J-S67017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.M.W.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

C.S.

                            Appellant                 No. 85 MDA 2015


               Appeal from the Order Entered December 16, 2014
              In the Court of Common Pleas of Cumberland County
                   Domestic Relations at No(s): 00669 S2002
                                                PACSES #639104710


K.M.S.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

C.S.

                                                      No. 102 MDA 2015


               Appeal from the Order Entered December 16, 2014
              In the Court of Common Pleas of Cumberland County
                   Domestic Relations at No(s): 00669 S 2002
                                                PACSES NO. 639104710



BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 09, 2016


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        In   this   consolidated   cross-appeal,   K.M.W.   (“Mother”)   and   C.S.

(“Father”)1 contend that the trial court erred in its calculation of child

support for the parties’ child. After careful review, we affirm.

        In 2007, a panel of this Court described the procedural history of this

case as “long and tortured.” See K.M.J. v. C.S., No. 1452 MDA 2005, at 1

(Pa. Super. 2007) (unpublished memorandum).            Suffice it to observe that

the history has not gotten any shorter or less tortured over the intervening

years. After that panel affirmed the award of counsel fees to Mother from

Father, the parties agreed to a suspension of child support payments from

Father to Mother. See K.M.S. v. C.S., No 263 MDA 2014, at 4 (Pa. Super.

2014) (unpublished memorandum). As the subsequent panel of this Court

observed,

        [e]verything between the Parties remained relatively calm until
        July 2, 2012, when [Mother] filed a new Complaint for child
        support. After the initial conference, [Father] was found to owe
        child support to [Mother]. Due to the complexity of the case,
        [Mother] was permitted discovery in order to prepare for the de
        novo hearing. [Father] initially failed to comply with these
        discovery requests, requiring [Mother] to file a Motion to Compel
        and a Motion for Sanctions. After a hearing in front of the
        Support Master, [Father] was assessed a support obligation in
        the amount of $509.00 per month, plus $51.00 per month on
        arrears. Both parties filed exceptions …

See id., at 4-5. That panel also affirmed an award of counsel fees to Mother

from Father.

____________________________________________


1
    Father is proceeding pro se in this appeal.



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      Currently before this panel is the trial court’s order denying Father’s

exceptions to the Support Master’s recommendations, and granting in part

and denying in part Mother’s exceptions.     We will address Father’s appeal

first, and then Mother’s cross-appeal.

      Our standard of review of modifications to a child support award is well

settled. A trial court’s decision regarding the modification of a child support

award will not be overturned absent an abuse of discretion or a

misapplication of the law. See Morgan v. Morgan, 99 A.3d 554, 559 (Pa.

Super. 2014), appeal denied, 113 A.3d 280 (Pa. 2015).             “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. (citation

omitted).   “[A]n abuse of discretion requires proof of more than a mere

error of judgment, but rather evidence that the law was misapplied or

overridden, or that the judgment was manifestly unreasonable or based on

bias, ill will, prejudice or partiality.” Portugal v. Portugal, 798 A.2d 246,

249 (Pa. Super. 2002) (citations omitted).

      An award of support, once in effect, may be modified via petition at

any time, provided the petitioning party demonstrates a material and

substantial change in their circumstances warranting a modification.       See

Pa.R.Civ.P. 1910.19(a). “The burden of demonstrating a material and

substantial change rests with the moving party, and the determination of

whether such change has occurred in the circumstances of the moving party


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rests within the trial court’s discretion.”   Kimock v. Jones, 47 A.3d 850,

855 (Pa. Super. 2012) (citation omitted).

      Father raises nine issues for our review. The first three each involve

an argument that the trial court erred in changing the manner by which it

calculated Father’s income available for child support purposes. First, Father

argues that the coordinate jurisdiction rule required the trial court to use the

same method used when child support was calculated in 2005. Second, he

contends that collateral estoppel prohibited the trial court from changing the

method of calculation.   Finally, Father asserts that the trial court erred by

not following the law of the case doctrine and continuing to calculate his

income as it had originally been calculated in 2005.

      All three issues are premised upon Father’s belief that a prior trial

court order in 2005 limited Father’s available income to the pass-through

income he received from a corporation of which he was the sole owner. In

all three arguments, Father argues that the trial court committed error by

instead engaging a cash flow analysis of Father’s income.

      We conclude that none of these three arguments merits any relief.

The trial court accurately highlighted the fatal flaw in each of these three

arguments.

      However, [Father] is mistaken. The May 18, 2005, Order and
      Opinion by Judge Hess did not hold that [Father’s] pass through
      income was the only income to be considered. Rather, the
      opinion stated that any repayment to [Father] of money he
      loaned his business would not be considered income to [Father.]
      Furthermore, on appeal of that Order our Superior Court found

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      that [Father] had waived the specific question of whether his
      pass through income should be considered his only income
      because [Father] had not cited to any applicable case or
      statutory law. While at the time this decision may have, for all
      practical purposes, made [Father’s] pass through income his
      only income available for support purposes, it was not
      specifically held that only his pass through income would be used
      for support purposes in perpetuity.

Trial Court Order and Opinion, 12/15/14, at 13 (citations and footnotes

omitted).   Thus, Father’s belief that the 2005 order explicitly limited the

income subject to consideration to his pass-through income is not supported

by the record.    We further conclude that even if the order could be

reasonably read to support Father’s interpretation, the trial court was

empowered to perform a cash flow analysis as Mother established that a

cash flow analysis better reflected Father’s current income.          See 23

Pa.C.S.A.   §   4352(a);   Krebs    v.   Krebs,   944   A.2d   768,   774–75

(Pa.Super.2008) (court has power to correct support award based upon prior

misrepresentation of income).

      In a related issue, nominally his fifth, Father contends that the trial

court erred in its application of the cash flow analysis. Specifically, Father

argues that the trial court abused its discretion by finding that some of the

expenses claimed by Father on his federal tax returns were not really

business expenses, but expenses for the personal benefit of Father.

      This Court has consistently held that

      the net income of a defendant as shown on income tax returns is
      not to be accepted in a support case as the infallible test of his
      earning capacity. Particularly is this true where the defendant is

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      in business for himself and is allowed substantial business
      “expenses,” items of depreciation and sundry other deductions
      which enable him to live luxuriously before spending his taxable
      income.

Murphy v. Murphy, 599 A.2d 647, 651 (Pa. Super. 1991) (citations

omitted).   Here, the trial court found that Father’s corporate tax return

utilized deductions for expenses such as Father’s monthly gym membership

fee, personal medical expenses, child support payments, and other

miscellaneous expenses for the benefit of Father. These findings are amply

supported by the record, and the trial court did not abuse its discretion in

concluding that such “expenses” should not be excluded from Father’s

available income.

      In his fourth issue on appeal, Father argues that the trial court erred in

failing to include $10,000 Mother received from her husband’s sale of his

prior residence in calculating Mother’s income available for support.        In

2013, Mother’s husband sold his residence to move in with Mother, and

recognized a gain on the sale.         It is undisputed that Mother used

approximately $10,000 of this gain to pay her debts. See Mother’s Brief, at

17.

      Father contends that the trial court was required to include this

amount in its calculation of Mother’s income available for child support in

2013. Mother argues, without any citation to authority, that this sum does

not constitute income, primarily based upon an allusion to federal income

taxation rules. However, in support matters, income includes “gains derived

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from dealings in property[,] … income from discharge of indebtedness[,] …

[and] other entitlements to money[.]” 23 Pa.C.S.A. § 4302. We therefore

agree with Father that the $10,000 used by Mother to retire debt is not

statutorily excluded from her income.

      We do, however, conclude that the trial court did not abuse its

discretion in excluding the $10,000 from its calculation of Mother’s available

income. There is no evidence of record that this was more than a one-time

occurrence. While the trial court could have considered this one-time event

in calculating Mother’s income for 2013, we cannot conclude that it was an

abuse of the trial court’s discretion to disregard it in this matter. See, e.g.,

Portugal, 798 A.2d at 251.

      In issue six, Father argues that the trial court erred in failing to reduce

his child support payments according to the existing custody order which

provides for equal physical custody of the child. However, as the trial court

properly notes, it is not the language of the order which entitles a obligor to

a reduction in his support obligations, but the time he actually spends with

physical custody of the subject child.    See Riley v. Foley, 783 A.2d 807,

814 (Pa. Super. 2001).       Here, Father has never contradicted Mother’s

assertion that the child spends no time in Father’s custody.         He merely

argues that the custody order controls over the de facto circumstances. We

therefore conclude that the trial court did not err in refusing to reduce




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Father’s support liability pursuant to the explicit award of shared physical

custody.

      Next, Father asserts, in a broad claim, that the trial court erred in

dismissing his exceptions to the master’s report and recommendation. This

argument does not raise any arguments that are independent of his other

arguments on appeal.      As we find that none of Father’s issues on appeal

merit relief, we conclude that this issue similarly merits no relief.

      In his eighth issue on appeal, Father contends that the trial court erred

in failing to reduce his support obligation due to the financial benefit

received by Mother from her husband.              We note that this Court has

previously stated:

      Above all, we are mindful of the general principle that a parent’s
      duty to support his minor children is absolute, and the purpose
      of child support is to promote the children’s best interests. The
      court has no legal authority to eliminate an obligor’s support
      obligation, where the obligor can reasonably provide for some of
      the children’s needs.

Silver, 981 A.2d at 296 (citation omitted). Father has made no claim that he

cannot afford to pay his child support obligation.          The trial court was

empowered to find that the fact Mother’s household receives a subsidy from

her   husband    impacted    Father’s   support    obligation.    However,   this

consideration is within the discretion of the trial court, and we will not assail

that discretion absent an abuse.        We cannot say that the trial court’s

decision was an abuse of its discretion, as Father’s duty to support his child

is absolute. Therefore, Father’s eighth issue merits no relief.

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      In his final issue, Father argues that the trial court erred in its

treatment of the parties’ child’s counseling expenses. However, Father fails

to provide any argument in support of this issue in either of the argument

sections of his principal or reply brief. We therefore find this issue waived.

      Turning to Mother’s cross-appeal, we note that Mother’s arguments all

center on contentions that the trial court erred in calculating Father’s income

available for support. In fact, Mother supports all three issues with a single

section of argument.          We therefore address all three issues as a single

challenge.

      All    of    Mother’s    arguments   assail   the   trial   court’s   credibility

determinations.       Our review of the record indicates that, while there is

certainly ambiguity in the amount of income earned by Father, and that this

ambiguity is almost certainly due to Father’s obfuscation, the trial court’s

findings are supported by the record, and constitute a reasonable attempt at

setting Father’s income in a non-confiscatory manner. We therefore cannot

conclude that the trial court abused its discretion. Mother’s issues on appeal

merit no relief.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2016

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