J-A30040-19

                                   2020 PA Super 17

    T.M.W.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    N.J.W.                                     :
                                               :
                       Appellant               :   No. 817 MDA 2019

                  Appeal from the Order Entered May 7, 2019
    In the Court of Common Pleas of Montour County Civil Division at No(s):
                     DR-00164-18, PACSES No. 044117060


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

OPINION BY COLINS, J.:                                FILED JANUARY 31, 2020

        Appellant, N.J.W. (Father), appeals from an order of the Court of

Common Pleas for the 26th Judicial District, Montour County Branch (trial

court) that reduced his obligation to pay child support to T.M.W. (Mother) from

$2,201.62 per month to $1,558.60 per month.             For the reasons set forth

below, we affirm.

        Mother and Father were married on November 5, 2005, separated in

December 2009, and divorced in April of 2011.             They have one child, a

daughter who was born in November 2006 (Child). Father was at the time of

the divorce, and still is, a physician at Geisinger Medical Center. Mother is a

nuclear medicine technologist.          As part of the parties’ marital settlement

agreement, Father agreed to pay Mother $2,800 per month in child support,


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*   Retired Senior Judge assigned to the Superior Court.
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subject to increase or decrease based on a substantial change in

circumstances. At that time, Father and Mother shared equal custody of Child.

      In 2018, the child support was reduced to $2,201.62 per month.         In

March 2018, Father filed a petition to modify custody.      On September 14,

2018, the trial court issued an order, pursuant to a stipulation of the parties,

modifying custody to give Father custody of Child 18 of every 28 days during

the school year and every other week during the summer, and give Mother

custody of Child 10 of every 28 days during the school year and every other

week during the summer. Trial Court Custody Order, 9/14/18.

      On October 3, 2018, Father filed the instant petition to modify child

support, asserting that child support should be terminated because he had

primary physical custody of Child. On February 21, 2019, the Special Master

held a hearing on the petition at which Father, Mother, Mother’s boyfriend

(J.W.), whom she married after the hearing in this matter, and a vocational

expert witness testified.

      Father testified that his salary as a radiologist at Geisinger is $530,000

per year, but that in 2018 his income was approximately $130,000 higher

because additional radiology work was available that will no longer be

available after 2018.   N.T. at 65-66, 68-69.    Father testified that he pays

Child’s private school tuition and pays for Child’s extra-curricular activities.

Id. at 72-73. Father testified that he pays Child’s health insurance and paid




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for Child’s braces. Id. Father’s last 2018 pay stub was admitted in evidence

at the hearing and showed that his 2018 gross income was $678,900.90.

        Mother testified that she lost her fulltime nuclear medicine technologist

job in 2015, when her employer closed the department where she worked,

and only had part-time work and lower-paying jobs in the period from 2015

through 2018. N.T. at 15-17, 26-27, 29, 82-84. Mother testified that she

applied for but was unable to obtain full-time employment as a nuclear

medicine technologist within a 1 to 11/2 hour radius of Danville, where she and

Father both live, until January 2019, when she was hired by Geisinger full-

time.    Id. at 16, 25-26, 33-34, 82-83, 92-95. At her new full-time nuclear

medicine technologist position, Mother is paid $32.81 per hour and works a

40-hour week. Id. at 16; Court Ex. 2 Employment Verification Questionnaire.

Mother testified that the mortgage payment for her house is $1,850 per month

(including taxes) and that the house was bought when the parties separated

because Father agreed to pay the down payment and provide child support so

that Child would have a good home with Mother near where Father lives. N.T.

at 8-9, 36-37, 84-85. Mother also testified that she could not afford to live

there without child support from Father. Id. at 84-85. Mother lives in the

house, which is in her name alone, with J.W. and their seven-year old

daughter, and Child when Mother has custody. Id. at 8-11.        Mother testified

that she has approximately $40,000 in credit card debt from the period when

she did not have a full-time job. Id. at 24-25. Mother testified that Father


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pays Child’s private school tuition because he is the one who wants her to

attend private school and that she does not pay for Child’s extra-curricular

activities. Id. at 19-20, 85. Mother testified that Father pays Child’s health

insurance and all co-pays and paid for Child’s braces. Id. at 30-31.

      The vocational expert testified that Mother’s earning capacity as a

nuclear medicine technologist in central Pennsylvania is $85,285 per year, but

admitted that he did no labor market survey and made no determination

whether there were job openings in that field in central Pennsylvania in 2015

to 2018.   N.T. at 54-55, 60-61.    Mother and J.W. testified that J.W. pays

utilities for the house, repairs, and some of the household’s food expense, and

provides Mother’s and their daughter’s health insurance. Id. at 10-12, 18,

43. J.W.’s gross income in 2018 was approximately $42,000.

      The Special Master issued a report and a recommended support order

requiring that Father pay $1,558.60 per month child support to Mother,

effective February 1, 2019.    The Special Master found that based on the

parties’ income and expenses, Father’s child support obligation under the child

support guidelines would be $1,948.25 per month, but recommended a 20%

downward deviation to $1,558.60 based on the additional household income

from J.W. Special Master’s Report at 3. The Special Master’s recommended

support order further provided that the requirement that Father provide

Child’s health insurance continue in effect and that with respect to




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unreimbursed medical expenses, expense beyond $250 annually be paid 89%

by Father and 11% by Mother.

       Father filed exceptions to the Special Master’s report and recommended

support order. On May 6, 2019, the trial court issued an order, entered May

7, 2019, denying Father’s exceptions and directing the parties to comply with

the terms of the Special Master’s recommended order. This timely appeal

followed.

       Father presents four issues for our review: 1) whether the trial court

was required to terminate Father’s child support obligation and award him

child support; 2) whether the trial court erred in failing make its order effective

as of the date that Father filed his petition; 3) whether the trial court erred in

failing to allocate any of Child’s private school tuition to Mother; and 4)

whether the trial court erred in using Father’s total 2018 income as his gross

income. Appellant’s Brief at 8-9.1

       Our review of the trial court’s order is limited to determining whether

the trial court abused its discretion and whether there is insufficient evidence

to support the order. Kimock v. Jones, 47 A.3d 850, 853-54 (Pa. Super.

2012); Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super. 2007).

       When evaluating a [child] support order, this Court may only
       reverse the trial court’s determination where the order cannot be

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1 Although Father states these as eight issues, the first four issues and the
eighth issue are more properly analyzed as arguments with respect to the
single issue listed as Issue 1 above.


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       sustained on any valid ground. 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. 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.

Bulgarelli, 934 A.2d at 111 (quoting Arbet v. Arbet, 863 A.2d 34 (Pa. Super.

2004)).

       Father does not contend that he is entitled to termination of his child

support obligations based on calculations under the child support guidelines,

Pa.R.C.P. 1910.16-1–1910.16-7.2 Rather, he argues that termination of child

support and an award of child support to him are required under Colonna v.

Colonna, 855 A.2d 648 (Pa. 2004) and Saunders v. Saunders, 908 A.2d

356 (Pa. Super. 2006) because he has primary custody of Child.                   These

arguments are without merit.

       Colonna and Saunders both address the award of child support to a

parent who has custody of the child less than half the time. In Colonna, the

Pennsylvania Supreme Court held that a parent with primary custody may be


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2 High-income child support cases, such as this, are governed by Pa.R.C.P.
1910.16-3.1. Hanrahan v. Bakker, 186 A.3d 958, 972 (Pa. 2018). Father
has not asserted that the trial court failed to properly apply Rule 1910.16-3.1.
The only claims of error that Father raises with respect to application of any
of the guidelines are his arguments discussed below concerning Pa.R.C.P.
1910.16-5(b) and concerning private school tuition under Pa.R.C.P. 1910.16-
6.

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ordered to pay child support to a parent with partial custody where the parent

with primary custody has a far greater income than the parent with partial

custody. 855 A.2d at 652. The Court held in such cases of great disparity in

income where the primary custodial parent has the higher income,

      the trial court should inquire whether the non-custodial parent has
      sufficient assets to provide the children with appropriate housing
      and amenities during his or her period of partial custody. We
      specifically note that the term “appropriate” does not mean equal
      to the environment the children enjoy while in the custodial
      parent’s care, nor does it mean “merely adequate.” The
      determination of appropriateness is left to the discretion of the
      trial court, upon consideration of all relevant circumstances.

Id.

      In Saunders, this Court upheld the denial of child support to a non-

custodial parent even though the custodial parent’s income was over four

times the non-custodial parent’s income and the non-custodial parent had

substantial debt.    The Court held that the trial court did not abuse its

discretion in denying child support because the non-custodial parent’s financial

problems were due to his choice to do volunteer work for over 31/2 years,

rather than seeking paying employment, and because awarding child support

to the non-custodial parent would not necessarily benefit the children, given

his intent to use it to finance improvements on a home in which he had no

ownership interest and from which he could be evicted. 908 A.2d at 359-62.

      Father asserts that Mother is not entitled to child support under

Colonna and Saunders because she is able to provide appropriate housing

and amenities for Child. While the evidence showed that Mother is providing

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J-A30040-19


appropriate housing and amenities during her periods of partial custody,

Mother, at all times has been receiving over $2,000 per month in child

support, well in excess of the $1,558.60 per month ordered by the trial court.

The fact that appropriate housing and amenities have been provided therefore

does not show that Mother is able to do so without the child support ordered

by the trial court.

      The evidence supports the trial court’s conclusion that without child

support from Father, Mother lacks sufficient assets to provide Child with

appropriate housing and amenities during her periods of partial custody.

Mother testified that she could not afford the housing that she is providing

without child support. In addition, Father’s agreement in the divorce to pay

$2,800 per month in child support shows that he and Mother contemplated

that substantial child support was necessary for Mother to appropriately

provide for Child in her periods of partial custody even when she was fully

employed. Father agreed to pay that $2,800 per month when the parties had

equal shared custody, subject to modification only based on a substantial

change in circumstances.      Father’s and Mother’s occupations have not

changed and there was no evidence that Father’s income has declined or that

Mother’s income was higher in 2018 and 2019 than at the time of the

agreement.

      Rather, the only two changes in circumstances that could reduce or

eliminate Father’s stipulated child support obligation are the reduction in


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J-A30040-19


Mother’s custody from 50% to approximately 36% and the fact there is

another adult earning $42,000 per year in Mother’s household. The only other

changes were Mother’s period of underemployment and her consequent credit

card debt, which would increase, not decrease or eliminate, her need for child

support.   Reducing the stipulated child support proportionately to the

reduction in custody would result in a monthly child support amount of $2,016,

higher than both the amount that the court ordered and the Special Master’s

guideline calculation before the deviation reduction, even without considering

that fixed expenses (such as Mother’s mortgage payments) are not reduced

by the reduction in the percentage of custody and without considering

Mother’s 2015-2018 loss of income and resulting credit card debt.        With

respect to the other income from J.W., that extra income (which must also

support another child) was taken into account as a deviation from the

guidelines that reduced Father’s child support obligation by 20%.

      Father argues that Saunders compels the termination of child support

here because Mother’s underemployment and any consequent debt were

allegedly her fault. This contention was rejected by the trial court based on

Mother’s testimony concerning her employment search efforts. The trial court

held that Mother’s geographical limitation of her job search was reasonable

because a move would interfere with her ability to parent Child with Father.

Trial Court Opinion at 4.    There was no evidence contradicting Mother’s

testimony that she applied for all nuclear medicine technologist job openings


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J-A30040-19


within commuting distance. Father’s vocational expert only testified to the

income that could be earned in a full-time job in that field, not that any job

openings existed during Mother’s period of underemployment. This case is

therefore unlike Saunders, where the non-custodial parent chose to do

unpaid volunteer work rather than seeking paid employment.

       Father also argues that Saunders compels the termination of child

support here because no child support was awarded in that case, despite the

fact that the living conditions at the non-custodial parent’s residence were less

ideal than Mother is providing here. Contrary to Father’s contention, however,

this Court did not hold in Saunders that that the non-custodial parent’s living

conditions there were per se appropriate or that anything better than those

conditions cannot permit a child support award to a non-custodial parent.

Rather, the Court held that the trial court did not abuse “its very broad

discretion” in denying child support to the non-custodial parent because the

non-custodial parent had voluntarily “squandered many of his assets and

opportunities to provide more for his children” and it was not clear that child

support would be expended in a way that benefited the children. 908 A.2d at

362.    In addition, the non-custodial parent in Saunders had not been

previously entitled to child support. Id. at 358. Here, in contrast, Mother was

entitled to $2,800 under the parties’ child support agreement even when fully

employed and without any showing of significant credit card debt.




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       Father further asserts that under Colonna the trial court was required

to consider the guideline deviation factors in Pa.R.C.P. 1910.16-5(b) and that

he is entitled to termination of child support or an award of child support in

his favor if the deviation factors are considered.3 Neither of these contentions

provides any ground for reversal of the trial court’s decision here.

       To the extent that Father is arguing that the trial court failed to consider

the Pa.R.C.P. 1910.16-5(b) deviation factors or address them in its opinion,

that argument is waived.         An appellant’s failure to include an issue in his

Pa.R.C.P. 1925(b) concise statement of the errors complained of on appeal

waives that issue for purposes of appellate review. Lineberger v. Wyeth,

894 A.2d 141, 148 (Pa. Super. 2006); McKeeman v. Corestates Bank,

N.A., 751 A.2d 655, 658 (Pa. Super. 2000). The only issue set forth by Father

in his Rule 1925(b) statement concerning Pa.R.C.P. 1910.16-5(b) was the


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3This section of the child support guidelines provides:
      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;
      (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. 1910.16-5(b).

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contention that “the deviation factors under Pa.R.C.P. 1910.16-5 establish

that Father, not Mother, should receive a deviation, thus, meaning that Mother

did not meet her burden of establishing that she does not have sufficient

assets to provide appropriate housing and amenities for the minor child during

her period of partial physical custody.” Statement of Errors Complained of on

Appeal ¶3. This raises only the issue of whether the deviation factors require

termination of child support, not a claim that the trial court erred in failing to

consider or address the deviation factors.

      Father’s contention that the deviation factors require termination of

child support fails on the merits. Father does not point to any of the deviation

factors that would support any reduction of his child support obligation other

than the factor of “other income in the household” found by the Special Master

and trial court. This factor does not require a conclusion that Mother is able

to provide appropriate housing and amenities during her periods of custody

without the child support ordered by the court.       The additional income in

Mother’s household is approximately $42,000 and is subject to an additional

support obligation for Mother’s and J.W.’s child. Even if that income were

included in its entirety with Mother’s income ($68,244.80), the combined

income of Mother’s household would be $110,244.80, which is only

approximately 1/6 of Father’s income. Colonna requires consideration of the

deviation factors, but does not hold that the presence of a single factor




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supporting a downward deviation precludes a child support award to a lower

income parent with partial custody.

       Father’s remaining arguments assert that the trial court committed

three specific alleged errors with respect to the effective date of its order and

the amount of child support: 1) that the effective date of the order was

incorrect; 2) that the trial court did not allocate any of Child’s private school

tuition to Mother; and 3) that use of Father’s total 2018 income as his gross

income in the computation of child support was error.         These challenges

similarly fail.

       Father argues Pa.R.C.P. 1910.17 required the trial court to make its

reduction in child support effective as of the date that he filed his petition,

October 3, 2018. Rule 1910.17, however, does not impose such an absolute

requirement. Rather, it provides that “[a]n order of support shall be effective

from the date of the filing of the complaint or petition for modification unless

the order specifies otherwise.” Pa.R.C.P. 1910.17(a) (emphasis added).

Here, the order specified that its effective date was February 1, 2019. That

effective date was selected because the modified child support award was

based on Mother’s new full-time employment that she did not have at the time

the petition was filed. Special Master’s Report at 3. Specifying an effective

date based on the date that the basis for the reduction in support occurred

does not constitute an abuse of the trial court’s broad discretion.




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       Father argues that Pa.R.C.P. 1910.16-6(d)(1) requires that private

school tuition be allocated between the parents proportionately to their

incomes.4 The trial court did not allocate Child’s private school tuition because

it concluded that Father was the one who wanted Child to attend the private

school and that the tuition expense was de minimis in comparison to Father’s

income. Trial Court Opinion at 2-3. The conclusion that Father’s preference

was the reason that Child was attending private school was supported by

Mother’s testimony at the hearing. N.T. at 19, 85. Moreover, this issue was



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4Pa.R.C.P. 1910.16-6, governing allocation of expense, provides in relevant
part:
      The trier-of-fact may allocate between the parties the additional
      expenses in subdivisions (a)-(e). …
                         *           *            *
      (d) Private School Tuition. Summer Camp. Other Needs.
      Expenditures for needs outside the scope of typical child-rearing
      expenses, e.g., private school tuition, summer camps, have not
      been factored into the Basic Child Support Schedule.
      (1) If a party incurs an expense for a need not factored into the
      Basic Child Support Schedule and the trier-of-fact determines the
      need and expense are reasonable, the trier-of-fact shall allocate
      the expense. The trier-of-fact may order that the obligor’s
      expense share is added to his or her basic support obligation, paid
      directly to the service provider, or paid directly to the obligee.
      (2) Documentation of the expenses allocated under (d)(1) shall
      be provided to the other party not later than March 31 of the year
      following the calendar year in which the invoice was received
      unless the service provider invoices the parties separately for their
      proportionate share of the expense. For purposes of subsequent
      enforcement, these expenses need not be submitted to the
      domestic relations section prior to March 31. Allocation of
      expenses for which documentation is not timely provided to the
      other party shall be within the discretion of the court.
Id.

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previously litigated by Father and was resolved against him.          Father filed

exceptions to the Special Master’s earlier August 23, 2018 recommended

support order in which he alleged that the Special Master “erred in not

allocating [Child]’s private school tuition.” Exceptions to 8/23/18 Special

Master Order ¶17. On December 26, 2018, the trial court denied Father’s

exceptions to that support order in their entirety and Father did not appeal

that ruling. Father did not introduce any evidence at the hearing on the instant

petition that circumstances concerning Child’s private school tuition had

changed subsequent to this prior unappealed determination.              Father is

therefore barred from re-litigating the issue of allocation of private school

tuition here. Llaurado v. Garcia-Zapata, __ A.3d __, __, 2019 PA Super

338, *7-*8 (No. 180 EDA 2019, filed November 13, 2019).

      Father does not dispute that the $678,990.90 amount used in

calculating his net income and child support obligation was his 2018 income.

Rather, he contends that a lower figure of approximately $600,000 should

have been used as his gross income because he testified that some of his 2018

earnings were for additional work that would not be available in 2019.

Appellant’s Brief at 58-59; N.T. at 68-69. This does not show any error by

the trial court. It is not an abuse of discretion for the trial court to base child

support calculations on the most recent year’s actual income, even if there is

testimony that some of that income will be non-recurring items and that future

earnings will likely be lower. Bulgarelli, 934 A.2d at 115. If a substantial


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decrease in Father’s income in fact occurred after 2018, Father’s remedy is to

seek a modification based on that decrease in income. Id.

      Because the trial court did not abuse its discretion or commit any error

of law in holding that Father is obligated to pay Mother child support of

$1,558.60 per month and its order is supported by sufficient evidence, we

affirm.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/31/2020




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