hoLny party thrown for clients (Id., ar 54 ). Father spent $500 dollars                                  :11
                                                    i
                                                    !
 F11111ily Dollar, where he purchased pre-paid Visa curds. ld., ar 59. Father argued that he bought
                                       . I                                                .
 these cards on the advice                  tf his accountant;           this way, his business card number would            1101   be

 ex posed to fraud. f d. F            "t·       I
                                                         also testi fled that income i\1 ihe amount of $12. 500 was actual I y a

 wedding gift, but that he pllnced the funds in his business account because his personal                                     account
                                            I
was frozen for nonpayment of child support. ld., at 64; f04.
                                            I
               In his hearing sumlnary, the Master explained Father's business grossed $49,002 by the

terms of Father's            own 20 l.4 rax return.                 But after reviewing        the bank statements   and tux returns.

il    appeared        to the Master     t 1<1t           Fm her utilized an additional        $56,329 from his business.     When the

ivlaste. added that sum, Fa!ther's gross income increased ro $87,31 S. After factoring                                     in rhe

.rppropriare reductions, th~ Master determined Father's net income to be $4,826 per month.
                                        I                                                 .
Because            Father's nttorneylis                 his new spouse, the Master clicl not believe Father incurred          ri   cost

and rhus did not grant Fat'rr's request for attorney's                               fee1. See Master's     Order of Col\1'1 and




                                                                               3
  Hearing Summary,                                  fI
                              elated epternber 2, 2015. Father q1ec1 timely exceptions,                         which this Court

 dismissed.       Now comes thiis appeal,

                                                        I             B. DISCUSSION
 v er b anrn,
           ·    1 us· ·ISSUeS are t i       lre:I
                                                    I

      1. The Spe.cial Maste1 abused his discretion and/or committed an e1TOr of law by allowing
         [Mother! to enter clpcuments into evidence in contravention of the trial court's orcler dared
         A\1gust 28.', 2015,       sanctioned [Mother] fordiscovery violation.sand ':18ncloted, inter
                                            1
                              hich be precluded from enterrng any documents into evidence" at the
         alia, that, Mother fhall
         Complex Support lflearing. Father was severely prejudiced in that he was unable to
         establish Mother's ~aming capacity due to the fact that she foils to produce a single item
         requested in disco1ery. Yet, the Special Master allowed Mother to introduce documents
         supplied by Father rn discovery to attempt co esra blish Father's earning capacity.
                                                                                    1




     2. The Special Mastel! erred in including wedding gift monies in his calculation of Father's
        2014 "income," wliich he used as Father's earning capacity. In determining income for
        support purposes, the trial court "may not include.income constituting marital property
        under 23 Pa.C.S. §~501." Berry v. Berry, 898 A.2.d I 100, I 104 (Pa.Super. 2006).
                                                !
See Father's "Concise Statbment of Matters of Appeal."                                  Father raises two issues: (i) evidence or
                                                !

Father's expenses and (ii) the inclusion of the supposed wedding gift.

     (i) Bank Statements

          The Court first nots that Father does not ch a I lenge the Master's math in est ab Ii sh ing his

or Mother's      monthly net income, nor does he challenge the consequential                               support calculation
                                            I
based on the parents' com~ined monthly net incomes.                                Instead, Father argues is that Mother
                                            I
should not have been ablelto present documentation                              of Father's questionable      expenses   during the

hearing, pursuant to this dourt's preclusion order, date)August                                 28, 20 I 5; see also T.T., at 4.

But this _Court's preclusiot                            order on! y precluded Mother from presenting evidence or rest i mony

regarding [Mother's]           additional expenses .. The reason                   t7r the preclusion     was to prevent Mother

trorn introducing       any ev1d/ence of her own mcorne and ef-pense which she refused to first supply

to opposing counsel during discovery. As Father's counsel readily admits, the Court did not
                                        I

                                    I                                       4
                                               '                                    I


  preclude Mother from cross-examining                            Father. After Father introduced his tax returns and

  testified     about his income! Mother sought to impeach \::-arher's testimony                       by cross-examining
                                               I
  Fat her with his bank state1r1ents. Father cl id not object to either th is Ii ne of quest ion i ng or to

  Mother's       use of a trial aid, See generally T.T., at 44-48.

              At the conclusion            lrI     the trial, Father seeming!}( acknowledged the improper expenses
                                                                                    .
                                                                                                                                   011


 the tax returns before reqLjesting that the Master only Hold Father to what was officially                            claimed
                                           I                                            ,
 on the return.       Id .. at 139, lines 8-12. Father hypothesized that his income should be determined

 to be. bet.ween $10,000         anll $30,000 gross per year. Th'is figure is extraordinarily                  low   when
 considering       the number and types of non-business expenses Mother was able ro extract during

 her cross-examination           of Jather.                Evidently, Father feel~ that the Court was constrained to        8


 tigure in this ballpark because Mother never should have been able to question him with

 documentation,        a supposJ misfeasance                      to which she failed to even object. The reasoning         fails.
                                       I
              Father also claims r,e was unable to establish Mother's earning capacity, because he                              \Ai[IS

                                       I
 "severely      prejudiced" wh111 Mother failed to answer discovery requests. This is not so.

 Incredibly,     Father chose nf t                 to   cross-examine   Mother about her work or earning history. her

expenses,       her household,         lier education, her time in the workforce, and so forth. The answers                        10


nil of these questions      wou1d have enabled Father                       to   put forth an argument that Mother should be

set at a higher earning capacity, Father's choice not to question Mother was his own misstep.

     (ii) Wedding Gift

          Next, Father mgue1 that this Court improperly                            included his wedding gift as income when

fashioning the child supp+ award. Father argues income for purposes of child support cannot

.nclude marital property. He cites 23 Pa.C.S. §3501 and Berry v. Berry, 898 A.2d 1100, I I 04

(Pa.Super. 2006). But the tuestion is not whether the Master included the gift as income. The



                                   I                                    5


                                   I
                                                           I
                                                           i
     question    is whether      the income                        was a gift. To be clear, 11\e Master's                  child support    calculation was

     a I so a cred ib i Ii ty detern,in,tion.                        When confronted with suspect transactions, Father repented I y and

     quire unpersuasively         alleged                       that the expenses     were rill n part of his business              - a business     that sees

     nearly $200,000 in incornel but a business that pays its oi1'11ier between S J 0,000 and $30,000

     because of the astronornij                                "cost of goods" the business incurs. These "costs" evidently included

     trips to casinos, expensive rinners, a tuxedo, fireworks, and hundreds of dollars of prepaid check

     cards that cannot be tracedl Time and time again, Farherdeflected                                                   the questions by saying he only

     did what his accountant su~ested. The Master made a credibility determination, and apparent I y

     found Father to be less than truthful.                              ln terms of the wedding gift, Father first testified that he
                                         II                                                             I

 received       a $25,000 Joan.        Sf                      T.T., Zit 104. He corrected himself and stated that the sum was a gift,
                                                       I

 which he and his new wife/split                                   equally.    fd. He testified         'that he put this gift in his business

 account, because          his other                   I ccounts       were frozen for nonpayment of support.                      Id. He   argues   th8l   he

 clicl not want to get "jarnm cl up" while trying to pay for the weclcling. But because                                                     Father

corninglecl       virtually all of I is income,                          and because Farhers                 testimony     was so blatantly     unreliable,

the Master did not e1T when he determined                                       that income       in1Fnther's        business account should          be
                                                   I

labeled       as income for purptses of child support. Father le;ft the Master with no other choice.

                                                                               C. CONCLOSION
                                               I

             When the Court prbcluded                                 Mother from presenting documentation                        of her own expenses,

1t   did not grant Father lea~e to submit a child support recommendation                                                      that is more akin to a

wish      list than an fair read        tf     I
                                                               his finances,
                                                                                                    .
                                                                                Father chose riot to question                 Mother, and in the

absence of his cross-exam                              nation and in light of this Court's preclusion,                         the Master     wax

practica
                                           I
                                               l
             11 y bound to the pr1 v ious support determination.
                                                                                                    ;
                                                                                                            Fat her' s true contention, of course, was

Mot her' s cross-exa          Ill inatir                       of his testimony and e videnr.                  Mother was able to adeq LI arc I)'



                                       I                                              6
                               I
impeach   Father's financialdocumentation               and his testimony about his business expenses.     In

doing   so, Mother did not r        111   afoul of this Court's preclusion   order. And in light of Father's

tes ti men y on cross-ex a mi ,Lion, the Master did not err when he incl ucled the pu rportecl "wecld i ng

gift" as income.



                                                                   BY THE COURT:




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