J.   S10017/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEISHA HAMILTON                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                    v.


ANDRE    E.   HAMILTON,

                          Appellant                No. 1443 EDA 2016

                    Appeal from the Order Entered May 9, 2016
               In the Court of Common Pleas of Philadelphia County
                      Domestic Relations at No(s): 14-12664
                               PACSES# 219115003

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                                    FILED MAY 09, 2017

       Appellant, Andre   E.   Hamilton ("Father"), appeals from the May 9, 2016

Order, which denied the parties' Exceptions and ordered Appellant to pay

$1,074 per month in child support to Appellee, Keisha Hamilton ("Mother").

Upon careful review, we vacate and remand for further proceedings.

       We glean the following facts from our review of the certified record.'

Father and Mother were married on August 28, 2013, and separated on

September 30, 2014, after being involved in          a   romantic relationship for

approximately five years. They have one minor child.


' The certified record does not contain     a transcript of the December 29,
2015 hearing before the Support Master or copies of exhibits submitted to
the Support Master on that date. Therefore, we rely on the factual findings
stated in the Report of Master in Support, hearing date 12/28/15, at 3-8 and
Trial Court Opinion, filed 7/19/16, at 3-5.
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         Mother is    a   licensed practical nurse who graduated from high school

and completed one year of college.              Mother stopped working in 2010 after

Father told her he would support her, and after the birth of their child,

Mother remained at home to care for their child. In 2015, Mother submitted

twenty applications for employment, but received no offers.

         Father graduated from high school and completed three years of

college. Father admitted to dealing drugs for several years, until 2012 when

he was acquitted of attempted murder, but convicted of possession of a

firearm. Father served approximately one year in prison.

         Father currently owns On the Rise Productions, LLC,         a   business that

owns real estate that generates monthly rental income of $980.                     Father's

2013 and 2014 Schedule             C   tax forms for On the Rise Productions, LLC,

reflect income of $10,158 and $6,634, respectively. Father owns                a   second

business, Rich and Poor Rental, LLC, which rents out used vehicles. Father's

2014 Schedule        C    Tax form for Rich and Poor Rental, LLC, reflects an income

of $5,760.2

         On November 20, 2014, Mother filed a Complaint            for child support.

The parties appeared before            a   Support Master, who submitted   a   proposed

order that Father pay $2,317 per month for the support of two children, one

of whom      is   not his biological child. Mother and Father both filed Exceptions.




2    The certified record does not contain any copies of Father's tax documents.


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The trial court granted the Exceptions and remanded the case to                a   new

Support Master for       a   full hearing.

       The parties appeared before           a   new Support Master, who submitted   a


proposed order on December 28, 2015, imputing an annual income of

$75,000 to Father and ordering him to pay $1,047 per month for the support

of one child.     Both parties filed Exceptions.          On May 9, 2016,   after oral

argument, the trial court denied the Exceptions and adopted the Support

Master's proposed order as its final order.

        Father timely appealed.         Both Father and the trial court complied with

Pa.R.A.P. 1925.

        Father raises the following issues on appeal:

        1. Did  the court err by denying the support [E]xceptions of
           [Father] and overstating the net income attributable to
           [Father]?

        2. Did the  court err by denying the support [E]xceptions of
           [Father] and understating the net income attributable to
           [Mother]?

        3. Did the court err by exhibiting extreme prejudice against
          [Father] by stating that he was a "drug dealer" and that he
          was a "scum"? The decision in denying the support exceptions
          should be reversed on this basis alone.

Father's Brief at    3   (reordered for ease of disposition).

        Our standard of review is well settled in child support cases.         "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


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abuse of discretion or insufficient evidence to sustain the support order."

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

omitted).       Further, "an 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) (quotation marks and citation omitted).

       "[T]he duty to support one's child        is       absolute, and the purpose of child

support   is   to promote the child's best interests            ...   through the provision of

reasonable expenses."         Mencer v. Ruch, 928 A.2d 294, 297                      (Pa. Super.

2007) (quotation marks and citations omitted).                          Id.    Child support is

awarded        pursuant to   a   Statewide guideline which is based upon the

reasonable needs of the child seeking support and the ability of the parent to

provide     support.       See   23   Pa.C.S.         §     4322(a).          In   making   these

determinations, the guideline "shall place primary emphasis on the net

incomes and earning capacities of the parties, with allowable deviations for

unusual needs, extraordinary expenses and other factors, such as the

parties' assets, as warrant special attention." /d.3


3
   Pursuant to the definitions contained in 23 Pa.C.S. § 4302, income
"includes compensation for services, including, but not limited to, wages,
salaries, bonuses, fees, compensation in kind, commissions and similar
items; income derived from business; gains derived from dealings in
property; interest; rents; royalties; dividends; annuities; income from life
insurance and endowment contracts; all forms of retirement; pensions;


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        In his first issue, Father avers that the trial court abused its discretion

when it imputed an annual income of $75,000 to him.              He argues   that there

was insufficient evidence to support the court's assigned earnings capacity

and, more specifically, "no correlation or connection between the decision of

earnings capacity and any kind of legal employment available for [Father]."

Father's Brief at 18. We agree.

       This Court has stated that "a person's support obligation is determined

primarily by the parties' actual financial resources and their earning

capacity.    Although   a    person's actual earnings usually reflect his earning

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

earning capacity than actual earnings."             Woskob v. Woskob, 843 A.2d

1247, 1251 (Pa. Super. 2004) (citations omitted). "[T]he determination of

earning capacity does not involve the consideration of what one could

theoretically earn."    D.H. v. R.H., 900 A.2d 922, 930 (Pa. Super. 2006)

(citation   omitted).       Rather,     it is   based   on   "the amount one could


income from discharge of indebtedness; distributive share of partnership
gross income; income in respect of a decedent; income from an interest in
an estate or trust; military retirement benefits; railroad employment
retirement benefits; social security benefits; temporary and permanent
disability benefits; workers' compensation; unemployment compensation;
other entitlements to money or lump sum awards, without regard to source,
including lottery winnings; income tax refunds; insurance compensation or
settlements; awards or verdicts; and any form of payment due to and
collectible by an individual regardless of source." 23 Pa.C.S. § 4302.

It is, therefore, reasonable to presume that the statutory definition includes
income derived only from legal sources and activities.


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realistically earn under the circumstances, considering         his or her age,

health, mental and physical condition and training."      Id. (citation omitted)
(emphasis added).

       With respect to Father's income, the Support Master stated the

following in his report:

       The Master does not find the [Father]'s testimony regarding his
       income to be credible.      The [Father] testified he stopped
       generating income from illegal activities in [2012], but the
       testimony clearly indicates he continued paying the household
       expenses for [Mother], provided the [Mother] with weekly
       spending money and made cash purchases worth tens of
       thousands of dollars until September of 2014 when the parties'
        separated.

       As such, based on the testimony offered and in consideration of
       the [Father]'s monthly expenses and purchases, the Master
       concludes the [Father] has net annual income in the amount of
       $75,000.

Report of Master in Support, dated 12/28/15, at 6-7.

        Upon denying the parties' Exceptions and accepting the Master's

recommendation, the trial court opined:

       [Mother] would have [Father]'s support obligation be based upon
       the equivalent of his income and lavish spending habits during
       his drug dealing days, which afforded her designer shoes and
       clothing, whereas [Father] would have it be based upon his
       reported 2014 earnings from his businesses, plus rental income,
       or approximately $24,000.          In other words, the court is
       requested to either calculate a support obligation based upon
       [Father]'s continued illicit earnings, implicitly condoning same, or
       calculate a support obligation based upon [Father]'s reported
       minimal income, which the Master rejected for lack of credibility,
       particularly since [Father]'s recent spending habits exceeded
       those earnings.




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       There was no reported testimony from [Father] denying that he
       paid the expenses cited by [Mother] in 2014 before the parties
       separated, which was after he reportedly ceased his illegal
       activities. Therefore, imputing income based upon [Father]'s
       recent spending history, as described by [Mother], would fairly
       reflect [Father]'s earnings available for child support,
       presumably from his business.         This would satisfy the
       requirements of Rule 1910.16-2(d)(4), which cites earnings
       history as one of the factors to be considered in setting a
       support obligation.
                                      * * *


       The proposed order of the Master was based upon a calculation
       of Obligor's spending record, as asserted by [Mother], since
       [Father]'s testimony about his income was found not to be
       credible by the Master. Hence, the income imputed to [Father]
       was based upon the best facts available to the Master showing
       [Father]'s earnings history. It cannot be concluded that this was
       a manifestly unreasonable method for calculating an earning
       capacity.

Trial Court Opinion, filed 7/19/16, at 7-8.

       We disagree with the trial court's assessment.     The trial court first

implies that Father is earning money from his "continued illicit earnings," but

then states that Mother's description of Father's spending history "would

fairly reflect his earnings available for child support, presumably from his

businesses." Trial Court Opinion, filed 7/19/16, at 7. As stated previously,

the determination of earning capacity should not involve the consideration of

what   a   party could theoretically earn, but rather the amount   a   party could

realistically earn under the circumstances. See D.H.        v. R.H.,    supra at
930 (citations omitted). As such, the trial court should not "presume" where

income is coming from; rather, it must consider the evidence presented to



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determine the amount of income that Father could realistically earn under

the circumstances.

       We find further error in the trial court's conclusion that it relied on Rule

1910.16-2(d)(4) to determine Father's earning capacity. See Trial Court

Opinion, filed 7/19/16, at 7; Pa.R.Civ.P. No. 1910.16-2(d)(4).                Nothing in

the record supports that conclusion.

        Pa.R.Civ.P. No. 1910.16-2, pertaining to the calculation of income for

purposes of determining child support obligations, requires the trier of fact

to determine "that   a   party to   a   support action has willfully failed to obtain or

maintain appropriate employment," and then "the trier of fact may impute to

that party an income equal to the party's earning capacity." Pa.R.Civ.P. No.

1910.16-2(d)(4)      The Rule then requires that "age, education, training,

health, work experience, earnings history and child care responsibilities" be

considered in determining earning capacity for one full-time position.               Id.
Further, the Rule states: "[d]etermination of what constitutes            a   reasonable

work regimen depends upon all relevant circumstances including the choice

of jobs available within        a   particular occupation, working hours, working

conditions and whether      a   party has exerted substantial good faith efforts to

find employment."    Id.
        In the instant case, the record           is   devoid of evidence that Father

"willfully failed to obtain or maintain appropriate employment[.]" Pa.R.Civ.P.

No.   1910.16-2(d)(4). Although the record does reflect that Father had, at


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one point, engaged in illegal activities to earn an income, that "employment"

is   neither "appropriate" nor in the best interest of the child.                   Father's

assertion that he no longer deals drugs does not support any conclusion

relevant to    a   consideration of whether he "willfully failed to obtain or

maintain appropriate employment."     Id.
        In addition, even assuming arguendo that Father had willfully failed to

obtain or maintain appropriate employment, the record reflects that the trial

court's determination of Father's earning capacity was based solely on

Father's spending history.4     The trial court had inadequate evidence from

which to determine what would constitute             a   "reasonable work regimen" for

Father, or from which to consider the relevant factors, including "age,

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

responsibilities[.]" Id.

        Rule 1910.16-2(d)(4) requires      a       thorough inquiry into the relevant

factors necessary to establish Father's true earning capacity. See Haseirig

v.   Haselrig, 840 A.2d 338, 341   (Pa. Super. 2003) ("the law in Pennsylvania

clearly requires the trial court conduct       a   full inquiry before making   a    factual


4 Spending history may certainly reflect a party's assets. However, if assets
are not producing income as defined by 23 Pa.C.S. §4302, they may only be
considered after the trial court determines a deviation from the guidelines is
appropriate. See Pa.R.Civ.P. 1910.16-5. Here, the Support Master stated
that a deviation from the guidelines was not warranted and the trial court
adopted that finding. Report of Master in Support, hearing date 12/28/15,
at 7-8.



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determination of an obligor's true earning capacity").           Here, that thorough

inquiry did not occur and the record contains insufficient evidence from

which to impute an earning capacity to Father based on appropriate (i.e.

legal) employment.

         Accordingly, we remand for       a   full evidentiary hearing to determine if

imputing an earning capacity         is   proper and what that earning capacity

should be based on the factors described in Rule 1910.16-2(d)(4).

         In light of our disposition, we decline to address Appellant's remaining

issues.5

         Order vacated.       Case   remanded       with instructions.    Jurisdiction

relinquished.

Judgment Entered.
                       /
     4
    if
Jseph     -
       D. Seletyn,    Eso '
Prothonotary

Date: 5/9/2017



5 By command of our Supreme Court, this Court is not permitted, sua
sponte, to order a judge to recuse herself from a case. Commonwealth v.
Whitmore, 912 A.2d 827, 833-32 (Pa. 2006). We nonetheless would be
remiss if we did not express our concern about the trial court's remarks on
the record regarding Mother and Father, referring to them as "Ms. Princess"
and a "scumbag drug dealer[,]" and stating that "both of them are like, you
know, scumbag personified." N.T. Exceptions Hearing, 5/9/16, at 17-18.
Father has the option to file a Motion for Recusal upon remand and develop
an appropriate record.




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