J-S07016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

G.M.T.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

S.A.K.,

                        Appellee                    No. 924 MDA 2014


                Appeal from the Order Entered May 6, 2014
               In the Court of Common Pleas of York County
               Domestic Relations at No(s): 02269 SA 2008


BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 01, 2015

      Appellant, G.M.T., appeals from an order entered on May 6, 2014 that

denied her request for modification of child support. We affirm.

      The trial court summarized the factual and procedural history in this

case as follows:

      This matter stems from a March 28, 2011, [s]upport [o]rder.
      Appellant petitioned for modification on March 8, 2012, but the
      petition was denied by the conference officer. The matter was
      brought before [the trial c]ourt by Appellant’s request for de
      novo review, which was held on June 7, 2012. In an [o]rder
      [entered on that] date, the [trial c]ourt established Appellant’s
      earning capacity and denied an upward deviation from the
      support guidelines because Appellant had already been granted
      an upward deviation based on extracurricular activities.

      Appellant filed a timely notice of appeal from th[e June 7, 2012
      o]rder on the grounds that the [trial c]ourt erred in calculating
      her earning capacity and in denying her an upward deviation.
      [This C]ourt affirmed [the trial c]ourt’s determination of earning
      capacity, but remanded for consideration of whether Appellant
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      [was] entitled to an upward deviation based on unusual needs
      and/or Appellee’s failure to exercise his custodial rights. [This
      C]ourt directed the [trial c]ourt to consider the deviation factors
      found at Pa.R.C.P. 1910.16-5(b). [The trial c]ourt held a hearing
      on these issues on July 8, 2013. In an [o]rder dated July 11,
      2013, the [trial c]ourt considered the deviation factors and
      denied Appellant’s request for an upward deviation based on a
      lack of unusual needs and Appellee’s failure to exercise his
      custodial rights.

      Appellant [appealed from the trial court’s July 11, 2013 order]
      on the grounds that the [trial c]ourt erred in denying her upward
      deviation based on unusual needs and/or Appellee’s failure to
      exercise his custodial rights. In a memorandum dated March 28,
      2014, [this Court] affirmed [the trial c]ourt’s denial of an upward
      deviation on the basis of unusual needs, but remanded [the
      custody-based deviation back to the trial court].

Trial Court Opinion, 4/21/14, at 2-3.

      On May 6, 2014, following remand, the trial court again rejected

Appellant’s request for an upward deviation based upon her claim that

Appellee failed to exercise his custodial rights.    The court explained its

decision as follows:

      Appellee’s testimony [regarding his efforts to exercise custody
      rights] is consistent with the record. Because the [trial c]ourt
      finds Appellee’s testimony credible as to Appellant’s efforts to
      thwart the exercise of his custodial rights, [the court finds] that
      it would be unjust and inequitable to direct Appellee to pay
      additional child support when it was Appellant’s actions which
      caused Appellee to [forego] his rights of custody. Moreover,
      Appellee did make some additional direct expenditures on behalf
      of Child in the form of gifts and checks. Accordingly, [Appellant]
      is not entitled to an additional upward deviation based upon
      Appellee’s failure to exercise his custodial rights.

Id. at 5.




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       On June 2, 2014, Appellant filed a timely notice of appeal from the

court’s May 6, 2014 order.             Thereafter, on June 20, 2014, Appellant

submitted her concise statement of errors complained of on appeal pursuant

to an order issued under Pa.R.A.P. 1925(b). This appeal followed.

       Appellant’s brief raises the following question for our review:

       Whether the domestic relations court erred by denying
       [Appellant] an upward deviation pursuant to Pa.R.C.P. 1910.16-
       4 [( explanatory comment)] when the evidence [shows Appellee
       did not pursue] legal actions to see the Child when said legal
       procedures were readily available [and known to Appellee, even
       if Appellant thwarted Appellee’s] ability to exercise his visitation
       rights[?]

Appellant’s Brief at 4.

       Appellant claims that she is entitled to an upward deviation under the

explanatory comment to Pa.R.C.P. 1910.16-4 because Appellees did not

exercise his custody rights to the extent assumed in the support guidelines. 1

____________________________________________


1
 In relevant part, the explanatory comment to Pa.R.C.P. 1910.16-4 provides
as follows:

       The basic support schedule incorporates an assumption that the
       children spend 30% of the time with the obligor and that the
       obligor makes direct expenditures on their behalf during that
       time. Variable expenditures, such as food and entertainment
       that fluctuate based upon parenting time, were adjusted in the
       schedule to build in the assumption of 30% parenting time.
       Upward deviation should be considered in cases in which the
       obligor has little or no contact with the children. However,
       upward deviation may not be appropriate where an obligor has
       infrequent overnight contact with the child, but provides meals
       and entertainment during daytime contact.            Fluctuating
(Footnote Continued Next Page)


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Appellee does not dispute that he has not exercised custody of the Child for

30% of the time, the rate assumed in the guidelines.          Appellee argues,

however, that his failure to exercise his custody rights resulted from

Appellant’s conduct in thwarting his efforts to be involved in the rearing of

the Child. The trial court credited Appellee’s testimony on this subject and

declined to grant Appellant the relief she requested. Appellant alleges that

the trial court abused its discretion in making this determination since the

evidence showed that she did not interfere with Appellee’s custody and

visitation rights. In the alternative, Appellant maintains that, even if she did

interfere with Appellee’s custody rights, her actions should not preclude an

upward deviation in the level of support since Appellee failed to seek the

various legal remedies that were available to him.

      Our Supreme Court has explained the principles that govern this case

as follows:

      [A reviewing court applies] an abuse of discretion standard [to
      matters involving child support]. A support order will not be
      disturbed on appeal unless the trial court failed to consider
      properly the requirements of the Rules of Civil Procedure
      Governing Actions for Support, Pa.R.C.P. 1910.1 et seq., or
      abused its discretion in applying these Rules.
                       _______________________
(Footnote Continued)

      expenditures should be considered rather than the extent of
      overnight time. Downward deviation may be appropriate when
      the obligor incurs substantial fluctuating expenditures during
      parenting time, but has infrequent overnights with the children.

Pa.R.c.P. 1910.16-4 (explanatory comment).




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     As [the Supreme Court has] said previously, deviations are
     governed by Rule 1910.16-4 in support proceedings involving
     parties whose incomes fall within the guideline figures.[FN 1]
     Subsection (b) of this Rule sets forth the only factors that a trier
     of fact may consider in determining whether to deviate. The
     trier of fact is required to consider all relevant factors and any
     one factor alone will not necessarily dictate that the amount of
     support should be other than the guideline figure. Rather, the
     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. Furthermore,
     where the trier of fact does determine that the circumstances
     warrant a departure from the guideline amount, the justification
     for any such deviation must be explicitly set forth in writing,
     giving particular attention to those factors which th[e Supreme
     Court], in adopting the guidelines, has specifically deemed
     relevant. See Pa.R.C.P. 1910.16-4(a). General references to
     the effect that “all relevant factors have been considered” is
     wholly insufficient.

       FN1. Pa.R.C.P. 1910.16-4 provides:

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

       (b) 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) assets of the parties;


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        (6) medical expenses not covered by insurance;

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

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

      The presumption is strong that the appropriate amount of
      support in each case is the amount as determined from the
      support guidelines. However, where the facts demonstrate the
      inappropriateness of such an award, the trier of fact may deviate
      therefrom. This flexibility is not, however, intended to provide
      the trier of fact with unfettered discretion to, in each case,
      deviate from the recommended amount of support. Deviation
      will be permitted only where special needs and/or circumstances
      are present such as to render an award in the amount of the
      guideline figure unjust or inappropriate.

Ball v. Minick, 648 A.2d 1192, 1196 (Pa. 1994).

      Our review of the parties’ submissions and the certified record in this

case reveals that, although Appellant cited to the notes of testimony from

the July 8, 2013 hearing, she failed to include a transcript of the proceedings

in the record before us. We remind Appellant and her counsel that, although

this Court may make informal inquiries to locate and obtain notes of

testimony where it appears that an oversight prevented such materials from

reaching us, the burden always remains on the Appellant to ensure that the

record is complete on appeal. See Commonwealth v. O’Black, 897 A.2d

1234, 1238 (Pa. Super. 2006).        Where a party’s failure to include the

transcripts of relevant testimony in the certified record impedes our ability to

review that party’s claims, we may find that the party has waived review of

those claims. Id.


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          Appellant’s omission has substantially hampered our efforts to assess

her claim that the trial court abused its discretion in denying the requested

relief.    We note that the trial court docket reflects that Appellant filed the

notes of testimony for the de novo hearing that occurred on June 7, 2012.

We therefore infer that Appellant’s counsel is familiar with the process of

requesting transcripts and that the York County prothonotary employs a

practice of noting such requests in the docket of each case.       Despite this,

there is no indication that Appellant requested the transcripts for the July 8,

2013 hearing and no transcripts (either for the hearing on June 12, 2012 or

the proceeding on July 8, 2013) were included in the record before us.

Since Appellant did not include the transcripts in the certified record, we find

that she waived appellate review of her claims.

          Even if we were to reach the merits of Appellant’s claims, it does not

appear that Appellant would be entitled to relief. In this appeal, Appellant

makes no argument that the record is devoid of testimony that supports the

findings of the trial court. Moreover, the trial court discharged its obligation

under the explanatory comment to Pa.R.C.P. 1910.16-4 by considering

Appellant’s custody-based support deviation.         See Trial Court Opinion,

4/21/14, at 4-6; see also Pa.R.C.P. 1910.16-4 (explanatory comment)

(requiring consideration of upward deviation when obligor has little or no

contact with children).       Instead, Appellant contends that the trial court

abused its discretion because it did not credit her version of the facts. This


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is not a viable claim that the trial court abused its discretion since there is no

allegation that the trial court misapplied the law or reached its determination

out of bias, ill will, or prejudice. See Eichman v. McKeon, 824 A.2d 305,

312 (Pa. Super. 2003) (defining abuse of discretion as “not merely an error

of judgment, but [a misapplication of the law], or [a] judgment exercised [in

a] manifestly unreasonable [manner], or [a] judgment [resulting from]

partiality, prejudice, bias or ill-will, as shown by the evidence of record”),

appeal denied, 839 A.2d 352 (Pa. 2003).         Under our standard of review,

which accords deference to the trial court’s credibility determinations, we

may not re-weigh the evidence or award relief unless an appellant

demonstrates that the trial court failed to consider the rules applicable to

support actions or abused its discretion in applying those rules.

      Lastly, and for obvious reasons, we are not inclined to award relief

based upon Appellant’s alternate contention.       Here, Appellant asserts that

she is entitled to an upward deviation notwithstanding any alleged

interference with Appellee’s custody rights since Appellee had legal remedies

available to him by which he could address Appellant’s refusal to cooperate

on custody matters.     Awarding relief on this ground would only serve to

incentivize the type of behavior that our domestic relations rules and

procedures are intended to prevent. Thus, this claim lacks merit.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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