J-A05021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA SCHADER,                              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellant

                  v.

RANDOLPH SCHADER,

                       Appellee                    No. 1645 EDA 2014


               Appeal from the Order entered April 30, 2014,
            in the Court of Common Pleas of Delaware County,
                 Domestic Relations, at No(s): 2011-01137


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED MARCH 09, 2015

     Barbara Schader (“Wife”) appeals from the trial court’s final order of

support entered against Randolph Schader (“Husband”). We affirm.

     The trial court summarized the pertinent facts as follows:

           The parties were married on October 12, 1985, and
        have four (4) emancipated children.         [Wife] filed a
        Complaint in Divorce and a Complaint in Custody on June
        24, 1994; thereafter the parties reconciled. On August 17,
        2007, the parties formally separated. [Wife] completed
        the ninth grade (9th) and thereafter received her General
        Education (GED) High School Equivalency Degree and
        during the marriage, [Wife] was the primary caregiver to
        the parties’ four children.

            [Husband] is a High School graduate, who completed
        college at St. Louis Washington University before going to
        Dental School at Temple University.         [Husband] was
        licensed as a dentist during the marriage. During the
        marriage, [Husband] bought property located at 248 South
        21st Street, Rittenhouse Square, Philadelphia in 1993, with
        a loan from his father and as such the property was
        originally titled solely in [Husband’s] name and the parties
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       renovated the building to accommodate [Husband’s]
       dentistry practice. [Husband] sold his general dentistry
       practice located at 248 South 21st Street, Rittenhouse
       Square, Philadelphia in 2005 and retained the building,
       which he continues to rent out. [Husband] receives rent
       from the dental office in the amount of $3,700 a month,
       the second floor apartment in the amount of $2,090 a
       month and the third floor apartment in the amount of
       $1,600 a month.

           After the separation of the parties, [Wife] was in a
       severe auto accident on May 9, 2008, wherein she
       sustained numerous serious and disabling injuries which
       resulted in her having several operations. [Wife] requires
       significant medical care to this day.        There was a
       stipulation between the parties that [Wife] has no earning
       capacity.

          It is important for the calculations of Support in this
       matter to note that this Court’s Final Order of Equitable
       Distribution was entered on May 30, 2013 and thereafter
       this Court issued an Order Granting in Part and Denying in
       Part [the parties’] Motions for Reconsideration entered
       June 19, 2013. This Court also notes that [a] divorce
       decree was issued on August 26, 2013 by The Honorable
       Nathaniel C. Nichols and as such the parties were formally
       divorced on that date.

          [Husband] filed a Petition to Modify APL/Support on July
       13, 2013.     Thereafter, a Master issued an Order on
       September 4, 2013, effective July 22, 2013, for
       APL/Support in the amount of $3,759.60 plus 35% of the
       mortgage, for an additional $1017.45, with a total
       APL/Support obligation of $4,777.05 per month plus
       $477.57 toward arrears, thus a total monthly obligation of
       $5,254.75. This Court noted that as of April 7, 2014, the
       support arrears are $21,068.62[.] [Wife] thereafter filed a
       timely appeal from the Master’s Order.

          This Court also notes that [Husband], as required by
       the Court’s Final Equitable Distribution Order of May 30,
       2013, is to pay [Wife’s] existing medical, dental and
       prescription insurance coverage and/or make full payments
       of the COBRA for [Wife’s] medical insurance for the full
       term of the COBRA that is available to [Wife].


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Trial Court Opinion, 8/6/14, at 3-5 (citation and footnotes omitted).1

       The trial court held a de novo hearing on April 10, 2014.              After

considering all of the testimony and the parties’ exhibits, the trial court

recalculated the applicable support guidelines and issued its final support

order on April 30, 2014.          Wife filed an original and amended motion for

reconsideration.     On May 22, the trial court denied Wife’s reconsideration

motion.    This timely appeal followed.          Both Wife and the trial court have

complied with Pa.R.A.P. 1925.

       Wife raises the following issues:

          A. Did the [trial court] incorrectly rely on [Husband’s]
          evidence and testimony related to his income, including
          [Husband’s] employment and inheritance, as [Husband]
          was ordered to produce the documents regarding the
          Schader Estates by Order dated March 1, 2013 and as
          there were no 2013 personal income tax returns, nor any
          estate tax returns or documents provided to the [trial
          court]?

          B. Did the [trial court] fail to consider the aforesaid tax
          returns and estate account documents which the [trial
          court] ordered [Husband] to produce by Order dated
          March 1, 2013 when the [trial court] calculated
          [Husband’s] spousal support obligations from October 1,
          2013 to the present?

          C. Did the [trial court] fail to consider that [Husband has]
          a significant inheritance and access to trust accounts and

____________________________________________


1
  Wife filed a timely appeal to this Court from the trial court’s final equitable
distribution order. That appeal does not impact our decision in the present
appeal. See Schader v. Schader, No. 2492 EDA 2013.




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         the income generated by them and such should have been
         considered income for support purposes?

Wife’s Brief at 3.

      Our standard of review is well settled:

         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 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.
Sirio v. Sirio, 951 A.2d 1188, 1192-93 (Pa. Super. 2008) (citation omitted).

      Because Wife’s first two issues involve Husband’s alleged failure to

comply with a discovery order, we address them together. Our review of the

record supports Husband’s assertion that the trial court did not enter a

discovery order in this support action.    Husband’s Brief at 8.    Rather, as

asserted by Husband, the discovery order was issued approximately one

year earlier at the parties’ equitable distribution docket. Id. Thus, we need

not consider Wife’s first two issues further. See Trial Court Opinion, 8/6/14,

infra.

      In her remaining issue, Wife asserts that the trial court abused its

discretion when determining Husband’s income available for support because

it failed to consider the fact that Husband received a significant inheritance,

and had access to trust accounts and the income generated from them.


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     Pennsylvania’s Domestic Relations Code defines “income” as follows:

          “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; 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 the source.

42 Pa.C.S.A. § 4302.

     Our Supreme Court has held that, “although the corpus of an

inheritance is not included in a payor’s income available for support, it may

be considered when adjusting a support obligation pursuant to Pa.R.C.P.

1910.16-5.” Humphreys v. DeRoss, 790 A.2d 291, 288 (Pa. 2002); see

also Maher v. Maher, 835 A.2d 1281, 1286-87 (Pa. 2003) (holding

inheritance received by support payee is not income available for support).

     Wife acknowledges that the corpus of Husband’s inheritance and trust

is not income for purposes of support.             See Wife’s Brief at 15-17.

Nevertheless,   she    contends   “[g]iven   the   trial   court’s   finding   as   to

[Husband’s] ability to access money from the trust funds, the trial court


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should have considered these amounts in establishing the appropriate

support obligation of [Husband].”   Wife’s Brief at 19.   Our review of the

record does not support Wife’s contention.

     The trial court rejected Wife’s claim regarding its calculation of

Husband’s income, and offered its detailed reasoning as follows:

           This Court did not incorrectly rely on the evidence and
        testimony presented by the parties during the Hearing held
        on April 10, 2014. This Court notes that the Hearing on
        this Support matter was first scheduled in January of 2014
        and then in March of 2014 and those Hearings were
        continued at the request of [Wife’s] counsel. This Court
        notes that the Hearings were not continued due to a
        request for continued discovery or failure to comply with
        discovery requests. This Court notes that at no time prior
        to or during the Hearing did [Wife] argue that [Husband’s]
        2013 tax returns were necessary such that a continuance
        of the Hearing should be granted. This Court notes that
        [Wife] never requested a continuance of the April 10, 2014
        Hearing nor asserted during the Hearing that the 2013 tax
        returns of [Husband] were vital to the case during the
        Hearing. Even if [Wife] had requested a continuance for
        [Husband’s] 2013 tax returns, this Court would not have
        granted such a request, as this Court was able to
        determine [Husband’s] current income (or income at the
        time of the April 10, 2014 Hearing) based upon the
        credible testimony and overwhelming and extensive
        evidence presented during the April 10, 2014 Hearing.

           This Court had previously, in the Final Equitable
        Distribution Order, determined that [Husband’s] two
        employment positions in 2012 provided him with a [yearly]
        gross income of approximately $194,200; in paragraph 16
        on page 25 said Order found [Husband] had a minimum
        [yearly] earning capacity of $160,000. At that time, the
        Court had been provided with [Husband’s] 2012 tax
        return, as this Court was provided with the tax return for
        2012 at the April 10, 2014 Hearing.



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          This Court notes that at the time of the April 10, 2014
       Hearing, [Husband] provided credible testimony that he
       did not have a 2013 tax return prepared to submit to
       [Wife] as the tax deadline of April 15, 2014 had not
       passed. [Husband] provided credible testimony of his
       employment status and his earnings from October of 2013
       until the date of the Support Hearing. [Husband] also
       presented as evidence his 1099 Form. Additionally, the
       Office Manager at Newtown [Orthodontics], Lisandra
       Maisonet, presented credible evidence of [Husband’s]
       employment with Newtown as well as his earnings with
       Newtown.

          This Court notes that based upon the credible testimony
       and evidence of [Husband], which was accepted by this
       Court, [Husband] currently earns approximately $23,600 a
       month in gross earnings. This gross monthly figure is
       based upon his 33% percent [sic] of his production (less
       lab fee) which [Husband] is paid by Newtown in addition to
       the $2,600 a month [Husband] is paid by Liberty Dental.
       Therefore, this Court was able to determine that from April
       of 2014 until at least December 31, 2014, [Husband’s
       gross income has increased to an average of $283,000
       yearly, which is almost double the earning capacity this
       Court set in the Final Equitable Distribution Order and
       almost $89,000 over what [Husband’s] 2012 tax return
       showed he earned.

                                 ***

          Initially, this Court notes that there was insufficient
       evidence presented at the [Hearing] regarding [Husband’s]
       distributions from the trust and inheritance he received
       from his father and his mother’s estates.       [Husband]
       candidly admitted that he was able to take yearly
       distributions, which is only distributions of the interest
       generated, which would generally be received on
       December 31, 2013. [Husband] credibly testified that he
       has not invaded the [principal] of the trust account and
       has only received distributions from the interest
       generated.

                                 ***

          This Court did consider [Husband’s] distribution from
       his inheritance and trust when calculating [Husband’s]

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        earning capacity, for the time period when [Husband] was
        solely employed with Liberty Dental and was receiving
        unemployment as his position with Einstein [Medical
        Center] had been terminated, from July 12, [2012] until
        September 30, 2013.

           When issuing the Final Support Order, this Court did
        consider the inheritance received by [Husband] in
        calculating [Wife’s] spousal support; however, this Court
        determined that the inheritance should not be calculated
        as part of [Husband’s] monthly income. This Court notes
        that [Husband’s] credible testimony was that he was able
        to receive a distribution from his inheritance and trust;
        however, there was not testimony that this is [Husband’s]
        consistent practice or that he receives a consistent
        amount. This Court notes that [Husband’s] testimony was
        that he received a distribution in a lump sum on or about
        December 31, 2013, there is no guarantee of the amount
        of distribution or the date of distribution.

           Additionally, this Court determined that even with
        [Wife] at a zero earning capacity and with [Husband] now
        making almost double what the Court had previously
        ascribed as his earning capacity, there was no reason to
        depart from the [support] guidelines and include the one
        time distribution of interest as part of [Husband’s] income.
        This Court notes that the parties’ children are
        emancipated, [Husband] continues to pay the mortgage on
        the marital residence, over and above the spousal support
        award, for the residence in which [Wife] currently resides,
        [Husband] continues to pay the COBRA payments for
        [Wife’s] medical benefits and [Wife] receives alimony from
        [Husband]. Based upon the spousal support award of
        nearly $6,400 a month, plus all the other “benefits” listed
        above, this Court determined that there was no reason to
        deviate from the guidelines and to consider [Husband’s]
        inheritance as part of his income in determining the
        spousal support award.

Trial Court Opinion, 8/6/14, at 16-22.

     The above explanation refutes Wife’s claim that the trial court failed to

consider Husband’s inheritance and access to his trust accounts. We cannot


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disturb the trial court’s credibility determinations regarding Husband’s

testimony. See Doherty v. Doherty, 859 A.2d 811, 812 (Pa. Super. 2004)

(explaining that matters of credibility are solely within the province of the

trial court as fact finder). Moreover, our review of the record supports the

reasons given by the trial court for refusing to deviate from the applicable

support guidelines based upon Husband’s inheritance and trust income.

      In sum, because Wife’s claims are without merit, we affirm the trial

court’s final order of support.

      Order affirmed.



Judge Gantman joins memorandum.

Judge Shogan files a concur in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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