J-S70009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARTHA STEWART KIMBLE,                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GREGORY BO KIMBLE,

                            Appellant                No. 3520 EDA 2014


                Appeal from the Order Entered October 24, 2014
             in the Court of Common Pleas of Montgomery County
                        Civil Division at No.: 2010-26039


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 28, 2015

        Appellant, Gregory Bo Kimble, (Father) appeals from the trial court’s

October 24, 20141 order granting the petition of Appellee, Martha Stewart

Kimble, (Mother) for contempt and specific performance of the marital

settlement agreement, dismissing Father’s petition to place money into

escrow as moot, and ordering that Father pay child support to Mother as

specified. We affirm.

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

court’s October 24, 2014 opinion and order, the notes and testimony of the


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The trial court’s order was dated October 23, 2014, but was filed on
October 24, 2014. We have amended the caption accordingly.
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June 9, 2014 and October 15, 2014 hearing, and our independent review of

the record.

      Father and Mother are the parents of Child, (DOB: 1/03/07). Mother

is a full-time social worker and Father is a retired NBA player with a college

degree in communications.      Father and Mother share legal and physical

custody of Child. Father has two other children, an emancipated daughter

who lives in Virginia, and a son with his current paramour.         Mother has

another child with her new husband.

      Father and Mother were married on August 29, 1998. On August 16,

2002, Father and Mother executed a post-nuptial agreement, which

provided, inter alia, that upon divorce, after Mother vacated the marital

residence, Father agreed to pay Mother $50,000.00.          (See Postnuptial

Agreement, § 5(F)(1)). On May 21, 2012 the court entered a divorce decree

which incorporated the post-nuptial agreement.        (See Divorce Decree,

5/21/12). Both parties agree that Father has failed to pay Mother any of the

$50,000.00 provided for in the post-nuptial agreement.

      Mother filed her first request for child support on September 2, 2010.

In a recommendation approved by the court per curiam on February 24,

2011, the special divorce Master determined that Father had the ability to

earn an income of $100,000.00 and calculated his child support to be

$1,314.00     monthly.    On   August   8,   2012,   the   Master    issued   a

recommendation, approved per curiam by the court on August 13, 2012,

which determined that Father had a net earning capacity of $50,000.00 and

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calculated his child support obligation to be $750.00 monthly. Mother filed

timely exceptions to this Order on August 17, 2012.

        In November 2013, Father obtained a monetary settlement in a

workers compensation case against the NBA.        On November 15, 2013,

Father filed a petition to place the proceeds of this settlement in escrow to

be put towards child support. On November 19, 2013, the court scheduled

Father’s petition to be heard together with Mother’s exceptions to the August

13, 2012 child support order. On November 25, 2013, Montgomery County

Domestic Relations received a check containing funds from the settlement

for $20,397.24, which it placed in escrow. On January 10, 2014, the court

ordered these funds be released to Domestic Relations to be applied to this

case.    However, on January 23, 2014 the court vacated that order because

of the November 19, 2013 order.

        On March 4, 2014, the Master issued a recommendation that Father

has an earning capacity of at least $3,000.00 per month, Mother has a

salary of $2,800.00 per month, the parties have shared custody, and

support is not warranted because the parties’ incomes are essential equal.

The trial court approved the recommendation per curiam on March 5, 2014.

Both Father and Mother filed exceptions.

        On June 9, 2014, the trial court held a hearing on the outstanding

exceptions concerning child support and Mother’s petition for contempt

and/or specific performance of the post-nuptial agreement.       During the

hearing, Father testified that an NBA pension that he was entitled to had

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gone to pay for a child support obligation in Virginia.2 (See N.T. Hearing,

6/09/14, at 133-36).        Father did not testify nor did counsel present any

evidence that any source of income, other than the pension, was going

toward his Virginia child support obligations.

       On the adjourned date of the hearing October 15, 2014, the trial court

explained to Father that

       . . . I want to say very clearly here in court because I don’t want
       there to be any surprises.

             [Father], I don’t find you credible. You were evasive in
       your testimony. You were constantly contradicted, both when
       asked on cross-examination, even questions by your own
       counsel. I find it impossible to believe that you can’t come up
       with—have no concept of where $117,000 went after you sold
       your home and that in the last four months you couldn’t find any
       accounting of it. You didn’t make the effort.

             . . . Since 2008 you’ve applied for thirty-eight jobs, thirty-
       eight jobs total. That doesn’t support a family.

             I understand why you want the life you used to have. I
       understand why you want to be the superstar N.B.A.
       player/movie producer. We all would love to do that, but you
       don’t have those opportunities anymore and you’ve got to figure
       out how you support your family. And the fact that you got a
       job a few weeks ago doesn’t do it.

              With your recognition and the way you can articulate
       clearly, you’re an attractive man, you could go out and get a
       variety of jobs but you didn’t think it was appropriate to apply
       for those jobs. You applied for your dream jobs and one other
       until two weeks ago.

____________________________________________


2
  Father testified that his daughter in Virginia was nineteen years old at the
time of the hearing and that he currently owes $7,000 in arrears in support
for her. (See N.T. Hearing, 10/15/14, at 96).



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            . . . You’re not able to support your family on what you’re
      trying to do but you have the luxury of other people trying to
      step up and cover all your expenses so you can live this lifestyle.
      You need to be a man and figure out how to take care of your
      children, and the one before me is [Child].

             Your testimony has not been credible about your efforts
      and I believe you have a much more substantial earning capacity
      than you pretend that you have here and that will be reflected in
      my decision, . . . I do not find you credible. I do not find that
      you have made any real effort at getting a job since 2008 and
      it’s about time you look for a real job, not a $3.50 per package
      job but a real job where you have to spend your time, not just
      I’m going to make calls during the day and hope it works out
      and fly around country and have people put me up. That’s your
      obligation as a father and you need to do it.

(N.T. Hearing, 10/15/14, at 108-10).

      On October 24, 2014, the trial court entered an opinion and order

ruling on the outstanding exceptions and petition for contempt.       The trial

court found that

      . . . Over the past eight (8) years Father has been unwilling to
      obtain gainful employment. Instead he has been supported in a
      variety of ways by different women. This support has enabled
      him to live a fortunate lifestyle in a luxury home, with access to
      luxury cars and travel without having to make any financial
      contributions to this lifestyle. Throughout the past eight (8)
      years Father has made almost no effort to obtain a reasonable
      source of income, but instead has unrealistically applied for
      employment in the professional or college sports arena for which
      he has received no favorable responses.

(Trial Court Opinion, 10/24/14, at 2).

      The court further found that

            Father has demonstrated a consistent pattern of applying
      for “dream jobs” but never applying for jobs he could easily
      attain and which would help provide for Mother and [C]hild.
      Father is able to pursue this lifestyle by living off of “loans”

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      provided to him by friends, acquaintances and family members.
      Accordingly, this [c]ourt holds that Father has willfully failed to
      obtain or maintain appropriate employment pursuant to
      Pa.R.C.P. 1910.[1]6-2(d)(4) and imputes an appropriate earning
      capacity for Father in the support order below.

(Id. at 6).

      . . . Father is a former NBA basketball player with a college
      degree in communications/broadcasting.        Father also enjoys
      minor celebrity status. He is a physically capable, educated,
      articulate man. Father has been periodically providing private
      basketball lessons charging fifty dollars ($50.00) per hour. The
      undersigned found it reasonable that Father would be able to
      provide private basketball lessons for at least twenty (20) hours
      a week or attain a job where he would make $50,000.00 per
      year (net monthly income of $3,191.00).

(Order, 10/24/14, at 8).

      The court’s October 24, 2014 order held Father in contempt of the

marital settlement agreement and directed that the $20,397.24 being held

in escrow by Domestic Relations was to be released to Mother and applied

toward the $50,000.00 that Father agreed to pay her.          (See id. at 7).

Finally, the court also ordered that Father pay child support to Mother in the

amount of $840.30 per month from June 8, 2012 to August 9, 2013;

$843.30 for the period from August 9, 2013 to October 29, 2013; and

$239.33 per month for the period from October 29, 2013 moving forward.

(See id. at 8-9). In addition to the amounts listed above, the court ordered

that Father pay $100.00 per month on arrears with each periodic payment.

(See id. at 9).




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      On November 24, 2014, Father filed a timely notice of appeal.            By

order filed November 26, 2014, the court directed Father to file a concise

statement of errors complained of on appeal and to serve a copy on the

court. On December 1, 2014, Father’s counsel withdrew his appearance on

behalf of Father and Father entered his appearance pro se. After the trial

court granted him two extensions of time to do so, Father pro se filed his

Rule 1925(b) statement on December 31, 2014; however, he did not serve a

copy of the statement of errors on the court. See Pa.R.A.P. 1925(b). On

January 23, 2015, the trial court issued its opinion incorporating its October

24, 2014 opinion and order. See Pa.R.A.P. 1925(a).

      Father raises the following questions for our review pro se:

      1. Whether the [t]rial [c]ourt erred by ordering money escrowed
      pursuant to the Montgomery County Domestic Relations order
      No. 10-26039 dated November 19, 2013, for the purpose of child
      support, to be distributed and paid to [Mother] towards amounts
      owed pursuant to their [m]arital [s]ettlement [a]greement[?]

      2. Whether the [t]rial [c]ourt erred by concluding that [Father]
      has an earning capacity of $50,000.00 per year (net monthly
      income of $3,191.00) without basis for the conclusion[?] . . .

      3. Whether the [t]rial [c]ourt erred by rendering a support
      ruling without consideration (as stipulated in footnote 7 of the
      October 2[4], 2014 Order) of an active pre-existing support
      ruling from the Commonwealth of Virginia, for the benefit of
      [Father’s] eldest child, . . . , in violation of Rule 1910.16-7 of the
      Pennsylvania Rules of Civil Procedure[?]

(Father’s Brief, at 1) (some argument omitted).

      Preliminarily, we agree with the trial court that Father’s violation of

Rule 1925(b)’s requirements to file and serve his 1925(b) statement


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constitutes a waiver of all of his claims. See Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011) (“Rule 1925(b) sets out a simple bright-line rule,

which obligates an appellant to file and serve a Rule 1925(b) statement,

when so ordered; . . . the courts lack the authority to countenance

deviations from the Rule’s terms; the Rule’s provisions are not subject to ad

hoc exceptions or selective enforcement[.]”). Moreover, even if not waived,

Father’s issues lack merit.

      In his first issue, Father claims that the trial court erred by ordering

that the $20,397.24 being held in escrow by Domestic Relations be applied

toward the $50,000.00 that Father owed Mother pursuant to their marital

settlement agreement rather than applying that money for the purpose of

child support. (See Father’s Brief, at 7-8).

             When interpreting a marital settlement agreement, the
      trial court is the sole determiner of facts and absent an abuse of
      discretion, we will not usurp the trial court’s fact-finding
      function.     On appeal from an order interpreting a marital
      settlement agreement, we must decide whether the trial court
      committed an error of law or abused its discretion.

            “[J]udicial discretion” requires action in conformity with
         law on facts and circumstances before the trial court after
         hearing and due consideration. Such discretion is not
         absolute, but must constitute the exercises of sound
         discretion. This is especially so where, as here, there is
         law to apply. On appeal, a trial court’s decision will
         generally not be reversed unless there appears to have
         been an abuse of discretion or a fundamental error in
         applying correct principles of law.

Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. Super. 2005) (citations,

most quotation marks, and footnote omitted).

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      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.

Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009), appeal denied,

995 A.2d 354 (Pa. 2010) (citations and quotation marks omitted)

      Here, Father does not assert that the trial court committed an error of

law, but rather challenges the trial court’s exercise of its discretion in

determining toward which of Father’s outstanding debts the escrowed money

should be applied. (See Father’s Brief, at 7-8). Additionally, Father has not

asserted that the trial court’s decision was the “product of partiality,

prejudice, bias or ill will[,]” Mackay, supra at 533, but rather merely

asserts that

      . . . this action of the trial court was not in the best interest of
      the children and cannot be sustained on any valid ground. Nor is
      it in the best interest of his children. Nor is it in the best interest
      of the children for their father to be under constant threat of
      imprisonment because of artificially elevated levels of
      arrearages.

(Father’s Brief, at 7-8) (quotation marks omitted). Notably, Father has not

cited any supporting authority for this contention. (See id.); see also

Pa.R.A.P. 2119(a), (b).

      Additionally, after independent review of the certified record we

discern no indication that the trial court’s decision was the “product of

partiality, prejudice, bias or ill will” and therefore discern no abuse of




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discretion. Mackay, supra at 533. Accordingly, Father’s first issue would

not merit relief.

      In his second issue, Father claims that the trial court abused its

discretion by imputing an earning capacity of $50,000.00 for him.           (See

Father’s Brief, at 8-11). We disagree.

      Our standard of review for a review of child support orders is well-

settled:

              [T]his 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. . . .

      Furthermore, this Court:

              must accept findings of the trial court that are
           supported by competent evidence of record, as our role
           does      not   include   making     independent    factual
           determinations.     In addition, with regard to issues of
           credibility and weight of the evidence, this Court must
           defer to the trial judge who presided over the proceedings
           and thus viewed the witnesses first hand.

         When the trial court sits as fact finder, the weight to be
      assigned the testimony of the witnesses is within its exclusive
      province, as are credibility determinations, [and] the court is
      free to choose to believe all, part, or none of the evidence
      presented. [T]his Court is not free to usurp the trial court’s duty
      as the finder of fact.

Mackay, supra at 533 (citations and quotation marks omitted).

      “Although a person’s actual earnings usually reflect his earning

capacity, where there is a divergence, the obligation is determined more by



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earning capacity than actual earnings.”        Baehr v. Baehr, 889 A.2d 1240,

1244    (Pa.    Super.   2005)   (citation     and   quotation   marks   omitted).

“[O]rdinarily, a party who willfully fails to obtain appropriate employment

will be considered to have an income equal to the party’s earning capacity.

Age, education, training, health, work experience, earnings history and child

care responsibilities are factors which shall be considered in determining

earning capacity.”   Id. at 1243 (quoting Pa.R.C.P. 1910.16-2(d)(4)).

       Here, the court found that Father’s testimony that he was not capable

of earning over minimum wage was not credible.               (See Trial Ct. Op.,

10/24/14, at 5; N.T. Hearing, 10/15/14, at 108-10); see also Mackay,

supra at 533. Accordingly, the court imputed an income to Father equal to

an earning capacity of $50,000.00 a year (net monthly income of

$3,191.00). (See Order, 10/24/14, at 7-8). In calculating this amount, the

court considered Father’s former occupation, education, “minor celebrity

status,” physical capability, and the fact that Father had been providing

private basketball lessons charging fifty dollars an hour. (Id. at 8).

       The record supports the trial court’s findings, and we discern no

partiality, prejudice, bias or ill will in the trial court’s exercise of its

discretion. See Mackay, supra at 533. Therefore, we conclude that, the

court did not abuse its discretion in imputing an earning capacity for Father

of $50,000.00 per year and using that amount to calculate his support

obligations. See Baehr, supra at 1243. Father’s second issue would not

merit relief.

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       In his third issue, Father claims that the court erred when it rendered

a support ruling without considering a pre-existing support ruling for Father’s

eldest child. (See Father’s Brief, at 11-12).     Specifically, he argues that

under Pennsylvania Rule of Civil Procedure 1910.16-7 the trial court should

have considered the expenses incurred by Father’s support for this child and

abused its discretion when it failed to adjust his support obligation

accordingly. (See id.). We disagree.

       As stated above, we review child support orders for an abuse of

discretion. See Mackay, supra at 533.

       Pennsylvania Rule of Civil Procedure 1910.16-7, which governs awards

of child support when there are multiple families, provides in pertinent part

that

       (a) When the total of the obligor’s basic child support obligations
       equals fifty percent or less of his or her monthly net income,
       there will generally be no deviation from the guideline amount of
       support on the ground of the existence of a new family. . . .

       (b) When the total of the obligor’s basic support obligations
       exceeds fifty percent of his or her monthly net income, the court
       may consider a proportional reduction of these obligations. . . .

Pa.R.C.P. 1910.16-7(a), (b).     In McCarty v. Smith, 655 A.2d 563 (Pa.

Super 1995), this Court explained that any deviation from the guideline

support “must be based and supported by testimony or evidence[.]” Id. at

566.

       Here, Father argues “it was an abuse of discretion for the trial court to

not consider the expenses incurred by [him] as a result of his child support


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obligations in Virginia.” (Father’s Brief, at 12). However, as the trial court

correctly explained

            The only evidence [Father] presented with respect to his
      Virginia child support obligations was an NBA Players’ Pension
      plan print-out and accompanying testimony which indicated his
      pension funds were all being directed towards his Virginia child
      support obligations.     Appellant presented no evidence to
      demonstrate that any other funds were being utilized for his
      Virginia obligations. [The trial court] did not account for any of
      Appellant’s NBA pension funds when calculating its support
      determination. Thus, there is no indication that Appellant’s basic
      child support obligation exceeds fifty percent (50%) of the
      monthly net income the [c]ourt attributed to Appellant for the
      period prior to his daughter’s emancipation in Virginia. . . .

(Trial Ct. Op., at 4; see also N.T. Hearing, 6/09/14, at 135-36; N.T.

Hearing, 10/15/14, at 95-97, Exhibit F-14).

      The court imputed income for Father of $50,000.00 per year (which

did not include Father’s NBA pension), which the court used to calculate his

support obligation. (See Trial Ct. Op., at 4; Order, 10/24/14, at 8). Father

neither testified, nor entered any evidence to support that the total of his

child support obligations equaled fifty percent or more of his net monthly

income, which would have allowed the court to “consider a proportional

reduction of these obligations[.]”     Pa.R.C.P1910.16-7(b); see McCarty,

supra at 566.

      Furthermore, upon independent review, we discern no partiality,

prejudice, bias or ill will in the trial court’s determination and therefore

discern no abuse of discretion. See Mackay, supra at 533. Accordingly,

Father’s third issue would not merit relief.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2015




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